West Memphis 3 Freed

[Martinus]

So a prosecutor who blatantly brings unwarranted charges against someone is not just shitty at his job - he is betraying the very ethos of his office.

I doubt he cares. Presumably, there are structures in place to sanction behavior of that kind. We can vote the bums out.   

Or impeach.

But what if the guy doing that is backed by powerful other interests in government? You don't want to have to throw out the whole sitting government in some extreme situation just in order to get rid of a crooked prosecutor. (Not that Canada would be like that, I don't know.)


I think the difference is that if you try to keep them divorced from politics, you're essentially protecting them from the electorate. Maybe it's a bit populist, but I think that's a bad thing.

I think it's a good thing. The judicature has to be independent of the electorate - otherwise there is no protection against the tyranny of majority.

Incidentally, I think there's also the thing of courts in the continental system (again, not Canada probably) having much less power than in the Anglo-saxon system. Judges in the continental system can apply the law but cannot overturn it (there is usually a single, special, constitutional court for doing that and it is usually appointed by the Parliament).

[Barrister]

So a prosecutor who blatantly brings unwarranted charges against someone is not just shitty at his job - he is betraying the very ethos of his office.

I doubt he cares. Presumably, there are structures in place to sanction behavior of that kind. We can vote the bums out.   

Or impeach.

But what if the guy doing that is backed by powerful other interests in government? You don't want to have to throw out the whole sitting government in some extreme situation just in order to get rid of a crooked prosecutor. (Not that Canada would be like that, I don't know.)


I think the difference is that if you try to keep them divorced from politics, you're essentially protecting them from the electorate. Maybe it's a bit populist, but I think that's a bad thing.

There's a word for justice being dictated by majority rule - it's called mob justice.

Absolutely prosecutions should be separated from day to day politics.  The individual decisions to prosecute, or not prosecute, should never be dictated by public pressure, but only by the evidence available.

[Barrister]

There is also another, philosophical, difference that exists between the Anglosaxon and the continental model (not sure if Canada is somewhere in between, due to its French influences). I.e. in the continental model, the state prosecutor is a state official whose role (at least in theory) is not just to secure a conviction, but also to act as a first gate keeper against baseless charges being brought against a person. So if a prosecutor, having analysed the evidence, thinks that there is only say 10% chance of the accused being guilty, he normally should not bring the charges (of course in practice they often do but I am talking about more of a philosophical difference).

So a prosecutor who blatantly brings unwarranted charges against someone is not just shitty at his job - he is betraying the very ethos of his office.

That's absolutely the role in common law systems as well.

I don't think it's useful to talk about "anglosaxon" justice system.  First of all there's a betetr term for it - common law systems.  But more importantly, there's some very big differences between the British model (which we largely follow) and the American system.

[Valmy]

Quebec absolutely has the Civil Code.  Not sure the history of it, but that's the basis for Quebec law.

I meant when it was a colony.  I had no idea they adopted it while part of the British Empire.

[Razgovory]

There is also another, philosophical, difference that exists between the Anglosaxon and the continental model (not sure if Canada is somewhere in between, due to its French influences). I.e. in the continental model, the state prosecutor is a state official whose role (at least in theory) is not just to secure a conviction, but also to act as a first gate keeper against baseless charges being brought against a person. So if a prosecutor, having analysed the evidence, thinks that there is only say 10% chance of the accused being guilty, he normally should not bring the charges (of course in practice they often do but I am talking about more of a philosophical difference).

So a prosecutor who blatantly brings unwarranted charges against someone is not just shitty at his job - he is betraying the very ethos of his office.

That's absolutely the role in common law systems as well.

I don't think it's useful to talk about "anglosaxon" justice system.  First of all there's a betetr term for it - common law systems.  But more importantly, there's some very big differences between the British model (which we largely follow) and the American system.

I think we can call common law "anglosaxon", if we can call civil law "Soviet".

[Barrister]

Quebec absolutely has the Civil Code.  Not sure the history of it, but that's the basis for Quebec law.

I meant when it was a colony.  I had no idea they adopted it while part of the British Empire.

After some brief googling, and from what I remember, the Napoleonic Code was of course based on French law anyways.  So in the 1860s (which had maintained its own separate legal system) passed its own Civil Code, which of course drew heavily on the Napoleonic Code.

Oex (or any other Frenchy) should feel free to correct or elaborate.

[The Minsky Moment]

There is also another, philosophical, difference that exists between the Anglosaxon and the continental model (not sure if Canada is somewhere in between, due to its French influences). I.e. in the continental model, the state prosecutor is a state official whose role (at least in theory) is not just to secure a conviction, but also to act as a first gate keeper against baseless charges being brought against a person.

That is also part of the obligations of state and federal prosecutors in the US, but in practice you are correct that the adversarial orientation of the system (at least in the US context) tends to vitiate that obligation.  After the fiasco over the prosecution of Senator Stevens and other high profile mishaps, the US attorney general has reinforced policies to protect against such abuses at the federal but it is still a work in progress IMO.

[Gups]

There is also another, philosophical, difference that exists between the Anglosaxon and the continental model (not sure if Canada is somewhere in between, due to its French influences). I.e. in the continental model, the state prosecutor is a state official whose role (at least in theory) is not just to secure a conviction, but also to act as a first gate keeper against baseless charges being brought against a person. So if a prosecutor, having analysed the evidence, thinks that there is only say 10% chance of the accused being guilty, he normally should not bring the charges (of course in practice they often do but I am talking about more of a philosophical difference).

So a prosecutor who blatantly brings unwarranted charges against someone is not just shitty at his job - he is betraying the very ethos of his office.

That's absolutely the role in common law systems as well.

I don't think it's useful to talk about "anglosaxon" justice system.  First of all there's a betetr term for it - common law systems.  But more importantly, there's some very big differences between the British model (which we largely follow) and the American system.

Quite. The US is sui generis. The idea of elected judges in the UK combined with our tabloid press makes me shudder. It'd be way worse than it is in the States, where journalists at least retain some vestige of professionalism.

[Martinus]

There is also another, philosophical, difference that exists between the Anglosaxon and the continental model (not sure if Canada is somewhere in between, due to its French influences). I.e. in the continental model, the state prosecutor is a state official whose role (at least in theory) is not just to secure a conviction, but also to act as a first gate keeper against baseless charges being brought against a person.

That is also part of the obligations of state and federal prosecutors in the US, but in practice you are correct that the adversarial orientation of the system (at least in the US context) tends to vitiate that obligation.  After the fiasco over the prosecution of Senator Stevens and other high profile mishaps, the US attorney general has reinforced policies to protect against such abuses at the federal but it is still a work in progress IMO.

I think the system is less adversarial in Europe, at least in Poland. Maybe it's because there is very little movement between prosecutors (who are more like civil servants) and attorneys (who are a self-governing legal profession bar).

[Iormlund]

Why doesn't America wisen up and have a system of independent, non-political judges and prosecutors?

Good question.  Why don't all the European countries do the same thing?
Hola, Baltasar Garzon?

Seriously? Is this the best you can do? I'd take a prosecutor going after the mass-murdering leaders of nations vs. one that ruined the lives of a bunch of innocent teenagers.

I do not think you understand the meaning of the term "non-political"
Hint: it does not mean "political agenda I agree with"

Garzón is a very political judge. On the other hand, he seems also the perfect example of a magistrate fiercely independent from politician influence. He's made bitter enemies on both parties and acted often against the opinion of the whoever is in power regardless of the consequences.