Philip Greenspun’s Weblog

“Cops worked to put serial sex abuser in prison. Prosecutors worked to cut him a break” (Miami Herald) seems intended to provoke outrage among readers (the three-article series is titled “Perversion of Justice”). I wouldn’t expect criminal defense lawyers to complain, however, as the article shows the value of hiring the right attorney.

It was Epstein’s contacts with powerful and famous people that first propelled him into the public spotlight. In 2002, he flew former President Bill Clinton, actor Kevin Spacey, comedian Chris Tucker and others to South Africa on his private jet as part of a fact-finding AIDS mission in support of the Clinton Foundation.

But Epstein, a Clinton donor who contributed hundreds of thousands of dollars to Democratic candidates and causes, realized that his Democratic connections weren’t going to help him in 2006, when the federal prosecutor was Acosta, a conservative Republican appointed during the George W. Bush administration.

The story is too involved to summarize, but the alleged perpetrator hires the right lawyers for the job and the Feds begin to see the allegations (paying teenagers to have sex) in a softer light:

Assistant U.S. Attorney A. Marie Villafaña was the lead prosecutor on the Jeffrey Epstein case and seemed at times to want to minimize the severity of the potential charges. In one email to a lawyer for Epstein, she wrote: ‘I’ve been spending some quality time with Title 18 [the U.S. criminal code] looking for misdemeanors.’

“How a future Trump Cabinet member gave a serial sex abuser the deal of a lifetime” (same series) features a photo of the defendant’s Gulfstream, N212JE, a 2007 G550 registered to a Virgin Islands LLC. (Score a victory for Gulfstream’s PR agency; the word “Gulfstream” does not appear in the article. The G550 is instead characterized only as a “private plane” despite its centrality to the case, in which flight logs were pulled and on which sex that violates U.S. law may have been purchased.

Not only would Epstein serve just 13 months in the county jail, but the deal — called a non-prosecution agreement — essentially shut down an ongoing FBI probe into whether there were more victims and other powerful people who took part in Epstein’s sex crimes, according to a Miami Herald examination of thousands of emails, court documents and FBI records.

The pact required Epstein to plead guilty to two prostitution charges in state court. Epstein and four of his accomplices named in the agreement received immunity from all federal criminal charges. But even more unusual, the deal included wording that granted immunity to “any potential co-conspirators’’ who were also involved in Epstein’s crimes. These accomplices or participants were not identified in the agreement, leaving it open to interpretation whether it possibly referred to other influential people who were having sex with underage girls at Epstein’s various homes or on his plane.

Instead of being sent to state prison, Epstein was housed in a private wing of the Palm Beach County jail. And rather than having him sit in a cell most of the day, the Palm Beach County Sheriff’s Office allowed Epstein work release privileges, which enabled him to leave the jail six days a week, for 12 hours a day, to go to a comfortable office that Epstein had set up in West Palm Beach. This was granted despite explicit sheriff’s department rules stating that sex offenders don’t qualify for work release.

So the guy with the dream legal team serves roughly the same amount of prison time as would someone in Massachusetts convicted of questioning a person with XY chromosomes who was entering the locker room reserved for “women” and “girls” (punishable by up to a year in jail).

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Alger Hiss is covered in The Great Trials of World History and the Lessons They Teach Us, by Douglas Linder.

I dimly remembered the Alger Hiss case as a prelude to McCarthyism, but the case turns out to be a compelling example of what not to do.

Hiss was almost certainly guilty of working for the Soviets, but he couldn’t have been prosecuted for that due to a five-year statute of limitations on treason/espionage (at the rate that Robert Mueller’s investigation is going, let’s hope that this is extended for Donald Trump!). From the course notes:

In the 46 years that Alger Hiss lived after his perjury conviction, he
never departed from his claim of innocence. But he and his supporters
found their case weakened in the mid-1990s with the release of the
Venona cables, intercepted communications sent to Moscow by Soviet
agents in the United States. The intercepted cables suggested that Hiss
was a Soviet agent who had supported the Communist cause at the
1945 Yalta Conference.

Hiss would have gotten away with everything if he hadn’t denied via letter and then via testimony in Congress that he was a working Communist. He claimed never to have met Whittaker Chambers, a guy who told Richard Nixon that Hiss and his wife were birdwatchers and “had once been excited to spot a prothonotary warbler.”

A turning point in the investigation came when Richard Nixon asked,
“What hobby, if any, do you have, Mr. Hiss?” Hiss answered that his
hobbies were “tennis and amateur ornithology.” Congressman John
McDowell jumped in: “Did you ever see a prothonotary warbler?” Hiss
fell into the trap. He answered enthusiastically, “I have—right here
on the Potomac. Do you know that place?” This response convinced
previously skeptical committee members that Chambers had been
telling the truth.

Hiss then went so far as to sue Chambers for slander and discovery in that case revealed “65 typewritten copies of State Department documents, and five strips of microfilm featuring photographs of State and Navy Department documents.” Chambers had actually been trying to spare his former friend and Communist comrade Hiss from a lot of embarrassment.

From the course notes:

The confrontation between Chambers and Hiss initiated a polarization
of the political left and the political right. Chambers saw the world as
a battle between godless Communists and Christian anticommunists,
between darkness and light. Liberals largely rejected this division as
arrogant and overly simplistic.

I’m not sure that we can attribute today’s political divisions to the struggles against Communism in the 1940s and 1950s. For one thing, a larger percentage of the U.S. economy is centrally planned than the Russian or Chinese economies.

But the Hiss case certainly shows the virtues of keeping quiet about past misdeeds! (The course also covers the prosecution of Oscar Wilde, which never would have happened if Wilde hadn’t first sued a friend’s father for libel in the form of a note calling him “a posing sodomite.”)

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One idea that we have these days is that DNA evidence and scientific evidence in general is the gold standard for a jury.

One thing I learned The Great Trials of World History and the Lessons They Teach Us, by Douglas Linder, a professor at the University of Missouri–Kansas City School of Law, is that the trial of the Scottsboro Boys included excellent scientific evidence.

From Wikipedia:

The Scottsboro Boys were nine African American teenagers, ages 13 to 20, falsely accused in Alabama of raping two White American women on a train in 1931. The landmark set of legal cases from this incident dealt with racism and the right to a fair trial. The cases included a lynch mob before the suspects had been indicted, all-white juries, rushed trials, and disruptive mobs. It is commonly cited as an example of a miscarriage of justice in the United States legal system.

The U.S. Communist Party took over the defense of these guys. From the course notes:

The star prosecution witness was Victoria Price. Direct examination was brief, lasting only 16 minutes. Price recounted her trip to Chattanooga, a fight that had broken out on the train between white and black youths (the reason the train was stopped in the first place), and the alleged gang rape. Prosecutor Knight’s strategy was to cover the essential facts in a condensed, unadorned way. He wanted to minimize opportunities for defense attorneys to expose contradictions with the more detailed story Price had told in the first trials.

Leibowitz’s cross-examination of Price was merciless. His questions suggested his answers. She never, as she claimed, stayed at Callie Brochie’s boardinghouse in Chattanooga. There was no boardinghouse, no Callie Brochie. Semen that had been found in Price’s vagina came not from rape on a train, but from an adulterous encounter with a man named Jack Tiller two days earlier.

Dr. R. R. Bridges, the Scottsboro doctor who examined the girls less than two hours after the alleged rapes, was the next prosecution witness to take the stand. He turned out to be a better witness for the defense. He confirmed that semen was found in the vaginas of the two women, but observed that the semen contained no live sperm—even though sperm generally survive for 12 to 48 hours after intercourse. On cross-examination, Bridges admitted that the women were both calm, composed, and free of bleeding and vaginal damage when he had examined them two hours after the alleged rape.

Even without modern DNA evidence, therefore, the jury could have acquitted these guys on scientific grounds. There was conflicting evidence from the two women at the second trial:

The defense’s final witness was Ruby Bates, who said that she suffered from a troubled conscience after her testimony in the first trial and had returned to tell the truth about what happened. Bates testified that there was no rape, that none of the defendants touched her or even spoke to her. She said that her allegation had been made up after Price told her “to frame up a story” to avoid morals charges.

(Not as confusing as the first trial, in which one defendant said that the rapes had occurred, but were perpetrated by the other defendants. From Wikipedia: “Defendant Clarence Norris stunned the courtroom by implicating the other defendants. He denied participating in the fight or being in the gondola car where the fight took place. But he said that he saw the alleged rapes by the other blacks from his spot atop the next boxcar”)

So we do have a lot more scientific tools at our disposal these days, but it seems that there was plenty of science back in the 1930s and it wasn’t enough to keep these guys out of jail.

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“A $2 Billion Question: Did New York and Virginia Overpay for Amazon?” (nytimes):

Gov. Andrew Cuomo defended the deal, arguing that New York has to offer incentives because of its comparatively high taxes. At 6.5 percent, New York’s corporate income-tax rate is only modestly higher than Virginia’s 6 percent, according to the Tax Foundation. But other business and individual taxes are higher in New York.

“It’s not a level playing field to begin with,” Mr. Cuomo said in an interview Tuesday. “All things being equal, if we do nothing, they’re going to Texas.”

In the history of the U.S., how many times has a governor admitted that, absent special treatment, a company would be better off locating in a different state?

[Separately, any family court plaintiff suing an Amazon worker will be very grateful that the company didn’t move everyone into Texas, where the profitability of a child is capped at about $20,000 per year and “lifetime alimony” typically turns into “no alimony”.]

Related:

• https://philip.greenspun.com/blog/2018/11/13/amazon-settles-into-low-tax-new-york-city/
• https://philip.greenspun.com/blog/2018/11/14/the-amazon-hq2-deals-show-how-to-implement-a-planned-economy/

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If you’re traveling today, God help you!

I made it back to Boston from Denver via United Airlines on Wednesday. Buried in the fine print of a “Fare Breakdown” was “September 11th Security Fee: $11.20”. There is also “U.S. Passenger Facility Charge: $9.00”

It has been 17 years since 9/11. Why do we still pay a fee associated with that event? The TSA is not temporary. If we have a permanent high cost of going through an airport, shouldn’t that just be added to the “facility charge”? That would make it an even $20.

Inquiring minds want to know!

(Separately, my hotel in downtown Denver tacked on a mandatory “resort fee” that added roughly 10 percent to the cost of the stay. What stops them from selling rooms at $1 via Orbitz or Expedia and then using fine print to note that there will be a mandatory $175/night “resort fee”?)

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Thanksgiving weekend seems like a good time to ponder the big picture.

Here are a couple of potentially helpful articles. From Newsweek:

The United States has spent nearly $6 trillion on wars that directly contributed to the deaths of around 500,000 people since the 9/11 attacks of 2001.

Brown University’s Watson Institute for International and Public Affairs published its annual “Costs of War” report Wednesday, taking into consideration the Pentagon’s spending and its Overseas Contingency Operations account, as well as “war-related spending by the Department of State, past and obligated spending for war veterans’ care, interest on the debt incurred to pay for the wars, and the prevention of and response to terrorism by the Department of Homeland Security.”

The final count revealed, “The United States has appropriated and is obligated to spend an estimated $5.9 trillion (in current dollars) on the war on terror through Fiscal Year 2019, including direct war and war-related spending and obligations for future spending on post 9/11 war veterans.”

This could explain why many Americans aren’t all that thankful. The economy has grown, but $6 trillion of the growth has been spent on something that does not make us better off.

“Taxpayers Cannot Afford More Subsidies For The Middle-Class” (Forbes):

The federal government spends about $4 trillion per year. Of that, somewhere around $3 trillion is what economists call transfer payments. A transfer payment is when the government just takes money from one person (through taxes or borrowing) and gives it to somebody else. Social security, Medicare, Medicaid, welfare payments, farm programs, corporate welfare, and the like are all transfer payments which simply redistribute money.

Middle-class benefits are an entirely different story, however. The bottom 75% of households by income pay only about 13% of all income taxes. If we define the middle-class as the 70% of households below the top 10% and above the bottom 20% of households by income, the middle-class only pays about 29% of all income taxes, according to IRS data.

Because the middle-class doesn’t pay much in taxes and because they are the largest in number, there is no way to pay for generous benefits for that many people. Today, the middle-class is collecting around $2 trillion per year in federal transfer payments. Yet, even accounting for payroll taxes, they are only paying taxes of $1 or $1.1 trillion per year (29% of all individual income taxes and about 50% of all payroll taxes). Thus, the rich are already fully paying for all the benefits to themselves and to the poor, plus around half of the benefits to the middle-class.

Another reason why we might not be thankful is that many of us expect more than is theoretically possible given the size of our economy. Also, a huge amount of these transfer payments is devoted to subsidizing an inefficient health care industry. So beneficiaries of Medicaid, Medicare, and Obamacare subsidies are not actually benefitting as much as we might expect given the spending levels.

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