When a crime isn’t a crime

Cartoon by Kevin Kallaugher Cartoon by Kevin Kallaugher

How does a person get indicted?

By A.J. Wagner

Cartoon by Kevin Kallaugher

Cartoon by Kevin Kallaugher

It was so kind of Rupert Murdoch to volunteer to serve as the example for this week’s article wherein we answer the question, “How does a person get indicted?” Short answer: It’s not easy. Even the most obvious crimes must go through a process filled with pitfalls and individual judgments that only a bureaucracy can bring.

One would think the process that brings a crime to court begins and ends with the crime. Actually, most crimes go undetected, unreported or uninvestigated.

Rupert Murdoch, owner-in-control of News Corporation and its many subsidiaries including newspapers, movie studios and Fox News, is in a bit of a pinch. For a long time, his company has gone undetected, unreported or uninvestigated. We now know that in 2003 his company was hacking into the computers at a company called Floorgraphics, Inc. (FGI), a marketing firm in competition with one of News Corp’s subsidiaries.

FGI reported the hacking to federal prosecutors, namely Chris Christie (now Governor of New Jersey) and Attorney General Alberto Gonzalez. FGI wanted an investigation into the hacking, which is clearly illegal under federal law. Nothing came of their investigation.

FGI proceeded with a lawsuit in civil court until about halfway through, as testimony which may have proved a crime to be committed was pending, News Corp purchased FGI for $30 million and then withdrew the suit. With FGI purchased, witnesses silenced and investigations going nowhere, there could be no crime proven.

Proof begins with witnesses. There are two important witnesses when it comes to crime. The first and most important is the complaining witness who is, most often, the victim of the crime. The complaining witness is usually essential because prosecutors aren’t terribly anxious to pursue a matter if the injured person isn’t interested. The second in importance are those who come to see, hear or know that the crime occurred.

As you can see with our example, once FGI was purchased, there weren’t any victims interested in pursuing the matter against News Corp. Without witnesses willing to testify, there is no proof of a crime. But witnesses are only the first layer in a successful prosecution of a crime. Next in importance are the investigators. Investigators, who are often police, are the gateway to the prosecutor. If they are not convinced a crime has occurred, they will not bother to ask that the matter be prosecuted.

The prosecutor is yet another gateway. The investigator must convince the prosecutor there is enough evidence to prove the case to a jury beyond a reasonable doubt. Prosecutors often ask police to go back and get more evidence before they’ll proceed.

Since the requested investigation of News Corp went nowhere, neither did a possible prosecution. We don’t know if there was an investigation, but we know prosecutors were asked to do an investigation, so the FGI matter may have been stopped at either the investigation stage or the prosecutor stage.

In a misdemeanor case, if the prosecutor is convinced, a complaint will be filed and the matter will proceed to court. In a felony case there is yet another gateway: the grand jury.

The grand jury is a panel of citizens that review the evidence from the witnesses, investigators and prosecutor to determine if there is probable cause to proceed to court with the charge or indict. The grand jury is a chance to weed out witnesses who may have a change of story or a change of heart. It is also the chance to weed out cases where there may be political or other kinds of pressure but the proof isn’t there. My experience as a judge has proven that grand juries are very capable of weeding out bad witnesses or insufficient proof.

These are the steps to get the case in front of a judge or jury. Until these steps are met, there can be no prosecution in the court.

News Corp is now accused of hacking the phones of the British royal family and 9/11 victim’s families. These investigations will be hard to stop.

News Corp is also accused of paying police in England as much as £100,000 (almost $160,000) for information. This has made them subject to the Foreign Corrupt Practices Act, which makes it illegal to bribe foreign officials to gain any advantage over a competitor.

Witnesses will be questioned, investigators will present to prosecutors and prosecutors will check with grand juries to determine if these cases will go to court. That’s a long way off.

In the meantime, News Corp is preparing what will be its best defense should it go that far – the constitution’s requirement for a free press.

Get ready to see all these elements of justice in action.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no
liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney
with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

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