Promoted from the Ricochet Member Feed by Editors Created with Sketch. The Barter System of Justice

 

shutterstock_167988596In a perfect world criminals would be punished appropriately and expediently, and the innocent would find vindication in our courts of law. We do not live in a perfect world. We have the highest rate of imprisonment in the world, our crime rates are low and lowering, but our system can hardly be described as just.

Justice Alex Kozinski of the US Court of Appeals Ninth Circuit wrote an article in the Georgetown Law Journal last summer that is bringing the injustice of our system to light. As George Will put it:

[Justice Kozinski] provides facts and judgments that should disturb everyone, but especially African Americans, whose encounters with the criminal justice system are dismayingly frequent and frequently dismaying.

The article [pdf] is eye opening. Yes, Kozinski sits on the most overturned court of appeals in the land, but that does not make him wrong here. His focus is not so much on the justice received by the guilty, but rather on the injustice received by the innocent in the gears of a system which can no longer tell the difference. Kozinski asks:

We can be reasonably confident that the system reaches the correct result in most cases, but that is not the test. Rather, we must start by asking how confident we are that every one of the 2.2 million people in prisons and jails across the country are in fact guilty. And if we can’t be sure, then what is an acceptable error rate? How many innocent lives and families are we willing to sacrifice in order to have a workable criminal justice system?

The question should weigh heavy on our hearts and minds because :

What we have is faith that our system works very well and the errors, when they are revealed, are rare exceptions. Much hinges on retaining this belief: our self image as Americans; the pride of countless judges and lawyers; the idea that we live in a just society; confidence in the power of reason and logic; the certainty that none of us or our loved ones will face the unimaginable nightmare of unjust imprisonment or execution; belief in the incomparable integrity and accuracy of our system of justice; faith that we have transcended medieval methods of conviction and punishment so that only those who are guilty are punished, and their punishment is humane and proportionate. There are, we are convinced, no Edmond Dantèses and no Château d’Ifs in America today.

The entire article worth reading and should be studied by all who are concerned that our justice system is broken and no longer represents our national character. In it he lays out the many ways in which the system fails, and his overall conclusion is that our belief in the prosecution’s uphill climb to prove a person guilty of a crime is a myth, the accused is realistically guilty until proven innocent, and the man accused of a crime must prove himself innocent — pretty much the opposite of what we believe about our criminal justice system.

If one accepts his conclusion then some very disturbing questions must be asked about the system as it exists today. The question I cannot get out of my head is this: how many people would be incarcerated if either a conviction at trial or a guilty plea to the actual crime believed to have been committed were required to imprison a person?

According to the Bureau of Justice Statistics the overall felony conviction rate is 68 percent. I presume this number is of cases that go to trial. If one excludes cases resolved by plea bargain then the prosecution does face real work in obtaining convictions, but this is only for 3 to 5 percent of cases. According to Conrad Black (who has a little experience with our justice system) “97 percent of federal cases and about 95 percent of state cases are resolved by plea bargains…” which would not be much of a problem except that “in practice, these [plea bargains] are almost invariably dictated by the prosecutor.”

Kozinski finds much of the same problem and adds to it corruption, people’s inclinations to believe the first position presented (always the prosecution’s case), enforced ignorance of juries, and naive beliefs in the infallibility of forensic and witness evidence presented at trials. As the problems inherent in the system stack up I’m forced to wonder if the system gets it right by accident rather than the other way around. In my own experience I attribute a just outcome to providence rather than to our criminal justice system as designed and operated.

I realize we cannot boil this down to an absolute binary where the system is either just because only the guilty are punished or unjust because some innocent people are incarcerated. I hope we can all agree, however, that the correct number of innocents we’re willing to sacrifice to have a system is much lower than the number we are sacrificing today.

My other primary concerned raised by this article and my own interaction with the criminal justice system is that the real problem is cultural rather than legal. If incarceration required a guilty plea to the actual crime (which almost never happens) or a trial conviction the system would be overwhelmed. We simply have too many people committing crimes which require adjudication by the system. Because our society and culture stands as it is now, we are forced by sheer numbers into a barter system of criminal justice where an unfettered, and often unaccountable, prosecutor offers the accused the best lemon on the lot.

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  1. John Walker Contributor

    The King Prawn: Because our society and culture stands as it is now, we are forced by sheer numbers into a barter system of criminal justice where an unfettered, and often unaccountable, prosecutor offers the accused the best lemon on the lot.

    And prosecutorial immunity means there is no downside or potential consequences of bringing prosecutions and manipulating people into plea bargains in order to nail scalps on the wall and angle for promotion or prepare for a political career. While there are genuine bad guys, the system as it stands is so fundamentally corrupt it does not merit the term “justice system”.

    Along with plea bargains, another scam is deferred prosecution. Chris Christie built his prosecutorial career in part upon this. If done in the private sector, it would be called extortion.

    • #1
    • October 26, 2015, at 3:42 PM PDT
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  2. BrentB67 Inactive

    KP, since I’ve returned from my sabbatical I’ve had to read your posts multiple times. You are really turning out some magnificent work.

    Very thought provoking article. Thanks for putting it together.

    • #2
    • October 26, 2015, at 4:12 PM PDT
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  3. Z in MT Member

    The King Prawn: The question I cannot get out of my head is this: how many people would be incarcerated if either a conviction at trial or a guilty plea to the actual crime believed to have been committed were required to imprison a person?

    Plea bargaining is an injustice caused by our broken legal system, where the process is the punishment so even innocent men are willing to plead guilty to lesser charges just to escape. If a criminal trial could be performed within a month of arrest instead of a year, a plea bargain would be less attractive to an innocent man.

    The legal system should value truth over proof.

    • #3
    • October 26, 2015, at 5:04 PM PDT
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  4. The (apathetic) King Prawn Inactive

    Z in MT: The legal system should value truth over proof.

    It should value truth over winning.

    • #4
    • October 26, 2015, at 5:07 PM PDT
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  5. BrentB67 Inactive

    Z in MT:

    The King Prawn: The question I cannot get out of my head is this: how many people would be incarcerated if either a conviction at trial or a guilty plea to the actual crime believed to have been committed were required to imprison a person?

    Plea bargaining is an injustice caused by our broken legal system, where the process is the punishment so even innocent men are willing to plead guilty to lesser charges just to escape. If a criminal trial could be performed within a month of arrest instead of a year, a plea bargain would be less attractive to an innocent man.

    The legal system should value truth over proof.

    The other part of the problem is access to funds. Prosecutors have theoretically unlimited funds to pursue a case. Granted they have to make choices about which cases to pursue since their time is finite.

    Plea bargains are often driven by the lack of resources of a defendant.

    If we had a loser pays type criminal justice system similar to what states have for civil law (Texas has such an arrangement) then the playing field would be more level I think.

    • #5
    • October 26, 2015, at 5:11 PM PDT
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  6. The (apathetic) King Prawn Inactive

    BrentB67: The other part of the problem is access to funds. Prosecutors have theoretically unlimited funds to pursue a case. Granted they have to make choices about which cases to pursue since their time is finite. Plea bargains are often driven by the lack of resources of a defendant.

    This is enormous as well. Even some of your really good (meaning expensive) lawyers work just as hard for a quick plea rather than truth.

    • #6
    • October 26, 2015, at 5:20 PM PDT
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  7. MarciN Member

    A good post, KP.

    I wish it were not so.

    The people in the best position to bring about change are the judges. I hope they do.

    I read an interesting story a few years ago about arson science. (This is one case. A Google search for “arson convictions overturned because of faulty science” produced a lot of hits.) Apparently, the theory used by arson investigators to pinpoint the starting point for fires was incorrect, and the information ultimately led to the overturning of close to two hundred arson convictions. That just sent my mind into questioning everything we are doing in prosecuting and trying cases.

    I found in the time I spent with kids, my own and with other kids in my volunteer life, that schools spend way too little time talking about the basic tenets of justice. Kids are not taught about the justice system–any of it, from being accused to proving or disproving a charge, to the trial, to the incarceration system. They learn a lot about government but next to nothing about justice. That failure means our juries are made up often of ignorant people, people who, as you point out in the post, too often ask too few questions about the evidence presented in a trial.

    I’ve also read too many sensational stories in which prosecutors were quoted as saying they hoped to win with a preponderance of circumstantial evidence. They better not try that if I’m on the jury!

    • #7
    • October 26, 2015, at 6:00 PM PDT
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  8. The Dowager Jojo Inactive

    Have you listened to the Serial or Undisclosed podcasts? They are independent (not necessarily unbiased) review and investigation of a murder, or more so a murder conviction, in Baltimore in 1999.

    Possibly the convicted man is guilty. But the evidence seems strong that if justice was done it was- well, not quite by accident but in spite of a lot of unethical/incompetent behavior by police, prosecutors, and defense. They have lots of incentives to be unethical. The system seems to depend on being run by saints to function properly.

    If you listen to all of it, which must amount to hundreds or thousands of hours of examination of the case without a clear idea of the truth so far, you wonder if the truth ever comes out in any case.

    • #8
    • October 26, 2015, at 6:45 PM PDT
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  9. The (apathetic) King Prawn Inactive

    Jojo: The system seems to depend on being run by saints to function properly.

    We hope that should we ever be the wrong person at the wrong place at the wrong time we’ll encounter just such a sainted system, so we project that hope onto the system we have and declare it good enough. Plus, it’s keeping a lot of criminals locked up. The truth is that it is a machine.

    • #9
    • October 26, 2015, at 6:52 PM PDT
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  10. Black Prince Inactive

    And here’s Conrad Black’s take on being caught in the wheels of the so-called U.S. “justice” system:

    https://www.youtube.com/watch?v=rLZ_TcMhMqU

    • #10
    • October 26, 2015, at 7:10 PM PDT
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  11. The (apathetic) King Prawn Inactive

    Black Prince:And here’s Conrad Black’s take on being caught in the wheels of the so-called U.S. “justice” system:

    https://www.youtube.com/watch?v=rLZ_TcMhMqU

    He gets the spirit of the thing exactly right. Righteous indignation is the only appropriate response to what he went through.

    • #11
    • October 26, 2015, at 7:51 PM PDT
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  12. Mike H Coolidge

    Jojo: Have you listened to the Serial or Undisclosed podcasts? They are independent (not necessarily unbiased) review and investigation of a murder, or more so a murder conviction, in Baltimore in 1999.

    Yeah, my conclusion is he’s almost certainly guilty but should have never been convicted beyond a reasonable doubt.

    • #12
    • October 26, 2015, at 8:00 PM PDT
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  13. The (apathetic) King Prawn Inactive

    Mike H:

    Jojo: Have you listened to the Serial or Undisclosed podcasts? They are independent (not necessarily unbiased) review and investigation of a murder, or more so a murder conviction, in Baltimore in 1999.

    Yeah, my conclusion is he’s almost certainly guilty but should have never been convicted beyond a reasonable doubt.

    I’ll have to look into this. Does it get one’s blood pumping? I need something to listen to at the gym.

    An innocent person being convicted is obviously a terrible outcome, but is it acceptable if an “almost certainly guilty” party is not convicted because of the reasonable doubt standard? What level of certainty should be required to deprive a person of liberty?

    • #13
    • October 26, 2015, at 8:09 PM PDT
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  14. Mike H Coolidge

    The King Prawn:

    Mike H:

    Jojo: Have you listened to the Serial or Undisclosed podcasts? They are independent (not necessarily unbiased) review and investigation of a murder, or more so a murder conviction, in Baltimore in 1999.

    Yeah, my conclusion is he’s almost certainly guilty but should have never been convicted beyond a reasonable doubt.

    I’ll have to look into this. Does it get one’s blood pumping? I need something to listen to at the gym.

    It’s more like listening to a really good mystery. (I’m talking about Serial here.) You always want to find out what comes next because they are literally writing it as they find out!

    An innocent person being convicted is obviously a terrible outcome, but is it acceptable if an “almost certainly guilty” party is not convicted because of the reasonable doubt standard? What level of certainty should be required to deprive a person of liberty?

    When I took a criminal justice class my teacher used 97% certainty as “reasonable doubt,” which I don’t think is a real standard, but sounds like a reasonable error rate.

    • #14
    • October 26, 2015, at 8:14 PM PDT
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  15. Pugshot Member
    Pugshot Joined in the first year of Ricochet Ricochet Charter Member

    As a former (20 years) assistant prosecutor, and a current attorney with the state appellate court system, I’d like to make some observations.

    (1) There is a large degree of subjectivity in this discussion. Is a person who has committed the charged crime, but is allowed to plead guilty to a lesser offense not guilty because he (or she) has not been convicted of the crime he (or she – geez, this is sounding like “Life of Brian”) actually committed? Some of the OP’s comments suggest this. And Judge Kozinski’s article displays subjectivity. He notes that few judges (or other legal professionals) have been on juries, but that he has twice, and that one of these resulted in a conviction (because the “case was so clear-cut that only one verdict was possible”), but the other resulted in a hung jury (because he was on the jury and he didn’t think there was enough evidence for conviction and convinced his fellow jurors). [This latter observation brings an additional issue: judges generally don’t get their positions because they have small egos, and the longer they’re judges, the larger their egos tend to grow. So the other 11 members of the jury might have concluded that there was enough evidence, but Judge Kozinski was not convinced and used his skill, experience, and legal authority – to which laypersons would defer – to convince them the evidence wasn’t sufficient. I’m not saying it was sufficient – I wasn’t on the jury – but there is a certain amount of “take my word for it because I’m a judge” involved in his observation.] Because the determination of what constitutes “beyond a reasonable doubt” involves a significant degree of subjectivity by the jurors, some judges who review a jury’s decision may conclude that they would have ruled differently – and those who are not sufficiently committed to the jury system may decide to interpose their own belief for that of the “12 good men and true.” They then justify their decision by arguing that it was clear to them (although not so clear to the 12 who actually hear/saw the evidence) that the defendant was not guilty.

    (2) A related issue is what is meant by guilt? Are we talking about actual factual innocence? Or legal innocence (in the observer’s view, the evidence for at least one element of the charged offense was insufficient)?

    (3) Many of the comments seem to accept that the system is corrupt: prosecutors seek to convict innocent defendants to further their political careers, juries routinely convict defendants despite the absence of sufficient evidence, defense attorneys fail to protect their clients’ rights, and judges fail to protect the innocent. While I don’t deny these things do occur, the tenor of the comments is that these things routinely happen. As someone who has spent 37 years reviewing criminal trials, I have to strongly insist this isn’t the case.

    • #15
    • October 26, 2015, at 8:44 PM PDT
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  16. EJHill Podcaster
    EJHill Joined in the first year of Ricochet Ricochet Charter Member

    Some of this injustice can be laid at the feet of judges. When they refused to their jobs and really deal with the hardened repeat offenders, then politicians took over and came up with “three strikes” laws. (In the same way that teachers who failed to teach basic literacy ended up with standardized tests that the hate even more.)

    The lesson is obvious. Do your job and don’t give the pols a reason to get involved.

    • #16
    • October 26, 2015, at 8:45 PM PDT
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  17. Pugshot Member
    Pugshot Joined in the first year of Ricochet Ricochet Charter Member

    (cont)

    (4) What kind of system do you want? The OP’s comments suggest that it has to be an either/or system – though he disclaims that toward the end. Only the truly guilty (whatever is meant by that) must be convicted – anything less represents a corrupt system. And the guilt must be only with regard to the “actual crime” – whatever that means. [A man is killed by another. Is the “actual crime” first-degree murder? Is it second-degree murder? Is it manslaughter? And if, for example, the “actual crime” is first-degee murder, but the prosecutor can only prove second-degree murder? Or all the parties are willing to accept a plea to manslaughter? And this doesn’t even take into account whether it’s a crime at all. It might be a justifiable accident; it might be self-defense.]

    (5) This system is a human-constructed, human-populated system – of course mistakes will happen. That doesn’t excuse the mistakes. There must be constant vigilance, transparency (to the degree that is consistent with the necessary secrecy involved in the jury system), and constant review by appellate courts and, when appropriate, independent agencies. While we cannot tolerate a sloppy or corrupt system, Judge Kozinski’s article, and the OP’s comments, suggest that anything less than perfection is unacceptable – in which case there’s no point in discussing this because the system will never be perfect. Even if all parties to a criminal prosecution do their jobs to the best of their abilities, it is always possible that a person can be convicted because witnesses lied (or was legitimately mistaken), or critical evidence was withheld by a witness, or simply was not discovered (and not because of official incompetence) – and that nothing the police, prosecutor, judge, or defense counsel could have done would have revealed the truth.

    (6) Do you want a system that uses a “beyond any doubt” standard of guilt? Because very few might be convicted under such a system – and as a result the society as a whole would experience a drastic increase in crime.

    These observations only begin to scratch the surface, but I’m tired after a long day and I’ve got to hit the sack.

    • #17
    • October 26, 2015, at 9:32 PM PDT
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  18. Dad Dog Member

    Pugshot: Many of the comments seem to accept that the system is corrupt: prosecutors seek to convict innocent defendants to further their political careers, juries routinely convict defendants despite the absence of sufficient evidence, defense attorneys fail to protect their clients’ rights, and judges fail to protect the innocent. While I don’t deny these things do occur, the tenor of the comments is that these things routinely happen. As someone who has spent 37 years reviewing criminal trials, I have to strongly insist this isn’t the case.

    As a current prosecutor, I too (like Pugshot) must object to the subjective-yet-secondhand generalizations in this thread.

    There appears to be a lot of pontificating by respected fellow Ricochetti who opine about a specific part of our “system” — yet who, from what I can deduce, who have absolutely no personal knowledge about that which they opine. From what I’ve read, Pugshot is the only other commenter in this thread who has “inside” knowledge about the subject.

    As Pugshot notes, many of you seem to accept that the system is corrupt . . . but based on what facts? The opinions of Judge Kozinski? What’s been trumpeted in the “objective” mainstream media? What your brother-in-law (who served as a juror) told you? You folks sound like a Greek chorus for “Black Lives Matter.”

    • #18
    • October 26, 2015, at 9:34 PM PDT
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  19. Dad Dog Member

    I have been a state-level prosecutor in a large cosmopolitan area for nearly 27 years. My observations:

    1. As you know, there is a Code of Ethics for all attorneys. Violate it, and you may be disbarred. But, did you know that there is a separate, additional, and higher set of ethical standards for prosecutors? While all other attorneys are required to zealously advocate for their clients — whatever form that takes — prosecutors are required to seek justice — whatever form that takes. Even if it means a dismissal.
    2. 99% of the prosecutors with whom I work are men and women of incredible integrity.
    3. There are prosecutors who are overly aggressive for selfish, personal reasons (promotions, advancement, etc.). They probably comprise about 1-3% of the field.
    4. However, I have never been aware of any prosecutor who knowingly prosecuted an innocent defendant.
    5. I have heard of federal prosecutors overreaching, and unfairly using the threat of trial and the power of the State to unfairly gain guilty pleas. (I will also admit that this “information” is secondhand.)
    6. I have had juries surprise me with an acquittal “in spite of the evidence.” I have never had any surprise me with a conviction “in spite of the evidence.”
    7. I have never met a defense attorney who failed to protect his client’s rights. Their dedication, in fact, makes my job very difficult . . . but I applaud them for it.
    8. Every judge who I have known to have erred . . . has erred on the side of the defendant.
    • #19
    • October 26, 2015, at 9:42 PM PDT
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  20. Jimmy Carter Member
    Jimmy Carter Joined in the first year of Ricochet Ricochet Charter Member

    We have too many laws aided by too many “just following orders.”

    The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

    Pugshot: Only the truly guilty (whatever is meant by that) must be convicted – anything less represents a corrupt system.

    Unjust laws wouldn’t represent a corrupt system?

    • #20
    • October 26, 2015, at 9:49 PM PDT
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  21. Dad Dog Member

    Like Pugshot, I too, need to get to bed — court tomorrow morning. A final observation:

    I agree and admit that too much of our population is behind bars.

    But, as has been written somewhere before . . . don’t shoot the messenger (i.e., the criminal justice system). I understand the frustrations voiced here . . . but please don’t misplace the blame.

    As someone (like Pugshot) with appellate experience (in addition to frontline trial prosecution), I can confidently say that criminal procedure is more favorable to defendants today than at any time in our nation’s history. In the past 60 years, the overwhelming majority of Supreme Court decisions dealing with the rights of the accused have expanded those rights (e.g., Miranda, Gideon, 4th/5th/6th Amendment decisions, etc.).

    So, then, why so many behind bars?

    Instead of blaming the criminal justice system, I suggest that you — as with other society-wide, system-wide problems — look “upstream” . . . at the culture.

    At a cultural level, we glorify violence, we excuse greed, we blame everything on our dysfunctional upbringings, we refuse to take responsibility, we even re-label intentional choices to do wrong as . . . “mistakes.” We have cut ourselves loose from our moral anchors . . . and then we wonder why so many commit crimes?

    Good night. Be safe.

    • #21
    • October 26, 2015, at 10:18 PM PDT
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  22. Joseph Stanko Coolidge
    Joseph Stanko Joined in the first year of Ricochet Ricochet Charter Member

    The King Prawn: his overall conclusion is that our belief in the prosecution’s uphill climb to prove a person guilty of a crime is a myth

    I served on a jury in an attempted murder case — basically one man walked up and shot another in broad daylight, with several witnesses around, in some sort of gang-related dispute. In deliberations the initial vote was 10-2 to acquit. I was one of the 2 who voted to convict, but after several hours of arguing I and the other hold out eventually gave in and we returned a not guilty verdict.

    Outside the courthouse the prosecutor talked to some of us, trying to learn how we’d reached our verdict and learn from his mistakes. On several key questions that hadn’t added up in the case he had simple answers that had all been ruled inadmissible by the judge. With the additional information I’m definitely convinced he was guilty, but he got off scot free.

    Of course it’s just one data point, but my own experience in the jury box reinforced my belief that it is indeed an uphill climb to convict in our justice system.

    • #22
    • October 27, 2015, at 12:10 AM PDT
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  23. Joseph Stanko Coolidge
    Joseph Stanko Joined in the first year of Ricochet Ricochet Charter Member

    The King Prawn: and naive beliefs in the infallibility of forensic and witness evidence presented at trials

    That was the polar opposite of my jury experience. My impression was that the jurors had been so conditioned by shows like CSI to expect some sort of ironclad physical evidence, and since that was lacking (the gun was never found) nothing less would possibly convince them. Real life cases are not as open-and-shut as TV cop shows.

    • #23
    • October 27, 2015, at 12:16 AM PDT
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  24. Basil Fawlty Member
    Basil Fawlty Joined in the first year of Ricochet Ricochet Charter Member

    Time to read some Heather Mac Donald.

    • #24
    • October 27, 2015, at 3:49 AM PDT
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  25. Pony Convertible Member

    If this topic is of interest to you, you should read this:

    http://www.city-journal.org/2015/25_4_decriminalization.html

    • #25
    • October 27, 2015, at 5:00 AM PDT
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  26. Hank Rhody, Freelance Philosop… Contributor

    Pugshot: (4) What kind of system do you want? (…) And the guilt must be only with regard to the “actual crime” – whatever that means. [A man is killed by another. Is the “actual crime” first-degree murder? Is it second-degree murder? Is it manslaughter? And if, for example, the “actual crime” is first-degee murder, but the prosecutor can only prove second-degree murder? Or all the parties are willing to accept a plea to manslaughter? And this doesn’t even take into account whether it’s a crime at all. It might be a justifiable accident; it might be self-defense.]

    This, actually, illustrates part of the problem. No human justice system is perfect, and if you don’t know if a person is actually guilty of first degree murder (or you can’t convict given the protections of the Constitution) then we’ll have to accept that they’ll get theirs on judgement day. But take the trailing half of the hypothetical:

    Or all the parties are willing to accept a plea to manslaughter?

    Why should this be an option? If a man is guilty of murder then prosecute him for murder. Punishing a man for a crime he didn’t commit and letting him walk for a crime he did commit is the definition of injustice either way you slice it.

    I’d rather subject myself to the law than to the judgement of prosecutors.

    • #26
    • October 27, 2015, at 5:23 AM PDT
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  27. Jason Obermeyer Member

    Joseph Stanko: On several key questions that hadn’t added up in the case he had simple answers that had all been ruled inadmissible by the judge.

    Inadmissible evidence is generally inadmissible for a reason. I’d like to know what he could not tell you during the trial.

    • #27
    • October 27, 2015, at 6:32 AM PDT
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  28. Pilgrim Thatcher
    Pilgrim Joined in the first year of Ricochet Ricochet Charter Member

    As a young lawyer, I worked as an administrator for a year in Recorders Court, the criminal trial court for the City of Detroit. Recorders Court handled all felony prosecutions in the City. Because of sheer volume and speedy trial rules both the judges and the prosecutors were under severe pressure to “clear the docket.”

    What results isn’t pretty but it is an amazing example of a type of market. The defense bar and the Asst Prosecutors spent years dealing with each other with a high degree of good faith. Lawyers on both sides had information regarding the defendant that a jury would never get to hear. Both sides were able to accurately assess the cost and risk of trial, the need for some, but maybe less than draconian, punishment and the need of the public and defendant to feel that the outcome was fair. Given the variables of the defendant’s age and record, the predilections of the assigned judge, the severity of the alleged offense, the availability of witnesses, physical and forensic evidence etc. a very large degree of agreement as to the going rate for a plea-bargain would be achieved.

    Not much different from a wholesale car auction where any of the professionals can tell you within a narrow range the fair price of a car based on make/model, age, milage, and condition

    • #28
    • October 27, 2015, at 6:58 AM PDT
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  29. Dad Dog Member

    Joseph Stanko:

     My impression was that the jurors had been so conditioned by shows like CSI to expect some sort of ironclad physical evidence, and since that was lacking (the gun was never found) nothing less would possibly convince them. Real life cases are not as open-and-shut as TV cop shows.

    This is a problem that my colleagues and myself have to deal with every day.

    During jury selection, it has become necessary to make clear that the real world is not like television: that very few cases actually have any “CSI,” and that there has never been — and never will be — an ironclad case.

    I, too, have had several cases, which either hung or ended in acquittals, where a significant number of the jurors clearly held us to a standard of “how they do it on TV.”

    • #29
    • October 27, 2015, at 7:35 AM PDT
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  30. iWe Reagan
    iWe Joined in the first year of Ricochet Ricochet Charter Member

    My issue is more fundamental even than the original argument. I don’t think there is a case to be made for criminal codes.

    All crime that has a victim means damage has been done by someone to someone else. The societal solution is for reparations – either in free society, or, if that is unlikely to work, in some kind of debtor’s prison.

    Work off your debt, and return to the world. Actions have consequences. Injured parties are made whole – or as whole as can be accomplished using mere mammon.

    Cast in this way, the judicial system exists for a far more pragmatic end: determine blame, cost, and means of reparations. And there is always an option for the wrongdoer and victim to settle out of court.

    • #30
    • October 27, 2015, at 7:48 AM PDT
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