For the lawyers, and anyone who wants to be Lawyer-for-a-day.

lrd · 03-09-2004, 08:09

I was reading the commentary on the Martha Stewert case and came across this: http://php.indiana.edu/~erasmuse/w/04.03.08a.htm

My question has to do with this statement:

Quote:

What this law says is that if you tell a lie to a federal official, you can be put in prison. Let's think about that.

First, this is not a law just against perjury. There is no requirement that you be under oath. The lie does not have to occur in a courtroom or a government office. As stated, it does not even have to be a lie to a federal official-- it could be a lie to a friend.

Second, your lie does not have to cover up any crime. As stated, you would have to go to jail if you deliberately told the census taker you were a Methodist when you were really a Catholic. Or, as in Martha Stewart's case, it might be that you hadn't committed any crime, but federal police came by thinking maybe you had, and you were afraid what you had done might have been criminal too (even though it turned out it was not), because federal regulations are so intricate, and so you lied. Bang, you go to jail, if the Justice Department decides it doesn't like you or wants the publicity.

Third, no Miranda warning is going to help you. The idea of the Miranda warning is to stop you from incriminating yourself of your previous crimes-- a bad idea, by the way, but there you have it. Here, however, there doesn't have to be any previous crime. So you don't get a warning. You will be committing a crime once you lie, and at that point I suppose the policeman must give you a Miranda warning if he wants to ask you "Did you just lie to me?" and use your answer as a confession. But by then it's too late.

Thus, this a powerful law. Can you escape its reach? Well, you could always tell the truth, which is a good thing to do. But I don't think 5-year federal prison sentences for lying are appropriate, particularly since we don't enforce the law uniformly. (Note, by the way, that a lot of politicians would be in prison if we did enforce it--- and that's not just a joke--- they do tell material lies a lot about matters of public policy.)

I'm not sure what to make of this. What do you think?

Sigi · 03-09-2004, 09:03

She was found guilty of lying to a policeman. Although my family is full of LEO's, I don't think this should be a crime. It most certainly should not carry a 5 year sentence. The best thing to do is say nothing at all. Period. Ever.

But to say that someone should be charged with a crime because they lied to the police - in this case federal officials - is wrong. It is not under oath or in a court of law.

The false statment statute, 18 USC sec. 1001, makes it even harder for people to give any statement at all since it may be construed as a false statement.

As a rule I stay out of trouble. I have, however, made a few mistakes along the way to age 35. Keeping my mouth shut and answering no questions has served me just fine.

18 USC sec. 1001

TITLE 18, PART I, CHAPTER 47, Sec. 1001
Sec. 1001. - Statements or entries generally

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully -

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both.

(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party's counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.

(c)With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to -

(1) administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or

(2)any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate

lrd · 03-09-2004, 09:33

Quote:

Originally posted by Sigi
. . . The best thing to do is say nothing at all. Period. Ever.

But to say that someone should be charged with a crime because they lied to the police - in this case federal officials - is wrong. It is not under oath or in a court of law.

The false statment statute, 18 USC sec. 1001, makes it even harder for people to give any statement at all since it may be construed as a false statement.

So do you think that this will lead to less cooperation with LEOs?

Sacamuelas · 03-09-2004, 09:54

No. Unless you mean from the citizens that commit crimes, cover them up, and lie about it to investigators. Then Yes. Although I don't think those people are the ones that are the people who usually "cooperate" anyway now are they???

NousDefionsDoc · 03-09-2004, 10:22

Quote:

She was found guilty of lying to a policeman.

Might want to check that.

Free Martha NOW! Attica! Attica!

lrd · 03-09-2004, 10:32

Quote:

Originally posted by Sacamuelas
No. Unless you mean from the citizens that commit crimes, cover them up, and lie about it to investigators. Then Yes. Although I don't think those people are the ones that are the people who usually "cooperate" anyway now are they???

So you don't think this will set a precedent? What if you hadn't committed a crime prior to being questioned?

From the Wall Street Journal (subscription required):

Quote:

Maybe there's some rough justice in putting Miss Stewart in an orange jumpsuit for fibbing about the circumstances of that sale with her broker. Manifestly the jury thought so. But in a case ostensibly brought on behalf of sticking up for the forgotten "little guy," we'd like to think prosecutors might have weighed the price paid by the truly innocent here: all the Martha Stewart Living shareholders, employees, executives, and so forth whose livelihoods have suffered tremendously since this case first broke into the headlines and whose futures, like their company, are now in limbo. And it's not just Miss Stewart's company: Kmart, a big buyer of Martha's products, is going to take a hit too.

We also have doubts about what "message" this conviction really does send about lying. In hindsight we can now see that had Miss Stewart said absolutely nothing at all when investigators came calling, she would not be facing jail time today. Our guess is that the corporate defense lawyers are a more reliable guide about the message of this prosecution, and right now they're pretty much all agreed that the real lesson here is to zip up completely when the FBI starts calling. Hard to see how this is a big victory for transparency.

Finally, we come to a point we've stressed before: the absence of an underlying crime. Most of the charges against Miss Stewart were brought under Title 18, Section 1001 of the U.S. Code, which makes it a crime to lie to investigators. The dangers for overreach here should be obvious, and comments made back in 1996 by Supreme Court Justice Ruth Bader Ginsburg and recently unearthed by the New York Sun now look prophetic.

"The prospect remains that an overzealous prosecutor or investigator - aware that a person has committed some suspicious acts, but unable to make a criminal case - will create a crime by surprising the subject, asking about those acts, and receiving a false denial," Justice Ginsburg wrote in a concurring opinion in Brogan v. United States, warning against the "sweeping generality" of Section 1001's language.

In short, in the Schadenfreude afterglow of Martha Stewart's conviction we also see before us the innocent people who will pay the highest price for that prosecution, as well as a huge new incentive for CEOs to clam up next time the feds ask questions.

NousDefionsDoc · 03-09-2004, 10:41

I saw a report on Fox where they said one of the jurors actually said something to the effect of "Well we got that rich bitch." I don't remember the exact wording.

Surgicalcric · 03-09-2004, 10:44

Quote:

Originally posted by NousDefionsDoc
I saw a report on Fox where they said one of the jurors actually said something to the effect of "Well we got that rich bitch." I don't remember the exact wording.

Sounds like grounds for an appeal to me, but what do I know.

NousDefionsDoc · 03-09-2004, 10:48

I thought so too, but the legal experts said no, nothing said in interviews after the tril unless it involves some kind of external pressure. Like bribery or threats.

Surgicalcric · 03-09-2004, 10:52

It would seem to me that if they could show the jury, or a juror had passed judgement on her prior to hearing the defense a case could be argued for a mistrial.

I did not see the Fox News report so I am just going on what sound logical, but then again we are talking about our Federal Judicial System.

Smokin Joe · 03-09-2004, 10:53

I got 10 bucks that says she only gets probation and/or a fine. Also that she doesn't ever see the inside of a jail cell.

Any takers?

**Roguish Lawyer** · 03-09-2004, 10:55

Quote:

Originally posted by Smokin Joe
I got 10 bucks that says she only gets probation and/or a fine. Also that she doesn't ever see the inside of a jail cell.

Any takers?

You're on.

NousDefionsDoc · 03-09-2004, 10:56

I'll take it Joe. She has to go at least a little - federal sentencing guidelines. I saw somewhere where 10 months is the absolute minimum she can do.

Sacamuelas · 03-09-2004, 11:00

I don't remember Sam Waksal (IM clone founder), Ms. Stewart, the stockbroker, or the young assistant running to the AG's office to report their parts in this fiasco on their own free will. From what I remember, they were forced to cooperate in a formal investigation after hiding behind lawyers,etc.

How exactly is your worst case scenario for the aftermath of this conviction not already the norm for CEO's,etc?

No one can make you talk, but I would gladly answer any questions about my past to a federal investigator. i just don't think there is some conspiracy against Martha,Inc. Someone please explain to me why she is being targeted.

BTW- Mr. WAKSAL was convicted of securities fraud for this stock tip/illegal trade information that he gave to the broker for Martha. Martha got away with it on her end for the very reasons you guys say "might" hurt the other future investigations. She kept her pie hole shut and so did the others initially. She lied, she told half the story, and she misled. Otherwise, she would be looking at insider trading too. This future lack of cooperation argument is a crock...

Sigi · 03-09-2004, 11:05

Quote:

Originally posted by lrd
So do you think that this will lead to less cooperation with LEOs?

As a general rule I don't go out of my way to make the LEOs' job more difficult. But there are questions that the police ask that don't need answering.

Like I said I have a family full of LEO's (both Federal and local.) I have heard so many "got one over on the bad guy" stories that it is old hat. The police can lie and stretch the truth to get a confession, but turnabout is not fair play?

I watch cops once in awhile and I laugh at what people tell the police. Sometimes it's better to say nothing at all.

Once upon a time I was at a private party during college. The police had broken that party up 3 times over the fall. When the police knocked at the door I told the guy "Do not open the door." They left. There are limits to what the LEO's can do. Some people do not know those limits.

Note to NDD: She lied to a federal officer. I said policeman. Is that what you meant?