Wikipedia:Reference desk/Archives/Humanities/2020 May 25

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May 25

Te Rata Mahuta

Can someone help find an image or photograph of Te Rata Mahuta that is in the public domain? I think a good route to look for this would be newspaper coverage of his 1914 travels but a cursory look in newspapers.com hasn't gotten anything for me that includes a photograph of the king. There is one from his death but that one is not in the public domain. KAVEBEAR (talk) 20:17, 25 May 2020 (UTC)

@KAVEBEAR: You might be able to use it via WP:NFCC if there are no other images available. RudolfRed (talk) 20:52, 25 May 2020 (UTC)

There's one from that trip at the National Library of New Zealand [1] labelled "no access restrictions" - but in fact it won't be accessible until the library reopens and their online services are available again. But it's an option if we can't come up with something immediately available.70.67.193.176 (talk) 22:33, 25 May 2020 (UTC)

First I'm assuming this is for Wikimedia Commons or something, none of this is intended as legal advice. Anyway fairly sure no access restrictions just means anyone is allowed access. It doesn't say anything about copyright and indeed if you look at that page it says copyright: unknown. If you look at the details it was a studio photograph taken at Miles & Kaye in 1914. However there is no photographer detail so you may need to investigate the studio more to work out copyright details. There is this which we at least have some idea better idea [2]. It claims the photographer died in 1973. If this work was created in NZ that would most likely mean it will be in the public domain where it was created in ~3.5 years. (Copyright law of New Zealand, [3]) However since this was of the delegation that went to the UK, there is a chance that the photographer actually followed them and so it was created in the UK. You would need to investigate further. If it was created in the UK it would potentially be ~23.5 years. (Copyright law of the United_Kingdom, [4].) You'd also need to check what the status is for the US. Nil Einne (talk) 14:07, 27 May 2020 (UTC)

Flynn again

[5] This keeps getting weirder. Two questions:

• "In asking the D.C. Circuit to intervene, Flynn’s attorneys are arguing that prosecutors have exclusive authority to decide whether to drop a case and accusing Sullivan of judicial overreach." Since Flynn pled guilty, he presumably wasn't indicted by a grand jury. Would it possible for that to happen now, against the DOJ's wishes? I.e. a runaway grand jury. Could the judge convene something like that? If the jury indicted, could the judge appoint a special prosecutor or something? (Or alternatively, maybe the judge could appoint a special prosecutor to convene the grand jury).
• The judge apparently hired a lawyer to argue to the appeal court against dropping the Flynn case. When I first saw the headline about the judge hiring a lawyer, I thought he was lawyering up to defend himself against possible prosecution. Just how unusual is this? Who pays the the judge's legal bills? If his court pays it, why doesn't it happen more often? If he pays it out-of-pocket, does that suggest he really does think he might be in trouble?

Thanks. 2601:648:8202:96B0:3567:50D5:8BFF:4588 (talk) 21:36, 25 May 2020 (UTC)

Since Flynn pled guilty, he presumably wasn't indicted by a grand jury. I don't know why that would be the case. You generally can't plead to anything until you've been charged. And that must happen either by indictment or information. As to the rest of the speculation about the actions of a grand jury or the role of the judge in causing a prosecution to take place, I find that to be exceptionally unlikely. It all depends on what the federal grand jury and special prosecutor statutes themselves say.

The judge apparently hired a lawyer to argue to the appeal court against dropping the Flynn case. When I first saw the headline about the judge hiring a lawyer, I thought he was lawyering up to defend himself against possible prosecution. Just how unusual is this? As the article indicates, it's quite unusual, but it's the procedural posture of the case that makes it possible. Flynn is seeking a writ of mandamus, which is at least historically an original writ rather than a normal appeal, and functions like a collateral action against the judge himself. That is to say, Flynn's petition seeks to compel the district court judge to do something that he has no discretion to refuse to do, and is therefore suing him (in his official capacity) to compel him to take that action. In many jurisdictions, mandamus actions are captioned as "[Petitioner's name] v. [Judge's name]" or "[Petitioner's name] v. [Court's name]" (e.g., Burnham v. Superior Court of California, which began as mandamus to the superior court in the state appellate court, and eventually was taken to SCOTUS).

In any event, this peculiar procedural posture, combined with the fact that the DOJ isn't an adverse party (i.e., they want the writ to issue as much as Flynn), means the lower court's usual posture of letting the parties argue isn't feasible. That said, it's possible for the appellate court to appoint counsel to argue, and my understanding is that in some circles it might even be considered improper for the lower court to participate in any way. Thus, it's quite rare for the lower court judge to be hiring counsel to participate in this sort of case. That said, I don't think it'd be unusual for a judge to hire outside counsel to weigh his options. Just how unusual is this? Who pays the the judge's legal bills? If his court pays it, why doesn't it happen more often? If he pays it out-of-pocket, does that suggest he really does think he might be in trouble? I'm honestly not sure who pays, but (1) the uncommon procedural posture and the (im)propriety of participating in appeals and collateral actions I mention above explains why it's extraordinarily uncommon, and (2) there's no indication that the judge is "in trouble" here. Worst case, the judge will be told to dismiss the case by the appellate court, and almost certainly will. 199.66.69.67 (talk) 06:09, 26 May 2020 (UTC)

Federal grand juries are an interesting beast. I was under the impression they are single purpose things since you always hear how someone is conveying a grand jury. However in reality they tend to run for 18 months and are hearing multiple cases simultaneously and indicting when the prosecutor feels there is enough evidence [6] [7] [8] (the grand jury has to agree, but we'll get to that). According to that Washington Post source, there can be special purpose grand juries, so I assume the case where someone convenes a federal grand jury for a specific case probably exists, but it's not the majority. According to Wisenberg, federal judges do actually convene the grand jury but don't usually interfere. If you read Federal Rule of Criminal Procedure 6 [9], it does actually say "the court" although the government can object for certain reasons.

However it's not actually clear to me how a runaway grand jury can arise in federal court, actually it's not clear to me from the rules how grand juries decide on indictments other than requiring 12 people. It's clear from Grand juries in the United States#Federal law and the other sources that the norm is the prosecutor presents the case, witnesses are called and eventually the prosecutor asks for an indictment usually very successfully (it's clear from our article and other sources that federal grand juries are often seen as simply a rubber stamp). But it's not clear when they can go beyond what the prosecutor wants and how. For the aforementioned rubber stamp issue, I think one of the issues is that grand juries often don't really know their power and so just follow the prosecutor.

But even so, I'm not sure that a grand jury is supposed to be able to say "Yo, we heard about that Flynn case on Twitter so we're going to call witnesses and decide whether to indict". I suspect at most, if they hear witnesses talking about it they are supposed to be able to investigate further and maybe return an indictment even if the prosecutor doesn't ask for one. It seems moot to me. AFAICT reading our article and cases like William C. Dodge#Runaway grand jury (which wasn't federal), runaway grand juries are good for applying pressure for the government to act. But since federal law still disallows private prosecutions, if the government doesn't want to act, I'm fairly sure they can still just ask for the case to be dismissed despite the grand jury indictment.

According to special prosecutor there's no real federal statutes governing special prosecutors anymore, instead it's just regulation/policy and these only allow the justice department to decide to appoint one. The courts don't have a role in appointing one. It does seem that Congress has got involved in the past, so potentially they could legislate again and perhaps it would be constitutional, but until they do it doesn't sound like any can be done if the Justice Department is set on a course of action. The only option would seem to be bringing a case arguing the Justice Department is doing is in some way illegal. The current case as mentioned you asked last time is a little different since there was a guilty plea, so it's less clear if it's just up to the Justice Department.

Nil Einne (talk) 07:12, 26 May 2020 (UTC)

I looked into this further. It seems "runaway federal grand juries" were basically eliminated by 6 and 7 [10] of the Federal Rules of Criminal Procedure [11] [12]. Rule 7 which I missed before does specifically say "must be signed by an attorney for the government". Intriguingly both of those sources do suggest a judge could be the one to allow grand jury allegations of criminal behaviour to be made public instead of a prosecutor/government attorney, I think this arises from the secrecy requirements. It's not clear to me that a judge can do so absent the government or defendant petitioning them per e 2 E of Rule 6 although it's possible there is case law allowing others, I can't be bothered looking into it further.

If you read the sources especially the second one, it does seem court have largely upheld these perceived limitations on federal grand juries. Notably they basically eliminated the presentment i.e. when a grand jury alleges a crime without the government agreeing. The most recent example I could find of an alleged runaway federal grand jury is Rocky Flats Plant#Sealed grand jury records [13] [14]. However if you look at that case, the details support the idea they've basically been eliminated. It sounds like the grand jury tried to present an indictment but the prosecutor wouldn't sign it and they also made a presentment but it was sealed along with their other cases notes and stuff that they wanted to release as is the norm for most grand jury proceedings.

And a key point, although both Baltimore Sun and Constitution Society sources are fairly critical of these changes, especially Constitution Society. And both do seem to feel that grand juries should be able to decide to investigate Flynn because of what someone tweeted about it. (I simplify, my point is it doesn't need to be because of something that arose in their existing investigation.)

Yet they still seem to suggest that even with greater powers, other than in exonerating suspects all the grand jury was really doing was applying public pressure. The presentment may say this person committed a crime and should be prosecuted for it, but you're still stuck with the same problem namely the government still needs to prosecute in the absence of private prosecutions. So even if a federal grand jury were to allege Flynn may have committed a crime and even if a judge were to allow this presentment to be made public, this would still only serve to apply pressure and/or maybe spur Congress to act rather than directly leading to a court case in the absence of the Justice department being willing themselves.

Nil Einne (talk) 08:27, 26 May 2020 (UTC)

Thanks everyone. I know the Office of Independent Counsel was eliminated some years ago, So it sounds like there's a gap in the system, if someone in the exec branch commits a real crime and the DOJ just won't do anything about it. Not that surprising, I guess. (Ok, there is still a special counsel authorized by statute, described in the OIC article.) 2601:648:8202:96B0:A4FA:1C65:4DD0:74DD (talk) 06:24, 28 May 2020 (UTC)