Daily Archives: April 1, 2017

Immunity for Flynn would be a bad idea (at least for now)

Granting immunity in order to get Mike Flynn’s testimony in congressional hearings would be a very bad idea, if history is any indication.

This NY Times story published in July 1990 explains what happened in the case of Oliver North, the former Marine who was a central character in the Iran-contra scandal during the administration of President Ronald Reagan (“NORTH CONVICTION REVERSED IN PART; REVIEW IS ORDERED“).

An appeals court threw out North’s convictions because the trial court had not properly determined whether evidence presented at trial had been improperly tainted by North’s testimony before Congress.

The bottom line is that testimony under a grant of immunity is likely to undermine criminal prosecutions, not only of the person granted immunity, but potential all of those accused of being involved in the same matters.

According to the 1990 story:

In the summer of 1987, Congress granted immunity to Administration figures like Mr. North and Mr. Poindexter over the reservations of the independent prosecutor, Lawrence M. Walsh. Congress moved quickly to get to the bottom of the affair, in which the Reagan Administration sold arms to Iran and diverted some proceeds to the Nicaraguan rebels.

Prosecutors Assess Ruling

Republican defenders of the Reagan Administration have said the urgency to get the hearings under way quickly stemmed from a politically motivated effort by Democrats to use the Congressional inquiry to criticize Mr. Reagan’s Iran-contra policies and to appear vigorous in investigating a high-profile scandal that aroused an outpouring of public concern.

The decision today demonstrates the difficulties in bringing to trial an official who has previously been forced to testify before Congress. [News analysis, page 7.]

Here’s a section from the decision of the U.S. Court of Appeals for the D.C. Circuit.

When the government proceeds to prosecute a previously immunized witness, it has “the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.” Kastigar, 406 U.S. at 461-62, 92 S. Ct. at 1665. The Court characterized the government’s affirmative burden as “heavy.” Most courts following Kastigar have imposed a “preponderance of the evidence” evidentiary burden on the government. See White Collar Crime: Fifth Survey of Law-Immunity, 26 Am.Crim.L.Rev. 1169, 1179 & n. 62 (1989) (hereafter “Immunity”). The Court analogized the statutory restrictions on use immunity to restrictions on the use of coerced confessions, which are inadmissible as evidence but which do not prohibit prosecution. Kastigar, 406 U.S. at 461, 92 S. Ct. at 1665. The Court pointed out, however, that the “use immunity” defendant may “be in a stronger position at trial” than the “coerced confession” defendant because of the different allocations of burden of proof. Id.

There’s a much longer explanation of constitutional basis of the issue. Worth at least skimming.

It seems that the Trump administration might back immunity as a way to make future criminal prosecutions difficult, if not impossible. That’s not a good deal for the rest of us.

My first job catches up with me

There was good news and not-so-good news this week.

The good news…I got an email from the compensation manager in the Human Resources Department of the American Friends Service Committee in Philadelphia.

“I have been trying the reach you regarding your AFSC vested pension benefit….”

What? Previously unknown (to me) money? Score! Or so I thought.

I was on the AFSC staff in Hawaii back in the 1970s, my first “real” job after leaving graduate school, and the letter was to notify me that I was vested in a retirement plan at the time I resigned. I had been eligible to begin drawing pension payments in 2012, but their attempts to notify me at that time had been unsuccessful.

This was a surprise. I hadn’t expected anything more from that long ago job. And I wondered what it might be worth after more than 35 years, with those decades of compounding investment returns.

Well, then came the not-so-good stuff. No fairy tale windfall here. When a letter with the specifics arrived, it seems I’m eligible to receive $26.43 per month, or $317.14 per year. Or I can apply for a lump sum of slightly over $3,000.

Yes, I’m glad to be able to take the cash. But it’s a good thing I hadn’t been counting on this in my retirement planning!

Another morning in Kaaawa

It started hereThis was where our long love affair with Kaaawa started. It was about this time of year in 1988, and we had been shopping for a house. At the time, we were living in a two-story townhouse in Tropic Gardens, on the other side of the freeway above Kahala Mall. It was nice, but we hoped to find something we could afford that didn’t feature a large ground-level parking lot right outside the living room window. We had this silly idea that we might be happy just with a place we would go for summers, vacations, and long weekends. So we looked along the north shore and along the windward coast.

One day, we were driving back with our realtor and stopped at Swanzy Beach Park. As we left, we were in the driveway looking toward the mountains. Behind the 7-11 store, you could see this A-frame home just up the hill. We both looked at that house, and its prime location with both mountain and ocean views. “We could live there,” we both said.

And, as it turned out, there was another house for sale just a little bit farther up the hill. We saw it and immediately made an offer. The rest is history. We loved every minute of the next 27 years living in Kaaawa. And we still enjoy visiting good friends, staying overnight, and walking the beach and the back roads the next morning.

Yesterday was another of those mornings.

Just click on the photo to see a few more.