Actually, we don’t know those particular things. It is not the job of the judge to qualify evidence, either affirmatively or negatively, that is the sole responsibility of the advocates for the two sides in the trial.
The job of the judge is to ensure that each side gets a fair hearing, that the law is respected, and to interpret the procedural requirements in the light of the facts of the case. Judges do have a role in assessing the legality of evidence, and ensuring that the discovery rules are respected (there should not be evidence that is exclusively available only to one side of the trial). Judges cannot take sides.
This is a big part of why secrecy is so toxic to a democratic system, it screws up the judicial process by impeding discovery, and skews the balance of power in favor of the government (or the secret-holder, in general).
Disclaimer: I am not any kind of lawyer, but I kind of geeked out on the procedural rules when I had jury duty last year.
IANAL (either), but I believe the authenticity of the letter is an issue between the court and the witness, not between the parties in the case. The witness is citing this as her reason for not appearing. So I think it would be entirely reasonable to expect the judge to question the authenticity (which if you RTFL, you’ll find that he does question) of the document.
More to the point, from reading the link, it appears to me that Kamal is a witness for the plaintiff, not the defense, so she would have little reason to fabricate a story about why she can’t appear. It’s in her interest (or her mother’s interest, anyway) to appear.
But you go on presuming that it is equally likely that the document is false as that it is legitimate. Whatever works for you. It may well be. None of us knows. But I think it is entirely reasonable to guess that the likelihood is that it is legitimate.
I neither stated nor made any such presumption. My actual beliefs are that the document in question is likely legitimate, and that the burden of establishing this to the satisfaction of the court lies with those introducing the document. I could be wrong on either or both.
The diversion into sophistry regarding the infinite universe of mendacious possibilities is not mine.
Australia doesn’t really have a No Fly list, but we can revoke the passports of citizens planning to fly overseas to testify at trials that might embarrass us, because we were spying during trade negotiations
That’s trivially easy to fix. The judge should just order the DHS to hand over a sample (or all) of it’s flyer restriction orders, look at them, and if they match up even visually, then it’s likely that these are genuine. After all, these orders aren’t available to anyone other than DHS and the airlines, and the airlines keep them secret as well right? So how would regular citizens be able to make a forgery?
The document itself is plenty of evidence as long as the judge can force the DHS to give him a sample of what these orders look like. And the DHS doesn’t even have to claim national security secrets excuse since only the judge would have to see the known genuine documents.
David. I hope that your reply was not directed towards me. My first post in this thread quoted from the Identity Project’s original blog entry dated Dec. 4th. Ergo I have read at least part of the blog. Perhaps not completely and perhaps not without full understanding but at least I read it. Since a polite person wouldn’t have started a message with an implied insult of someone else’s incompetence and lack of reading skills and would have instead politely said something to the effect “I think you missed a key point in your reading” or “You also need to look at a different part of the [voluminous] blog; specifically the 3rd paragraph in the Dec. 2nd entry” then I will assume that your post was not directed towards me but rather to some other buffon who doesn’t read past the first page of quotes that Cory posted.
BTW: Ms. Pipkin calling an office (DHS) known for not giving out information and getting no response is not an indication that Ms Kamal was denied her flight because of being on the no-fly list. Of course it is also not proof in the other direction. Once again it is a perverse (nod to jerwin) 'he said, she said". If the DHS wasn’t so secretive then knowing the truth would be a lot easier. Andrew_ce_reid put it nicely:
This is a big part of why secrecy is so toxic to a democratic system, it screws up the judicial process by impeding discovery, and skews the balance of power in favor of the government (or the secret-holder, in general).
The DHS can not prove a negative – that of Ms. Kamal not being on the no-fly list – but given their past history of secrecy it is hard to believe that they could not prove the positive – she is on the no-fly list – and are just being secretive bastards about the proof. They (and the NSA) have screwed up American justice and their feet should be held to the fire. If not over this specific incident at least for all of the other times. I hope that the judge does not let them get away with obstructing justice.
I’m not sure who put the stick in your craw today but seriously.
It’s going to be fairly apparent whether this lady made up the communication or not. I didn’t say the judge shouldn’t look at it, I’m just saying this isn’t a “he said, she said” situation.
If every day I go butter your lawn and call in a bunch of pigeons and you’ve got multiple witnesses to me doing it numerous times but yesterday you were the only person to see me buttering your lawn, whether or not I buttered your lawn yesterday is not a “he said, ze said” situation.
The only thing that makes this lawn buttering situation look like a “he said, she said” to some people is that the DHS never admits to putting people on the list. We know they put their critics on the list. We’ve got every reason to suspect they put this critic on the list. The only question in my mind is whether or not they actually timed it this way on purpose or whether it was just happy coincidence.
I do see what your analogy is saying – basically the DHS has acted in bad faith in the past and thus is likely to be behaving badly in the current circumstance. No doubt about that. But to continue your analogy, if today you didn’t butter my lawn and yet I decided to blow off an important appointment then I might just accuse you of buttering my lawn never-the-less so that I do not look bad.
Gad … I hate analogies because they can be stretched out of shape. But the fact remains that we have no credible documentation as to why Ms Kamel did not get on that plane. Was it because of a no-fly restriction or because of a personal reason on her part (e.g., she was late, she doesn’t want to testify because she can not support her mother’s point of view, etc.) And that – in my mind but obviously not yours – brings up the ‘he-said, she-said’ situation. Who you believe is up to you personally and can (and should) be biased by previous interactions with either party and doesn’t have to be supported by credible documentation. However Justice – not being personal – should be blind and requires documentation.
The ‘stick in my craw’ (as it were) were all the posts previous to my first one (and I suppose the ones that followed) that just condemned the DHS and called out ‘police state’ and took Ms Kamal’s word as gospel without looking to see if indeed the DHS was guilty of lying … at least in this particular case. I know that that it is PC (politically correct) to dis the DHS on BoingBoing but I really hate sloppy 'me too" thinking. We might as well be ditto-heads at that point.
Anyway as you said (and others have implied), “It’s going to be fairly apparent whether this lady made up the communication or not.” I’m going to stop posting for the next couple days. We can come back on Saturday before the forum topic is closed and after Friday’s testimony has been written up. By then, fingers crossed, we’ll know more.
Mr Rick is either a blithering idiot or a troll, either way not worth wasting time on. (Be nice to know his IP address though, be funny if he were posting from a govt connection!
I’m not a lawyer, but maybe someone here is - isn’t it a big deal to interfere with a witness appearing? Not the moral implications, but isn’t the law written so as to make it really bad for the mob, or anyone in general to prevent witness testimony?
And I gotta say. The DHS is pure fucking evil. If you or someone you know works for them. You or they should be treated like the abject abhorrent piece of shit that you are.
Well, to be fair, they’re both British colonies. And our government are absolute bastards anyway, viz. the story of the MI5 guy who “accidentally” locked himself in a sports-bag and threw himself into the bath (my bet is we had ourselves our very own Manning/Snowden, and he was topped).
Apparently. Naked, all by himself, whilst covered in traces of semen and vaginal fluid. And he padlocked himself in a gym-bag and then threw himself in the bath.
I’m just having too good a time picturing the look on that defense attorney’s face when she first realized there was documentation of that no-fly order. Doesn’t even matter if it was real or fake. Just…That. Exact. Moment.
Hilarious. And so long-deserved!
P.S. - No, judges do not have to authenticate evidence. But they can sure as heck decide to allow it INTO evidence or not!
