Via Matt Apuzzo at the New York Times, it turns out the feds, who arrested Temple University’s head of its physics department, Dr. Xi Xiaoxing, for spying by sending schematics to China of a secret device, a “pocket heater,” blew it. The very serious looking schematic turned out to be the plans for, well, something else.
It was an embarrassing acknowledgment that prosecutors and F.B.I. agents did not understand — and did not do enough to learn — the science at the heart of the case before bringing charges that jeopardized Dr. Xi’s career and left the impression that he was spying for China.
He was arrested, led away in cuffs, reputation stained and life upended. Because
he was a spy the agents had no clue what all the squiggly lines meant, but it sure looked spy-ish.
“I don’t expect them to understand everything I do,” Dr. Xi, 57, said in a telephone interview. “But the fact that they don’t consult with experts and then charge me? Put my family through all this? Damage my reputation? They shouldn’t do this. This is not a joke. This is not a game.”
Consult with experts? But they’re FBI agents. They’re prosecutors. They are experts. They know enough to know that you’re a criminal. They know criminals. And that’s good enough.
But the Xi arrest, and its subsequent dismissal when somebody explained to the feds that they were clueless morons, is an extreme example of a phenomenon that pervades criminal law.
Because it was so far outside of their substantive knowledge, there was a grudging willingness to eventually accept that they blew it, they were prosecuting a professor for something that wasn’t at all what they believed it was. Note the word “believed,” rather than “thought.” They lacked the capacity for thought.
They’re a bunch of cops and prosecutors. They didn’t know squat about what the schematic was of, but somebody, somewhere, said, “I kinda sorta think that’s like something they can’t send to China,” and from there, the machine cranked up to crush the witch. And not one of these very, very smart, bordering on genius, prosecutors thought to themselves, “maybe, just maybe, I need to go to someone who actually knows something for real and, you know, find out whether this is what I believe it is.”
A longtime federal prosecutor, Mr. Zeidenberg said he understood that agents felt intense pressure to crack down on Chinese espionage, but the authorities in these cases appeared to have been too quick to assume that their suspicions were justified.
Peter Zeidenberg, who is now on the dark side and defended Dr. Xi, showed the subtle understanding that longtime former federal prosecutors are inclined to show. It’s a hard job being a prosecutor. There’s “intense pressure” to find the bad guys. It’s generous of Zeidenberg to be so forgiving. Then again, had Dr. Xi been convicted, would he still have been so generous toward the poor prosecutors?
Worse still, what if Dr. Xi, because he had no reason to anticipate that the United States of America would deem him an enemy of the state, had reacted poorly at the time of his arrest?
About a dozen F.B.I. agents, some with guns drawn, stormed Dr. Xi’s home in the Philadelphia suburbs in May, searching his house just after dawn, he said. His two daughters and his wife watched the agents take him away in handcuffs on fraud charges.
Was it really necessary for the FBI to send in “about a dozen agents” to take down the head of Temple University’s physics department? What of the guns drawn? Drawn guns lead to guns being fired, which leads to bullets leaving their barrels at great velocity, striking human bodies and doing significant, if not deadly, harm. Guns drawn?
It’s hardly a stretch to envision Dr. Xi being outraged and offended by agents storming his home. It’s hardly a stretch to envision righteous indignation at such treatment. After all, he was a renowned scientist, and that puts him squarely on the good guy curve. Among the many classes he took in achieving his educational accomplishments, “how to be arrested by the feds without getting killed” was not likely to be one. What if Dr. Xi did it wrong?
There are a great many substantive details that arise in the course of criminal investigations, prosecutions, that are beyond the ken of agents, prosecutors and judges. There is a strong, perhaps overwhelming, tendency to stop trying to learn and understand things upon reaching the level of belief that matches their desired outcome. The schematic here appeared to be something? Close enough. Take ’em down.
But this happens in far less sophisticated cases. It’s a constant in white collar prosecutions, where prosecutors employ their mad biz skillz to dictate how multinational corporations function in the eyes of young lawyers whose only prior connection to big business is Amazon Prime. It happens constantly in drug prosecutions, where agents present themselves as drug dealing experts because some other agent in Quantico told them how drug dealers work.
And the judges, lacking any reason to gain a level of awareness beyond that which the evidence presents, are left to parse these claims of pseudo-expertise with their eyes shut. And after a virgin judge admits his first law enforcement expert, the ones following are easy. All they need do is mutter, based upon my education and experience, plus the unproven (and unprovable) vast experience in law enforcement (“I was ‘involved’ with more than 350 narcotics arrests.” Name them. Objection. Sustained.)
Agents are taught to be agents. Prosecutors are lawyers. As are judges and defense counsel. We have the capacity to learn, at least enough at time to not be total fools, but that doesn’t mean we either bother or do the hard work. And at other times, grasping the substance is beyond us. Nobody invites a needless headache when we believe we’ve got enough to make the charge stick.
Thankfully, Dr. Xi has now been cleared, and survived his ordeal. But we only know about it because the government got smacked for such an extreme example of substantive cluelessness. The banal cluelessness never makes the New York Times, and usually prevails.