Balko Backs Off, But Not Much: He Now Says He Wouldn’t Lie Under Oath, He Would Just “Misdirect” the Court Under Oath
This morning I criticized Radley Balko for saying he would lie under oath to get onto a jury so he could nullify in numerous different cases. He now backs off that claim, but only slightly, in this post:
One small concession: As bloggers sometimes do, I was perhaps a bit rash in using the word “lie.” I wouldn’t outright lie in voir dire, though I’m sure Patterico and other opponents of nullification would interpret the misdirection I would use in answering questions to have the same practical effect. I would answer questions in a way that’s not openly false, but that certainly masks what I’d intend to do.
Balko’s stated intent to use Clintonesque “misdirection” instead of “lying” doesn’t make his plan to mislead the court any more admirable.
First, I think Balko overestimates his ability to dodge questions in jury selection. The most fundamental question asked of jurors is whether they can follow the law. They are asked that question under oath. Balko will be asked direct questions under oath like this: are you willing to follow the law? and will you follow the judge’s instructions even if you don’t agree with them? When he knows the answer to these questions is “no,” how is he going to answer these direct questions in a way that constitutes “misdirection” but not “lying”?
Even if he could somehow pull this off, is this truly admirable behavior? I think it’s clear that it isn’t. This morning I used the analogy of police lying under oath about probable cause to ensure the conviction of a truly guilty defendant. Even if the defendant is a truly bad man — say a killer who is certain to kill again if he hits the streets — we can’t tolerate such lies in our system of justice. Would it be better if the officer somehow managed to avoid “lying” but rather employed “misdirection” that gave the court the false impression that the search was legal when it wasn’t? Absolutely not. Witnesses are to tell the whole truth in their testimony, and let the chips fall where they may. Deliberate “misdirection” is not acceptable. The same goes for jurors answering questions in voir dire.
As I said this morning, Balko’s argument — justifying lying to the court under oath to further his agenda — could easily be used by a blogger to justify lying on his blog to advance the same important principles. And I don’t see how it’s any different if it’s “misdirection” rather than lying. I assume Balko would disavow any intent to deliberately misdirect readers on his blog in order to make his arguments. But why? Why is making honest arguments on a blog more important than telling the truth to the court while under oath??
And I am profoundly unimpressed by the argument, advanced by some commenters, to the effect: we’ll start being honest when the system is honest with us — but as long as there are some lying judges or lawyers out there, why then, we have no duty to be honest to the court. That’s pure, naked rationalization of dishonesty. There are a million liars out there in the world, and if you are going to use their lies to justify your own, you have no integrity at all, because you can always find someone out there who has lied.
Deiberate misdirection is little different from lying, and it is intolerable in the justice system. Enough people got sick of Slick Willie and his cute circumlocutions that the derogatory term “Clintonesque” needs no explanation. Balko essentially says he’d be Clintonesque with the court. When you’re under oath, that doesn’t cut it. Furthermore, there’s nothing admirable about being Clintonesque.
P.S. By the way, Balko seems to think he’d be kicked off any jury anyway, regardless of his misdirection. But why? Is he really so famous that every prosecutor in the country knows who he is? If he gets himself in front of a prosecutor who is unfamiliar with his writings, and he misdirects the court and counsel to get on a jury, why wouldn’t he be successful? So this is not necessarily a purely hypothetical situation, as he appears to assume.
UPDATE: Balko responds here. He says:
[Patterico] does again take a jab at my credibility, implying this time that someone who would mislead to get onto a jury in order to prevent an injustice would also lie on his blog to further the radical libertarian agenda.
No, I simply noted that the logic Balko employs could be used to justify lying on a blog. In a previous post, I said three times that I wasn’t accusing Balko of lying on his blog, but I forgot to say it three times again, so he now accuses me of it.
Whatever. I’m not the guy advocating dishonesty, Balko is. If he chooses to avoid the implications of his proposal in his latest post, that’s his problem, not mine.
His explicit advocacy of dishonesty isn’t winning him any fans, and I’m guessing his refusal to confront my real criticisms head-on aren’t helping his cause much either.