From: bhayden@teal.csn.org (Bruce Hayden)
Subject: Re: George Bush pardons criminals
Organization: Colorado SuperNet, Inc.
Date: Thu, 31 Dec 1992 06:55:33 GMT

eck@panix.com (Mark Eckenwiler) writes:

>In <bhayden.725731091@teal>, bhayden@teal.csn.org sez:
>>eck@panix.com (Mark Eckenwiler) writes:

>>>Which means that North is factually, but not legally, guilty.  If you
>>>missed Al Thompson's attempt earlier this year to muddy this
>>>distinction (and my repeated explanations of why his take on the law
>>>was wrong), I will be more than happy to disabuse you of the erroneous
>>>notion that North's conduct was not criminal.
>>
>>I don't understand how you can be exonerated from a crime, and
>>yet you can be factually guilty. The judicial determination of
>>the guilt was essentially overturned. Yet you can sit there and
>>say that he was guilty anyway. 


>Your terminology is defective.  North wasn't exonerated; his
>conviction was merely vacated by application of the _Kastigar_
>extension to the Fifth Amendment.  

>If you know anything at all about habeas corpus jurisprudence, you
>will immediately recognize the relevance of Justice Harlan's
>distinction between "guilt-related" constitutional violations (e.g.,
>denial of counsel) and non-guilt-related violations (illegal search).
>The decision to vacate North's conviction, because based on a
>non-guilt-related violation, casts no doubt on the validity of the
>factfinding process.

Well, there may be a distinction, but -
Under normal circumstances determination of guilt is based
on the evidence submitted to the jury. Unconstitutionally]
acquired (and submitted) evidence may (and in this case 
obviously did) sway the jury. Walsh at least believed (since
he didn't retry) that the jury would not convict without that
unconstitutionally acquired evidence.

So - you are faced with a situation where if Ollie's rights
had been respected, he would have been exonerated (or never
even charged) on those crimes. Instead, he is convicted on
unconstitutional evidence. 

You would of course have to say that in the first case he was
innocent. But aren't we in a strange position that we can say
he is "factually guilty" if his constittuional rights had been
violated, but "factually innocent" if the rights had been respected.

I am uncomfortable with the idea that he would be legally considered
in a lesser position if the conviction was obtained using 
unconstitutionally acquired evidence, than if his rights had
been respected in the first place. 

Where is the ACLU here. They should be up in arms about this

>>I do not believe that you sat through the entire trial. Therefore,
>>you are acting as a jury probably based on newspaper accounts of
>>the trial. This is exactly like the Rodney King trial, where
>>a great number of peoplwho didn't sit through all ofhe
>>testimony were sure that the 4 cops brutalized Mr. King. 

>Strawman alert.  

Well - maybe. 

>You miss the point entirely.  The determination of North's guilt was
>made by the *jury*, not by me.  The appellate court's reversal does
>nothing to cast the *factual* (as opposed to legal) validity of that
>verdict into question.

Except that the jury would not have come to that verdict if it
had been limited to constitutionally acquired evidence. How do
we know that? Because Walsh declined to reprosecute.

>>It has been repeatedly said that with an unlimited budget, one
>>can convict anyone of something. That is what happened here. 

>So now who's claiming that his knowledge is superior to that of the
>jury that heard all the evidence?  Hmm?

Most of which was unconstitutionally obtained.

While my statement came after a talk about Ollie, it was meant 
to address the recent Walsh indictements, especially of 
the pardoned 6. So I appologize. My wife says I do this a lot -
switch topics without giving the proper cues.

I think that the Iran Contra cases can be separated into 4 classes:
1) Those that profited personally from the fiasco. Those that
   were tried in this catagory were convicted of exactly that.
   These (5?) were not pardoned.
2) Ollie and his boss. Ollie was in the middle ground. He really
   didn't profit that much, and any profit might be considered
   (if you are generous) de minimus and part of the job. 
   These two had their cases reversed and dropped.
3) Weinberger and crew. No personal profit. Did whatever they
   did for patriotic reasons, and out of loyalty to their pres.
   These were the 6 who were pardoned.
4) Bush and Reagon. What can I say. 

It was the Weinberger crew who faced charges that no prosecutor
with a budget would ever have filed. The main charge seems to
have been lying before Congress. (I won't dignify that with
the name perjury since that requires an oath, and most of this
was not under oath). Weinberger is especially egregious, since
he was apparently a major opponent of the iran/contra mess
from the start.
  
Bruce E. Hayden
(303) 758-8400
bhayden@csn.org