NYT again misreports maximum potential penalty that could have been sought against surviving Somali pirate
By Beldar on SCOTUS & federal courts
U.S. Magistrate Judge Andrew J. Peck of the United States District Court for the Southern District of New York has ruled that the surviving Somali pirate captured by the U.S. Navy after attempting to hijack the M/V Maersk Alabama, Abduwali Abdukhadir Muse, will stand trial as an adult. In so doing, Judge Peck credited testimony yesterday from New York City Detective Frederick Galloway, who — according to the New York Times — "who went to Africa as part of an investigative team." Detective Galloway testified that
Mr. Muse, after giving different ages, said he had been untruthful, apologized and said he was "between 18 and 19."
"He also said, 'I'm sorry for lying to you,'" Detective Galloway testified. "He said, 'When I pray again, I'll ask Allah to forgive me for lying to you, and I won't lie to you again.'"
Judge Peck rejected as "incredible" contrary testimony given by Muse's purported father (through an interpreter and via a telephone hookup to Somalia) to the effect that Muse is only 15 years old. As for suggestions that Muse was merely a passive follower of the other pirates, the NYT story reports:
Disputing his father's portrayal of his son as an unwitting dupe, prosecutors say Mr. Muse conducted himself as the leader of the pirate gang, and was the first among them to climb aboard the Maersk Alabama on the morning of April 8 in the Indian Ocean off of Somalia.
He fired his gun at the captain, Richard Phillips, who was still on the bridge, and then entered the bridge with two other armed pirates, and demanded money, the complaint said.
In fact, the Department of Justice's sworn criminal complaint filed against Muse is considerably more damning as to Muse's overall role in these events than the NYT's summary. According to the complaint(caps in original):
MUSE entered the Bridge, and told the Captain to stop the ship. MUSE, who conducted himself as the leader of the Pirates, later demanded money from the Captain. MUSE and two other Pirates, each of whom was armed with a gun, then walked with the captain to a room on the Maersk Alabama that contained the ship's safe. The captain opened the safe and took out approximately $30,000 in cash. MUSE and the two other Pirates then took the cash.
And the complaint likewise disputes previous press suggestions that Muse had "effectively surrendered" by boarding the USS Bainbridge before Navy SEAL snipers shot and killed his co-conspirators (italics mine):
On April 12, 2009, MUSE requested and was permitted to board the USS Bainbridge. The other three Pirates continued to hold the Captain on the Life Boat. On the USS Bainbridge, MUSE continued to demand for himself and the other Pirates safe passage from the scene in exchange for the Captain's release. In addition, MUSE received medical treatment.
Muse wasn't surrendering, in other words, and hadn't "withdrawn from the conspiracy," but was instead continuing to convey threats that his co-conspirators would kill Captain Phillips unless all of the pirates, including Muse, were released and guaranteed their continued freedom.
*******
This NYT story — like every other mainstream media report I've seen since the attempted hijacking and hostage-taking — again incorrectly claims that life imprisonment is the most severe penalty available for any of the crimes with which Muse could be charged. As I wrote last week, 18 U.S.C. § 1203(a) provides that "if the death of any person results, [hostage-taking] shall be punished by death or life imprisonment." The statute doesn't require that the defendant himself have committed the homicide, nor that the victim of the homicide be one of the hostages. Rather, as with many state felony murder laws, all that section 1203(a) literally requires is that the hostage-taking have resulted in "the death of any person" for its violation to become a capital crime punishable by death. The criminal exposes himself to this penalty by taking part in a crime which ends up getting anyone killed as a result, even if it's an innocent bystander killed by accident, or even if it's one of his accomplices and co-conspirators who's killed in a justifiable homicide by law enforcement officers.
Hostage-taking in violation of section 1203(a) is indeed one of the five counts with which Muse has now been charged. However, the DoJ did not see fit to include in the charging language for that count an allegation that the hostage-taking resulted in the "death of any person," so Muse appears to be at risk for nothing worse than a life sentence as the case presently stands.
Section 1203(a) is not a complicated or long statute, and it's simply inconceivable that the prosecutors were unaware that it permits capital punishment when the hostage-taking has resulted in the "death of any person." So we must assume that the decision not to to charge the crime in a manner that would permit the death penalty under section 1203(a) was a deliberate one.
Such decisions fall within the general realm of "prosecutorial discretion." Because prosecutors are responsible not only to do what's right but to do justice, not every crime that could be charged should be charged. And one may argue with a perfectly straight face that Muse's relative youth (even if, by his own admission, he wasn't below the age of 18) and poverty-stricken life, plus the fact that only bad guys got killed, were enough in the way of mitigating factors to justify the prosecutors' decision not to seek the death penalty. Were I in their shoes, I probably would have been inclined instead to leave that to the jury to decide. But I am not accusing these prosecutors of having abused their discretion; and indeed, in other respects, the complaint is commendably robust.
But I do think that the mainstream media ought to truthfully report that the death penalty could indeed have been sought by the Obama Administration. This isn't quite the "Wag the Dog" scenario I've been predicting. But Obama's spinmeisters have been quite aggressive in seizing this as an example of "Obama as Tough Father Figure." It's bad practice, but unfortunately common (verging on universal), for the mainstream media to aid and abet Obama in such exaggerations, and this is simply another example of that. beldar.org |
