Wednesday, June 14, 2006

Truth, the law and Justice in the USofA -

With all of the hoo-haa doing the rounds about the Rove Grand Jury decision, I did my usual walk-around trying to find out exactly what the story is.

In the course of which I came across these two pieces in Fox News.

The first is the Rove story. The pertinent piece that I am trying to get a handle on is this –
President Bush’s political adviser Karl Rove won’t be charged with any wrongdoing in connection to the investigation of the leak of a covert CIA officer’s identity, Rove's lawyer said Tuesday.

Now, what exactly does that mean? Does it mean he has committed no wrong, in which case he should surely be “NOT GUILTY” of any crime. But no, the finding apparently is “that he will not be charged”.

In NZ, we do not have a Grand Jury process in the same form as the US. Yes there are jury trials, and I understand that in the US they are also different from a Grand Jury. The closest that we might have here would be a “Select Committee Enquiry”, which is in fact formed for the specific enquiry (such as that into the Erebus Air New Zealand DC-10 crash under the chairmanship of Justice Mahon.) The police in NZ, through the Public Prosecutor’s Office and their bosses The Crown Law Office, have procedures in place that decide whether charges should proceed to Court in every criminal prosecution. That process is largely “in camera”, which is a defect in some respects and an advantage in others.

I have mentioned in past posts the difficulty of media coverage of investigations in progress; and this applies predominantly to the more brutal and bloody crimes. The difficulty of media coverage is the subsequent possibility that the evidence and the person charged with the crime have been publicised and published to the extent that it is no longer possible to guarantee a fair and impartial trial.

Personally, I can catch a whiff of that as a possibility in the Rove case. It has taken so long, and has been publicised at such great length that the possibilities of a fair trial have to be in question.

One of the other sources I touched base with is USAToday - always an interesting read...

Their article includes this little quote -
Fitzgerald's decision eliminated the possibility of an indictment that "would have been depressive to the Republicans" on Capitol Hill, said Grover Norquist, president of Americans for Tax Reform and a Rove ally.

Hmmm, "...eliminated the possibility...". Again, surely the most sure way would be "Not Guilty"?

It is at that point that I introduce the second report that came from a sidebar to that first from FoxNews.

It is, admittedly, an op-ed, written by a Wendy McElroy and to make matters worse for some she is a notable feminist. She writes under the title “No Justice for McKinney or Duke 'Rapist'?”.

Now, before you write this off, note the quotes around ‘Rapist’? That is clue number one, because her conclusion may well startle some. It also goes some way toward explaining one other possibility at least in the Rove enquiry. She begins –
There ain't no justice!

To me, that conclusion unites two otherwise distinct legal matters: Rep. Cynthia McKinney's alleged assault of a police officer, and the Duke lacrosse team 'rape' prosecution.

The cases are examples of the law treating people according to who they are and not upon the evidence.

As it is, McKinney and the Duke case shatter the expectation that the law judges people based on evidence rather than politics.

Hmm, ok! Justice according to politics, huh!

Back to USAToday -
Republican Party Chairman Ken Mehlman accused Democrats of pre-judging Rove for political purposes. "The facts show that Karl Rove actually did nothing wrong," he said.

Do they? If so, why the open decision? What would have been wrong with "Not Guilty"?
Democratic Party chairman Howard Dean said the prosecutor's decision "does not diminish the fact that Karl Rove was involved in leaking the identity of an intelligence operative during a time of war."

Well, Howard, you are entitled to your opinion as well. But that is not what the Grand Jury said! Or was it?

Now while McElroy's detail is interesting in terms of how she gets to her conclusion, it is that which hit me in both eyeballs…
One casualty of both McKinney and Duke is the public expectation that the legal system expresses justice.

Restoring confidence is simple. Indict McKinney. Drop charges against Seligmann. Disbar Nifong. Or, rather, it would be simple if politics were not involved. When politics enters, suddenly some people are above the law while other people are beneath it.

Add that to the Rove “non-decision” and suddenly what little clarity there was disappears from the latter entirely.

So, I ask the question again –

IS ROVE “NOT GUILTY” of obstruction of justice and lying? If he is not guilty then why did the Grand Jury not say so, rather than the reported “no charges will be laid”.

I think there is a long way yet to go…


Dave Justus said...

Grand Jury is not at all the same thing as a Jury trial. It sounds similar to your Select Committee Enquiry.

Basically it is the investigation and the decision making process of whether or not to charge someone with a crime. To be honest, I am not totally familiar with exactly how this works, conventional wisdom though is that a Grand Jury will indict on even flimsy evidence.

It is only after an indictment that the case goes to trial, and only after a trial in which 'not guilty' is a possible outcome. Given that our system is based upon innocent until proven guilty, since Rove is not going to go to trial for anything he is innocent.

A Grand Jury cannot declare someone 'not guilty' any more than they can declare someone guilty. They only make the decision on whether to file charges (prosecute) the person for the crime in question.

The probligo said...

Dave, thanks for the explanation. It is far more than I have had from anyone else.

Actually, there is one very specific example of the Select Committee structure that DOES find guilt or not.

It runs under the grand title of "The Priviledges Committee".

It is perhaps most easily understood if you know that Parliament runs under the principle of "Priviledge". That "priviledge places MP's outside and beyond the reach of the common Court structure, in so far as their conduct in the House is concerned.

So, the Priviledges Committee does hear charges and can find guilt, perhaps in best parallel to your Impeachment Proceedings.

Dave Justus said...

Technically, in the U.S. impeachment doesn't find guilt, it removes from office. If the impeachment of Pres. Clinton had found him 'guilty' he would no longer have been President but he would not go to jail or anything. Seperate criminal proceeding could result in that.

The probligo said...

And so we get to the semantics of the difference between "impeachment warranted", "charges proven", and "guilty".

At the other end, of course, is the semantics of "no charges will be laid" (and I still can not work that one out) compared with "there are no charges to be answered".

We had a politician in NZ who, in protest against government carbon tax proposals, drove his tractor up the front stairs of parliament. Everyone watching the news that evening, and every time the topic of Shane Jones came up after that, saw him do it. The police decided, as they are empowered, that prosecution of his action "would not serve justice" and no charges were laid. Does that mean he was "not guilty"? (the charges would have been little more than "doing something stupid with a powered vehicle" but it makes the point).

There would be a direct parallel with McKinney if police were to decide not to press charges in that case. Does that mean McKinney is not guilty of assaulting that police officer if the charges are not made? Technically, yes that would be so. Would justice be served if she were not charged? No.