Posted on 09/21/2007 1:59:19 PM PDT by Congressman Billybob
We’ll get to the latest ethically-blind, unintentional humor at Duke University in a moment. Let’s begin with the same thing as demonstrated in the $70 million case Dan Rather just filed against CBS.
The theory of American law is that adversaries – plaintiff and defendant in a civil case – will contest facts, witnesses and experts before the trier of fact (judge or jury) and truth will result. It is not just people like me who’ve been attorneys forever, but also laymen who read the papers, who know this theory sometimes fails in practice.
The theory will fail on purpose in this case, because neither side is interested in proving whether the documents in this case were forgeries that any competent reviewer would have identified at once. CBS wants to prove they were questionable, and shouldn’t have been used. Rather wants to prove they “were not proved false” and therefore should have been used.
I have a personal stake in this. I was part of the small group of bloggers, beginning on FreeRepublic.com right after the Rather broadcast on CBS, who demonstrated that the documents were forgeries, and ridiculously obvious ones. I knew this the moment I read the first post by “Buckhead,” an able lawyer from north of Atlanta.
I was in print media production at the time the “Bush National Guard” documents were allegedly produced by his commanding officer. I knew the only machines at that time which could produce the exact typesetting displayed in these documents cost about $50,000 and were owned only by printing firms. Such a piece of equipment, which cost more than the average house, would not have been available in the HQ of any National Guard unit.
Could the typewriters available at the Guard have possibly produced these documents? Absolutely not. The two typewriters it had then, are known. Neither could match the typesetting of the IBM Selectric, then the most sophisticated typewriter in existence. And even the IBM Selectric, which I worked with in my office, could not have matched these documents.
So, I read Buckhead’s comment, slapped my forehead and said, “Of course. He’s right. These are forgeries. I should have seen it myself.”
Back to the case of Rather v. CBS. Every court of general jurisdiction has the power to appoint Special Masters to examine particular facts in a case and report back. Masters are routinely used when the central issue is highly technical. But there’s another reason to use a Master. When there’s reason to believe both the parties in a case have cause to slant the central facts, the court can and should appoint a Master to make an unbiased examination.
This case is not just about Rather against CBS. It is also about the integrity, or lack of integrity, of the American news media. For about a week after this broadcast, the media circled the wagons to protect both Rather and CBS. Not until the blogosphere forced the issue, did the media change their conclusions.
So, the judge on this case will, in my opinion, be derelict in his duties if he (or she) does not appoint a Special Master in this case. The Master’s assignment should be to determine if the “Guard” documents are forgeries, and if so, how obvious was that? Neither Rather nor CBS may like the results of that examination. But the American press will benefit greatly though unwillingly, from that investigation.
While we are on the subject of “justice,” here’s a brief comment about Duke University. Duke has just announced that it will “invest $1.25 million over the next five years for its law school to establish a center devoted to the promotion of justice in the criminal justice system and the training of lawyers to fight against wrongful convictions.” President Richard H. Brodhead made this stunning announcement this week.
If Duke is honestly interested in promoting justice and avoiding wrongful charges and convictions, it would have spent $36.08 to accomplish the same result immediately, rather than over the next five years. That would be $35.67 to mail a letter to each of the 87 faculty members who published the full-page ad asuming the students to be obviously guilty. The letters would say, “Your services are no longer required.” (There were 88 such professors, but one recanted and apologized after the NC Attorney General dismissed all charges and apologized.)
The last 41 cents would be for President Brodhead to mail a letter to the Board of Trustees, letting them know he was leaving, after his failure to deal honestly with the situation.
In the alternative, Duke could name the new Center the O.J. Simpson Justice Center. The decision rule is ever so simple. Black defendants are innocent. White defendants are guilty. Meanwhile, Duke and CBS are once-proud institutions that are dying a slow suicide. Both forgot the lesson that Scottish poet Robert Burns taught in 1786 in “To a Louse”:
“O wad some Power the giftie gie us To see oursels as ithers see us!”
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About the Author: John Armor practiced in the US Supreme Court for 33 years. John_Armor@aya.yale.edu He lives in the 11th District of North Carolina.
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Dan Rather is slithering out of the slime pond because he sees the next administration leaking everything they can on Bush and he can see himself vindicated.
IMO, Rather is trying to pull a “Don Imus” here. He wants to sue over termination of employment issues. Now he really doesn’t have a leg to stand on, as you so ably point out. But he’s counting on CBS’ continuing embarrassment over the issue to leverage a settlement or re-instatement. That’s the way I see it.
IOW, to know the models of all the typewriters in the office is to know that the "Killian Memos" were not typed on them, and thus were fraudulent (and in violation of federal law).So, I read Buckhead’s comment, slapped my forehead and said, “Of course. He’s right. These are forgeries. I should have seen it myself.”
I was in print media production at the time the “Bush National Guard” documents were allegedly produced by his commanding officer. I knew the only machines at that time which could produce the exact typesetting displayed in these documents cost about $50,000 and were owned only by printing firms. Such a piece of equipment, which cost more than the average house, would not have been available in the HQ of any National Guard unit
. . . and would, I warrant, have been a real bear to actually use the fancy font nesting which Microsoft Word employs a computer to control. Which consideration would be entirely sufficient to assure us that the "Killian Memos" would not have received such elaborate treatment. Quite apart from the cost consideration, which in its own right is quite sufficient to assure anyone that the an organization whose mission is to operate hand-me-down, obsolescent equipment would not be frittering away scarce resources on elaborate equipment whose capabilities would have been entirely extraneous to the organizational mission.And all that is over and above the highly suspicious quality of the copies of the "Killian Memos" - bad enough to lower the unwary reader's expectations of verisimilitude of a signature, and thus too bad to represent a document which has successfully been closely held for three decades.
Excellent article; I hadn't seen that the models of the typewriters at TANG had been determined.
So, the judge on this case will, in my opinion, be derelict in his duties if he (or she) does not appoint a Special Master in this case. The Master’s assignment should be to determine if the “Guard” documents are forgeries, and if so, how obvious was that? Neither Rather nor CBS may like the results of that examination. But the American press will benefit greatly though unwillingly, from that investigation.
This case is about reputation. Rather claims a tort to his reputation, and since the "Killian Memos" are in fact fraudulent, and should have been instantly seen to be so by any qualified document examiner, no injustice has been visited on Mr. Rather's reputation.But ironically, CBS's reputation is entwined with that of Mr. Rather. So it is easy to envision CBS folding like a cheap camera rather than contesting this case with any vigor at all. Your suggestion of a Special Master to dispose of the questions of what Mr. Rather should have known before going on-air with the "Killian Memos" seems directly opposite. The threat of such an investigator informing the court will relieve the court of any necessity to exert itself to decide on more ambiguous grounds; CBS will fold, and we will have to count the savings of court time as a victory, cold comfort though it may be compared to an official finding of the truth of the matter.
Mapes, at Rather’s occasional direction, had been working on the TANG story since W was in the TX Statehouse and couldn’t make it stick. Various TX Democrats had tried to use the story but when the months of service were counted and the fact that GWB had mastered a jet fighter that was being fazed out (and taking into account the years required to master a new fighter,) they stopped talking about it. I think Dan must’ve been smoking something pretty good when he decided to play this card when so many fellow Texans had scrutinized it and realized it was bogus.
So, neither of the typewriters present at the TANG office was capable of ever producing what the “Bush memos” contained, neither the proportional spacing nor the kerning of the letters. Kerning is the key. Only well-heeled printers owned machines that could do that — until computers and laser printers came along and everyone had that capacity sitting on his desk.
John /Billybob
No previous typewriters could match it and I kept it.
How right you are! Crimes don't magically disappear. Sooner or later they rear their ugly heads again. Do these creeps think we all have amnesia?
I remember seeing and typing on an IBM Selectric with justifying margin capability. The typewriter had an early memory feature and would type about a half dozen words behind the speed I was typing.
One would hope that there exists somewhere a working specimen of the Olivetti and the other typewriter - and that a proposal to the court could be submitted which included specimens of the type from both, sufficient to dramatize the difference between the two, and between the "Killian Memos" and either.Failing that, a specimen of the output of each, from that TANG office and even from the same year that the "Killian Memos" purport to be originated in, could be compared to the output of Microsoft Word on its default settings when the specimen text was transcribed into it. And to the output of Microsoft Word when its margins and tabs (but not its default font and kerning) are optimized to mimic the appearance of the specimen text.
You stated elsewhere that a trial court doesn't entertain amicus briefs. Is there then no mechanism by which the public can communicate to the court that it is in danger of being, in effect, placed in the position of arbitrating the division of ill-gotten gains? Because that is what this case boils down to. The "gains" in question being not financial but - what the plaintiff and defendant lust after even more than money - reputation.
If it be recognized that the "Killian Memos" are fraudulent, it will be seen that the reputation they are now bickering over is fraudulent as well. And the suit before the court is moot. The court needs to know that a Special Master could dispose of the case in short order - and indeed, that the mere threat of the appointment of one would probably lead to a prompt out-of-court settlement of the dispute.
That is what often happens by the mere empannelment of a jury, right?
But wait, wait. Dan has said that no one has proven them to be forgeries. Dan has such high ethical standards that we must give him the benefit of the doubt. Isn’t he a totally nonpartisan newsman? Doesn’t he always treat Dems and the GOP the same way? Please, don’t destroy my world view and tell me that he is just a lying, partisan leftist. I don’t think I could stand it.
Liberals can never admit they were wrong about anything. Even when caught in lies they always try to blame someone else.
Excellent column. This is one of your best!
There will be more.
Beyond the “Story/truth/docs issue, there is the claim that Net did not put him on the air as the contract stipulated.
CBS may well decide that the way to defend against Rather's contractual claim that he was due certain slots will simply be to destroy him.
They may well simply say that there was ample evidence of way too much instability to put him on the air in an uncontrolled situation. There would be a number of people at CBS and others nets that would testify to his actions, words, etc.
CBS could then claim: Who cares what the contract said. We had a duty to protect the company and more importantly, the public from Mr. Rather’s actions. We wanted to do it gently. We would never have mentioned this publicly, but Mr Rather, through this trial, forced our hand.
We paid him his full salary, out of respect. For his own good, and the company and America’s good, we put him out to pasture. He brought all this current negative notoriety on himself.
A jury could eat that up.
The actions by Duke University to spend that money to fight wrongful convictions is actually in opposition to the lacrosse convictions. What the university intends is to prove that minorities are treated unfairly in our justice system. They call this restorative justice. The other side of restorative justice is exactly what happened to the white lacrosse team, they were unjustly convicted because they were white.
I know that you know this, but others may not.
If I pray for this to show up on C-Span or any other 24/7 cable channel - is that wrong?
See what you started? I think you should get a share of the loot!
In 1961 are you sure it was a Selectric?
IIRC it was called an Executive.
In this scene, we have a narrator saying, "Using undiscovered evidence, we can now reveal that Jack the Ripper was actually..... Nessie, the Loch Ness Monster!"
Facts? Evidence? Who needs them when you already know the "Truth."
Mark
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