The Wanderer’s Techdirt Profile

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  • Jun 26th, 2015 @ 6:44am

    Re: Reading Techdirt right now on a Linux box?

    I'm Linux-only (except as required by work), and have been since... maybe 2002? Hard to recall the exact dates1998, I think. Switched over cold-turkey from Win98SE, having rejected XP, and have never regretted it.

  • Feb 1st, 2015 @ 12:05pm

    Actual vs. target

    This map is very interesting, but if I'm reading the background to this right, it's only half of the story.

    How much area did Verizon's "100% coverage" promises actually include? I get the impression that those were made to specific states, and would have extended to only those states even if fulfilled to the letter.

    This map would be nicely complemented by another one showing what the coverage would look like if Verizon had, in fact, fulfilled all of the commitments they made before receiving funding et cetera.

    Unless that map would just be "solid red across every state", of course, in which case an explicit statement that Verizon really did promise 100% fiber coverage everywhere would be enough.

  • Jan 16th, 2015 @ 11:09am

    Re: Re: Re: Re: Re: Re: Re: Re:

    Yes.

    But that would be because the prosecutor presented it as if it were true, not because the prosecutor presented it at all.

    If the prosecutor had presented both the evidence that the thing is true and the clear and confusing evidence to the contrary, I would not call that "presenting it as if it is true", and I would not see a problem with it - at least not without further aggravating circumstances.

    With the evidence in both directions presented, the grand jury could draw its own conclusions from that evidence - and if they conclude that the thing is true, then the evidence otherwise must not really have been quite so clear and conclusive, after all.

    Now, I'm not saying that the prosecutor has to present the evidence in both directions, in that way - only that there's nothing inherently wrong with doing so.

    There would, however, be something inherently wrong with presenting only evidence indicating that the thing is true, and not the clear and conclusive evidence that it is not.

    This becomes an issue when the evidence is not so clear and conclusive in either direction, and a judgment call needs to be made - and, presumably, that's much of the point of having a trial or a grand-jury presentment in the first place.

    To require the prosecutor to make that judgment call, so that the grand jury is presented only with the evidence for one conclusion, is to risk having the grand jury be presented only with the evidence for the conclusion which is not true - when the prosecutor was in possession of evidence to the contrary, and simply chose not to present it, not out of an intent towards falsehood but because the prosecutor believed it was false.

    If the prosecutor instead has the option to present both the evidence for and the evidence against - even when that evidence includes contradictory testimony, in which some witnesses must be lying - and let the grand jury draw their own conclusions, that seems to me to be a good thing.

  • Jan 16th, 2015 @ 9:54am

    Re: Re: Re: Re: Re: Re: Re: Re:

    But if the prosecutor makes that call, and doesn't present the evidence (including witness testimony) which would contradict that conclusion to the grand jury, then how can the grand jury be expected to make its own determination? It is then working from incomplete evidence, even more than the prosecutor was.

  • Jan 16th, 2015 @ 9:51am

    Re: Re: Re: Re: Re: Re: Re: Re:

    I see your point on the first one, but I disagree on the second - or, rather, I don't agree that knowingly presenting witnesses who contradict one another is the same thing as knowingly lying in court.

    Surely the cause of helping the court to determine truth is better served by presenting multiple sides of the story, which the court (read: grand jury) can then judge for itself, rather than pre-determining which side (or amalgam thereof) you think is the truth and only presenting that one?

    In the trial which results if there is an indictment, this goal is purportedly served by the adversarial process, in which the prosecution presents one side and the defense presents another (and, possibly, amici curiae present yet others). But in the grand jury there is no defense, there is only the prosecution - so if multiple sides are to be presented for the grand jury to consider in determining truth, it is the prosecution which must present them.

  • Jan 16th, 2015 @ 5:47am

    Re: Re: Re: Re: Re: Re:

    But in a grand-jury presentation, there is no defense; it's just the prosecution, attempting to make the case that there's enough evidence and enough cause for an indictment.

    I don't see a substantive difference between "presenting a witness whose testimony runs counter to the narrative which the prosecutor thinks is the truth" and "presenting a witness whom the prosecutor knows is lying". In either case, deciding not to present such a witness results in one side being left out, based entirely on the prosecutor's judgment about what the actual truth is - and no matter what evidence the prosecutor is working from, the prosecutor can be wrong about what the truth is. (Otherwise, there would generally be no point in having the trial, much less the grand-jury presentation.)

    There's nothing inherently wrong with a policy of never presenting such witnesses at the grand-jury stage, and leaving the presentment of such contradictory evidence to the actual trial - although I suspect that that approach might be part of what leads to the "a prosecutor can get a grand jury to indict a ham sandwich" scenario, simply because the grand jury's decision is made based entirely on the evidence which is favorable to the prosecutor's version of events.

    But there also wouldn't be anything inherently wrong with a policy of routinely presenting such witnesses at the grand-jury stage, without taking a position as to which ones are correct/honest, and leaving that question up to the members of the grand jury rather than to the prosecutor - in much the same way the members of a petit jury are the "finders of fact" in a jury trial.

    The latter approach would almost certainly decrease the number of convictions achieved, by reducing the number of cases which actually make it to the point of a trial; it might therefore be argued to also decrease justice, although that could probably be disputed. The trade-off, however, is that it would also avoid the costs - both to the state (i.e. the taxpayer), and to the defendants - involved in the trials which end up not happening.

    The problem - and the room for accusations of prosecutorial misconduct - arises when the decision of whether to present such witnesses is made selectively, rather than being a matter of routine. That can lead, as in this case it apparently has, to the perception that the prosecutor makes that decision based on whether or not they actually want to get an indictment. It's akin, in a certain sense, to the reasons why "selective prosecution" is a problem and a thing.


    Essentially, my argument is that it is ultimately not possible for the prosecution to "know" that a given witness's testimony is false, much less that that witness is lying rather than being mistaken; it is only possible for the prosecution to believe that the testimony is false.

    Yes, if the prosecution were to somehow "know" that a given witness is lying (or that a given piece of non-testimonial evidence has been faked), then everything you say would hold true. I simply don't see how it can be possible to have that level of certainty about what the truth is, while still having little enough certainty that there's actually a need for a trial in the first place.

    The issue of the truth, falsehood, or even applicability of a given piece of evidence or testimony is ultimately a judgment call. The question is, to whom do we want to give the power to make that call, at the grand-jury stage: the prosecutor, or the grand jury?

  • Jan 15th, 2015 @ 9:31am

    Re: Re: Re: Re:

    It's because I see it not as intentionally misleading the jury, but as intentionally presenting the jury with additional information to use to make their decision - both the different view presented by the contradictory testimony, and with the fact that there is contradictory testimony.

    The prosecutor may believe they know which witness is telling the truth, but they may be wrong. Which is better, from the perspective of achieving justice: for the prosecutor to present only the witnesses which support their preferred narrative, or for the prosecutor to present both sets of witnesses and let the jury decide?

    Now, there may be other reasons why presenting witnesses who run contrary to the prosecution's narrative would not be the best idea in a grand jury presentation. But that doesn't mean that there's necessarily something inherently wrong with doing so - only that those other reasons may trump in some cases.

  • Jan 15th, 2015 @ 8:31am

    Re: Re:

    Even there, if you do it as part of presenting a larger picture on which the jury can draw their own conclusions, I think that could be a potentially reasonable thing to do. (After all, do you necessarily know which of the witnesses are lying?)

    The trouble arises when it's only done for a special occasion, rather than as a routine prosecutorial tactic.

  • Jan 15th, 2015 @ 6:18am

    (untitled comment)

    There's also the fact that knowingly false testimony was introduced by the prosecution. Bob McCulloch's long-winded post-no bill statement mentioned the contradictory testimony given by several witnesses, indicating he knew he was putting liars on the stand (so to speak).
    Just to note, on this point: I don't see anything inherently wrong with knowingly presenting witnesses whose testimony contradicts one another on the stand before a grand jury, even when that means that some of the witnesses are lying rather than being merely mistaken. After all, the very fact that the testimony of some witnesses contradicts that of others is evidence for the jury to consider.

    That's only speaking in principle, however, about grand jury presentations in general. If - as seems highly likely - the prosecutor would not have allowed such contradictory witnesses to appear before the grand jury in an ordinary case, then the fact that he did do so in this highly unusual case could indeed at least potentially constitute prosecutorial misconduct.

  • Jan 11th, 2015 @ 4:04pm

    Re: Re: TIL water is not organic

    I think he meant that he understood organic compounds as being those compounds which include one or more of the elements in the top-right corner, and that since water does include such an element, it would be an organic compound.

  • Jan 8th, 2015 @ 6:31am

    (untitled comment)

    This isn't quite as full an "opening up" as it may sound like. Multiple news articles (all with the exact same wording for this part, AFAICT) are reporting that

    Patents related to fuel cell vehicles will be available for royalty-free licenses until the end of 2020. Patents for hydrogen production and supply will remain open for an unlimited duration.
    Or in other words: these patents aren't actually being released, they're just being licensed without charge, and many (most?) of them only temporarily so.

    This doesn't seem to rise to the same level of recognition of the purpose of patents, and the value of releasing patents, as what Tesla did last year.

    (Of course, even that wasn't actually a release into the public domain, just a promise not to enforce the patents as long as they were used "in good faith" - without specifying what that might mean.)

  • Dec 31st, 2014 @ 10:55am

    Re: Re: Re: Follow the money

    If copyright automatically terminates with the author's death, then a person who is elderly or seriously ill and expects to die in the relatively near future receives little or no incentive to create from the copyright system.

    But if copyright survives for a period after the author's death, then such a person has the added incentive to create which comes from the fact that the income from their new creation can help to support their heirs in their absence.

    Thus, for copyright to continue after the author's death provides additional incentive for the author to create even in the face of impending death, which otherwise would not exist.

    How big of a difference that makes in practice is another question, but that's what I've always understood the rationale to be.

    (Just off the top of my head, I don't see any particular reason why a "life of the author plus X years" model would be needed to satisfy this rationale; a simple "X years" model would work just as well. The only requirement would be that copyright not terminate when the author dies.)

  • Dec 31st, 2014 @ 7:44am

    Re:

    Rather, net neutrality is a principle which (if adhered to) would help to mitigate a different problem which is caused by the same underlying issue as this problem.

    That underlying issue is, quite simply, lack of meaningful competition.

    Competition in the market doesn't solve all problems, but it's probably the simplest and least rickety potential solution to many of the problems in the US Internet-access market. Unfortunately, it's not at all clear how to get there from here, or even necessarily exactly what "there" would look like.

  • Dec 31st, 2014 @ 5:27am

    (untitled comment)

    Wait, "the Information Technology (Procedures and Safeguards for Blocking of Access of Information by the Public) Rules"?

    That's about as clear and unambiguous a match for the definition of censorship ("an attempt to prevent some particular audience from being exposed to some particular information") as I could ask for - and they put it right in the title of a formal government document.

    At least they're being honest and straightforward about it...

  • Dec 29th, 2014 @ 2:48pm

    Re: Re: Re: Re:

    And the only way to address that is to point it out, every time, and point out the distinctions between the question they answered and the question which was actually asked - thus, at least in some sense, putting the ball back in their court.

  • Dec 29th, 2014 @ 12:36pm

    (untitled comment)

    this may just be an instance where the inability of Congress to actually accomplish anything of worth may wind up helping consumers.
    In other words, checks and balances working as designed.

    Legislative gridlock is a design feature of the system, not a bug. It has unfortunate consequences in some cases, but it is meant to block anything from being done where agreement (and preferably consensus) cannot be reached.

  • Dec 29th, 2014 @ 10:23am

    Re: Re:

    There's room for discussion of nuance there, but my point was that if we want to refute them on this counterargument, we need to either come up with evidence that there is abuse of this narrow type which they're actually denying, or start pointing out explicitly that they're denying something other than what they're being accused of (and thereby not addressing the accusations).

  • Dec 29th, 2014 @ 6:59am

    (untitled comment)

    At this point, I rather suspect that what they mean by "no (evidence of) abuse" is that there's no evidence that the NSA itself has been abusing its authority under these programs, rather than that individual analysts have been (ab)using their access in ways which fall outside of their duties.

    I.e., if an NSA agent were ordered to do something which was an abuse of one of these programs, that would qualify as the NSA abusing its authority - but if an NSA agent with access under these programs just does something inappropriate with that access, on his or her own, that's not the NSA committing the abuse. It's an "institutional" vs. "individual" thing.

    That's twisting definitions of words a bit, but much less than what the NSA has already done in other areas to justify these programs in the first place, and it would not in the least surprise me if they were intentionally using that narrower definition to be able to claim no abuse and have it be technically accurate.

  • Dec 29th, 2014 @ 6:51am

    Re: Nope.

    "Drug lords" are few, dangerous, well-connected and wealthy. More likely than not, they are already donating to the police retirement funds as well as giving generously directly to several officers and police departments.
    On that premise, might it not be reasonable to treat donations to police departments, officers, benevolent organizations, and the like as cause for suspicion of concealed criminal activity? Not warrant-level probable cause, but at least "be wary of these people, go out of your way to avoid giving them the benefit of the doubt if they ever run afoul of the law".

    There would be problems with that, of course, but it seems like a reasonable variant of the basic counterbalancing policy for a conflict-of-interest scenario...

  • Dec 12th, 2014 @ 5:51am

    Re: Balderdash!

    My only suggestion is '/poe' or '', similarly to the '/sarcasm' pseudo-tag that sometimes gets used. I'd certainly interpret that as having the meaning you describe, but I don't know whether other people would interpret it the same way.

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