NYT again misreports maximum potential penalty that could have been sought against surviving Somali pirate

U.S. Magistrate Judge Andrew J. Peck of the United States District Court for the Southern District of New York has ruled that the surviving Somali pirate captured by the U.S. Navy after attempting to hijack the M/V Maersk Alabama, Abduwali Abdukhadir Muse, will stand trial as an adult. In so doing, Judge Peck credited testimony yesterday from New York City Detective Frederick Galloway, who — according to the New York Times — "who went to Africa as part of an investigative team." Detective Galloway testified that

Mr. Muse, after giving different ages, said he had been untruthful, apologized and said he was “between 18 and 19.”

“He also said, ‘I’m sorry for lying to you,’” Detective Galloway testified. “He said, ‘When I pray again, I’ll ask Allah to forgive me for lying to you, and I won’t lie to you again.’”

Judge Peck rejected as "incredible" contrary testimony given by Muse's purported father (through an interpreter and via a telephone hookup to Somalia) to the effect that Muse is only 15 years old. As for suggestions that Muse was merely a passive follower of the other pirates, the NYT story reports:

Disputing his father’s portrayal of his son as an unwitting dupe, prosecutors say Mr. Muse conducted himself as the leader of the pirate gang, and was the first among them to climb aboard the Maersk Alabama on the morning of April 8 in the Indian Ocean off of Somalia.

He fired his gun at the captain, Richard Phillips, who was still on the bridge, and then entered the bridge with two other armed pirates, and demanded money, the complaint said.

In fact, the Department of Justice's sworn criminal complaint filed against Muse is considerably more damning as to Muse's overall role in these events than the NYT's summary. According to the complaint(caps in original):

MUSE entered the Bridge, and told the Captain to stop the ship. MUSE, who conducted himself as the leader of the Pirates, later demanded money from the Captain. MUSE and two other Pirates, each of whom was armed with a gun, then walked with the captain to a room on the Maersk Alabama that contained the ship's safe. The captain opened the safe and took out approximately $30,000 in cash. MUSE and the two other Pirates then took the cash.

And the complaint likewise disputes previous press suggestions that Muse had "effectively surrendered" by boarding the USS Bainbridge before Navy SEAL snipers shot and killed his co-conspirators (italics mine):

On April 12, 2009, MUSE requested and was permitted to board the USS Bainbridge. The other three Pirates continued to hold the Captain on the Life Boat. On the USS Bainbridge, MUSE continued to demand for himself and the other Pirates safe passage from the scene in exchange for the Captain's release. In addition, MUSE received medical treatment.

Muse wasn't surrendering, in other words, and hadn't "withdrawn from the conspiracy," but was instead continuing to convey threats that his co-conspirators would kill Captain Phillips unless all of the pirates, including Muse, were released and guaranteed their continued freedom.

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This NYT story — like every other mainstream media report I've seen since the attempted hijacking and hostage-taking — again incorrectly claims that life imprisonment is the most severe penalty available for any of the crimes with which Muse could be charged. As I wrote last week, 18 U.S.C. § 1203(a) provides that "if the death of any person results, [hostage-taking] shall be punished by death or life imprisonment." The statute doesn't require that the defendant himself have committed the homicide, nor that the victim of the homicide be one of the hostages. Rather, as with many state felony murder laws, all that section 1203(a) literally requires is that the hostage-taking have resulted in "the death of any person" for its violation to become a capital crime punishable by death. The criminal exposes himself to this penalty by taking part in a crime which ends up getting anyone killed as a result, even if it's an innocent bystander killed by accident, or even if it's one of his accomplices and co-conspirators who's killed in a justifiable homicide by law enforcement officers.

Hostage-taking in violation of section 1203(a) is indeed one of the five counts with which Muse has now been charged. However, the DoJ did not see fit to include in the charging language for that count an allegation that the hostage-taking resulted in the "death of any person," so Muse appears to be at risk for nothing worse than a life sentence as the case presently stands.

Section 1203(a) is not a complicated or long statute, and it's simply inconceivable that the prosecutors were unaware that it permits capital punishment when the hostage-taking has resulted in the "death of any person." So we must assume that the decision not to to charge the crime in a manner that would permit the death penalty under section 1203(a) was a deliberate one.

Such decisions fall within the general realm of "prosecutorial discretion." Because prosecutors are responsible not only to do what's right but to do justice, not every crime that could be charged should be charged. And one may argue with a perfectly straight face that Muse's relative youth (even if, by his own admission, he wasn't below the age of 18) and poverty-stricken life, plus the fact that only bad guys got killed, were enough in the way of mitigating factors to justify the prosecutors' decision not to seek the death penalty. Were I in their shoes, I probably would have been inclined instead to leave that to the jury to decide. But I am not accusing these prosecutors of having abused their discretion; and indeed, in other respects, the complaint is commendably robust.

But I do think that the mainstream media ought to truthfully report that the death penalty could indeed have been sought by the Obama Administration. This isn't quite the "Wag the Dog" scenario I've been predicting. But Obama's spinmeisters have been quite aggressive in seizing this as an example of "Obama as Tough Father Figure." It's bad practice, but unfortunately common (verging on universal), for the mainstream media to aid and abet Obama in such exaggerations, and this is simply another example of that.

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UPDATE (Wed Apr 22 @ 11:45am): It's hard to overcome the defendant's own confession as to his age in the best of circumstances, but from another report of yesterday's hearing, this time from the NY Daily News (h/t Althouse), we see that there were further problems with the defense team's contention that Muse is a minor (italics mine):

The judge called Muse's father, who said the suspect was his eldest son, born in November 1993, making him just 15.

Pressed further, the father said his fourth-born son was born in 1990 — and the judge ruled his testimony was not credible.

Muse's court-appointed lawyers said they will appeal the age ruling and also want to see if he's subject to Geneva Convention rules on international prisoners.

They said he was shackled and blindfolded for eight days and had not been given pain medication for his hand in 24 hours.

"He is extremely young, injured and terrified," said lawyer Deirdre von Dornum.

To which my first reaction is: Poor (probably intercontinental) wood-shedding of the father by defense lawyers? If your witness' story depends on the proposition that time flows backwards when you get close to the equator, he may have some credibility problems.

The initial "appeal" of the age ruling will be not to the Second Circuit, but rather to the United States District Judge under whose authority Magistrate Judge Peck is proceeding. Unless they can come up with a lot of new and better evidence to cast doubt on the defendant's admission to the NYC police detective, though, along with an explanation for why they didn't have that evidence yesterday (which may be less problematic, given the international nature of the case and their very recent engagement), defense lawyers are very unlikely to win that appeal. District judges tend to be pretty deferential to their magistrates' fact-findings.

Statements to the press like Ms. von Dornum's tend to blow up in lawyers' faces when the prosecution shows videotape of the "extremely young, injured and terrified" defendant threatening a hostage with an AK-47. By overplaying their hand, his lawyers are ultimately doing their client no favor. But a companion article, quoting a criminal defense lawyer not part of Muse's team, shows just how tone-deaf defense lawyers can be (italics mine):

"You've got an 18-year-old kid who has no education. He's as poor as they come, and he got caught up with these pirates," veteran defense lawyer Martin Geduldig said.

"In a sense, he's as much a victim as anybody else," said Geduldig, who is not involved in Muse's defense.

Friends and neighbors, any lawyer who makes that argument will forfeit all credibility with the jury and judge. If that's the best argument you've got, you should probably get your client's consent to plead him guilty on the best deal you can get, and then hope for whatever marginal sentencing leniency you may can find in the discretion of the court, if there's any to be found. Argue mitigating circumstances as hard as you can; but don't go over the top, which is where you are when you claim your client is "as much a victim" as the guy he shot at repeatedly, robbed at gunpoint, kidnapped and took hostage, beat up, and repeatedly threatened with death as part of a crime spree stopped only by the precision marksmanship of three Navy SEAL snipers.

UPDATE (Wed Apr 22 @ 1:30pm): And now the AP reports that Muse's mother insists that he's actually 16, but "'wise beyond his years' — a child who ignored other boys his age who tried to tease him and got lost in books instead." And the AP, once again, ignores the capital punishment angle.