Attorneys charge abuse of process, duplicity, public vilification

Shades of infamous McMartin Preschool trial, 'sex crime' fiasco...

Ernest A. Canning Byon 1/13/2011, 8:24pm PT

Guest blogged by Ernest A. Canning

As the corporate media weighed in on the Jan. 11 decision to postpone a hearing on the Swedish request that the U.K. extradite WikiLeaks' spokesperson Julian Assange until Feb. 7, Assange's U.K. legal team filed a powerful, preliminary legal brief.

The Assange brief, citing extensive legal authority, not only sets forth why extradition will not lie merely for the purpose of questioning someone who has yet to be even been charged with a crime, but affirmatively alleges an abuse of process that includes duplicity:

on the part of Swedish prosecutors in releasing Assange's name to the press as a suspect in a rape inquiry in violation of Swedish law;

in disingenuously asserting that Assange must be extradited for questioning, when such questioning could be, as repeatedly offered, conducted in the U.K. under established international procedures;

in informing the Australian Ambassador that the evidence against Assange could not be released, even while granting a newspaper unauthorized access to the the prosecutor's files;

and in refusing to release documents which severely undercut the veracity of the case the Swedish prosecutors presented to the press and in their European Arrest Warrant ("EAW").

This latter allegation calls to mind the infamous McMartin Preschool Trial and the horrific and irreparable harm that can be wrought when irresponsible media fan public hysteria by joining in a public vilification that assumes, as true, volatile allegations of sex crimes.

The brief, citing Sweden's past role in facilitating the Bush regime's extraordinary rendition requests which led to torture, ends with concerns that Sweden's request to extradite Assange is a sham intended to facilitate his unlawful rendition to the U.S. for placement in Guantanamo, or worse...

Extradition neither appropriate nor necessary remedy

After a brief technical argument --- that Marianne Ny, a Public Prosecutor in Gothenburg, Sweden, could not certify an EAW because Ny is not a "judicial authority" for purposes of the relevant Extradition Act --- the Assange legal team launched into its core legal argument:

Ms. Ny has repeatedly and publicly stated that she has sought an EAW in respect of Mr. Assange...to facilitate his questioning and without having yet reached a decision as to whether or not to prosecute him.

In addition to citing U.K. case law to the effect that extradition will not occur simply to permit questioning of someone who has not been charged with a crime, team Assange argued that Ny has been disingenuous in asserting the need to compel Assange to appear before her, noting that when Ny reopened the rape investigation, she did not request his detention, but, instead, permitted him to leave Sweden without being questioned.

A filing from Assange's Swedish lawyer states:

I have been trying for many weeks to arrange for him to be questioned by Ms. Ny, including by Mr. Assange returning to Sweden for questioning. All these attempts have been rebuffed by her.

Team Assange argues that the "proper, proportionate and legal means" would be to question Assange in the U.K. "through Mutual Legal Assistance" --- a procedure afforded through relevant treaties.

McMartin revisited

During a contentious, two-part debate last month, Jaclyn Friedman, executive director of Women, Action and the Media, accused progressives, including feminist Naomi Wolf, of "minimizing" the Assange rape allegations and "blaming the victim." Wolf took umbrage to Friedman's charge. Wolf noted Ms. Friedman had relied upon an account furnished by the U.K.'s Guardian, which was "based on leaked original documents." Wolf noted that the Guardian did not "say that he had sex with either of these women without their consent."

In light of Friedman's revelation that she, herself, had been the victim of a rape, one can well understand her gut-level emotional reaction to the media account, but her use of the word "victim" is inappropriate as it carries with it a dangerous presumption that a crime had, in fact, been committed.

It is this presumption of guilt that calls to mind the irreparable harm wrought by the McMartin preschool investigation and trial.

The McMartin case began in 1983 when Judy Johnson, the mother of a child enrolled in the McMartin Preschool in Manhattan Beach, CA "complained to the police that her son had been sodomized by her estranged husband and by McMartin teacher Ray Buckey."

By 1984, this single allegation, from a woman who would later be diagnosed as a paranoid schizophrenic before her 1986 death from chronic alcoholism, led authorities to launch an investigation that would close down the school and lead to financial ruin, not to mention destroying the reputations of Buckey and five women, including Buckey's sister, Peggy Ann, the school's owner, Virginia McMartin, and three female teachers.

Utilizing techniques which Dr. Michael Maloney, a British clinical psychologist, criticized as "coercive" and "adult-directed in a way that forced the children to follow a rigid script," therapist Kee MacFarlane erected a bizarre set of allegations entailing the alleged sexual abuse of some 360 children and Satanic rituals, including an allegation that these preschool teachers chopped off the head of a baby and burned its brains.

Per Wikipedia, "The trial lasted seven years and cost $15 million, the longest and most expensive criminal case in the history of the United States legal system, and ultimately resulted in no convictions." A key prosecution witness later confessed that he lied.

All of this happened to six innocent people who were previously unknown, but whose lives were shattered due to the graphic nature of the unsubstantiated public allegations.

And now we find accusations leveled at the public spokesman for WikiLeaks, an organization which has exposed a myriad of dirty government and corporate secrets and apparent crimes. In the bargain, powerful people, inside and outside of government, have expressed a desire to slay the messenger --- Assange.

It does not stretch credulity to suggest that there are certainly many who possess a motive to manipulate the evidence in order to publicly vilify him.

Withheld documents undercut rape allegations

In their latest filing, team Assange alleges that while the Swedish prosecutor refuses to "make the evidence against Mr. Assange available in English," the "prosecutor's office...made extracts...available to the English media with the object that he should be further vilified in the UK and elsewhere...[that] the Swedish prosecution refuses to disclose Twitter and SMS messages to and from the complainants...which messages destroy their credibility."

Team Assange alleges that they obtained an SMS text message from complainant "W" which directly contradicts a claim that Assange initiated sex with her when she was asleep. The message reads, "half-asleep."

His attorneys conclude in their brief:

If the Complainant’s own evidence that she was “half asleep” has been bolstered in the EAW into an allegation that she was fully asleep, in order to support the making of a rape allegation, then this would in itself constitute prosecutorial abuse.

Team Assange alleges that, in a blog maintained by complainant "A" some "six months prior to the allegations in this case," she had set forth seven steps for extracting "legal revenge...against an ex-lover." The steps included:

Send your victim a series of letters and photographs that make your victim’s new partner believe that you are still together which is better than to tell just one big lie on one single occasion.

Damage wrought to US by lawless executive actions, impunity

While it was appropriate that team Assange pointed to Sweden's role in extraordinary rendition to bolster their concerns that Ny's extradition request was a sham intended to facilitate their client's transfer to U.S. custody, as a lifelong student of the law, I found this portion of the Assange brief unnerving.

I can remember all too well the concerns expressed by both professors and classmates when I attended law school in the mid-'70s about the damage wrought to our rule of law and the concept of "equal justice under law" by President Ford's pardon of Richard M. Nixon.

What we didn't know then was that the pardon of one President for his role in the Watergate crimes was but the first downward step on a spiral staircase that has led to executive impunity for far more serious crimes --- extraordinary rendition, indefinite detention, torture, and, now, the bald assertion of the right to execute an American citizen abroad without due process of law.

So, as I read this segment of the Assange brief I was left with an uneasy feeling in the pit of my stomach.

In the eyes of those who practice law in other nations, the brief suggests, the United States is no longer seen as a beacon of democracy and the rule of law. To the contrary, they view us now as we once viewed Stalin's Russia and Mao's China.

* * *

Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).



