Guest Post by Willis Eschenbach
I did jail time in the Sixties for a peaceful sit-in against the Vietnam War. So (as with many things) my understanding of the issues involved in what may be termed “civil disobedience” is eminently practical as well as theoretical. I was very disturbed by a recent column in the New York Times by Kirk Johnson entitled “Do Motives Matter?” It discussed the DeChristopher case. I reproduce it in its entirety and discuss it below.
Do Motives Matter? The DeChristopher Verdict
Tim DeChristopher hugged supporters as he left a courthouse in Salt Lake City after his conviction. Associated Press Photo
The American legal system tends to pay obsessive attention to a person’s motives and mental state. A hate crime, for example, only becomes a hate crime at all with motive. Premeditated offenses often get harsher treatment than impulsive acts of rage or passion. The capacity to understand right and wrong is a fundamental threshold of competency in a courtroom.
OK, let’s stop right there. Part of that is simply untrue. In addition, he is conflating motive, premeditation, mental competence, and intent.
The American legal system pays almost no attention to motive. The only crime I can think of in which a person’s motives make a difference is a “hate crime”. This is a recent addition to the law. But if you murder someone, or steal their wallet, your motive is meaningless. You might have stolen to impress your girlfriend. You might need the money to feed your kids. Doesn’t matter, the jury will never hear about your motive. The only question the jury ever considers is “did you do it”, not “why did you do it”.
While premeditation and mental competence and intent are certainly issues to which the law pays “obsessive attention”, they have nothing to do with motive. All they are doing in his essay is confusing the issue. In general the person’s motive for doing something whether a person had noble reasons for committing a crime is legally immaterial to the jury. If motive enters into the record at all, it is only and solely in the sentencing phase, after the person has been found guilty and the jury sent home. Thus the judge acted correctly in doing what Kirk Johnson describes in mildly accusatory accusatory undertones as:
But in the federal trial of Tim DeChristopher, who was convicted on Thursday in Salt Lake City on two felony charges for trying to derail an auction oil and gas leases in southern Utah in late 2008, discussion of motive – at least so far as the jury got to hear – was almost entirely stripped away.
Judge Dee Benson told the lawyers that the case would not be about why Mr. DeChristopher did what he did, but only whether he did it. Federal energy policies and concern about climate change, which were in fact the core drivers of Mr. DeChristopher’s actions, as he has said in many interviews, would not be put on trial, Judge Benson ruled.
And he properly ruled so. DeChristopher’s motives are not relevant to the jury’s deliberations.
Does it matter? In covering the case for The New York Times, I found myself pondering a pretty deep question: In assessing offenses driven by environmental concerns, is an understanding of the “why” crucial to the truth? Or is it a huge distraction because of the politics and complexity and controversy that swirl around the subject?
Is his motive “crucial to the truth” or a “huge distraction”? I would say neither. I would say that an understanding of his motive in the context of what is called “noble cause corruption” is useful in understanding the current sorry state of climate science. In either case his motive does not matter to the law, nor should it.
Would the jury have assessed things differently if the defendant’s deeper psychological portrait had emerged – specifically his belief that risks to the planet and the future are so dire and urgent that rules must be broken?
Or is the “rule of law,” as an assistant United States attorney, John W. Huber, put in it his closing argument, crucial to civil society — the linchpin of protecting everything we have, including and perhaps especially the environment?
I have no sympathy with this argument at all. Why on earth should I care about Mr. DeChristopher’s “deeper psychological portrait”? I don’t generally turn over rocks if I fear that there are strange things under them … I’m not interested in what lies under Mr. DeChristopher’s actions. I have enough problems with the creatures that live under my own skullcap, I have no interest in the unknown denizens of Mr. DeChristopher’s cranium.
Certainly, Mr. DeChristopher, a 29-year-old economics graduate, is no eco-terrorist. This was not an Earth Liberation Front firebombing; the closest he got to violence was raising his bidding paddle at the auction to buy land leases with money he didn’t have. But there was also little doubt, as he had also conceded in interviews, that he broke the law by signing federal forms while posing as a legitimate energy buyer, and then by bidding successfully for upward of $1.8 million in leases from the federal Bureau of Land Management.
Again, I’m not clear what the relevance of this is. He is not an eco-terrorist. He is also not a kidnapper or a child molester … so what? What does that have to do with his case? Is he saying we should have sympathy for him because he is a “white collar criminal”? Because I generally have less sympathy for that breed of crook, not more. I’ll take an honest bank robber over a bank accountant who steals the same amount of money, any time.
In a statement after the verdict, the United States attorney for Utah, Carlie Christensen, addressed part of this debate, one that will no doubt continue in Mr. DeChristopher’s probable appeal. “Whether the B.L.M. was correct in its decision to offer these parcels for oil and gas lease sales was not the question which this jury was asked to resolve,” Ms. Christensen said.
Nor should they be asked to resolve it. It is not a question for the jury.
Look, I have no problem with Mr. DeChristopher’s actions. As I mentioned, I did the same myself, and I did time for it. As we said then, if you can’t do the time, don’t do the crime. However, I never heard the New York Times opining that the judge should have considered my motives in deciding my guilt or innocence. It didn’t matter. I was guilty. As is DeChristopher.
What I have a problem with is when this kind of thinking slops over into the scientific arena. You see, if a scientist thinks it is ethical to break the laws of civil society in the name of saving the planet, I have absolutely no confidence that the same man will not break the laws of honest, transparent, ethical science in the name of saving the planet. As we have seen, sadly, this more than a thoretical threat.
When this occurs in science, it is called “noble cause corruption”. It occurs when a scientist thinks that their cause (saving the world from Thermageddon) is so important and so noble that it transcends plebeian concerns. Their cause is much more critical and vital and important than, you know, mundane boring things like transparency, and scientific integrity, and archiving data that may not agree with your hypothesis, and revealing adverse results. For scientists like that, those are petty scientific concerns, things that only apply to people who are not engaged on a mission from Gaia.
This noble cause corruption, amply personified by Michael Mann, Phil Jones, Gene Wahl, Caspar Amman, Gavin Schmidt, James Hansen, Stephen Schneider, Lonnie Thompson, and far too many other leading lights of AGW orthodoxy, has been the root cause of the mistrust of the public in climate science.
And reasonably so. When the public sees top-notch, world-renowned climate scientists lying and cheating and breaking the rules and stuffing the peer-review panels and subverting the IPCC, what do you think will happen to the reputation of the field?
Judith Curry and others keep presenting this as a communications problem. It is not. The AGW folks think the problem is that they’re not getting the word out. So they’ve formed some kind of Guerrilla AGW Killer Rapid Response Ninja Suicide Death Commando Team to answer questions, at least I think that’s the name … guys, lack of AGW scientific opinion is not a problem as far as I can see, quite the opposite. We’ve heard your scientific claims of upcoming catastrophe proclaimed at full volume over and over. And over. And over. The problem is not that your message is not getting across. We hear it. It’s crystal clear, no problem with either the medium or the message. RST is five by five, as the ham radio operators have it.
But most folks simply don’t believe anything you say. You’ve lied to everyone before, you conned us in the past, people are determined it won’t happen again.
The problem is that a large number of the top names in the field have been shown to be, well, liars, cheats, and thieves. They were working hard, in secret, using deplorable, unethical, and likely illegal tactics to advance their noble cause and to protect their secrets and their data and methods.
Now, if that were all, it would be bad. But it is worse than that. If, when all that was revealed, the rest of the honest, decent climate scientists had stood up and pointed and said “For Shame!”, the breach in trust could have been repaired. If the miscreants were identified and disowned by the majority of climate scientists, there would have been problems, but not huge problems.
But that’s not what happened. When the Climategate rock was rolled over, and the UEA nest of scorpions was revealed and they started running from the sunlight, with few and notable exceptions the good, decent, honest climate scientists suddenly found something else really fascinating to talk about. About how it was just boys being boys. About how it was just scientists talking trash about each other in private. About how Climategate meant nothing. About how the use of “hacked” emails was unethical. The overwhelming majority of the good honest decent AGW supporters talked volubly about everything under the sun … everything except the putrid scientific rot Climategate revealed within the top ranks. Nor did they say a peep about a succession of ludicrous whitewash investigations apparently led by Inspector Clouseau of “Pink Panther” fame … silence and closing the ranks was the order of the day.
So as a result much of the general public in the US at least believes that all climate scientists are crooks. They’re not. They’re mostly just reasonable, curious scientists who tragically were unwilling to speak up for scientific honesty and integrity when history called on them to do so. And as the saying goes, for scorpions to succeed, all that is necessary is for good climate scientists to do nothing.
After all of that, anyone who thinks that what we have is a communications problem, or that it can be solved by better scientific explanations, or that it can be fixed by reframing the discussion, is seriously deluding themselves. Someday, good science will eventually win out. Not communication. Not reframing. Good science.
But until then, I can assure you that if a climate scientist says it’s raining outside, any reasonable person will surreptitiously glance out the window …
w.
[Update] There is an outstanding comment below:
Turn this around when thinking about the “profit motive” such that the “profit motive” were a valid legal defense. A really scary thought, that one is.
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Willis – great thoughts. No nit to pick here. Move along, send the crook to Leavenworth! and shoot the rest of the lot for good measure. /sarc
Joshua Corning says:
March 12, 2011 at 2:42 am
I’m not approving of either one. My point is that if a bank president steals a million dollars, he may get two years in a country club prison, while when a poor man steals a hundred bucks, he may get seven years hard time. If a man is going to rob me, I’d rather he do it with a pistol than a fountain pen. And yes, before you ask, I’ve had a pistol stuck in my face.
But that’s me and my experience, not you and yours. YMMV.
w.
Well, the Romans, a couple of thousand years ago, gave us this saying:
Fiat justitia pereat mundi – which means, roughly translated, ‘let there be justice even if the world is perishing’.
And that should be the resounding answer to the doubt of the author expressed here:
‘Or is the “rule of law,” as an assistant United States attorney, John W. Huber, put in it his closing argument, crucial to civil society — the linchpin of protecting everything we have, including and perhaps especially the environment?’
Attorney J.W.Huber has it spot on.
Joshua Corning says:
March 12, 2011 at 2:50 am
As Dickens remarked
Joshua, I know the law makes a distinction between rich men’s crimes and the crimes of the poor.
Me, I think that’s a crime, but that’s just me.
w.
Judge Christensen:
“Mr. DeChristopher had several reasonable and lawful alternatives by which he could have expressed his objections to the sale of these oil and gas leases.”
Translation:
“We don’t mind you protesting just so long as you don’t protest in such a way that might actually change anything.”
Almost invariably a defendent will come up with a string of excuses, true or otherwise, to try and demonstrate to a court that the crime was, in the defendants mind, justifiable. Lawyers love pleading in mitigation as, by the use of language, ommission and the manner in which the story (the facts based on the evidence) is told, they are able to persuade the judge to pass a more lenient sentence or, at its most successful, persuade a jury to find a guilty person, not guilty.
What the ‘usual supects’ of climate propaganda might plead (once we get them where they belong, in court) are a variation of the McNaghton Rules (insanity due to the inability to distinguish right from wrong). The question arises as to whether AGW has become an irrational cult with leaders who, if psychiatrically examined, might be diagnosed as psychotic. In other words, they suffer from a disorder of the mind in which they lose touch with reality, lack insight and become deluded.
This defence would no doubt fail on the simple grounds that the usual suspects do have the mental capacity to appreciate their conduct, because by pursuing this conduct they are able to obtain $ billions of our money.
“This noble cause corruption, amply personified by Michael Mann, Phil Jones, Gene Wahl, Caspar Amman, Gavin Schmidt, James Hansen, Stephen Schneider, Lonnie Thompson, and far too many other leading lights of AGW orthodoxy, has been the root cause of the mistrust of the public in climate science.”
Well the problem here is that you label these people such because you suspect they would falsify scientific results, not because you have any evidence or proof that they have.
So by definition any scientist concerned about man-made climate change enough to vocally speak out about it gets added to your list of “nobel cause corruption”.
Leninists have pooped in their own nest to some extent. In previous times the point of civil disobedience was to serve your time as hard as possible so the public could see the injustice.
Modern leftists have lost the courage and lost the point. They want the court system to pardon them because they’re following orthodox Party doctrine. This is no longer civil disobedience, it’s just a plain old totalitarian system where Correct Animals are more equal than Incorrect Animals.
Ok, it would have had an economic cost. But the potential punishments of bankruptcy (750000 fine) and 5 years jail time is out of wack with a rather funny non violent action. He personnel did not make money out of it. For me 100 dollar fine or 6 months suspended. If I was on a jury I would never convict if he risked real jail time.
Clearly you can not allow folks to break the law just because thier beliefs say it is OK. That way leads to terrorism. Plus I do not share his views on climate. but such non violent actions are good for democracy. A funny beautifully simple idea and the organisors of the auction are also responsable.
I cannot speak for the US legal system, but in the UK and Australian systems, motive may be very relevant to whether a person is convicted in certain cases. The classic example is where someone is charged with assault/manslaughter/murder and they plead self-defence. Self defence, if accepted, may result in acquittal even if the act undoubtedly occurred.
However, self-defence has to pass tests of reasonableness and proportionality. These tests are applied very strictly, in our system anyway. I don’t think it would have a prayer in the circumstances of the example you cited.
There is no noble cause corruption from those whom you alledge. Instead the corruption is on sites such as this by people such as yourself, which are able to ignore scientific study and evidence because there is a noble cause of stopping those who are a threat to your worldview. Your calls a few weeks back to concentrate on the science instead of the scientists has gone unheeded by yourself.
michel says:
March 11, 2011 at 11:57 pm
“These people have got to understand that complying with the law is a precondition of living in a democratic society.”
I beg to differ, complying with the law is a precondition to living in a civil society. Republic, or democracy, either society requires the rule of law. I prefer a limited republican form of government, having majority rule without bounds, is asking for another pogrom of one form or another. Before I hear any complaints about the use of pogrom, they were used against many different groups, not just the Jews. If some of the Warmists had their way, we Skeptics would be in deep trouble.
My dad told my when I was much younger “Part of being a man is owning up to what you do. If you did it admit it and take you punishment. Doing anything else is what a child does.” A lot of our society wants to live as children.
Willis, is it possible the NYTimes article is attempting to equate the DeChristopher motive to existing self defense law? Self-defense laws vary from state to state, but they tend to afford a defendent lawful use of either lethal or non-lethal force whenever the defendent “reasonably believes that unlawful force which will cause death or grievous bodily harm is about to be used on him.”
I would imagine they might argue the whole thing is equivalent to self-defense, if a time-scaling multipling factor is applied, i.e., DeChristopher’s actions and the environmental harm he believed his actions might prevent are all on a much longer time scale than those associated with a typical self defense case.
To me the real question is not why some charlatans gamed the system for personal gain, it is why honest scientists that didn’t believe stilled stayed silent. They are almost more guilty than the liars.
As Col Blair says in the climatic scene in the movie Scent of a Women “Now I have come to the crossroads in my life. I always knew what the right path was. Without exception, I knew. But I never took it. You know why? It was too damn hard.”
I disagree with the assertion that most climate scientists are not crooks because they simply failed to speak up when history called on them to do so.
They are profiting off of the fear.
If I knew that the accounting departing was over-paying all staff and I kept quiet about it, I am guilty of knowingly misappropriating funds.
If a doctor knows that the other doctors in the practice are abusing the medicare reimbursement program and does nothing, that doctor is guilty of collusion.
If an attorney at a practice knows other attorneys are behaving unethically and illegally and does nothing, that attorney is guilty of fraud.
These so called innocent climate scientists know their funding will dry up if they speak up, and choose to remain silent, feeding off the public trough. They are guilty of theft of public funds.
It ultimately comes down to whether you are an absolutist or a relativist. Relativism is inferior in the case of legal responsibility because an heinous act can be found inferior to another and thus excused. I’m not saying there is no place for mercy, but that requires contrition and acknowledgment of violating a standard.
Excellent analysis and commentary. I don’t see many people addressing these issues. Thanks!
Isn’t the whole idea of DeChristopher’s “protest” to take a stand against a society bent on environmental destruction? He should be proud to spend a couple of years at the Utah state prison for a cause so noble.
Man up Tim. Joe Hill you ain’t.
Interesting post. I mention my take on whether motives legally matter or not, but it’s already been mentioned to an extent. As to the violence vs. non……… Bernie Madoff. As to the “messaging” issue, I recently participated in a discussion at Curry’s blog about “story telling”, read messaging. My take is similar, but, not the same as yours. Climategate is only pertinent to the people that care about climate science. Rather than reproduce my thoughts here, I’ll just link to my comment at Curry’s, http://judithcurry.com/2011/03/06/climate-story-telling-angst/#comment-52967
They’ve messaged themselves to the point of disregard and inattention by the general public. It isn’t as if people like you and I are the targets of the message, I doubt anyone believes the minds of the participating skeptics will be changed. It is the unwashed masses that they’re looking toward and have for 30 years or so. My children grew up with the madness their entire lives as did anyone else younger than 30 y/o. They don’t care. No amount of story-telling, framing, or messaging will ever get them to the point of caring about an issue that did nothing but waste their time. From the first earth-day coloring paper in kindergarten to the biology teacher screaming about crimes against the earth and the doomsday prognostications that never occurred. They’ve been tuned out and turned off. (lol, take that you hippie generation lunatics.) 🙂 Anyway, my take.
Hear hear, Willis.
By their silence, shall they be judged. Science and “scientists” are becoming a four letter word, and they’ve only themselves to blame. Thank our lucky stars for the engineers.
Credibility, once lost cannot be regained with more words.
When a person without credibility says something I already know then I have learned nothing and the communication is worthless. When a person without credibility says something I don’t know, I cannot believe it and the communication is worthless.
Yesterday a Global Warming article mentioned in the first paragraph the need to limit global temperature rise to 2 degrees C since the pre-industrial period (end of the LIA in my mind). I stopped reading and no matter how erudite the rest of the article, there was no communication.
Willis said:
I think this is a very unfortunate, or at least, poorly justified.
These “honest” bank robbers, tend to commit violence during the commission of their crime and while trying to evade the police, and as you have already stipulated that the amounts stolen in each case are the same, it would seem to me that on any grounds one can think of the “honest” bank robber’s crime is greater.
“a succession of ludicrous whitewash investigations apparently led by Inspector Clouseau of “Pink Panther” fame”
That is an insult to the genius of Clouseau. Clouseau was incorruptible and his motives were always to uncover the truth. His unconventional and unpredictable methods invariably forced the guilty parties out into the light of day and lead to their apprehension. While many might argue with his methods, none can argue with his results.
The climategate inquiries on the other hand had quite a different purpose. They were entirely predictable, allowing the guilty ample opportunity to arrange an escape.
onion2 says:
March 12, 2011 at 4:36 am
“This noble cause corruption, amply personified by Michael Mann, Phil Jones, Gene Wahl, Caspar Amman, Gavin Schmidt, James Hansen, Stephen Schneider, Lonnie Thompson, and far too many other leading lights of AGW orthodoxy, has been the root cause of the mistrust of the public in climate science.”
Well the problem here is that you label these people such because you suspect they would falsify scientific results, not because you have any evidence or proof that they have.
I guess you missed the climategate emails, the whitewash investigations, all the refusals to release data, the manipulation of models. You must be right, how could we possibly think badly of these noble individuals?