What we can learn from Budd Dwyer

Sunday January 22, 2012 saw the 25 anniversary of Budd Dwyer’s televised suicide. At the time Dwyer was serving as the treasurer of the commonwealth of Pennsylvania.  He had been convicted of accepting a bribe on a government accounting job and was awaiting sentence. Due to a legal loophole he was able to retain his office until sentencing. During the investigation, trial and afterwards he maintained his innocence, refusing an offer for plea bargaining. He even wrote President Regan seeking a presidential pardon. On the day before his sentencing, where he faced a sentence of up to 55 years in jail and a fine of $300,000, he held a press conference where he once again proclaimed his innocence and then declared he would not resign as treasurer. He then read from his prepared statement in which he expressed his wishes for reform in the legal system and he stated that people had told him that, “he looks foolish”(for fighting the charges) and “60 Minutes, 20/20, the ACLU, Jack Anderson, and others have been publicizing cases like yours for years and it doesn't bother anyone.” In part of his prepared text that he did not read, it said, “But to those of you with depth and concern the real story will be what I hope and pray results from this morning--in the coming months and years, the development of a true Justice System here in the United States." He then handed out a couple of letters to staffers, drew a revolver, asked those with a weak stomach to leave, told people to stand back so that they would not be injured, and shot himself in the head, committing suicide.

What makes this an important event to consider, was not the spectacle of a man ending his life in front of others, but the message that Budd wanted to send. That message was that innocent people get convicted, and the system needs to be reformed to protect the innocent. While many still believe that Dwyer was guilty of accepting a bribe and that he used his suicide as a way to avoid having to pay for being caught, I feel that his suicide was meant to focus on the terrible damage a wrongful conviction can cause. Had he just wanted to avoid prison there were other ways to end his life. Instead he willingly did something that he knew would overshadow every other thing he had done and become what his legacy, and he wanted that message to reach out and be talked about. It was a message about the fairness of our American justice system.

This is definitely something to be discussed. Whether or not Dwyer was really innocent, it is a fact that innocent people are put into our prisons; they even end up on death row. We know this because of the number of inmates that have been cleared on DNA evidence. The ACLU points out that as of September 2011, 273 people, including 17 death row inmates, have been exonerated by the use of DNA testing. This number can only be but a smaller subset of people wrongfully incarcerated. (http://www.aclu.org/capital-punishment/dna-testing-and-death-penalty)

How do people get wrongfully convicted? There are several ways this happens. All of it starts with a wrongful accusation; either willfully or mistakenly the person is accused by another party as the actor in a crime. This can come about through shoddy police work or through a party bringing false charges. Why would this happen? There are several reasons. The police are frequently pressured to find the perpetrator of a high profile case and are then willing to rush through evidence gathering, focusing only on a small subset of evidence that points to one person, while ignoring other evidence that would exonerate that person; or they could find a person who is in an important position and want to make a name for themselves in prosecuting a public figure. Sometimes a perpetrator in another crime is given a deal to turn in accomplices for gaining them a lighter sentence. Such a deal would make it seem worthwhile to lie, and falsely accuse others. Other times a person can gain the upper hand in the dispute by falsely accusing the person they are having a dispute with. This illegal tactic can be used in divorce cases when a spouse will use false accusations of abuse to force an ex parte divorce and retain custody of children.

The majority of willing, wrongful accusations stems from the accuser making a simple cost/benefit analysis. In other words, do they think that the cost (in this case the probability of getting caught falsely accusing others and the price that would bring) is higher or lower than the value that they place on the result of the other person being convicted. For some criminals who are working under a deal where they point out an accomplice for reduced sentence, this begins to resemble the famous game in game theory “the prisoner’s dilemma.”

In the standard set up to explain “the prisoner’s dilemma” two perpetrators are arrested by the police who state that they have evidence to convict each of the perpetrators with a lesser crime for which they will serve a short jail sentence (1 year). However, if one of the perpetrators would be willing testify against the other they would let that witness go free, while the other would serve a much longer sentence (20 years). If both perpetrators testify against each other they both serve a middle length sentence( 5 years). Each perpetrator must now decide without knowing the others decision whether to talk or stay silent. So now we have two players (each perpetrator) and two different options for them to take (stay silent or testify). Graphically we can chart this as:

Looking at each player’s strategy, they are best served by testifying. This is because by testifying they receive fewer years in prison than staying silent for whatever choice the other player makes. The benefits of testifying are even greater when you know that the other player cannot testify because he doesn’t know what is going on and has no information to testify with. Hence, this is why false accusations look to be a good, although immoral, option to the criminal given a chance to make a deal.

Why would prosecutors be willing to make such a deal? As shown by “the prisoner’s dilemma” the prosecutor stands to make bigger convictions, as the total sentence time is longer in all other combinations than in the silent/silent combination. The prosecutor wants more and longer convictions because it proves to others that he is tough on crime, a stance that is very popular with the public and would aid the prosecutor should he run for political office. In fact there is a large amount of evidence that suggests some prosecuters will do almost anything to boost their conviction numbers. The blogger at Burney Law Firm writes:

3) The Inquirer points to the statistic that nearly 10,000 violent-crime defendants had their cases dropped or dismissed in ’06 and ’07.

Again, this means to us that the finger must be pointed squarely at the DA’s office. What the heck are they doing, charging 10,000 people with crimes they couldn’t prove? Cases get dropped or dismissed because they shouldn’t have been charged in the first place. This statistic shows an appalling lack of judgment on the part of the Philly prosecutors.

What are they doing, just charging everyone who got arrested? Perhaps. It’s a sad fact that there are some DA’s offices out there who think it’s their job to zealously advocate for the conviction of everyone who got arrested. But of course that is not only not their job, it’s unethical for them to behave that way.

Prosecutors are given enormous power and discretion, and it is an abuse of that discretion not to exercise it in the first place. They’re supposed to first figure out whether the case should and could be prosecuted, before wasting time and treasure on a pointless case, and dragging people through a horrific process. And they’re certainly not supposed to delegate their discretion to the police, who have neither the authority nor the purpose to exercise it. But those DA’s offices that simply take on every arrest are doing precisely that.

Maybe instead they’re just charging people without proof, in the hopes of getting a plea bargain, and hope nobody calls their bluff. That’s nothing short of criminal extortion, if true.

It should be nigh impossible to dismiss a case, unless there is newly-discovered evidence, or the interests of justice demand mercy. Otherwise, there ought to have been enough evidence to take the case to trial before charges were ever filed. This staggering statistic demonstrates that the DA’s office is charging thousands of people with crimes, when they had no business doing so.

http://burneylawfirm.com/blog/2009/12/15/conviction-rates-matter/

Now that we understand why people can be falsely accused, how do they get falsely convicted? There are several reasons why someone could be falsely convicted. There could be misleading, missing or false evidence. There could be problems with the jury where they do not fully understand the complex laws in place here, or there could be jurors who are more willing to believe guilt than innocence. While the reasons are numerous and varied, it is clear that innocent people must be ready to protect themselves legally, especially if they lead lives that make them easy to accuse, such as the father who has a temper issue or the business person who is known for shady deals or the politician who competes for high office.

What can I do to protect myself? There are a number of things that can be done to protect yourself from wrongful conviction. First, watch this video:

http://www.youtube.com/watch?v=6wXkI4t7nuc

It describes why you should not talk to police, and the dangers that you open yourself up to if you do.

Secondly, find out what attorneys are in your area and gather a few business cards from them. That way you can be ready to contact them right away if you are charged. Do your shopping now, while you have time and resources available. If you expect that you might be accused, it is a wise idea to put aside a large sum of money as your defense will be expensive--not only will you be paying for your attorney, but for expert witnesses as well. Finally, if you are accused you must educate yourself on the facts of your case and what you are being accused of. You will need to document your case and keep an account of every fact presented to you, so that you and your attorney can craft the best defense.  Ultimately though, two things stand out; you need to remain silent, and you will need a defense attorney that you can count on.

In this overview of what you have to do to protect yourself, one thing stands out;  the cost that your freedom can carry. While the Bill of Rights provides that you are given a defense attorney if you cannot afford one,  public defenders are frequently overloaded with cases, so that they cannot dedicate as much time to you as a private defense attorney can. They are frequently younger less experienced lawyers making them typically less effective than a more experienced lawyer. This means that those who cannot afford a private defense attorney have a disadvantage in the courtroom compared to those who have money set aside and are able to fund a proper defense.

In conclusion, we have seen that our criminal prosecution system, not only accuses innocent people, but convicts them. Not only that, but the willingness of prosecutors to offer deals to the accused to increase their conviction rate, comes at direct cost to innocent people. There are steps that you can take to protect yourself from wrongful prosecution, but for many their ability to defend themselves is limited by their low personal wealth. These are but a few of the topics that need to be addressed and that the story of Budd Dwyer calls out into the open.

For more information on wrongful conviction check out http://www.skepticaljuror.com/

And for a deeper look into Budd Dwyer and his story I suggest watching the movie “An Honest Man: The Life of R. Budd Dwyer” http://dwyermovie.com/

Make yourself a public victim to gain support

So Gary North has posted on his website a story about the Occupy D.C. crowd and why they have been allowed to camp for months in McPherson Park. You can read the story here : http://teapartyeconomist.com/2012/01/26/occupy-wall-street-breaks-the-law-but-government-ignores-this/

While I typically agree with Dr. North, I feel that he has missed the point on this story. He implies that the reason that the occupy protestors haven't been removed is because they are ideologically aligned with the president, and if it were the Tea Party instead of the Occupy movement that they would have been thrown out because of their political difference to the administration. I disagree. I believe that law enforcement, national parks service included, is afraid of the movement because of their ability to communicate news concerning their events, unlike other groups who rely on media coverage to spread news concerning themselves. The authorities are also afraid of the response that could be seen if videos of the park service evicting them would hit the web.

You see, the occupy movement has gained a lot of supporters by portraying itself as victims to police brutality. The videos of police attacking, using "kettling" tactics and  using pepper spray against protesters has created mass support for the occupy protesters, beyond those people who agree with their message, as many people now see the occupy movement as a first amendment issue rather than only a money disparity issue. What the public is not being shown by the police is any activities to justify the violence, and since there has not been videos of that shown, we are left to believe that their actions are meant to silence political dissent, rather than to control "dangerous" protests.

Therefore, the National Parks Service is afraid to become the next group that is seen being bullies, for fear of a public withdraw of support for their organization, for threats that they may be facing by individuals that support the occupy movement, or just because there is a feeling in the administration that if we stop harassing the occupiers that their support will dwindle and fade out. So while Dr. North is correct that they would not treat the Tea Party the same way, it is less to do with the administration's supposed likeness in policy and more to do with the fact that the occupy movement only gets stronger the more authorities push against it, and the fact that the Tea Party hasn't been the subject of police crack-downs.

If the authorities want to stop the occupiers their best tactic would be to leave them alone, so that by allowing them to break the rules the administration will allow the movement to wear itself out and lose steam due to indifference. Once the thrill of fighting "the man" is gone, because "the man" is ignoring you, then you pack up and find a new way to get at the establishment. You find a way that will generate the public's attention, and co-opt their support, because the most popular story in America is that of the underdog with nothing standing up for himself and beating back the top dog who controls everything.

Where do we go after the Blackouts?

On January 18, 2012 America saw something that has never happened before. In response to proposed legislation that would give the government an easy route to shutting down websites that they felt were distributing copy written material without permission, without trial, many major websites went dark in protest and offered their users easy forms to submit a letter of protest to their representatives in congress. The legislation they were protesting would have a devastating effect on the internet, where the some of the largest websites survive on user submitted content that could easily be copyrighted and uploaded by someone without the permission of the copyright holder.

The immediate response to the blackout and deluge of protest letters was for several congresspeople to change their stance on the two proposed bills. It now looks that these two bills will not have the support to be passed, and the internet will continue to exist in much the same form that it had before the bills were suggested.

I am of the opinion that while the blackout protest was successful, this time around, it cannot be considered to be a strategy for maintaining the freedom of the internet, as the blackout feeds heavily upon the goodwill capital of the websites that participated. In short, the internet has shown its hand and now stands in a strategically weaker position because of it. While the internet has defended itself from the current attack on its freedoms, it must create a strategy that reinforces rather than consumes goodwill.

Let us first focus on what the success of the SOPA/PIPA blackout shows about the environment and the players in this conflict. First, it demonstrates the ability of these web sites that make up “new media” to quickly organize and educate a huge mass of people and set, at least in the short term, the nature of the dialogue. The LA Times reports that Google claims 4.5 million people signed the petition against SOPA/PIPA. (http://latimesblogs.latimes.com/technology/2012/01/google-anti-sopa-petition.html) Most of these people hadn’t even heard of SOPA or PIPA until the blackout. This goes to demonstrate the number of people who use these products daily and how much these websites matter to the people that were willing to take the time to read about the proposed legislature and take the time to fill out the form to protest. While many people might not feel that the short time that it takes for this action is much to talk about but it really is. When you consider the rational ignorance that members of the web community must operate under to help them process the amazingly vast amount of information that they are faced on by a second by second basis anything that can motivate them to act in unison is something to take note of. In fact it is the need for selecting and filtering information to suit the needs of the user that that these websites have so many users. However, when the website took the time to tell its users directly and without distraction what concerned the web sites operators and why it was important to both parties, they were able to send a clear message that translated into action. It was a direct reversal of the flow of action that had made these websites great but because of the goodwill that the websites had created they were able to draw upon their users. The problem, as stated before, is that this strategy cannot be continuously replicated as it consumes that goodwill and will therefore generate a diminishing return each time it is used.

You might be asking yourself, why does it need to be duplicated since support for these bills have been severely damaged? The answer is that the “old media” of film, TV, and the music industry, who were the lobbying support behind the bill, are going to continue to feel pressure from “new media” and piracy.  They have money and political connections that they will use to their advantage to draft new legislature to help them compete in a social media age. This is a much easier way for them to protect their market share than other options due to the calcifying nature that corporate culture causes. It is also a result of the group think that fills any industry, and the “old media’s” thought is that their problems stem from piracy of their content. They go on to claim outrageous losses due to piracy (http://www.theregister.co.uk/2010/04/15/gao_spanks_piracy_exaggerators/) which even the GAO agrees is exaggerated. What the truth of the matter is, is that “old media” is falling behind in the service they provide, compared to what it easily done. They fail to see the appeal of pirated content to the consumer, feeling that it is about getting something for free, when it is much more about the delivery stream. To illustrate this idea just look at the success of Netflix streaming content and the effect that it is having on the piracy community. (http://www.slate.com/articles/technology/technology/2011/07/how_netflix_is_killing_piracy.html) However as long as “old media” feels they can gain ground through the use of the government they will continue, and they know that they have a strong relationship. As an example, not less than 24 hours after the blackout the government shut down Megaupload.com due to piracy concerns, this is a strong message that the government is going after “new media” and competing distribution networks which they deem can or are being used for piracy.

The people in charge of creating the legislature understand that they do not have the resources to police individual submissions for websites; this is why copyright enforcement has always been in the hands of the copyright holder, who was expected to bring infringers to civil court to settle damages. However they do not have the resources to police the web either, which is why groups such as the MPAA and RIAA have used excessive damages on poster child type cases, so that they can scare people from participating in piracy. This has been largely ineffective as most pirates have determined that they are unlikely to ever be caught and charged. This is why they changed tactics with SOPA/PIPA to make the website operator liable for content uploaded or linked to from their site. They targets site operator with what amounted to loss of business should they be caught allowing copy write infringement.  The back lash from the sites users showed that they are not happy with the idea they could lose their tools for filtering information because of other users actions. So the logical next step would be to create a method where site operators would be given the needed tools to track users and while subject to fines for failing to police their own sites be given immunity if they turn in the contributor. This would satisfy both the “old media” and the website operators would stand much less risk of loss offset by a higher operating cost.

Why is this something to be stopped? The internet culture as it currently stands is based on making changes to existing content to create new content, creating a culture that is evolving and seeking to fill in niches that “old media” neglects due to their delivery structure and the cost associated with targeting a small niche. This can be seen in such internet cultural entertainment as the meme, in musical and video mashups, and especially in the viral spread of media, where new content can be relinked, embedded and reposted so that an artist can quickly and for almost no cost be exposed to millions of consumers. These are all things that stand opposed to the “old media” who has made their fortunes being the gate keepers of entertainment, selecting winners and losers to the overall loss of potential cultural development. As with any development, cultural development happens at the margins of society as first adopters search and discover new things and then bring others to it. If the “old media” remains the gatekeepers of our entertainment and knowledge they determine the dialogue we have in our culture, which will restrict access to the margin, to the bleeding edge of cultural development. It will have a chilling effect as the only real access people will have is what is provided by the establishment, and will result in a culture that does not grow organically but in spurts and with great opportunity losses.

We need a new strategy for protecting our cultural development. The first strategic step is almost always to gain resources from which to work form. I suggest that to accomplish this we need to continue to educate people, not only of the risks that anti-piracy legislature creates for the development of our cultural artifacts, but also of methods that can be used to circumvent government actions, such as using ip addresses to access sites in case of DNS blocking. This will make it all the harder for legislation to be effective and therefore reduces the likely hood that it is used in the first place. The second strategy that should be adopted is a change in our voting patterns to reflect to political candidates that internet censorship is a voting issue for us. To make this effective we need to communicate to candidates, write letters, join campaign staffs, and make our voice heard. We cannot afford to dilute our message though, so we are faced with making compromises on other major issues. Much like the pro-life/pro-choice dialogue has gone we need to make it clear to candidates that this is the topic that decides who we vote for. We must make the candidates answer questions about this and hold them to their position, and we cannot afford to send a mixed message, if a politician goes against our position we must pull our support from them based on this issue and this issue alone, otherwise they learn that they can throw us under the bus on this issue to gain campaign financing from the “old media.” It must be clear that it is either our votes or their money we cannot let the politian have it both ways otherwise they will go for the money and use a fraction to buy us on other issues. The final step of our strategy is to tie our goal to a philosophy that can be sold to the wide public. This is what is done with the pro-choice movement as they have tied the right for abortion to the woman’s self-ownership a major plank of the women’s right movement. It is what has been done to improve the position of the GLBT community in their fight for the right to marry who they want to. Once again it is ties to the idea of self-ownership and being able to make decisions for oneself. We need to tie our cause, the right to communicate ideas the way we choose, to this same idea of self-ownership.

In conclusion, while we have seen a great spectacle in the SOPA/PIPA blackout, and it has signaled a popular sentiment that we want to keep the internet free to continue to evolve organically and not according to the plans of the self-appointed gate keepers of content, we accept a strategy that is self-reinforcing that we can continue to defend the freedom of the internet. To do this we must make the freedom that the internet has the one voting issue that we cannot compromise on, otherwise the politicians will continue to be purchased to chip away at the decentralized nature of the internet while we are given lip service, which is what will happen if our votes can be purchased with anything else than the protection of our freedom that we experience on the internet.