Unreasonable
Xrlq has been banned from commenting at Reason because he called a lie a lie. What is actually worse is the lack of defense of the lying.
Remember, I do this to entertain me, not you.
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August 15th, 2005 at 2:32 pm
If Reason is lying, then so is Jeralyn Merritt. The excerpt she displays seems reasonable enough, but admittedly I don’t know much about the law. Of course as usual, it appears that XRLQ is parsing posts way too literally. I think its rather obvious that the author doesn’t literally mean that Miller has been tried and convicted merely that she wasn’t given full due process of law when she was held in contempt for the reasons that Talkleft excerpts.
August 15th, 2005 at 3:00 pm
Well, Ms. Merritt has behaved rather badly before in a similar fashion.
http://www.patterico.com/2004/11/11/talkleft-cant-handle-the-truth
http://patterico.com/2004/11/17/2325/more-evidence-of-hypocrisy-from-talkleft/
“. TalkLeft, having stood up for the blogger who advocated killing Bush — and having misled people as to what that blogger had actually said — edited my comment, to remove any reference to the fact that the blogger had advocated Bush’s assassination!
Then she added a snarky update trying to make me sound like a jerk for pointing out that she had defended someone who was expressly advocating killing George Bush.”
So I find it entirely plausible that Talkleft is lying – she’s got a track record as well. McMenamin should know better, and when he’s called on it, if he was using shorthand (which is pretty inexcusable, considering), he should have said so.
No, I think this is a case where “the people” don’t need to know what REALLY happened, because the “right people” already made up their mind, and so people who point out inconvienent facts need to be kept quiet.
Xrlq is right.
As to the interpretation? Nah, X can be vociferous (and wrong on jury nullification), but in this case, if you were right –
August 15th, 2005 at 5:41 pm
Manish:
I disagree. To be sure, Jeralyn did quote McMenamin’s lie without clearly identifying it as such, but that’s not the same as asserting it outright or endorsing McMenamin’s position as her own. She presented it as “a different take” on Miller’s confinement, which it is. As a fellow attorney, I’d have liked for her to go the extra mile by pointing out just how “different” that “different take” was, but failure to do so is at worst a minor sin of omission; it’s not equivalent to lying outright. Note also that when one reads her entire post, the first message you get is the real one, namely that Miller is in prison not because of any phony “conviction” but because she “won’t back down.” That theme is front and center in Jeralyn’s entry, but completely absent from McMenamin’s article.
That’s exactly the point. McMenamin misstated the law in a way that seemed almost calculated to seem reasonable enough to anyone who doesn’t know the law, or even to anyone who does know the law but doesn’t know the facts of Miller’s case well enough to know she was held in civil rather than criminal contempt. That distinction may sound technical to a non-lawyer, but trust me, it’s not. A criminal convict may get a little parole here or some time off for good behavior there, but by and large, he serves out his prison sentence no matter how sorry he may be for commiting his offense in the first place. By contrast, a person held in civil contempt holds the keys to his own prison cell; when he talks, he walks. Incredibly, McMenamin wrote this off as “a distinction w/o a difference.” Let him tell that to anyone serving a prison sentence, preferably someone who is genuinely sorry he committed the offense, yet for some strange reason, hasn’t been let out of prison yet.
There’s nothing obvious about that at all. Unless you already knew Miller was held in civil rather than criminal contempt, there is no way you can glean that from McMenamin’s article. Quite the contrary; if you were less than 100% certain as to which kind of contempt Miller was held in, the five references to Miller being “convicted” or to her “conviction,” coupled with the references to past court decisions that really did involve criminal convictions, the only rational inference would be that Judith Miller was convicted of a crime and, more importantly, ordered to serve a particular term in prison.
Even if Miller’s civil contempt finding were equivalent to a criminal conviction, and ordering your kid to go to his room until he can behave were no different from grounding him for six months straight (assume he’s a really bratty kid who probably won’t start behaving at any time in the next six months, and assume further that by then you’ll give up trying and let him go), McMenamin’s claim that the contempt order was “based exclusively upon written evidence from witnesses whose identities and testimony were kept secret from her and her lawyers” would still be dishonest. Miller wasn’t sent to prison for any deep, dark super-top secret reasons; she was sent there because she refused in open court to comply with a lawful order.
August 15th, 2005 at 6:08 pm
X…I think his point is that she’s in jail, without getting a trial, hearing evidence, etc. Its an anomoly in the law that he’s pointing out that “civil” contempt can get you in jail without the rights that you have if it were “criminal” contempt, (I’m assuming that “criminal” contempt would give you all the rights associated with a regular criminal trial ..i.e. trial by jury, discovery, etc.). The point is she’s in jail and didn’t get a trial.
Also, as far as I can tell, he’s also arguing that Miller should have had the right to to question if the Grand Jury really needed her testimony. I’m not a lawyer, but as far as I know, subpoena power doesn’t give any prosecutor/defense lawyer the right to go on a fishing expedition. For instance, the prosecutor in the Plame case can’t compel me to testify about my sex life just because. He has to have some reason for thinking that my sex life is relevant to his case. The author is arguing that Miller never got the chance to question whether her testimony would be relevant to the proceedings.
You can disagree with his line of reasoning, but claiming that he is lying is a massive stretch. At worst, he’s guilty of over-the-top rhetoric. Beyond that, even if I were to agree with you that McMenamin truly intended to deceive his readers into believing that Miller actually received a criminal conviction out of this, it doesn’t change the point that he’s making.
August 15th, 2005 at 6:58 pm
Even if he were making that point – and given that the article makes no mention of civil vs. criminal anything, it’s quite clear he’s not – that wouldn’t be much of a point. Of course civil contempt can put you in prison, when guilt is not an issue and your sentence is only as long as your continued refusal to begin obeying the law you should have been following all along. If McMenamin wanted to take issue with this, he could, but he’d have had to write a very different article than he did.
As to the super-duper top secret evidence McMenamin is so worked up about, the issue has already been upheld on appeal, which is all the due process anyone has a right to expect given that the only issue concerns the validity of the orders themselves, not any allegations against Miller personally. For her, the issue is simple: does she comply with a valid court order, or does she flout it? I think we all know the answer to that question.
In effect, you seem to be arguing – or at least, suggesting that McMenamin is arguing – that any witness who simply does not feel like testifying should have all the same legal protections as he would if he were on trial for a crime. I see no evidence that McMenamin subscribes to this view, let alone that this was the intent of the article in question. If I’m wrong, then McMenamin is not a liar after all; he is, however, certifiably insane.
August 15th, 2005 at 7:39 pm
Even if he were making that point – and given that the article makes no mention of civil vs. criminal anything, it’s quite clear he’s not – that wouldn’t be much of a point.
He’s not arguing this point directly, his audience isn’t lawyers. In light of your comments about criminal/civil contempt..in lawyer talk, he is effectively arguing this point…Judith Miller is in jail without benefit of a trial. Yes, there are legal principles and reasons why she is in jail, but at the end of the day she is in jail without the benefit of due process.
As to the super-duper top secret evidence McMenamin is so worked up about, the issue has already been upheld on appeal, which is all the due process anyone has a right to expect
within the context of current laws, yes you are correct (I assume). McMenamin seems to be arguing that he doesn’t agree with the appeals ruling (which isn’t to say the ruling is faulty, but simply to state that he doesn’t agree with it). You can disagree, but that appears to be his position. He doesn’t directly state this..his audience isn’t lawyers.
At the end of the day, its a stretch to claim that he is “lying”, in the sense that he is willfully deceiving someone to make his argument, which may explain you getting banned. He didn’t go into the legal minutae, but his audience wasn’t intended to be lawyers either. He is simply looking at the case from a different perspective. There is a difference between lying and disagreeing with someone. Had you stated that you disagreed and listed your reasons why, he probably wouldn’t have banned you.
I’m not necessarily condoning his banning of you..every blogger has the right to ban or allow commenters as they see fit. And every commenter has the right to question a banning from a particular site on their own blog. However, it isn’t as simple as you state that you simply called him on a “lie”.
August 15th, 2005 at 8:23 pm
Actually, it is that simple. Read the comment threads, and you’ll find a few comments by me and a couple other lawyers making basically the same points, vs. others completely missing all the arguments you say his article was intended to make – probably because those arguments aren’t there.
August 15th, 2005 at 10:27 pm
X..from what I read, no one else called the Reason folks a “liar”, though I did see one commenter who said he/she agreed with you. To be frank, I actually do agree with you that Miller received the treatment that she deserved..she had her day in court and the courts didn’t side with her. On the other hand, it is her right (in the same way that it was Gandhi and MLK’s right) to disobey the law in a non-violent fashion. As to what I see in the article, I would think these two sentences from the article:
Testimonial privileges require a court to weigh the government’s evidence as to why they need her testimony. Yet Judith Miller was tried, convicted and sentenced to prison based exclusively upon written evidence from witnesses whose identities and testimony were kept secret from her and her lawyers
would sum up what I’ve been saying, as long as you don’t take the “tried, convicted and sentenced” part too literally. The rhetoric is over the top, but similar to some of the crap that you saw with Michael Schiavo.