Introduction: A Search Warrant That Violates
American Values
It was well past midnight, and the watchers in the carefully
parked car were settling in for a long surveillance when one of them saw
movement at the edge of the building just across. Someone was coming out! The
watchers leaned forward. Two men! And they were carrying boxes that they loaded
into a nearby car!
The watchers thought it possible that the men across the
parking lot were committing a criminal act – perhaps removing either key
records or valuable coins or both.
One of the surveillance team’s members was an officer in the
highway patrol, but there was no effort to make an arrest. The watchers didn’t
want to prevent a crime. That wasn’t their job. Instead, their role was simply
to help provide the details for a search warrant.
A judge signed the warrant the next afternoon, and a raid on
the targeted building occurred later in the day.
Search warrants require reasons, and judges rely on law
enforcement to provide accurate information to support those reasons. However,
in this case, in the story that became known in Ohio and nationally as
Coingate, there was no reasonable basis to believe a crime had been committed,
with the result that essentially every piece of evidence used to justify the
warrant was false or misleading.
There’s no disagreement that the state had a right to get
materials and records from the business in the targeted building, and a
handover had been agreed to and was in process. But a quiet transfer wasn’t
enough; the authorities wanted something dramatic and visible.
The search warrant was falsely contrived and hastily
submitted because an array of Ohio government agencies was in a panic,
frantically rushing to do something – anything
that looked stern and serious – in response to a series of newspaper articles
that alleged criminal actions on the part of Thomas Noe, the owner of the
business that was eventually raided.
The search warrant turned out to be technically within the
law – it was subsequently approved by other judges. But the story that became
Coingate shows that law and fairness can go in differing directions.
The concept of fairness is so basic with respect to criminal
acts that it’s hard to define “fairness” without using “fair;” it’s one of
those things where people’s first reaction is to say they know it when they see
it.
Essentially, fairness describes a process that results in an
outcome that is morally appropriate.
Morality is culturally determined, with religion being an
important part of culture. In America, the cultural background is that of what
we call Western Civilization, which itself rests strongly on Judeo-Christian
principles.
The central tenet of fairness is that people receive
punishment only if they are guilty and that any punishment imposed fits the
crime. One of the seminal thinkers in the area of law and crime, the
Enlightenment philosopher Cesare Beccaria, argues that the purpose of criminal
punishment is maintenance of the social contract, and that punishment should
never be about vengeance.[i]
The idea that someone could be punished for a crime they
didn’t commit is anathema to Western Civilization. This wasn’t always true, as
in the past many nations reserved this element of fairness only for the wealthy
and powerful. The idea of embedding fairness in a nation’s legal structure in
order to protect all persons from
arbitrary decisions or punishments is an American contribution to Western
philosophy. We call it a just society. Our “justice system” is the
organizational apparatus that is designed to implement fairness.
In effect, law and the legal system are organizational
constructs designed to ensure fairness. From the American point of view, if the
legal process isn’t fair, justice isn’t done.
It’s obvious that in a kinetic, complicated world, law and
fairness can get out of sync and a just outcome might be difficult to achieve.
Some cultures accept that as inevitable. But Americans, perhaps because we were
the first to connect law and fairness for all people, don’t accept that. We
believe that the legal system should never be allowed to be unfair, and
consider that the people in the justice system have a moral as well as a legal
responsibility to consistently strive to keep the two in harmony.
Giving a major part of the responsibility for fairness to
members of the justice system is particularly important because our approach to
law allows key players in the system a wide level of discretion.
The idea of fairness is embedded in our understanding of the
word “judge.” And, because of the intrinsic connection of law and fairness, the
same should be true of prosecutors. Thus, a prosecutor’s natural desire to have
a strong record of success shouldn’t allow him or her to bring biased or
unbalanced charges, nor does fairness condone prosecutors presenting evidence
in a misleading way, one that bends the outcome in a direction that violates
justice.
The expectation for prosecutors to avoid any manipulation of
charges or evidence most definitely includes keeping the law separate from
politics. This is as important a principle as there is. If we allow the law to
be used for political ends, we are directly undermining the fairness/justice
duality that distinguishes our society.
Simply stated, justice exists only when the legal process
operates with consistent fairness.
Given our strong and well-crafted legal structure and direct
assignment of key responsibilities for fairness to officials in the system, how
could things have gone awry in Noe’s case?
The story goes like this:
First, a slew of newspaper stories that alleged criminal
activity – without explicitly saying that – landed with extra power because they
were dropped into the superheated partisan political environment of a fiercely
contested region of a fiercely contested state.
Next, the intense partisan environment and media-fueled
public outcry caused some officials to push for, and others to eventually file,
charges that were out of all proportion to any reasonable, dispassionate
analysis of the events.
Finally, because it too was influenced by the partisan fury
and public anger, the legal system failed to correct the initial errors.
Put simply, a powerful and unbalanced media thrust caused
politicians to panic and push the legal system to operate in a deeply distorted
way. The result was not intentional in the sense that people set out to violate
law or fairness. Rather, normally responsible and thoughtful people acted in
ways they would never have done in different circumstances. It’s doubtful that
any of the official players in Coingate acted deliberately to pervert justice;
instead, their actions can be explained by the kinds of unconscious rationalizations
to which all people are prey.
But the consequences of unconscious bias are the same as
those of its conscious counterpart. And, in this case, the sum of many people’s
rationalizations was the unjustified loss of one person’s freedom.
But how can our elaborate and carefully crafted judicial
structure allow this to happen?
Ordinary people believe that the US legal system works much
like a computer – once received, inputs are processed smoothly and consistently
according to well defined rules. And, should a mistake be made at an early
level, there are additional computers, in the form of appeals courts, that will
make sure the final product is what it should be.
Of course, a large part of the public does believe that
juries make mistakes, that if the machine has a flaw, it’s that people selected
as jurors aren’t always truly impartial. The recently rehashed OJ Simpson
murder trial is one of the most flagrant examples. Critics of the Simpson
verdict generally consider that the jurors suffered from a bias, likely an
unconscious one connected to race, that caused them to overlook important
information and as a result arrive at a not guilty verdict.
There is, in fact, strong evidence from social science
research showing that juries can be biased in a number of ways, and research in
this area will be an important topic in this book. But prosecutors and judges
are people who are subject to the same biases – even if they’re absolutely
confident they can be completely impartial. That’s especially important when
you consider something that most people not connected with the law don’t know:
prosecutors and judges have much the same kind of discretion juries do. Jurors
(in some cases) make the final decision on guilt or innocence, but the
prosecutors and the judge can frame charges and focus or limit evidence in such
a way that the jurors’ own scope of action is in fact quite limited. And,
depending on the nature of the decisions taken by prosecutors and judges, much
of what they do is not appealable or very unlikely to be overturned on appeal.
Coingate isn’t a traditional crime and justice story.
There’s no suspense about who did what and the audience starts with knowledge
of what ultimately happened to all the key players.
But Coingate is a mystery of a different kind. This book
asks essential questions about how justice is carried out: How is it possible
that there could be a gross violation of fundamental fairness without anyone in
the justice system committing violations of law or of formal ethical standards?
How is it possible that actions that in most cases would have resulted in no
more than a civil lawsuit could have instead led to an eighteen-year prison
term – with no reasonable expectation of early release? How is it possible that
extreme partisan strife could have as a consequence partisan agreement – with
one man as a joint target? We’ll see that the questions are easy to state but
the answers are complex. And we’ll also learn that the situations and
structures that allowed for this extreme violation of American principles of fairness
are still present and available for future use – most likely in other political
situations. Until the conditions that created Coingate are resolved, every
citizen has something to fear. For Americans, respect for the law most
explicitly doesn’t mean respect for authority. Rather, it’s respect for
fairness. If we undermine fairness, we lose respect for law and in consequence
threaten the foundations of our democracy.
-------
NB
·
This book’s
website (http://coingate-ohio.blogspot.com/ ) provides important contextual information about the
author, including perspective on his
potential biases and how they have been dealt with. The site also includes more
in-depth information on technical aspects (such as the Coin Fund contracts),
and also includes links to a variety of source documents.
·
Conventions in
the book include: 1) m following an
endnote mark indicates that the reference contains informational text; 2) since
URLs in the references will not be easily usable by readers of the hard copy,
the full reference list has been copied to the website.
·
Appendix C
contains a list of names of key players and organizations with identifying
information.
[i] [Cesare] Beccaria, Des délits et des peines. Paris :
Guillaumin et Cie, Libraires, 1870. Second Edition, available via Google Scholar. See
pages 16 and 41 in the book’s Introduction by Faustin Hélie.