A Geek With Guns

Chronicling the depravities of the State.

Punishing Suspects without Proving Guilt

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Federal prosecutors have a history of letting suspected child pornographers go free so it can keep the techniques it used to identify them secret. That history continues:

Rather than share the now-classified technological means that investigators used to locate a child porn suspect, federal prosecutors in Washington state have dropped all charges against a man accused of accessing Playpen, a notorious and now-shuttered website.

The case, United States v. Jay Michaud, is one of nearly 200 cases nationwide that have raised new questions about the appropriate limitations on the government’s ability to hack criminal suspects. Michaud marks just the second time that prosecutors have asked that case be dismissed.

Of course, the government left an out for itself. Double jeopardy is a concept under United States law that protects individuals from being prosecuted for the same crime twice. However, like all concepts that appear to protect the people from the government, there are loopholes that allow double jeopardy to be bypassed. A case can be dismissed with either with or without prejudice. If a case is dismissed with prejudice then it is done. If a case is dismissed without prejudice then it can be brought back into the courtroom at a later date.

“The government must now choose between disclosure of classified information and dismissal of its indictment,” Annette Hayes, a federal prosecutor, wrote in a court filing on Friday. “Disclosure is not currently an option. Dismissal without prejudice leaves open the possibility that the government could bring new charges should there come a time within the statute of limitations when and the government be in a position to provide the requested discovery.”

Dismissal without prejudice is often used when prosecutors screwed up procedurally. It gives them the option to correct their mistake and refile. But in this case the prosecution didn’t screw up procedurally. It simply didn’t want to reveal its evidence at this time but wants to reserve the ability to refile the charges at a time it finds more convenient. By using the ability to dismiss without prejudice in this manner the State has effectively nullified the concept of double jeopardy.

The government can recharge Jay Michaud when it decides that it wants to actually reveal its evidence. I think this move shows us how the government is planning to proceed. Instead of revealing the exploits it used to identify suspected child pornographers, the government will bring charged and dismiss them without prejudice and then recharge previous suspects after either the exploits have been discovered and patched or the statute of limitations is about to expire.

I’m sure this sounds like a great strategy to many people, especially considering the crime at hand. But it throws the entire concept of double jeopardy out the window. Instead of gathering enough evidence to bring charges and revealing that evidence to a jury, prosecutors can gather evidence, bring charges, dismiss the case without prejudice, and then bide their time until they decide to press charges again (where they may decide to just repeat the cycle or actually prosecute the suspect). Meanwhile, the suspect has to live with the charges looming over their head, which will almost certainly cause them a great deal of anxiety and mental anguish. It’s borderline mental torture. Dismissal without prejudice when used in this manner allows the State to inflict some punishment in the form of mental anguish without having to actually prove a suspect is guilty of a crime.

Written by Christopher Burg

March 7th, 2017 at 10:00 am