Saturday, June 12, 2010

Andy Muirhead, Collectors and Presumed Guilty whilst Facing Charges

Last night I was I was deeply saddened and shocked to hear that a favourite TV program of mine has been taken off-air. Andy and Collectors have been a beacon for me in the rather bleak existence that's been my life for the last few years.

The ABC has released a statement that the TV program, Collectors, has been taken off-air until further notice. It says Andy won't present radio or TV programs until the legal proceedings are concluded - but not quite that: "pending the outcome", which is what?

It's unclear to me, if the decision to step aside was Andy's or the ABC's, alone or jointly. The reasons must be multiple and complex.

This process will take much longer than 6 months to conclude and will damage all involved.

I worked with someone, Mark Lambert, who was charged by the AFP for similar offences in 1996.
His security clearance was "temporarily revoked", which meant, as a contractor, he lost his job - immediately.
When the matter was "resolved", he wasn't reinstated nor eligible for compensation.

This is the only write-up of the two year affair I could find, from June 1998.
Roger Clarke mentioned the start of the case, twice, in 1996.

Mark lost his job, savings, his four kids and marriage and almost his life after a suicide attempt.
He'd moved to Canberra from Adelaide to start a new career in I.T.
That obviously ended badly for him. I've no idea what happened to him after this ordeal.

The case ended with Lambert pleading guilty to a "technical breach" and receiving a 3-year good behaviour bond. The reasoning in choosing a plea was probably the usual pragmatic one: Lambert didn't have the money to fight the case, and would've (correctly) received this advice "these things are never certain".

The light sentence was due to an uncontested fact:
  • Lambert approached the AFP  with details of a child-porn ring in Sydney he'd uncovered.
Interestingly, no mention was made about the AFP or NSW Police pursuing those Lambert had identified.

I'm not going to second-guess the legal process or the police investigation. Here are some troubling facts:
  • Lamberts' actions are inconsistent with a guilty persons.
  • He sought advice from a friend and took them along when making his statement as an independent witness. Again, not consistent with guilt (two stories are harder to control than one).
  • The courts finally held his only crime was material on disk. Lambert had intended to move the offensive material to backups, but only copied it. Incompetence or mistake, yes, but inconsistent with guilt. If you were trying to hide all traces, you'd be much more through.
  •  Around the same time in the USA, Randal Schwartz, a noted computer expert, was convicted of 3 counts of "cracking" passwords at Intel. Schwartz had uncovered lax security practices and been trying to report them. Another well-intentioned geek nailed to the wall for seeking to help his employer.
 Justice, Equity and the Presumption of Guilt.

The Mark Lambert and Randal Schwartz cases are different to Andy Muirheads', no question.
There are many lessons around those cases that can be learnt.

The light, non-custodial sentences of both Lambert and Schwartz demonstrate that when the Courts did get to decide the matters, they weren't that impressed with the prosecutions' case but there'd been "technical" breaches that couldn't be swept aside.

Both Lambert and Schwartz lost years of their lives and suffered badly - mentally, emotionally and financially. They now have criminal convictions, which has consequences for the rest of their lives.

In the Andy Muirhead case, would he have been taken off-air for other crimes?

Like tax evasion or a false declaration on a bank loan or stealing some clothes - all well reported celebrity crimes.
Drink driving, drug-use, driving-related damage/injury and even domestic violence are so passé with celebrities, they only get passing mention in the media.

While Muirhead has been charged, he is formally "Innocent until proven guilty" - a principle enshrined not only in the British legal system, but around the world dating back thousands of year.

Yet, commercially and publicly, he is being treated as if he were guilty. This is not equitable, just nor legally accepted.
Like Lambert and Schwartz, he will, not just potentially, suffer damages even if vindicated, with redress or compensation possible.
We know this because it's already started. The bell cannot be "unrung".

Can Muirhead demand a writ of habeas corpus from those currently causing harm to his reputation and livlihood? Why have his reputation and interests been injured on the suspicion of an act?

Wikipedia on habeas corpus:
The writ of habeas corpus protects persons from harming themselves, or from being harmed by the judicial system.
My argument here is quite simple:
Publicising a suspicion of crime (charges laid) and suspending employment are ruinous to a public figure.  There is an effective Presumption of Guilt in both these acts, which violates fundamental Common Law principles and the UN Human Rights declaration.

"Justice Delayed is Justice Denied". 

It took years for Lambert and Schwartz to get their day in court. In the meantime, they suffered material and mental punishment as if they'd been guilty and handed stiff sentences. Those presumptive punishments and penalties were many times over harsher and more punitive than those eventually properly decided and handed down by the courts. But there is no redress or recompense available to those so victimised.

This is de facto sentencing and punishment by the community. Neither pretty, Equitable or Just.

The Legal system has a duty to uphold the Law and provide Justice.
Part of which is just sentencing and punishment, which, I argue, should endeavour to include two important points:
  • resolve the matters expediently (months not year), or suppress publication of charges until ready for trial, and
  • if not able to provide relief/redress for pre-trial damage/injuries, then to explicitly include those considerations in sentencing. Up to an including not recording a criminal conviction, with all its consequences.
Andy Muirhead is a bright star, this episode will not help him nor the community he serves.
What could he achieve if treated well?

This is not first time, nor will it be the last, that some "creative" has deeply offended public morals.

Oscar Wilde was hounded out of Britain and ruined for what is now commonplace in Sydney and L.A.
Was the loss of a such a genius truly warranted?
How much did we lose as a culture by the premature termination of his career?

We, as a community and culture, are sitting at a cross-roads.
It can be "Business as Usual" and this guy gets treated very badly, or we can find a sensitive, compassionate way to enforce our moral code without destroying Our Best and Brightest?

What's it to be?
Sacrifice Andy on the altar of Sensationalism, or
attempt to preserve and develop our exceptional talent, whatever their weaknesses?