11:08 AM COE: OK, we're all here
11:09 AM Abbey Anumia: Afternoon
11:09 AM Barbarossistan: hello there!
11:09 AM COE: Morning :stuck_out_tongue:
11:09 AM Abbey Anumia: I was thinking about the case earlier
11:10 AM Abbey Anumia: It's very difficult to untange what I think the law should be and what it actually is, because there is no concept of the idea that justice must appear to be done in the law
11:11 AM COE: That doesn't prevent us from suggesting that the RA remedy that
11:11 AM Abbey Anumia: And I think that's where I'm going to fall on this
11:11 AM Abbey Anumia: Saying that in this case, there was no breach, but suggesting that the RA think about whether they want the appearance of justie to be in the law
11:12 AM COE: Well, there is this, from the Bill of Rights: 9. Each Nation in The North Pacific is guaranteed the organization and operation of the governmental authorities of the region on fundamental principles of democracy, accountability, and transparency.
11:13 AM Abbey Anumia: That seems very tangential though
11:13 AM COE: It seems like a guiding principle, and not really a firm requirement that outlaws certain kinds of actions. But I think it is a firm foundation upon which to make recommendations to the RA
11:14 AM Barbarossistan: I do think we can interpret the fair trial provision of clause 7 of the Bill of Rights in such a way that the appearance of unfairness is impermissible without going outside the courts reasonable interpretation power
11:14 AM COE: OK, so let's start with the fundamental question that was put to us: does it violate the right to a fair trial for a prosecutor to handle classified evidence before it is prepared for release?
11:16 AM Barbarossistan: To your question, I think under a limited reading of the law, my answer is no, a more expansive reading that also covers the appearance of fairness as required by law could result in yes but I haven't worked it out fully
11:16 AM Abbey Anumia: I feel like the answer is 'maybe, depending on circumstances'
11:17 AM COE: So, Abbey, you're saying it might be, but not inherently(edited)
11:17 AM Abbey Anumia: Yes
11:17 AM COE: And Barb, it sounds like you're saying that it's possible that a trial must appear to be fair in order to actually be fair
11:18 AM Barbarossistan: yes
11:18 AM COE: Well let's consider this: if there is a process in place for evidence to be reviewed by the moderating justice before being posted, and for redactions to be appealed to the full court, does the trial still even appear to be unfair?
11:19 AM COE: Or does that process ensure, not only fairness, but also the appearance of fairness?
11:19 AM Abbey Anumia: I think it satisfies both
11:20 AM COE: Obviously it would still be preferable if the prosecution were to keep their fingers out of the evidence altogether until it is posted, but I think I'm with Abbey here, that no rights violations are taking place, as long as that process is solid.
11:20 AM Abbey Anumia: Basically the checks and balances were built into the system to prevent this sort of action from inherently being a problem
11:21 AM Abbey Anumia: A realistic view of the realities of a small community
11:21 AM COE: 11:20 AM Abbey Anumia: Basically the checks and balances were built into the system to prevent this sort of action from inherently being a problem <<< Well, not exactly. Before this case, the procedures for classified evidence were nonexistent. I think we're lucky that Elu was the moderating justice, and he had enough good sense to follow what was basically an acceptable, if not perfect, procedure
11:21 AM Barbarossistan: the fact that a review process is available makes me think that under a strict/limited reading of the law the involvement of a prosecutorin evidence selection is not an infringement of fair trial as there is always the opportunity for review of that decision. Still, I think it's not necessarily unreasonable to want the appearance of fairness to the defendant and public and despite the review possibilty I understand why a prosecutor selecting the evidence looks unfair
11:22 AM Abbey Anumia: I agree that it looks unfair. What I'm not certain on is whether that's enough to invalidate the right to a fair trial
11:24 AM COE: I don't want to overreach here. The court has nearly unlimited power, and we should be careful to use it...well, judiciously. When possible, I don't like to go too far outside of a plain text reading of the law
11:24 AM Abbey Anumia: Agreed
11:24 AM COE: I think we should probably lay aside the question of whether the appearance of unfairness constitutes actual unfairness
11:24 AM COE: We could leave that open to further review
11:25 AM Barbarossistan: yes, no blatant legislating from the bench
11:27 AM COE: Alright, so it sounds like we're settled on the basic question. There are a couple ancillary matters I think our review should address as well. First, I think we should address what the appropriate process for handling classified information is (or at least the requirements that such a process should meet. Second, I think we should look at under what circumstances a prosecutor actually would be breaking the law by manipulating evidence
11:28 AM COE: Even though it's not inherently a rights violation, there are certainly ways that a prosecutor could illegally handle classified evidence
11:29 AM Abbey Anumia: Absolutely. Any witholding of potentially exculpatory (or even incriminating) evidence, for instance.
11:29 AM Barbarossistan: the only situation I can think of where a prosecutor could be illegally handlign evidence is by withholding it from the court's review
11:29 AM COE: For instance, if they conspired to suppress portions of the --- yes, what abbey said
11:29 AM COE: Well, keep in mind that violating the oath of office is also a crime
11:29 AM Barbarossistan: there can be reasoable grounds to withhold exculpatory evidence on security grounds
11:30 AM COE: The relevant part of the oath would be this: " I will use the powers and rights granted to me through The North Pacific Constitution and Legal Code in a legal, responsible, and unbiased manner, not abusing my power, committing misfeasance, malfeasance, or nonfeasance in office, in any gross or excessive manner. I will act only in the best interests of The North Pacific, not influenced by personal gain or any outside force, and within the restraints of my legally granted power. "
11:31 AM COE: This applies not only to their office as AG, but also any office that gives them access to the classified information in question
11:31 AM Abbey Anumia: It would absolutely be an oath violation to try and withold evidence that should be release
11:31 AM Abbey Anumia: Yep
11:32 AM COE: So I think that if an SC member who was also a prosecutor attempted to influence the redaction process in order to maximize the chance of a conviction, that would probably be an oath violation, even if it doesn't violate the bill of rights
11:32 AM Barbarossistan: what evidence is to be released is ultimately for the court to decide, that's what the review process is for
11:32 AM Abbey Anumia: Agreed COE
11:32 AM COE: Especially if they pressed for the release of damning evidence, at the risk of endangering security
11:33 AM Barbarossistan: I fail to see how a prosecutor can violate his oath without also violating the "fair an impartial trial" provision of the BoR
11:33 AM COE: Well, I'm not thinking about the oath they took to become AG or deputy AG
11:33 AM COE: I'm thinking about the oath they would have taken as an SC member, or other government official with access to a private area
11:34 AM Barbarossistan: It will be near impossible to determine on what grounds a prosecutor sought to withhold evidence, he will certainly argue it was a legal ground such as security concerns
11:34 AM Abbey Anumia: That would be for a trial to determine, rather than this review
11:34 AM COE: Yeah, but if someone does try to do this kind of thing in bad faith, I don't want them to be able to cite our ruling and say "See? This is legal under all circumstances"
11:35 AM Abbey Anumia: Absolutely
11:35 AM Barbarossistan: even so, if a prosecutor violates his oath in order to illegaly secure conviction the trial cannot reasoably considerd fair and impartial I think
11:35 AM COE: Well, let's say the moderating justice overrules most of their redactions
11:35 AM COE: Then the trial is still fair, but the oath violation did take place
11:35 AM Abbey Anumia: ^
11:36 AM Abbey Anumia: They still attempted to influence the trial. Whether they succeed or not is a whole other problem.
11:37 AM COE: Because it IS a conflict of interest, as we all recognize. Even if it's not illegal to have a COI, I think it's still illegal to prioritize your interest as a prosecutor over the interests of the position by virtue of which you can view the evidence
11:37 AM Barbarossistan: Neither do we want to push the security council to be excessivily unwilling to redact evidence for security reasons because bad faith would be suspected if the court overrules
11:37 AM COE: Well, I don't think the SC in general would be in any legal trouble
11:38 AM COE: Only SC members that were involved in the prosecution(edited)
11:39 AM Barbarossistan: That would be an indirect way of banning prosecutors from involvement in the evidence redaction, if thats wat we want, we should rule that way
11:39 AM COE: I think it would encourage prosecutors to abstain from discussion and voting on redactions, which is what we want, without saying that such actions are inherently illegal, which is within the bounds of our power
11:40 AM COE: It doesn't ban them from doing so - it explicitly allows it as long as they keep the interests of TNP in the fore.
11:40 AM Abbey Anumia: Yeah, basically as long as they bear their oaths in mind
11:41 AM Barbarossistan: Looks like a recipe for impossibe to prove accusations to me, prosecutors are permitted to be involved in redacting evidence but have an even greater responsibilty then other SC members to act fairly?
11:42 AM COE: I would say they have the same responsibility to act fairly
11:42 AM COE: In fact, I think I would put it in exactly those terms in the opinion
11:42 AM Abbey Anumia: I'm with COE
11:42 AM Barbarossistan: but in practical terms they will be under a magnification glass because there is a CoI
11:43 AM COE: I think that is probably appropriate
11:43 AM Abbey Anumia: That's just an expected upshot of the CoI
11:43 AM COE: And for that reason, it might be wise to refrain from participating in that process, as a prosecutor
11:43 AM COE: But it's not illegal, per se
11:43 AM Barbarossistan: I think we should keep matters simple and either rule that prosecutors may not be involved or that they may be involved since the review prosess ensures fairness
11:44 AM Abbey Anumia: I disagree. If we think there's no inherent conflict of interest then we can't say they can never take part.
11:45 AM Barbarossistan: there is s CoI clearly, we seem to agree on that, the question is wether the CoI infringes the right to fair and impartial trial
11:45 AM Barbarossistan: It oes not necessarily do so as bad decision can be reviewed by th court
11:46 AM COE: I maintain that the process prevents it from violating the BOR, but oath violations can still potentially take place(edited)
11:46 AM Abbey Anumia: Agreed. The very attempt at influencing the trial is the Oath violation but the BOR isn't violated because the review process maintains the fair trial(edited)
11:48 AM Barbarossistan: the only reason anyone would seek to illegally withhold evidence knowing there will be a review is because they know the review process isn't perfect and the withholding may get through
11:49 AM Barbarossistan: also, when is there an oath violation? Everytime a security concern can be cited to withhold there can be no oath violation since th oath also requires that secrecy be maintained where necessary
11:50 AM COE: 11:48 AM Barbarossistan: the only reason anyone would seek to illegally withhold evidence knowing there will be a review is because they know the review process isn't perfect and the withholding may get through <<< And I don't think that sort of behavior should be condoned by our opinion
11:50 AM COE: An oath violation takes place if, in fact, it is not security concerns that motivate their contributions to the redaction process, but actually their interest in obtaining a conviction
11:51 AM COE: Admittedly, probably impossible to prove that
11:51 AM Abbey Anumia: As are a lot of oath violations, doesn't stop them being violations
11:51 AM COE: It's usually only proven if they say the wrong thing to the wrong person, and that gets passed on to the AG
11:51 AM Barbarossistan: this would completely depend on the state of mind of the redactor of evidence then
11:52 AM COE: Yeah
11:52 AM COE: Well, and their stated motivations
11:52 AM Abbey Anumia: nods
11:53 AM COE: But unless they're really dumb, their stated motivations would probably be legal :stuck_out_tongue:
11:53 AM Barbarossistan: obviously
11:53 AM Barbarossistan: also, this does not seem a problem with prosecutors per se, other SC personell could also have ipure motives in redacting evidence, they may not like the defendant for example
11:54 AM COE: yes, obviously. The oath is binding on all governmental actions
11:54 AM COE: I just think we should recognize that it's binding in the specific situations we're ruling on as well
11:55 AM Abbey Anumia: nods
11:55 AM COE: A reminder more than a ruling, really
11:55 AM Barbarossistan: That suggests to me we are wandering away from our issue to rule on, the involvement of prosecutors
11:55 AM COE: Well, I don't want to leave it at "it is legal for prosecutors to be involved in the redaction process" without saying that the COI can still land them in trouble
11:56 AM Barbarossistan: But any SV member can be in trouble for the same reasons, are we going to include a general reminder to not have impure motives
11:57 AM COE: Let's discuss this specific issue again after I post the first draft, so we have something concrete to discuss leaving in or removing
11:58 AM COE: But to answer that last question, probably yes, actually, since the terms I was thinking about putting it in are along the lines of "The prosecutor would be held to the same blah blah blah of other SC members, oath blah blah" so it would be acknowledging both in the same breath
11:58 AM COE: Incidentally
11:59 AM COE: For now, I think we should move on to the actual evidence process, since we seem to be going in circles on this one
11:59 AM Abbey Anumia: Probably wise
12:00 PM Barbarossistan: Yes, let's do that
12:00 PM Barbarossistan: One thing we may have to say something about is a general outline for handling of secret evidence
12:01 PM COE: So first, let's all refresh ourselves on this recent opinion, if you haven't already:
http://forum.thenorthpacific.org/topic/9012390/
the home of The North Pacific region of the online game Nationstates
12:01 PM COE: The relevant bits to this ruling seem to be: "n general, exculpatory evidence may not be kept secret if a prosecution is to go forward. No nation may be convicted of any crime if exculpatory evidence exists and is not available to the defense. The revelation of such evidence after the fact, which could have been made available but was not, could well invalidate a conviction."
12:01 PM Barbarossistan: for the TsronK trial rules were made but these may require formalisation and I really think TNP needs rules on using secret evidence in trial, while that is likel to much for us to decide we can call on the RA to make those rules
12:02 PM Abbey Anumia: We can either do that, or I think this are something that could be addressed in the Court Rules
12:02 PM COE: The rules made in the trial thread are subject to our change, however, the requirement for exculpatory evidence to be made available to the defense was part of an official ruling and is binding on us until overturned by a request for a review on that specific issue
12:03 PM Abbey Anumia: Indeed
12:03 PM COE: So my first question is: in order to ensure a fair trial, does an unredacted copy of the evidence have to be given to the defense?(edited)
12:04 PM COE: In theory, under the previous ruling, as long as the court determined that no exculpatory evidence was redacted, the defense never has to see what was redacted
12:04 PM Abbey Anumia: Yeah, and the court is under an oath not to release that evidence whereas the defence isn't
12:05 PM Barbarossistan: to your question, not necessariy, incriminating evidence could remain redacted
12:05 PM COE: Well, leaking classified information is a crime unto itself
12:05 PM Abbey Anumia: Ah, of course
12:06 PM COE: But the fact that the defense attorney is not necessarily a government official, or even necessarily a trustworthy individual, is an important point
12:07 PM COE: I mean, the defense attorney could be anyone
12:08 PM COE: Maybe we should allow an unredacted copy to be made available to the defense at the discretion of the moderating justice, subject to appeal to the full court?
12:08 PM Barbarossistan: that seems a reasonable compromise
12:08 PM COE: I think we should also recognize that there are some types of information that should not be released at all, even to the moderating justice, such as IP addresses, RL information, etc
12:09 PM COE: I think there is a law or rule somewhere that defines this, maybe FOIA... we could use the same standard
12:09 PM Abbey Anumia: nods
12:10 PM COE: Ah, yeah. Here it is, as part of FOIA: Real life information about any NationStates player from which there is a risk of inferring that player's real life identity and which has not willingly been disclosed to the public, including, but not limited to, an individual's name, IP address, physical address or location, phone number, place of employment or education, appearance, social media accounts, and other knowledge about a player, unless the player in question provides explicit consent for this information not to be considered private.
Real life information about any NationStates player for which there exists a reasonable real life expectation of privacy or discretion, including, but not limited to, health status, both mental and physical; financial status; personal tragedies; changes in personal status such as marriage, divorce, pregnancy, birth, or death; and other similar information, unless the player in question provides explicit consent for this information not to be considered private.
12:10 PM Abbey Anumia: Yeah, that seems a reasonable standard to use for "never to be released" information
12:11 PM COE: Now there's a third category which is not released under foia:
12:11 PM COE: Information that, upon being made public, would jeopardize any ongoing military or intelligence operations; or jeopardize the security of units and agents participating in them, or be harmful to the diplomatic interests, military interests, or security of The North Pacific.
12:11 PM COE: This seems like it could be more of a matter for the court to decide
12:11 PM Abbey Anumia: Agreed
12:12 PM COE: So that information should probably be kept into the copy supplied to the MJ, and the defense at the MJ's discretion
12:14 PM Barbarossistan: an alternative mthod is that a redactes set of evidence is provided and a ful set is only made available to the MJ after a request for review, that would restrict the availability of sensitive information while still allowinf ==g review where necessary. RL information has no business being in evidence at all and should be kept out by the government
12:16 PM COE: That seems like it could lengthen the trial some
12:16 PM COE: And I think it would be uncommon for none of the redactions to be challenged(edited)
12:17 PM Abbey Anumia: I would imagine something will always get challenged
12:18 PM COE: OK, so regardless of when or if the MJ is supplied an unredacted (or less redacted) copy, here's where I think we're at:
12:18 PM COE: -A request is made for release to whatever government body has the evidence. This could be by the prosecution or the defense.
12:19 PM COE: -The government body (ideally) releases the information promptly, with redaction if necessary, in a public place.
12:19 PM COE: -The evidence is submitted in the usual way
12:20 PM COE: -Motions may be made to challenge specific redactions, or for an unredacted copy to be supplied to the defense (or also the prosecution?)
12:20 PM COE: -Motions will be ruled on by the MJ, with the normal appeal process in place
12:20 PM COE: Now, in order for the MJ to rule on those motions, they will need an unredacted copy
12:21 PM COE: Or at least less redacted
12:21 PM Barbarossistan: the prosecution should have an unredactes copy if the defence has and vice versa
12:21 PM COE: That seems reasonable
12:21 PM Abbey Anumia: Yup
12:22 PM COE: So, the potential problem with keeping out RL information is that it could be used as a smokescreen to suppress non-RL information
12:22 PM COE: And if we don't require that it be provided to the court at some point, there is absolutely no way to remedy that
12:23 PM Abbey Anumia: I hate to say it but you're right. The MJ almost has to have complete, unredacted evidence to make sure of fairness.
12:25 PM Barbarossistan: well, there is more generally the problem that the court can't check of everything has been turned over, if the government says it has turned everything over, that might not be true
12:25 PM COE: Well yes, but according to the previous ruling, that may be cause to overturn a sentence if it comes out later that evidence was withheld
12:25 PM Abbey Anumia: Yeah, it's something we can't avoid
12:26 PM COE: We can tell them what's legal and what's not, but we can't always make them do it
12:26 PM Abbey Anumia: You could argue that we should take the same attitude to RL stuff, that if it turns out it was used as a smokescreen for redacting non-RL stuff, then the verdict could be overturned
12:27 PM COE: I think that's covered, yeah
12:27 PM Barbarossistan: same if evidence is withheld as RL information when it isn't, sentence may be overturned
12:27 PM COE: Hmm
12:28 PM COE: OK, fair enough. So those sorts of redactions need to be demarcated as such, then
12:28 PM COE: Come to think of it, I'm sort of uncomfortable with the power to allow that info to be transmitted
12:29 PM COE: I'm not sure I want to set the precedent that we can decide who gets that
12:29 PM Abbey Anumia: Yeah
12:29 PM COE: This departs from the process for FOIA, by the way. Under FOIA, a complete unredacted copy is provided to the court
12:30 PM Barbarossistan: FOIA may need to be emended then
12:30 PM Abbey Anumia: I'm just not comfortable with that. Yeah.
12:30 PM COE: I think there might be a riot if we tried to overturn part of FOIA with this ruling xD
12:31 PM Abbey Anumia: But not sure if were overstepping there
12:31 PM COE: But we could leave the question open to further review
12:31 PM Barbarossistan: the RA can amend, FOIA isn't the subject of this ruling
12:31 PM Abbey Anumia: That's probably best
12:32 PM Barbarossistan: we can inlude a request to the RA to amend FOIA
12:32 PM Abbey Anumia: I think that's an overstep
12:36 PM COE: OK, I think we're all on the same page. I think I'm good to go ahead and write the first draft, unless anyone sees any matters that we still need to address
12:36 PM Abbey Anumia: No I'm good
12:37 PM Barbarossistan: I think we can move to first draft, shall we recess for 60 minutes, then I will also have dinner
12:38 PM COE: I was thinking I'd type something up and post it on the forum, and we could continue discussion in that thread, and make another discord chat later if warranted
12:39 PM Abbey Anumia: I'd prefer that, I'm starting to struggle due to RL reasons
12:39 PM Barbarossistan: fine by me, ee you on the forum then
12:39 PM COE: Alright, I will also post these logs in the thread for posterity
12:39 PM COE: Good work, everyone :smiley:
12:39 PM Abbey Anumia: See you all later :smiley:
12:40 PM Barbarossistan: Thanks for the constructive discussion and bye
