Make your point and move on; Fairey lied, but AP won’t establish he always does.

As I’ve said over and over again, lying messes you up. It robs you of credibility, a problem which inevitably is going to infect the decision maker’s view of the merits of your case. But when facing a liar, you can get carried away by his lies and take your eye off your own case. AP seems prone to this danger in its case against Shepard Fairey. Having established Fairey lied about knowing which photo he used in creating the Obama Hope poster, AP is now contending that Fairey lied when he claimed in January 2009 that he didn’t recall which photo he used.

I’m not sure why AP is pushing this point. First of all, it does not bear on the question of fair use at the heart of the case. Second, they’ve just been successful in establishing Fairey’s a liar. What more do they want? It will be far, far more difficult — and, as far as I can imagine, impossible — to establish that in January Fairey didn’t remember which photo he used (rather than incorrectly claiming later, after he’d reviewed his materials in connection with the preparation of the poster, which precise photo he’d used). And it’s not as if AP doesn’t have its own problems with credibility that it should make every effort to avoid.

And, again, as I wrote previously over at Remix America: Fairey and AP’s counter-accusations of illegitimate conduct are interesting but really irrelevant to the question of fair use in connection with the Obama Hope poster. So is the possibility that Garcia is lying about being angry at Fairey when Garcia first realized that the source of the poster was his photo. Of course, Garcia’s failure to realize this fact until he was told, even though he was very familiar with the poster, may be relevant — if the photographer didn’t realize the source was his photo, isn’t that some evidence the poster so thoroughly transformed the photo it stands on its own as a creative work?

But, more to the point of this post: if Garcia didn’t realize in January the photo was the source of the poster, isn’t it credible that Fairey didn’t either? AP gained ground this week in outing a lie; now it may be trying to go to that tactic too often.

Lying messes you up. Polanski, the rapist, and the lying prosecutor.

One thing potential witnesses have to understand about lying is that every lie creates problems regardless of whether the lie itself is found out. Every lie requires every statement after the lie — for an indefinite period of time — to account for the lie. If you say something after the lie inconsistent with the lie, you’ve got real problems. Which is the lie? The new statement? The old lie? Who is going to know, and who is going to believe anything you say?

I’m reminded of this problem with lies today because of a story Marcia Clark writes about one of the prosecutors in the Roman Polanski rape case back in 1977, after Polanski had entered a guilty plea to engaging in unlawful sexual intercourse with a minor and was awaiting what he hoped, and apparently expected, was a sentence that would not include jail time. As the Wall Street Journal Law Blog writes, “According to a 2008 documentary, called Roman Polanski: Wanted and Desired,  . . . a Los Angeles prosecutor named David Wells confessed to buttonholing the judge [presiding over Polanski's case] — out of the presence of Polanski’s lawyer — and convinced him to impose a sentence that included prison time.”

Lawyers cannot communicate with judges regarding pending cases outside of the presence of the lawyers for the other parties. It’s a major no, no, and Wells’ admitted misconduct no doubt is part of Polanski’s opposition to extradition.

But now, according to Clark, Wells recently told her:

I lied. I know I shouldn’t have done it, but I did. The director of the documentary told me it would never air in the States. I thought it made a better story if I said I’d told the judge what to do. . . . Look, after 30 years, I never thought they’d get the guy back here. I figured no one cared anymore, and no one here would ever see the film anyway. What can I say? I don’t have a better reason than that. It seemed like a good idea at the time.

Clark believes Wells. I don’t know what to believe. Was he lying in to the filmmakers or is he lying today? Why would a prosecutor tell a lie to filmmakers that would show him to be unethical? He has more reason to lie today — now there’s attention to the unethical conduct he confessed to on film, and the extradition of a rapist is at stake.

And, frankly, I don’t consider Marcia Clark the most reliable judge of anything. Don’t get me going, but the reason for the O.J. verdict to my mind was, purely and simply, incompetent lawyering  by the prosecution.