The Bishop and the Butterfly: Murder, Politics, and the End of the Jazz Age
    jollyroger's picture

    No jury would convict.

    By jollyroger on Sat, 09/13/2014 - 1:11am |

    If ever there were a profound argument in favor of the principal that jurors ought properly to exercise their independent discretion to nullify a criminal charge, this would be it.

    In a truly stomach turning codicil to the James Foley saga, we learn that his family members were the recipients of explicit threats that payment of the ransom to save his life would make them criminally liable.

    I suppose the specific charge would be that convenient omnibus, "rendering material support to terrorists" although surely in this case that would be a sick joke.

    Indeed, in this time of crowd funded charity (GoFundMe.com) it is far from impossible that a pretty good run could have been made at the $100 Million ransom demand.  Certainly enough to give a hostage negotiator a fighting chance to save Foley.

    So I put it to you--assume, arguendo, you are sitting on a criminal jury deliberating whether to imprison his mother for 20 years on a charge of materially aiding ISIS after she ransoms her son.

    The judge has explicitly instructed you that you may consider only the fact of her payment of the ransom, without regard to the fact that her motivation was not (needless to say) advancement of the aims of ISIS, but saving her son's life.

    Do you vote to convict?

    Comments

    One might also think that the common law defense of coercion would support a motion to dismiss any charges before even going to trial.  

    Coercion and Duress

    Coercion and duress is an affirmative criminal defense that basically says you were forced to commit a crime because you were threatened with unlawful force. This unlawful force does not have to actually occur. Merely the threat of unlawful force can be enough to satisfy the coercion defense.

    The force or threat of force does not have to be threatened against the individual accused of the crime. Rather, it could have been used against or threatened against another individual, such as a family member.

    The coercion and duress defense cannot be invoked if your reckless actions put you in the situation that caused duress. For example, if you were to take part in a drug deal, which then led you to become subjected to unlawful force that then led you to commit another crime, such as robbery, you would not be able to use this criminal defense successfully.

     


    by jollyroger on Sat, 09/13/2014 - 1:31am

    Reuters:

    ABC News quoted Foley's mother and brother as saying a military officer working for President Barack Obama's National Security Council..

    "A military officer ". "A military officer". Repeat "A military officer". Not "a DOJ lawyer". A military officer who had access to her phone number.

    In case anyone has lost familiarity we have a plethora of wackjob military officers (and cops: ....re:Ferguson, and wackjob politicians, former Vice Presidents and Vice President candidates, and billionaires for that matter)....the US often seems replete with wackjobs.. we had one General who said in 2003:

    "Well you know what I knew, that my God was bigger than his," said Lt Gen Boykin. "I knew that my God was a real God, and his was an idol."

    Obama should stop the DOJ investigations of journalists, like James Risen who informed us on what the CIA was up to, and has been hounded for who leaked the story: my verdict 'not guilty'.....

    Obama should have the DOJ start an investigation to find out who this 'military officer' was, who the military officer's superior was, whose idea the call was, and whose phone was used from call logs.


    by NCD on Sat, 09/13/2014 - 2:13pm

    The NSC is an arm of the office of the president and it says he was assigned to it. To me, a request for any such investigation would reek of c.y.a. I find it hard to believe top levels didn't know and approved and asked for that kind of threat. Maybe the higher ups don't like how the guy executed it,  i.e., possibly could have worded the threats more subtly, and they will fire him and get another more subtle messenger on staff for future similar duties. Suffice it to say that I don't believe the President didn't know this kind of threat was being issued to them.

    This is big federal government, folks. When you say you want FDR-style government, you get at minimum a tad of Kafka along with it: we will handle this kind of thing, no individualism allowed, you are not allowed to help yourself If it concerns the security or some other kind of welfare of all citizens,  the individual may get screwed, may get sacrificed for the good of the whole. Where you aren't always allowed to help yourself, you must go with what the powers-that-be say is good for the whole or suffer prosecution. This is the same as public health when people unfairly get quarantined or are required to do things they don't want to do and this is the same as what happened with the internment of Japanese-Americans during WWII. Furthermore: the bigger the government is, the greater the numbers hired to work for it and the lesser the numbers in private employment, simple numbers means the more chance jerks and stupid idiots could have power over your life. Yes, they have power over your life now in private enterprise, i.e., with credit rating or something similar. But compare the power government employment invests them with.


    by artappraiser on Sat, 09/13/2014 - 3:02pm

    P.S. A reminder that there was a failed secret ops U.S. rescue attempt in Syria. Threats to family of hostages to sit down and shut up and stay out ot the way would naturally be part of something like that. This is government taking 100% control. (No different than with a private criminal kidnapping; once you  call the F.B.I. you are forced to get out of the way and do what they tell you  to do.) I really find it hard to believe Obama did not approve, either that or the rescue attempt was a rogue operation that he had no knowledge of either.


    by artappraiser on Sat, 09/13/2014 - 4:42pm

    A typically wacky speculation. The 'military officer's' name is not even known and you're off to construct scenarios connecting Obama. The call is hearsay, has not been testified to in court, the officer is unknown, and the content of the call being somehow deviously scripted by Obama is pure fantasy.

    Good job, ranks with your not caring about troops dying in the illegal Iraq War because it's just politics, and they signed up to be killers.

    The Risen case is a widely known disgrace relating to press freedom, has been pursued by the Obama DOJ, and could be ended by Obama tomorrow.


    by NCD on Sat, 09/13/2014 - 6:01pm

    could be ended by Obama tomorrow.

    So why hasn't he? You are arguing two sides of the coin here. It's still happening because he wants it to happen.

    Obama is pretty cold-blooded on anything that has to do with counter-terrorism. And in my humble opinion now after years of reading on his handling of it, that's not cynical and it's not political, it's a core belief. He shows no evidence of tossing and turning at night over "collateral damage" of any kind in that realm.

    As to the military officer, the article you cite says he was  a military officer working for President Barack Obama's National Security Council.  It's right there in black and white. Not the Pentagon, not the D.O.D. The NSC is part of the executive office of the president of the United States. This "military officer" was working under Susan Rice under President Obama.


    by artappraiser on Sat, 09/13/2014 - 6:37pm

    Maybe it will be less confusing if you look at the Sotloff family's similar complaints; they don't bother with  specific details like "a military officer working for the White House's NSC", they are just complaining about "the White House."

    It's pretty clear to me "the White House" was in charge of all of this "ISIS hostages and their families" stuff. If you don't think Obama is in control of what goes on at the White House, that's fine with me, but do think about the other consequences if that becomes the standard interpretation of what's going on with his presidency.


    by artappraiser on Sat, 09/13/2014 - 7:07pm

    Here's more: the Sotloff's said they got the same threat from "a White House counterterrorism official" who "works for the National Security Council":

    ....The parents of murdered journalist Steven Sotloff were told by a White House counterterrorism official at a meeting last May that they could face criminal prosecution if they paid ransom to try to free their son, a spokesman for the family told Yahoo News Friday night.

    "The family felt completely and utterly helpless when they heard this," said Barak Barfi, a friend of Sotloff who is serving as a spokesman for his family. "The Sotloffs felt there was nothing they could do to get Steve out."

    The journalist's father, Art, was "shaking" after the meeting with the official, who works for the National Security Council, Barfi said....


    by artappraiser on Sat, 09/13/2014 - 7:25pm

    "Fuck yourself, this is our son" would seem to me an unimpeachably appropriate response for the families to have given whatever emissary of the government was the conduit for this obscene threat.


    by jollyroger on Sun, 09/14/2014 - 12:54am

    reek of  c.y.a.

     

    You sound like the sort of cynic who scoffs at the coming NFL investigation of itself helmed by the esteemed Bobby Three Sticks (Rbt. Muller, esq)


    by jollyroger on Sun, 09/14/2014 - 1:05am

    Maybe this is illustrative  as an aid to consider.

    Here is a contrast of two individuals;

    excerpts from 

    Thomas Andrews - The World

    Background. 

    Thomas Andrews, the chief designer of the "Titanic" and that of J. Bruce Ismay, the president of the White Star Line

    Thomas Andrews:

    At that point it was clear that saving himself would have cost the life of someone else. It was that cut-and-dried. There were only so many places in the boats. Any place that he took could have been occupied by someone else.

    J. Bruce Ismay;  Like Andrews, he had been assisting people into the boats, but when no more could be found and his boat was about to launch, he jumped in himself.

    “Although Ismay had some defenders, the most potent case against him was made by Rear-Admiral A. T. Mahan (as quoted by Colonel Archibald Gracie (US Army) in The Truth About the Titanic):”

    “We should be careful not to pervert standards. Witness the talk that the result is due to the system. What is a system, except that which individuals have made it and keep it?

    Whatever thus weakens the sense of individual responsibility is harmful, and so likewise is all condonation of failure of the individual to meet his responsibility.”

    Every American who went into another country KNEW the standard. The American government will not pay a ransom or allow one to be paid, that is the standard.

    Whatever thus weakens the sense of individual responsibility is harmful, and so likewise is all condonation of failure of the individual to meet his responsibility.” 


    by Resistance on Sat, 09/13/2014 - 3:13am

    I draw the line at the Government refusing to defray a ransom with public funds.  Theatening criminal prosecution to dragoon a mother into the service of some purportedly thought through policy is obscene.

     

    Also, Malia?


    by jollyroger on Sat, 09/13/2014 - 3:38am

    I would be one of the jurors that would not convict the mother. I understand the government's point that paying would only encourage other kidnappings. 

    There is the question that once crowd funding for kidnappings is begun, what happens when a group of people are kidnapped? Would the ransom for those from families with more resources and wealthy connections get paid while those from less wealthy families are left behind?


    by rmrd0000 on Sat, 09/13/2014 - 10:58am

    Exactly this. The mother's actions might have led to ten other men suffering the same fate as her son, but a) that's a hypothetical future issue, and b) this is her son. I do not expect rational actions in such a situation.


    by Verified Atheist on Sun, 09/14/2014 - 8:56am

    Would I vote to convict? Certainly not.

    The Foleys were under no obligation to comply with instructions from the Counter Terrorism Expert with whom they were dealing.It was up to him to convince them that it was in Foley's interest that they cease -or at least defer-any attempt to raise the ransom.

    New subject.Did Obama himself know that the CTE was going to threaten the Foley's with prosecution? Dunno. First, it's a big government and the President can't know everything being done by all his minions.And any one of them might think it was expected of him to protect the President by not informing him of something like that threat.

    "Will no one rid me of this troublesome priest?"


    by Flavius on Sat, 09/13/2014 - 10:22pm

    Actually, I come down on the other side.  This was a high profile issue, there were meetings "at the highest level" to discuss the rescue raid, I find it very likely that something like the following exchange took place :

    Obama  "Have the parents made any moves towards raising the ransom?"

    unnamed adviser : "No, and we let them know that we would consider it grounds for prosecution--I saw the expressions on their faces--they won't bust move one"


    by jollyroger on Sun, 09/14/2014 - 2:35am

    They're gonna keep doing it:

    ISIS Video Shows Execution of David Cawthorne Haines, British Aid Worker


    by artappraiser on Sun, 09/14/2014 - 11:39pm

    So sad,  I pray these manslayers will be brought to justice.

    Edit to correct 

    I pray these evil doers will turn back from their wicked ways.


    by Resistance on Sun, 09/14/2014 - 11:09pm

    They're evil.


    by Flavius on Sun, 09/14/2014 - 10:40pm

    I take it that these two sentiments may be parsed as follows:

     1, a request to the deity that he avenge the deaths of the innocents by appropriate measures against the killers.

     

    2. a request to the deity that he bring repentence (metanoia, change of mind) to the evil doers (the administration) so that it will renounce and reject the stated threat to prosecute families who try to ransom their loved ones.

     

    If forced to bet, I would not put money on the successful outcome of either prayer; whether this points to shortcomings in the deity or the petitioner (or both) is not susceptible of rational analysis

     


    by jollyroger on Sun, 09/14/2014 - 11:40pm

    It is worth a try  isn't it.

    JR;  Is it possible the beheading victims and other ISIL victims were pawns in a scheme, not be interfered with ? 


    by Resistance on Mon, 09/15/2014 - 12:50am

    were there an impulse within the administration to re-enter the fray, seeking thereupon an unfolding atrocity to energize an otherwise war weary public, maybe. 

     

    That, however, is not a description of Obama's administration, at least not at the highest and therefore most responsible levels.

     

    I think this is the usual case of incompetence and incapacity explaining what might, in other circumstances, be attributable to conspiracy

     

    I consider the threats to the families evil enough for the nonce.


    by jollyroger on Mon, 09/15/2014 - 1:43am

    The removal of Maliki.  


    by Resistance on Mon, 09/15/2014 - 5:22am

    They just want to make sure we all give them respekt due as most badass gang on the planet.

    A lot of them are looking more and more like characters Joe Pesci might play.  Sure ain't about Allah anymore.


    by artappraiser on Wed, 09/17/2014 - 5:32am

    And no one will be granted such goodness...

     

    No virgins for you!

     

    Edit to add: The real James Conway (Jimmy Burke) has been quoted to the effect that the real guy who Joe Pesci played in Goodfellas was WAY more casually homicidal even than as portrayed,  For instance, one time having bought a "new to him" gun which he was carrying home in a paper bag, he passed a guy on the street, pulled it out, and killed this utter stranger "to test the gun".


    by jollyroger on Wed, 09/17/2014 - 6:49am

    "We didn't threaten anybody....but we made clear what the law is"

     

    These scumbags lack even the courage of their oppression.  Plus, they are morons if they think this formulation in any way mitigates what they did.

     

    Precious Blood of the Sweet Baby Jesus, what a pack of craven assholes!

     

    Edit to add (NCD, I'm talkin' to you) if anyone thinks that Obama is not the Craven-Asshole-in- Chief here, he has drunk too much koolaid to retain the ability to think this through.


    by jollyroger on Sun, 09/14/2014 - 11:21pm

    Yeah..I'm someone who thinks it's quite possible that Obama was not personally involved in the decision to threaten the parents with prosecution if they attempted to raise the ransom.


    by Flavius on Mon, 09/15/2014 - 8:52am

    If you take the (un)Patroit Act and couple it with the Posse Comitatus Act [https://en.wikipedia.org/wiki/Posse_Comitatus_Act] that Bu$h re-wrote ... there would never be a trial or jury ... you're automatically guilty of aiding and abetting the enemy : A person charged with aiding and abetting or accessory is usually not present when the crime itself is committed, but he or she has knowledge of the crime before or after the fact, and may assist in its commission through advice, actions, or financial support.

     

    This is a perfect example where the English language and the written Law are mutually exclusive ... common sense is trumped by chicken little.


    by Beetlejuice on Sun, 09/14/2014 - 11:19pm

    There is now way that I, as a juror, would vote to convict anybody for paying a ransom to save a loved one.  Many judges would not let such an action eve reach a jury.  Pursuing such prosecutions is both heartless and dumb.

    That said, I can see why the administration has been so ham handed in the recent cases, given that the crowd-funding world we live in now allows people to raise cash to meet even the most absurd ransom demands.  If the administration thinks that a group like ISIS would take the ransom money and kill the hostage anyway and loved ones now have access to raising very large amounts of cash, you can see the cause for worry.


    by Michael Maiello on Mon, 09/15/2014 - 6:50am

    I think you give the admin. too much credit--for one thing, many hostages have been successfully ransomed, for amounts in the 1-3 million dollar range, often (to the annoyance of our government and that of Britain) government funded.  I don't think the motivation was fear of a double cross.

     

    As I said above, I don't oblige the government to shell out the dough, but I deeply deplore their interference with a family's right to raise whatever amounts they can.  It's pure chest thumping theatre, especially since the marginal value to ISIS of any ransom cash is puny compared to the one to two million dollars per day estimated to be their take from the complaisance of( our NATO ally)  Turkey in facilitating the sale of black market oil from their Iraqi fields.


    by jollyroger on Mon, 09/15/2014 - 8:28am

    The French have been highly successful in freeing their hostages by paying ransom. So successful, in fact, that now 1/3 of all hostages taken are French:

    Of the fifty-three hostages seized by ‘official’ al-Qaeda branches over the past five years, one third were French, while Austria, Spain, and Switzerland together account for 20 percent of victims. Only three hostages, 5 percent of the total, have been American.

    In short, not only do paying ransoms fund these terrorist organizations, it also encourages future hostage taking. Again, I do not blame a parent for not taking this into consideration, but I do blame governments.


    by Verified Atheist on Mon, 09/15/2014 - 9:12am

    Compelling numbers, to be sure.  Of course, once one has been snatched, one's concern for tomorrow's unfortunate is somewhat likely to be eclipsed by the way that impending death concentrates the mind.

     

    I suppose this is the typical conflict between policy and the personal.


    by jollyroger on Mon, 09/15/2014 - 9:43am

    It all depends on who you ask. I recall suggesting that jury nullification would be the correct thing in Bradley Manning's case. He had absolutely broken a law although it was ignored that he had done so in adhering to other laws which should have been over-riding. He broke the law in the process of doing something important, honorable, and otherwise 'good'. Of course he had no chance of that relief with a military judge, prosecutor, and jury judging his actions and the Commander in Chief having already pronounced him guilty, of already having judged 'him'. Plenty of people agreed with the C in C so that case would have hinged on the prowess of the defense lawyer in picking at least one gutsy juror if the case had been in a state court.

    It all depends on who you ask. Jury nullification has a potential downside with O J's case an obvious example. I first became interested in the idea of nullification as a young man in Texas when people were facing up to life in prison for posession of an identifiable amount of pot and when an acquaintance received that sentence because he was a Mexican-American and he was an anti-war activist and because he had a very pretty white girlfriend.  

    To my mind, the case in question here would be much harder to judge even though anyone could understand and be completely sympathetic if the parents had raised the ransom and paid it.      


    by LULU (not verified) on Mon, 09/15/2014 - 12:07pm

    Well, of course, the "rubber meets the road" with nullification when the jury instructions are given.   

    Even though there is apparently a common law right for a juror to refuse to return a guilty verdict (as opposed to the prior proven/not proven) where the juror refused to find culpability despite the facts of the charge having been proven, judges will not so instruct, as far as I know, and I don't believe that a convicted defendant can prevail on appeal based upon such refusal.

     

    So it's more of an underground legal principal, although it is clearly honored now and then.

     

    I think the other side of the coin arises when a judge threatens a nullifying juror with sanctions (contempt) where the juror is candid about his or her reasons for refusing to vote "guilty".  In such case, the prudent approach is simply to dig in one's heels and contend that some point of reasonable doubt has seized one's consciousness.


    by jollyroger on Mon, 09/15/2014 - 1:24pm

    NYT according to interviews with two dozen people, including members of Mr. Foley’s family, witnesses to his time in captivity, his colleagues and a network of consultants who tried to win his release.

    For Foley’s Family, Policy Offered No Hope

    By RUKMINI CALLIMACHI

    After James Foley was kidnapped by ISIS, the government offered sympathy but little active support, his family said, leaving them overwhelmed and unsure of what to do.


    by artappraiser on Tue, 09/16/2014 - 9:41am

    Interesting that Mrs. Foley's efforts at present, to prevent her son's death from being "in vain" center around preventing further victimization of families by our own government.

     

     


    by jollyroger on Tue, 09/16/2014 - 5:39pm

    Hagel "We could and should maybe revisit..."  Short of an apology, less than coherent,


    by jollyroger on Thu, 09/18/2014 - 2:08am

    how did he end up being the fall guy in front of Congress for the White House, the N.S.A. and the F.B.I.? Strange.


    by artappraiser on Thu, 09/18/2014 - 3:56am

    It continues to be an issue. The U.S. op to rescue Luke Somers killed South African Pierre Korkie hours before he was to be released for paid ransom:

    At 6, Awaiting Hostage’s Release. After 8, Learning That He’s Dead.

    By RUKMINI CALLIMACHI

    Hours from being released by Qaeda abductors in Yemen, in return for a $200,000 ransom arranged by his family and a charity group, Pierre Korkie of South Africa was killed as Navy SEALs tried to rescue his American cellmate.


    by artappraiser on Tue, 12/09/2014 - 11:55pm

    So sad. The right hand doesn't know what the left hand is doing.


    by Resistance on Wed, 12/10/2014 - 12:14am

    In a subtext not entirely without it's ironic aspects, given the rather modest price for the companion hostage, and granting that the timing of the raid was do or die that day, might not our guy have been purchased alive for less than it cost us to get both of them back dead?

     

    But, then, we do not negotiate, blah, blah, blah.


    by jollyroger on Wed, 12/10/2014 - 5:53am

    RANSOM 

     


    by Resistance on Wed, 12/10/2014 - 7:55am