Thursday, February 6, 2014

ENTRAPMENT: "I know it when I see it!"

It's up to the NATO3 jury now . . .

As I write these words, the closing arguments in the NATO3 trial are being made in Cook County Court.

As important as anything that gets said in those closing presentations are instructions that will be given by the judge to the jurors.  I am grateful for my correspondent M, who has been attending the trial every day and faithfully providing summaries to the rest of us, including specifics on arguments over those instructions.

Notably, M told us that yesterday the prosecution
argued that the defense had been using “soft entrapment” language and arguments throughout the trial. Prosecutors claimed the defense attorneys had danced around the word “entrapment” in their opening arguments, using every word except for that to describe the undercovers' actions and statements. Further, they argued, the defense attorneys' questions during cross examination were intended to cause the jury to infer entrapment. Thus, the jury should be instructed that the defendants would have to admit guilt to every element of each charged offense to claim an entrapment defense, the prosecutors argued. They advanced this argument even though the defense had just rested their case without presenting any formal defense against the charges. Nevertheless, the judge agreed with the prosecution's claims of “soft entrapment” and said that if they continued in their closing arguments as they had been thus far, he would provide the jury with the state's instruction about entrapment.
Which brings us to the magic word "entrapment."

The legal system contains many formal definitions and procedural rules.  One is that the word "entrapment" can't be used until the defendants first admit that they are guilty of something.

It's important to point out that this is a "lawyer" rule, not a "normal person" rule.  To any normal person, it is clear that the police can and do engage in entrapment, and that it is not necessary for one to believe that an actual crime has been committed in order for it to be clear as day that entrapment has been taking place.

This is extremely important because -- whether people recognize it at a conscious level or not -- the NATO3 trial is predicated on punishing people for things that they thought.  So let's all say it: the undercover cops goaded and prodded and coerced the defendants to think thoughts about hurting somebody, and though the defendants never hurt anybody or tried to hurt anybody, the trial has been full of testimony that, in essence, aims at suggesting, "Well, they shouldn't even have allowed themselves to think it!"

So: use your common sense.  Is that entrapment? It sure looks that way to me. As a judge once famously said of pornography, "I know it when I see it!"

Which brings us to another magic word: "jury nullification." It is within the power of U.S. juries to bring a "not guilty" verdict as a way of indicating that they find the law(s) under which the charges are brought to be unacceptable.  Their finding of "not guilty," in effect, serves to "nullify" the offending law.  (A big topic -- for starters see the article on "jury nullification" on Wikipedia.)

The jury in the NATO3 case should nullify the senseless laws and procedures under which these young men are being prosecuted for their behavior and thoughts in the context of entrapment (common sense meaning) by law enforcement.

And then we need to get to work freeing all the other people who have been entrapped by U.S. law enforcement, with special emphasis on all the Muslim men who have been thrown in prison following cooked-up FBI plots.

Related posts

Far from bringing to light any kind of threat to public order, the prosecution of three young men in Cook County court is illustrating just how bad the surveillance and persecution state we live in has become.  Frankly, it's a mystery to me why State's Attorney Anita Alvarez -- or, if not her, at least someone she answers to -- didn't pull the plug on this embarrassing proceeding before it got this far.

(See NATO3 in 6 words: "Those 3 guys are getting railroaded.")

I think the U.S. is in the midst of a big shift.  I think that for over a decade following 9/11 people have been so enmeshed in fear that their instincts weren't working properly. I think that we are in the midst of a slow process of awakening: people are emerging from the shadow of fear to a wider range of sensibility -- and they are realizing there are some things that are out of joint.

(See Too Much State Power? (Asymmetric Warfare and Asymmetric Policing))

 "He could not help feeling a twinge of panic. It was absurd, since the writing of those particular words was not more dangerous than the initial act of opening the diary." (George Orwell, 1984 - p. 16) Luckily, we don't have to experience this kind of fear and paranoia and self-censoring in America! (or do we??)

(See Building Metropolises of Self-Censorship)