Here’s Something Wrong at the Heart of the Justice System

Most of you will not know about the arrest of Harvard’s Chemistry Department chairman, Charles Lieber. He was arrested by Federal authorities and indicted for lying to the Federal government, #Charge one; and lying to Harvard so that they would lie to the Federal government, #Charge two. These lies were on Federal forms filed to obtain USG funds for research programs and to assert that Harvard was in compliance with applicable laws and regulations. Lieber allegedly lied about his association with the Chinese government and its ‘Thousand Talents’ program. He said he had no association with same but the government has documents alleging he received $50,000.00 a month from the Chinese over a multi-year period and that he was provided $1.5 million to set up a laboratory at Wuhan University (yes, that Wuhan). Those are the allegations and the information upon which the allegations are based. Sounds like a simple case of did he or didn’t he?

Lieber, although associated with Harvard for decades, did not avail himself of either a Boston law firm or a Harvard Law graduate. Instead he chose Marc L. Mukasey, son of former Attorney General Michael Mukasey. One supposes this might be the thought that having lied to Harvard they are prepared to throw him under the bus in depositions otherwise they might be liable for not having done sufficient due diligence to catch his lying. More likely, it is because of the elder Mukasey’s Washington connections and the fact Marc Mukasey just got Eddie Gallagher (the Navy Seal) off some very serious charges. But here’s the kicker: demonstrative of a justice system gone off the rails. Mukasey says this is not a case about lying; rather it is a case about academic freedom and Lieber is being persecuted (not just prosecuted) by the Federal government because it, the government, is upset about the flow of intellectual property to China. In other words Lieber is a victim of the system and should not be held accountable because the Federal government cannot otherwise protect information.

Now, Mukasey is correct in that this case is about more than just lying; it is indeed about the unauthorized flow of intellectual property and classified information to China. That’s what Lieber was doing; sharing intellectual property with China. Those of us in the profession, or recently removed therefrom, can attest that while espionage is one of the shortest laws on the books, it is one of the most difficult to prove. That is why you seldom see people charged with actual espionage but other offenses attendant thereto like, mishandling classified information, failure to report payments and lying about relationships with foreign government or entities representing (even covertly) foreign governments. In this case Lieber is charged with lying on official documents or causing others to lie on official documents. His lawyer, however, wants to create a cause celebre with his client as the victim vice the perpetrator of a criminal offense.

When we started our trial by jury system we had distinct separation between the phases of that system. There was investigation, indictment, guilt or innocence and penalty phase. Over the years the courts have allowed the last two to meld into one big mash of “even if my client did it he is not guilt because of his background, systemic this or that, too much violence on television and in computer games, ad nauseam. The guilt or innocence phase is supposed to be about one thing only, did the accused do what the prosecution alleges? It is supposed to be simple, present discernible and provable facts, refute discernible and provable facts. If there is sufficient reason to establish doubt in the minds of the jury then the accused goes free. If, however, they are convicted then the next phase of the trial starts; the penalty phase. It is in this phase you argue that you client was a victim of whatever. I have become somewhat jaded in my review of criminal cases in that if I hear a defense lawyer immediately go with a victim defense I automatically assume he knows his client is guilty of the crime and is trying to redirect the argument; most times accusing the “system” or the government itself for his client’s crime.

Mukasey wants another Gallagher case and he wants the academics to turn out in mass to defend his client, this will get argued in the media and there will be a lot of time and money spent by both sides. Somehow I doubt it will ever actually go to trial because if the government has the documents it claims, Lieber is guilty. Whether it should be a crime is something that should be taken up with Congress because they wrote the statute under which he is being prosecuted. Let’s return to the original purpose of a trial, guilty or innocent. The why can be argued in the penalty phase.

What say you?

Now I’m dead serious about this issue as one of the things we most need to correct so I really had to bite my tongue re the Chinese Thousand Talents program because to a classical/religious scholar a Thousand Talents means a lot of money. This is the kind of misunderstanding transliteration can often create, but only for those who know history.

Leave a Reply