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This country's legal system is fucked up. :(

http://www.slate.com/articles/news_and_politics/jurisprudence/2015/03/innocence_is_not_cause_for_exoneration_scalia_s_embarrassing_question_is.html

QuoteScalia's Embarrassing Question

Innocence is not enough to get you out of prison.

By Lara Bazelon

In May, the Innocence Network will hold its annual conference at a glitzy Hilton in Orlando, Florida. Lawyers, students, and activists from all over the country who work to overturn wrongful convictions will gather to do all the regular conference-like things: attend panel discussions, listen to inspirational talks from boldface speakers, network, and socialize. There is also a part of the Innocence Network Conference that is unique and wonderful. Every year, it brings together scores of wrongfully convicted men and women, offering a variety of programs geared toward their specific needs and celebrating their freedom.

The most dramatic moment of the conference comes after a dinner in the hotel's ballroom, when each exonerated man and woman is invited up to the stage. One by one, they come forward. They are male, female, black, white, Latino, Asian, and Native American. Some are still young and strong, others walk slowly and with assistance. They hail from the Deep South, the Midwest, the Rockies, the East and West coasts, from big cities and tiny rural communities. As their names are called, so are the number of years they served behind bars: five, eight, 13, 18, 28, 34, 39. Collectively, it adds up to centuries.

Slowly, the stage begins to fill, first one row, then another, then another. When every last exoneree has taken his or her place, scores of them are standing shoulder to shoulder, a dizzying tableau of faces and stolen lives. The weight of the collective injustice is heart-stopping. Then the music starts and the exonerees sing and dance together. The hope and joy in the room is deeply moving.

But here is a dirty little secret about the exonerated, some of whom were on death row, some just days away from execution. They were able to prove that they were wrongfully convicted, yet very, very few could show that they were actually innocent. They were—they are—innocent, but in our legal system, that all-important fact is largely beside the point.

A wrongful conviction stems from a fundamental breakdown in the legal process—what the uninitiated like to call a "technical error." Prosecutors buried crucial evidence, witnesses lied, police coerced false confessions, defense attorneys performed so poorly that they basically failed to advocate at all. These "technical" breakdowns matter because they violate the Constitution, which guarantees all criminal defendants the right to be free from police and prosecutorial abuses, to have access to favorable evidence in the state's possession, and to have a defense attorney who will fight for their cause.

If you are a wrongfully convicted man or woman in this country, it is extremely difficult—if not outright impossible—to win your case by advancing the simple argument that you are innocent. Sounds crazy, right? But it's true. The Supreme Court has repeatedly declined to hold that the federal Constitution allows for so-called freestanding claims of innocence, that is, the right to be let out of prison simply because you didn't do it, without any other "technical" violation to back up your argument. In the United States, the inmate who raises a compelling case of innocence after a constitutionally proper trial may well be doomed.

This judicial perversion started with the Supreme Court's 1993 decision in Herrera v. Collins, a textbook example of bad facts making bad law. Leonel Torres Herrera was charged with shooting Officer David Rucker in 1981 and leaving him to die beside his patrol car in a pool of blood. Also left at the crime scene was Herrera's Social Security card. Officer Enrique Carrisalez and his partner saw Herrera's car speeding away and gave chase. Herrera pulled over, and when Carrisalez approached, Herrera shot him in the chest. Carrisalez died less than two weeks later.

The state tried the Carrisalez case first, and evidence introduced against Herrera was overwhelming. Carrisalez's partner testified that Herrera was the shooter, as did the victim himself in the days before he died. The license plate of the killer's car matched that of Herrera's girlfriend; when Herrera was arrested, he had the car keys in his pocket. He also had a handwritten letter in which he apologized for the killings. A jury convicted Herrera of capital murder, he was sentenced to death. After the verdict, Herrera pleaded guilty to killing Rucker.

Nine years later, Herrera petitioned the Supreme Court to overturn both convictions. Because so many years had passed and because Herrera had been convicted in state court, he had to use a legal vehicle called habeas corpus, a centuries-old, last-ditch remedy that allows prisoners to argue that their imprisonment violates the federal Constitution. Because there is a strong presumption that the criminal justice system functioned correctly in the first instance, only a fraction of these claims succeed.

Herrera argued that he should be among the lucky few because newly discovered evidence proved his innocence. The evidence consisted of three sworn statements. One was written by a lawyer for Herrera's dead brother, Raul, claiming that Raul confessed to him that he had killed Rucker and Carrisalez. The second, signed by a former cellmate of Raul's, claimed the same thing. The third, signed by Raul's son, claimed that he had witnessed his father shoot both officers.

By no stretch of the imagination could these biased affidavits—which conveniently blamed the murders on a dead man—prove Herrera's innocence of the Carrisalez and Rucker murders, the latter of which he flat out admitted to committing. Herrera's innocence claim, quite simply, was a farce. And yet it was this claim that the Supreme Court chose to review when deciding a profoundly important question: whether any inmate with newly discovered evidence of innocence could argue that his conviction had been obtained in violation of the constitutional guarantees of due process and protection against cruel and unusual punishment.

Writing for the majority, Chief Justice William Rehnquist said that Herrera's constitutional argument had "elemental appeal" but declined to endorse it because federal courts were not supposed to "relitigate state trials." Herrera's true remedy, Rehnquist said, rested with the president or the governor of his state, whose power to grant clemency was the "fail safe in our criminal justice system." Entertaining actual innocence claims brought years after the fact were simply too "disruptive" and unfair to the state, which needed to have things settled once and for all. Rehnquist mused that even if one assumed, hypothetically, that an innocence claim could be brought, the bar for the prisoner to clear "would necessarily be extraordinarily high."

Concurring in judgment, Justices Antonin Scalia and Clarence Thomas would have gone even farther. Taking issue with the majority's mere hypothetical entertainment of an innocence claim, Scalia wrote: "There is no basis, tradition, or even in contemporary practice for finding that in the Constitution the right to demand judicial consideration of newly discovered evidence of innocence brought forward after a conviction." He concluded, "With any luck, we shall avoid ever having to face this embarrassing question again."

In 1996, things got even harder for convicted prisoners. Congress passed a law declaring that federal courts could not overturn a conviction challenged in habeas corpus petition unless the state court that heard the case first was either "unreasonable" in applying a law that was clearly established by the United States Supreme Court or the state made factual findings that no reasonable person would agree with.


The profound impact of the new law, coupled with the Herrera decision, was brought into stark relief in the case of Troy Anthony Davis. Davis, a young black man, was charged with shooting and killing Mark MacPhail, a white police officer who was trying to protect a homeless man from being beaten in a parking lot in Savannah, Georgia. At Davis' trial in 1991, seven people identified him as the killer, and two others testified that Davis confessed to them after the fact. The murder weapon was never recovered, but bullets and shell casings recovered from the scene came from a .38-caliber pistol. One of the prosecution's witnesses was a man named Redd Coles. On cross-examination, Coles conceded that he had argued with the homeless man on the night of the crime and that he owned a .38 pistol. The jury convicted Davis in less than two hours.


Throughout the legal proceedings, Davis maintained his innocence. After his conviction, as the jurors prepared to deliberate on the appropriate punishment, Davis asked them to "spare my life," explaining that he had been convicted for "offenses I didn't commit." The jury returned with a death sentence. Davis appealed all the way up to the Georgia Supreme Court. He lost. Then he began filing habeas corpus petitions, first in Georgia state court and then in federal court. He lost again.

Then, in 1996, new evidence surfaced. Of the nine crucial prosecution witnesses, seven recanted some or all of their testimony, stating that they had felt pressure to identify Davis as the shooter when he was not. Three witnesses signed sworn statements that Redd Coles had confessed that he was MacPhail's killer. Davis went back to state court with the new evidence, but the courts refused to hear it, saying it was too late. Davis went back to the federal courts, which agreed that it was too late. Out of options, Davis appealed to the United States Supreme Court, arguing that the new evidence should be heard because he was actually innocent.

The "embarrassing question" was back. In a short order issued on Aug. 17, 2009, the Supreme Court instructed a federal trial court judge to hold a hearing so that the recanted testimony and new evidence of Coles' confession could be aired. Scalia and Thomas issued a blistering dissent. The Supreme Court, Scalia pointed out, had sent the trial judge on a "fool's errand" because it has "never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually innocent.' " It was pointless to find Davis innocent because innocence, by itself, was not a legal basis to overturn the conviction.

The trial judge held a hearing nonetheless and concluded that Davis had not shown enough evidence to cast doubt on his conviction. Davis appealed, arguing that the trial judge had shown a "clear hostility" to his case. He lost, appealed, and lost again. Meanwhile, Davis' case had gained unprecedented international attention. More than a half-million people signed a petition asking the Georgia State Board of Pardons and Paroles to commute Davis' death sentence. Among the signatories were Archbishop Desmond Tutu, former President Jimmy Carter, and Pope Benedict XVI. The board denied the petition, and President Obama declined to intervene in the case.

On Sept. 21, 2011, one hour before Davis was scheduled to be executed, the Supreme Court reviewed his petition. A few hours later, they denied it without comment. Davis was now officially out of mercy, out of appeals, and out of time.

Asked to speak his final words, Davis told the MacPhail family that he grieved for their loss. "But," he said, "I am innocent." He continued, "For those about to take my life, may God have mercy on your souls." The official time of death was 11:08 p.m. More than 1,000 people attended the funeral.

Whether proof of innocence should be grounds for release—from decades of wrongful imprisonment and even from death—is an "embarrassing question" but not in the way that Scalia meant. It is an embarrassment—it is a scandal—that no such right exists when we know how often the system gets it wrong. Last year alone, 127 men and women were freed from prison after their convictions were overturned. Because of the way that our system is structured, most fall into the category of the "lucky" ones—lucky because cheating, lying, laziness, or negligence made their legal proceedings grossly unfair.

There are many more still to be freed. The most conservative estimate is that there are somewhere between 10,000 and 20,000 innocent people locked up in the United States today. How many more Troy Davis cases will the Supreme Court tolerate before it does what is so obviously the right thing? If the execution of an innocent person isn't cruel and unusual punishment, what is?

Quote from: jimmy olsen on March 25, 2015, 08:12:35 PM
This country's legal system is fucked up. :(

But is it fucked up in the way the Founders intended?

You're just now figuring that out, Tim? :hmm:

Try serving on a jury sometime, and you'll see for sure then.  Trust me. :ph34r:

Is this the same case in which the Reverand Al was pressuring witnesses to recant?

Quote from: Admiral Yi on March 25, 2015, 08:50:50 PM
Is this the same case in which the Reverand Al was pressuring witnesses to recant?

I could not care less about this specific case (in fact I've already forgotten every single detail about it). What I care about is the interpretation of the law by the supreme court that innocence in and of itself is not enough to overturn a convicion.

Quote from: jimmy olsen on March 25, 2015, 08:53:45 PM
I could not care less about this specific case (in fact I've already forgotten every single detail about it). What I care about is the interpretation of the law by the supreme court that innocence in and of itself is not enough to overturn a convicion.

Should I care more than less what you care about?

Quote from: Valmy on March 25, 2015, 08:37:29 PM

Quote from: jimmy olsen on March 25, 2015, 08:12:35 PM
This country's legal system is fucked up. :(

But is it fucked up in the way the Founders intended?

No.  I do not think the Founder's intended AEDPA.  That's more like what the fought against.  But the bill had the word "anti-terrorist" in the title so it trumped everything else and passed.

Quote from: Admiral Yi on March 25, 2015, 08:50:50 PM
Is this the same case in which the Reverand Al was pressuring witnesses to recant?

Do you think this a relevant factor?

Quote from: Razgovory on March 25, 2015, 09:21:42 PM
Do you think this a relevant factor?

Yeah.

Quote from: Admiral Yi on March 25, 2015, 09:23:00 PM

Quote from: Razgovory on March 25, 2015, 09:21:42 PM
Do you think this a relevant factor?

Yeah.

Okay, now this isn't a trick, but a genuine question, so don't go "done" and cut me off.  But why?

Quote from: Razgovory on March 25, 2015, 09:25:49 PM
Okay, now this isn't a trick, but a genuine question, so don't go "done" and cut me off.  But why?

Because pressure to recant undermines the credibility of the recantation.

What's the purpose of the "but" before the "why?"

Quote from: Admiral Yi on March 25, 2015, 09:30:42 PM
Because pressure to recant undermines the credibility of the recantation.

That only applies to the particular case, not the general principle.

Quote from: Peter Wiggin on March 25, 2015, 09:34:01 PM
That only applies to the particular case, not the general principle.

OK.

Quote from: Admiral Yi on March 25, 2015, 09:30:42 PM

Quote from: Razgovory on March 25, 2015, 09:25:49 PM
Okay, now this isn't a trick, but a genuine question, so don't go "done" and cut me off.  But why?

Because pressure to recant undermines the credibility of the recantation.

What's the purpose of the "but" before the "why?"

Oh.  That's an artifact of my odd writing.  Originally I wrote," Okay, but why?"  Then I thought you might take offense or something or that I was trying to to set you up, so I added in the other stuff.

I suppose it may weaken the recantation but it totally destroys the evidence used against the defendant.  The witness is no longer credible and in good faith it really shouldn't be used as evidence if the guy tells two different stories.  The defense need not prove a case, it merely needs to prevent the prosecution from proving theirs.

Quote from: Razgovory on March 25, 2015, 09:47:59 PM

Quote from: Admiral Yi on March 25, 2015, 09:30:42 PM

Quote from: Razgovory on March 25, 2015, 09:25:49 PM
Okay, now this isn't a trick, but a genuine question, so don't go "done" and cut me off.  But why?

Because pressure to recant undermines the credibility of the recantation.

What's the purpose of the "but" before the "why?"

Oh.  That's an artifact of my odd writing.  Originally I wrote," Okay, but why?"  Then I thought you might take offense or something or that I was trying to to set you up, so I added in the other stuff.

I suppose it may weaken the recantation but it totally destroys the evidence used against the defendant.  The witness is no longer credible and in good faith it really shouldn't be used as evidence if the guy tells two different stories.  The defense need not prove a case, it merely needs to prevent the prosecution from proving theirs.

Not once a conviction has been entered.

Quote from: Razgovory on March 25, 2015, 09:47:59 PM

Quote from: Admiral Yi on March 25, 2015, 09:30:42 PM

Quote from: Razgovory on March 25, 2015, 09:25:49 PM
Okay, now this isn't a trick, but a genuine question, so don't go "done" and cut me off.  But why?

Because pressure to recant undermines the credibility of the recantation.

What's the purpose of the "but" before the "why?"

Oh.  That's an artifact of my odd writing.  Originally I wrote," Okay, but why?"  Then I thought you might take offense or something or that I was trying to to set you up, so I added in the other stuff.

I suppose it may weaken the recantation but it totally destroys the evidence used against the defendant.  The witness is no longer credible and in good faith it really shouldn't be used as evidence if the guy tells two different stories.  The defense need not prove a case, it merely needs to prevent the prosecution from proving theirs.

Not to prove actual innocence.  The standard of proof is different than in the original trial.  "No reasonable trier of fact would have convicted" is a lot harder to meet than "a reasonable doubt exists."  Whether that's a good thing or not is the debate.  It probably isn't, but I think it's totally rad millions of dollars and thousands of hours were spent to arrive at the same result doing nothing would have.

Of course, it sure would be useful if we had some kind of objective record of criminal events, wouldn't it?  Why, that would solve pretty much every problem with our "fucked up" legal system, wouldn't it?

I've recently read on the well known, peer reviewed legal website "Cracked.com" that many U.S. states charge defendants with the costs of their legal proceedings (like assigning a public defender), even if you're found innocent.

So you might get charged with a crime, are cleared of charges but might still go to prison for failure to (be able to) pay your bills from the case.

Is that a thing? Because it seems, uhm, odd.

The well esteemed scholar John Oliver has also chimed in recently about the issue of outrageous municipal fines and abusive payment schemes. If anyone is interested: https://www.youtube.com/watch?v=0UjpmT5noto (https://www.youtube.com/watch?v=0UjpmT5noto)

Quote from: Valmy on March 25, 2015, 08:37:29 PM

Quote from: jimmy olsen on March 25, 2015, 08:12:35 PM
This country's legal system is fucked up. :(

But is it fucked up in the way the Founders intended?

Arguably, yeah, when it comes to appeals courts reviewing criminal trials.


This is an over-simplification, but basically, appeals courts, and especially the US Supreme Court, don't try questions of fact--they try questions of law.  Whether or not an accused person is guilty of the crimes they are charged with is a question of fact, and that's supposed to be tried by a jury, not a panel of appeal judges.  Even when a conviction is overturned, very rarely does an appeals court actually say that the defendant was innocent;  instead, they remand the case to a lower court for it to be retried.  Sometimes, at that point, the state decides not to continue the prosecution, depending on why the appeal was sustained, among other factors.

The real question isn't, "Should being innocent be enough to avoid being punished for a crime?", it's, "Under what conditions does new evidence require a case to be retried or a conviction to be set aside?".  But of course, arguing that it's the former makes for more sensational headlines.

Yeah, the entire thing is kind of bullshit.

"Being innocent"? Who determines that? Isn't that what a trial is for, with a system that presumably heavily favors the defense?

Assuming that system is working, it should be very difficult to argue that a new determination should be made absent being able to show that the system was not properly executed (which would then call into question the validity of the original process). Which is what we have now, and in theory is exactly how the system *should* work.

The alternative is that no case is ever closed - you can always claim that "Hey, I was found guilty, but really I am innocent! Re-open the trial!" and of course why wouldn't any defendant do exactly that, all the time?

Does this mean that innocent people will be wrongly found guilty.

Yes. But we knew that was possible all along, and will in fact always be the case in any system, absent simply never trying anyone for a crime.

Quote from: Berkut on March 26, 2015, 08:34:31 AM
absent simply never trying anyone for a crime.

Let's make a compromise.  Once a year, no crime is punished.  It seems to work well... ;)

Quote from: Berkut on March 26, 2015, 08:34:31 AM
"Being innocent"? Who determines that? Isn't that what a trial is for, with a system that presumably heavily favors the defense?

The assumption is becoming questionable.

Quote from: Berkut on March 26, 2015, 08:34:31 AM
Yeah, the entire thing is kind of bullshit.

"Being innocent"? Who determines that?

Truth.

QuoteIsn't that what a trial is for, with a system that presumably heavily favors the defense?

How would one conclude that the system "heavily favors the defense"?  The objective evidence -- conviction rates -- says otherwise.

QuoteThe alternative is that no case is ever closed - you can always claim that "Hey, I was found guilty, but really I am innocent! Re-open the trial!" and of course why wouldn't any defendant do exactly that, all the time?

Clearly that is not "the" alternative, only the alternative if one insists on falling all the way down the slippery slope and not getting up.  There are alternatives between having he finality of jury verdicts be the most absolute and unquestioned principle of all Creation on the one hand and having it be irrelevant on the other.  There is quite a large middle territory there to stake an alternative position.

Quote from: The Minsky Moment on March 26, 2015, 10:47:26 PM

Quote from: Berkut on March 26, 2015, 08:34:31 AM
Yeah, the entire thing is kind of bullshit.

"Being innocent"? Who determines that?

Truth.

Truth has nothing to do with the law.  You're a lawyer, you know how evil your work is.

Quote

QuoteIsn't that what a trial is for, with a system that presumably heavily favors the defense?

How would one conclude that the system "heavily favors the defense"?  The objective evidence -- conviction rates -- says otherwise.

There is the presumption of innocence and there is reasonable doubt on their side.  Conviction rates isn't necessarily evidence of which side is favoured.  After all, if prosecutors are bringing strong cases against guilty defendants, you would expect a high conviction rate no matter who the system favours.  Those who aren't guilty aren't charged and are merely robbed by the police.

Quote

QuoteThe alternative is that no case is ever closed - you can always claim that "Hey, I was found guilty, but really I am innocent! Re-open the trial!" and of course why wouldn't any defendant do exactly that, all the time?

Clearly that is not "the" alternative, only the alternative if one insists on falling all the way down the slippery slope and not getting up.  There are alternatives between having he finality of jury verdicts be the most absolute and unquestioned principle of all Creation on the one hand and having it be irrelevant on the other.  There is quite a large middle territory there to stake an alternative position.

I was under the impression it was always possible for cases to be reopened, but that it was at the discretion of the court?

Quote from: The Minsky Moment on March 26, 2015, 10:47:26 PM

Quote from: Berkut on March 26, 2015, 08:34:31 AM
Yeah, the entire thing is kind of bullshit.

"Being innocent"? Who determines that?

Truth.

Truth cannot determine anything, since it is not an actual process or person capable of making judgement.

That is a pretty huge cop out, and not really in character for you.

Quote

QuoteIsn't that what a trial is for, with a system that presumably heavily favors the defense?

How would one conclude that the system "heavily favors the defense"?  The objective evidence -- conviction rates -- says otherwise.

Again, a cop out. The process favors the defense enough that most cases never make it to trial, and for the most part only those that have significant evidence to overcome the presumptive hurdles are even tried. The "objective evidence" is that very, very few innocent people are wrongly convicted.

Even those who are "wrongly convicted" are mostly actually guilty of their crimes (in the non-legal sense), I suspect.

Quote

QuoteThe alternative is that no case is ever closed - you can always claim that "Hey, I was found guilty, but really I am innocent! Re-open the trial!" and of course why wouldn't any defendant do exactly that, all the time?

Clearly that is not "the" alternative, only the alternative if one insists on falling all the way down the slippery slope and not getting up.  There are alternatives between having he finality of jury verdicts be the most absolute and unquestioned principle of all Creation on the one hand and having it be irrelevant on the other.  There is quite a large middle territory there to stake an alternative position.

Don't we live in that alternative right now?

Quote from: Berkut on March 27, 2015, 10:15:16 AM
The "objective evidence" is that very, very few innocent people are wrongly convicted.

I don't really see what that has to do with anything. Because it is rare as a percentage of total convictions we should never consider new evidence that comes to light later unless there was a mistrial of some kind?

QuoteEven those who are "wrongly convicted" are mostly actually guilty of their crimes (in the non-legal sense), I suspect.

Ok so what about are not part of this 'mostly actually guilty'? Do people not matter just because there are few of them? That strikes me as a cop out.

QuoteDon't we live in that alternative right now?

A world where it is impossible for new evidence to be considered without some sort of legal technicality? That sounds like a dystopia to me.

Joan, can you do me a favor and lay out what this ruling actually does?

Quote from: Berkut on March 27, 2015, 10:15:16 AM
Even those who are "wrongly convicted" are mostly actually guilty of their crimes (in the non-legal sense), I suspect.

At least you are not shy about showing your bias.

Quote from: The Minsky Moment on March 26, 2015, 10:47:26 PM
How would one conclude that the system "heavily favors the defense"?  The objective evidence -- conviction rates -- says otherwise.

Objection!  Counselor is bullshitting with statistics.  These statistics have big ass selection bias at work.

Quote from: Berkut on March 27, 2015, 10:15:16 AM
The "objective evidence" is that very, very few innocent people are wrongly convicted.

In what way is this objective, or even evidence at all?  Isn't that just your assertion?

Quote from: DGuller on March 27, 2015, 11:18:45 AM

Quote from: Berkut on March 27, 2015, 10:15:16 AM
The "objective evidence" is that very, very few innocent people are wrongly convicted.

In what way is this objective, or even evidence at all?  Isn't that just your assertion?

How is an actual count of actual incidences of the number of time that actual people are shown to have been convicted while they actually are provably innocent not objective?

The term "very few" is of course subjective, since it is dependent on what some person considers to be "very few" but since we are comparing the number of innocent people convicted to the number of guilty people convicted, I am rather confident that the comparison warrants the term "very few".

How do you know that very few innocent people are convicted regardless of how one might define "very few"?

Quote from: Berkut on March 27, 2015, 12:53:49 PM
How is an actual count of actual incidences of the number of time that actual people are shown to have been convicted while they actually are provably innocent not objective?

The answer is right there in your question.  The keyword is "shown".  We have no idea how many actually innocent people are convicted, we only know how many people have been shown to be wrongfully convicted.  It's very hard to know what percentage of truly wrongfully convicted number the latter figure is, but it can conceivably be quite small if even actually being innocent doesn't rise to the status of "being shown to be innocent".

Quote from: crazy canuck on March 27, 2015, 12:59:27 PM
How do you know that very few innocent people are convicted regardless of how one might define "very few"?

The articles that I've seen written on the subject have numbers in the low hundreds of reported cases over several decades. That seems to be very small numbers compared to the number of convictions in question.

The system itself is very consciously defined to include a presumption of innocence that must be overcome. If in fact that system has failed and there are lots more than the presumed very low percentages, then  I think it is on those claiming that the system is not working as intended to show that.

Mostly these articles just cite particular examples, which while horrible for the particular people involved, don't actually evidence a systemic problem.

So I guess I will turn it around - how do you know that more than "very few" innocent people are convicted? Do you have some actual statistics?

Quote from: DGuller on March 27, 2015, 01:05:20 PM

Quote from: Berkut on March 27, 2015, 12:53:49 PM
How is an actual count of actual incidences of the number of time that actual people are shown to have been convicted while they actually are provably innocent not objective?

The answer is right there in your question.  The keyword is "shown".  We have no idea how many actually innocent people are convicted, we only know how many people have been shown to be wrongfully convicted.

True of course, in that it is possible that *any* person convicted might be wrongfully convicted.

However, given a presumably transparent judicial process with adequate checks and balances, if in fact there is a problem that the system is not working, and lots of people are being convicted who should not be, then it should be the case that either,

A) Advocates can show copious examples of where the process failed and resulted in lots of wrongful convictions, and show the stats to evidence that beyond anecdotes, or
B) Advoccates should be able to show that the process is NOT transparent and in fact there is serious questions about the validity of prosecution because the process itself is hidden and not subject to fair scrutiny.

I find the argument that the process is transparent, but there are lots of "hidden" unjust outcomes rather unconvincing. Yes, they will happen since we know the process is imperfect, but they should be rare. As far as I can tell, they are in fact very rare, and have seen no evidence to suggest otherwise.

In other words, I suspect our system actually works "fine" in that it very rarely results in unjust outcomes for the accused. That it does in fact *sometimes* result in unjust outcomes is inevitable. However, is is also the case, and this can be estimated as well, that we have a huge number of people who ought to be convicted who are not. And we are largely accepting of that because we would much rather let the proverbial 9 guilty men free rather than risk putting the 1 innocent man in jail.

I also suspect that attempts to try to make the incidence of unjust outcomes go from some very, very small number to small even smaller number, will inevitable result in more guilty people being not convicted. I don't think it is likely to be possible to decrease the number of innocent people being jailed without vastly increasing the number of guilty people not being convicted.

If, of course, someone can suggest a reform to the system to allow fewer innocent people being jailed while at the same time NOT allowing more guilty people to get off, everyone is all for that, I am sure.

Quote from: Berkut on March 27, 2015, 01:49:18 PM

Quote from: crazy canuck on March 27, 2015, 12:59:27 PM
How do you know that very few innocent people are convicted regardless of how one might define "very few"?

The articles that I've seen written on the subject have numbers in the low hundreds of reported cases over several decades. That seems to be very small numbers compared to the number of convictions in question.

The system itself is very consciously defined to include a presumption of innocence that must be overcome. If in fact that system has failed and there are lots more than the presumed very low percentages, then  I think it is on those claiming that the system is not working as intended to show that.

Mostly these articles just cite particular examples, which while horrible for the particular people involved, don't actually evidence a systemic problem.

So I guess I will turn it around - how do you know that more than "very few" innocent people are convicted? Do you have some actual statistics?

It is an unknown figure.  Nobody knows how many innocent people are convicted.  What we do know is that the American system of justice has elected judges and prosecutors who consider convictions as wins.  I am not so sure such a system is created to ensure that innocent people are not convicted. 

Berkut, the US justice system does a lot of things that other systems won't use.  Paid and/or jailhouse informants, reduced pleas for testimony, lots of high minimum sentences to coerce guilty pleas, and as CC mentions, elected judges and prosecutors.

Quote from: crazy canuck on March 27, 2015, 02:09:20 PM
What we do know is that the American system of justice has elected judges and prosecutors who consider convictions as wins.  I am not so sure such a system is created to ensure that innocent people are not convicted.

In order to convict, you need proof beyond a reasonable doubt. Let's assume that it is more difficult to find such proof if someone is, in fact, innocent. Wouldn't a prosecutor only concerned about his conviction percentage be less likely to take an innocent person to trial, as there would generally be less evidence against that person?

Quote from: jimmy olsen on March 25, 2015, 08:53:45 PM
What I care about is the interpretation of the law by the supreme court that innocence in and of itself is not enough to overturn a convicion.

The accused was innocent until the prosecution produced sufficient evidence to prove beyond a reasonable doubt that they were guilty. If there were no problems that rendered the trial unfair, why should a court re-open a case just because the accussed says that the jury got it wrong?

Quote from: Kleves on March 27, 2015, 02:37:02 PM
If there were no problems that rendered the trial unfair, why should a court re-open a case just because the accussed says that the jury got it wrong?

Because new information came to light?

I swear Alfred Dreyfus would have never gotten off Devil's Island if it was up to you people.

Quote from: Kleves on March 27, 2015, 02:34:42 PM

Quote from: crazy canuck on March 27, 2015, 02:09:20 PM
What we do know is that the American system of justice has elected judges and prosecutors who consider convictions as wins.  I am not so sure such a system is created to ensure that innocent people are not convicted.

In order to convict, you need proof beyond a reasonable doubt. Let's assume that it is more difficult to find such proof if someone is, in fact, innocent. Wouldn't a prosecutor only concerned about his conviction percentage be less likely to take an innocent person to trial, as there would generally be less evidence against that person?

Conviction % is not the only factor an unscrupulous prosecutor may be worried about.  Thre is also a huge interest in trying to secure convictions in high profile cases.  As a prosecutor it's very difficult to walk up to the microphone and say "there's not enough evidence to have a trial".

Quote from: Barrister on March 27, 2015, 02:18:34 PM
Berkut, the US justice system does a lot of things that other systems won't use.  Paid and/or jailhouse informants, reduced pleas for testimony, lots of high minimum sentences to coerce guilty pleas, and as CC mentions, elected judges and prosecutors.

And I am all for reforming those things, at least many of them.

Quote from: Valmy on March 27, 2015, 02:39:38 PM

Quote from: Kleves on March 27, 2015, 02:37:02 PM
If there were no problems that rendered the trial unfair, why should a court re-open a case just because the accussed says that the jury got it wrong?

Because new information came to light?

I swear Alfred Dreyfus would have never gotten off Devil's Island if it was up to you people.

I don't think you can re-open every trial every time anything new comes to light. 

I swear, we'd have no time to actually try people charged with crimes if it was up to you.

Quote from: crazy canuck on March 27, 2015, 02:09:20 PM
What we do know is that the American system of justice has elected judges and prosecutors who consider convictions as wins.

Prosecutors I'll grant you, but do you have any evidence that trial judges consider convictions as wins?

Quote from: Berkut on March 27, 2015, 01:58:52 PM
If, of course, someone can suggest a reform to the system to allow fewer innocent people being jailed while at the same time NOT allowing more guilty people to get off, everyone is all for that, I am sure.

Yeah.  Sure they are.

Quote from: Kleves on March 27, 2015, 02:34:42 PM

Quote from: crazy canuck on March 27, 2015, 02:09:20 PM
What we do know is that the American system of justice has elected judges and prosecutors who consider convictions as wins.  I am not so sure such a system is created to ensure that innocent people are not convicted.

In order to convict, you need proof beyond a reasonable doubt.

:lol:

Quote from: Barrister on March 27, 2015, 02:40:44 PMAs a prosecutor it's very difficult to walk up to the microphone and say "there's not enough evidence to have a trial".

I would totally respect the guy if he did that. It mostly seems to happen when the defendant is a cop though.

Quote from: Valmy on March 27, 2015, 02:39:38 PM

Because new information came to light?

I swear Alfred Dreyfus would have never gotten off Devil's Island if it was up to you people.

Uh, Dreyfus was never declared innocent by military justice. New evidence had surfaced he was innocent and framed, but despite this he was in fact condemned a second time with "mitigating circumstances", ostensibly so that the Army would save face. He finally relented and accepted the offer of presidential pardon because he was too exhausted to fight on, despite doing so meaning he had to accept he was guilty before accepting it. The only reason Dreyfus was not returned on Devil's Island to die, was that doing so would have triggered a major political crisis, perhaps even insurrections. Dreyfus has never been officially exhonerated; neither Guillaume Seznec by the way, another atrocious victim of judicial error.

The Dreyfus Affair is in fact a very poor example to bring forward because it was politically tainted AND shows that the threshold needed for exoneration by innocence is way beyond the reasonable doubt needed to convict. Absolute certitude is needed, not a mere deduction, however highly probable, that one might be innocent.

Quote from: Drakken on March 28, 2015, 12:11:55 AM
The Dreyfus Affair is in fact a very poor example to bring forward because it was politically tainted AND shows that the threshold needed for exoneration by innocence is way beyond the reasonable doubt needed to convict. Absolute certitude is needed, not a mere deduction, however highly probable, that one might be innocent.

I agree that the Dreyfus Affair is a poor example, but would note that the case in hand is a question of whether Federal law requires that state and local judges order a retrial whenever the defendant claims that they have new evidence that demonstrates their innocence. Right now, the trial judge is presented the evidence and, if he thinks it was reasonably could have changed the verdict, orders a new trial.  That's what happened with the guy we were talking about who was falsely imprisoned for rape and murder for 20 years - he got a new trial when the DNA was tested.

Quote from: Berkut on March 27, 2015, 10:15:16 AM
Truth cannot determine anything, since it is not an actual process or person capable of making judgement.

Yes -we must rely on people and processes to make judgments, and that means the judgments will be fallible and error-prone.

So if we care about outcome- about truth - why put in place an absolute rule that places fallible judgments beyond challenge?  In no other area of governance that I can think of is that done - why do it when the stakes to the individual at their most severe.

QuoteThe process favors the defense enough that most cases never make it to trial

That is the first time I have ever seen the prevalence of guilty pleas cited as evidence that the process favors the defense. The reality is totally backwards.

Quoteand for the most part only those that have significant evidence to overcome the presumptive hurdles are even tried.

The presumption of innocence is rarely a factor in a criminal trial tried to a jury. It is a fairly tale for law school classes, the last refuge of desperate defense counsel (along with the reasonable doubt standard).  Whatever practical value it could have in theory vanishes when "The United States" or "The People" stands up and accuses.  Before the defense speaks or a single piece of evidence is presented, the actual presumption is guilt.

Then, to make sure, the government gets to speak last at the end of the case too.

QuoteThe "objective evidence" is that very, very few innocent people are wrongly convicted.

Contradicting your first point  . . .

QuoteEven those who are "wrongly convicted" are mostly actually guilty of their crimes (in the non-legal sense), I suspect.

That suspicion doesn't surprise me, it is quite common.  Another reason why presumption of innocence is of little practical value.

Quote
Don't we live in that alternative right now?

We lived in something like it before AEDPA.  Now we live in the world where a federal appeals court confirms that a trial was grossly constitutionally defective but there is no remedy because of AEDPA. 

Quote from: DGuller on March 27, 2015, 11:16:33 AM

Quote from: The Minsky Moment on March 26, 2015, 10:47:26 PM
How would one conclude that the system "heavily favors the defense"?  The objective evidence -- conviction rates -- says otherwise.

Objection!  Counselor is bullshitting with statistics.  These statistics have big ass selection bias at work.

Yes it's a flawed measure. But still some signal through the noise.  And keep in mind selection goes two ways.

Quote from: Admiral Yi on March 27, 2015, 11:10:11 AM
Joan, can you do me a favor and lay out what this ruling actually does?

AEDPA is a statute.  It's late so a longer explanation some other time.
It severely limits the ability to challenge convictions on constitutional grounds.

Heartbreaking :(

http://www.slate.com/articles/news_and_politics/jurisprudence/2015/04/michael_mcalister_wrongful_conviction_will_gov_mcauliffe_exonerate_an_innocent.html

QuoteThis Man Deserves a Pardon

Virginia is still imprisoning an almost certainly innocent man—even after he did the time.

By Dahlia Lithwick

DNA testing has been used 329 times now to prove the innocence of people wrongly convicted of a crime. But what happens when there is no DNA evidence to prove someone's innocence? What happens when there is only his word, and the mounded doubts of the team that prosecuted and convicted him? And what happens when—despite growing certainty that it has imprisoned the wrong man for more than 20 years—the Commonwealth of Virginia stands poised to keep him locked up, possibly forever?



Of all the maddening stories of wrongful convictions, Michael McAlister's may be one of the worst. For starters, he has been in prison for 29 years for an attempted rape he almost certainly did not commit. For much of that time, the lead prosecutor who secured his conviction, the original lead detective on the case, and more recently, the current Richmond Commonwealth's Attorney, Michael Herring, have argued that McAlister is innocent and that someone else—a notorious serial rapist with the same MO as the perpetrator of the crime for which McAlister was convicted—is in fact the real criminal. "I think our justice system is one of the best on the planet," Herring told the Richmond Times-Dispatch last week. "But this case makes me ashamed of it."

Beyond the injustice of his wrongful conviction, McAlister, now 58, faces yet another legal nightmare: His release date of Jan. 15, 2015, has come and gone, and he is still locked up. He faces the possibility of almost indefinite commitment because Virginia plans to hold him as a sexually violent predator based largely on his 1986 conviction, a conviction that prosecutors long ago began to doubt. The indispensible Frank Green of the Richmond Times-Dispatch, who has been reporting on this case since 2002, has the whole story here. The short version is that McAlister may well continue to be imprisoned indefinitely by a justice system that operates along your basic "Hotel California" principles: You can check out anytime you like, but you can never leave.



In a last-ditch effort to end this march of the surreal, McAlister's lawyers and Herring filed a petition Wednesday to Virginia Gov. Terry McAuliffe for an absolute pardon. Absent that, the system will grind onward and an innocent man may be incarcerated for years for a crime nobody truly believes he committed.

Here are the facts: In 1986, McAlister was convicted of attempted rape and abduction with the attempt to defile, after a 4½-hour bench trial. The only evidence presented was the victim's identification based on her partial glimpse of her assailant's face, much of which was covered with a mask. The photo array she was shown by the police did not include a picture of Norman Derr, a serial rapist who had already attempted to attack another woman in the same apartment complex. But it did include a photo of McAlister, and the two men looked astonishingly similar.



Derr is currently serving three life sentences. He was caught after the brutal rape of a woman in 1988 and is now linked to six other violent offenses through DNA cold-case testing. (There was no biological evidence from the crime McAlister was convicted of, and thus nothing to implicate Derr and exonerate McAlister.) But the similarities between Derr's crimes and the alleged McAlister assault are remarkable: Derr attacked women with a knife in apartment-complex laundry rooms, wearing a plaid shirt and a stocking mask. These details all match the crime for which McAlister is still in prison. Subsequent police affidavits reveal that Derr was already being trailed by the police in 1986 and that he had in fact pulled on a stocking mask and approached a female undercover cop in the same apartment complex in which McAlister allegedly later assaulted his victim. Several other laundry room attacks happened after McAlister was already in jail but before Derr was caught.

In the petition asking McAuliffe to release McAlister, his lawyers write that the officers who convicted him are now certain Derr was in fact to blame and that they "believe it is highly improbable that another stocking-mask-wearing, knife-wielding, 6-foot-tall white man with shoulder-length blond hair was terrorizing women at night in the Town & Country apartment complex laundry rooms during that same period in time."

Bureaucracy and haste were responsible for the fact that in the moment the cops failed to draw the obvious conclusions. Instead, they focused their investigation on McAlister, who had been involved in several incidents of alcohol-related public indecency. A detective investigating the rape asked McAlister to wear a plaid shirt, took his photograph, and then included it in a photo lineup shown to the victim. The attacker had worn a plaid shirt. McAlister was the only one in the photo array wearing one. Derr was not in the original photo array at all.



The original assistant commonwealth's attorney assigned to the case, Mark Krueger, was reluctant to prosecute from the very outset because the victim was unable to give a definitive description of the suspect. He admitted to one Richmond police officer that he was feeling "he may have the wrong suspect."

Based only upon the identification testimony, McAlister was sentenced to 35 years in prison. After he was convicted, evidence continued to pile up that Derr had committed the crime. In 1993, both the prosecutor and the investigator appeared at a parole hearing for McAlister, testifying that they both believed the wrong man had been convicted. McAlister was not paroled or pardoned then, and he served out most of his sentence. In 2002 the Richmond Times-Dispatch's Green began writing about the case, quoting the prosecuting commonwealth's attorney, Joe Morrissey, saying "it's the one case out of thousands that has always troubled me. I'm literally shocked that he's still locked up." McAlister's 2002 petition to then-Gov. Mark Warner was denied in 2003 because there was no DNA evidence to exonerate him.

McAlister was finally paroled in 2004. He fell into a depression, started drinking, and violated parole by driving under the influence. He was sent back to prison the following year and has been there ever since. His release date should have been in January of this year.
Advertisement

Here is where we are stuck. Virginia passed a statute in 1999 requiring civil commitment for "sexually violent predators," a designation that includes McAlister because of his initial, almost certainly wrongful conviction. As the time neared for his release, rather than being freed, he was shuttled into a system that will determine whether he is too sexually dangerous for release. He faces a probable cause hearing on May 18 at which a judge will decide whether he is a sexually violent predator and whether to initiate proceedings that could result in his indefinite detention at a secure state rehabilitation facility.

At this upcoming civil commitment hearing, McAlister is not allowed to challenge the validity of his prior convictions, and he cannot ask the judge to consider his actual innocence. Moreover, if McAlister declines to admit to the offense for which he served time, it will likely count against him. (It gets worse: McAlister admits to having a sexual disorder—exhibitionism—but he was not able to get sex offender treatment while in prison without first admitting to his guilt with respect to the attempted rape.) To summarize, he was jailed for a sexually violent act he maintains he didn't commit, and in order to avoid prolonged civil commitment for that act, he needs to admit that he did it. A Catch-22 without the laugh line.

Herring, the current Richmond Commonwealth's attorney, told the Richmond Times-Dispatch that, "McAlister's case presents the nightmare scenario we all fear—overwhelming evidence of systemic failure at just about every juncture." He added that although the prosecution team had contemporaneous doubts about his guilt, "the concerns were ignored. Roughly 29 years later, the commonwealth is poised to double down on its mistake by seeking to have him declared and held as a sexually violent predator for a crime he didn't commit."

Seeking an absolute pardon is a serious remedy. But unless he is pardoned for the underlying crime that will trigger civil commitment, McAlister is trapped in a world that makes no legal sense: Nobody believes he did the crime, but he will never, ever stop doing the time. As the petition filed with McAuliffe notes: "The power of the pardon is a weighty responsibility and is not to be exercised lightly. But there is unlikely to be another non DNA-based pardon petition in which the evidence of innocence is as strong as it is here."



Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project, which involved itself in McAlister's case last year, choosing it from among thousands, explained in a phone interview that allowing this to play out in the civil courts may take years and years and that really the only recourse that could free McAlister immediately is action by the governor: "The only person who can end this nightmare is Gov. McAuliffe, and if he doesn't do it, there's no telling when it ends. It's already gone on for 29 years too long."

I have been told we have to leave innocent people in prison because we could never charge anybody for a crime otherwise. So his sacrifice is not in vain.

Quote from: Valmy on April 14, 2015, 07:46:47 AM
I have been told we have to leave innocent people in prison because we could never charge anybody for a crime otherwise. So his sacrifice is not in vain.

I doubt that you have been told that.  You might think that your statement reflects what the other person was saying, but I'd bet dollars to donuts you just couldn't understand their argument.

Quote from: grumbler on April 14, 2015, 08:06:41 AM

Quote from: Valmy on April 14, 2015, 07:46:47 AM
I have been told we have to leave innocent people in prison because we could never charge anybody for a crime otherwise. So his sacrifice is not in vain.

I doubt that you have been told that.  You might think that your statement reflects what the other person was saying, but I'd bet dollars to donuts you just couldn't understand their argument.

I thought you were kidding. I thought that was obvious in my tone. Oh well.

Quote from: Valmy on April 14, 2015, 08:10:06 AM
I thought you were kidding. I thought that was obvious in my tone. Oh well.

The problem is that I read you saying so many silly things when trying to be serious, I can't readily tell when you are being deliberately silly.  Sorry.  I'll try to avoid commenting on this kind of silliness in the future.

Quote from: grumbler on April 14, 2015, 08:14:32 AM
I'll try to avoid commenting on this kind of silliness in the future.

Why? Are you required to be serious 100% of the time?

QuoteThe problem is that I read you saying so many silly things when trying to be serious

Is this kind of thing really necessary grumbler? Do you get something by saying incredibly rude things like this? I was just trying to have a little fun with you.

lots of people recant or question their prior conclusions. recantations don't prove anything conclusively. also, story is odd because there doesn't appear to have ever been an appeal. and, the article isn't exactly honest because it omits the guy's public exposure conviction. so, who knows what else the prosecutor had on the guy.

while eyewitness testimony is heavily flawed, criminal defendants can (and do) call expert witnesses to defang eyewitness testimony.

Quote from: Valmy on April 14, 2015, 08:48:27 AM
Why? Are you required to be serious 100% of the time?

See, this is the sort of post which I can't tell if serious.

QuoteIs this kind of thing really necessary grumbler? Do you get something by saying incredibly rude things like this? I was just trying to have a little fun with you.

Is honesty necessary?  No.  I provide it anyway.  If it offends you, that's a pity, but there we are.  I have commented before (like in the Bibi thread), and you have complained about my comments before (like in the Bibi thread), so this isn't new, and you don't need to be re-offended.

Quote from: LaCroix on April 14, 2015, 08:53:19 AM
lots of people recant or question their prior conclusions. recantations don't prove anything conclusively. also, story is odd because there doesn't appear to have ever been an appeal. and, the article isn't exactly honest because it omits the guy's public exposure conviction. so, who knows what else the prosecutor had on the guy.

while eyewitness testimony is heavily flawed, criminal defendants can (and do) call expert witnesses to defang eyewitness testimony.

This is Slate, not a newspaper, and a blog, not a news story.  Of course the article is slanted and ignores evidence contrary to its position.

Still the quotes indicate that the author is on to something.

Quote from: LaCroix on April 14, 2015, 08:53:19 AM
lots of people recant or question their prior conclusions. recantations don't prove anything conclusively. also, story is odd because there doesn't appear to have ever been an appeal. and, the article isn't exactly honest because it omits the guy's public exposure conviction.

It doesn't.  It mentions it twice.

I also don't know what his grounds for appeal would have been.

Anyway, while a GPS tracking device implanted in his skull would have surely cleared him, I'm a little bothered by the coercion inherent in requiring offenders to admit to guilt at "civil confinement" proceedings that could extend their sentences indefinitely.  I'm sure if I looked, there's plenty of caselaw that finds it's permissible under the Fifth Amendment, and that's the great thing about living in hypocritical, dysfunctional police state.

Quote from: LaCroix on April 14, 2015, 08:53:19 AM
while eyewitness testimony is heavily flawed, criminal defendants can (and do) call expert witnesses to defang eyewitness testimony.

First of all, it is quite common in the US to exclude expert testimony on eyewitness reliability,
Second, most experts charge money for the services, thus putting themselves outside the reach of the majority of criminal defendants.

You still owe me an explanation on the SC ruling Joan.

Quote from: Admiral Yi on April 14, 2015, 09:33:34 PM
You still owe me an explanation on the SC ruling Joan.

Which case?

Quote from: IdeologueIt doesn't. It mentions it twice.

article mentions "alcohol-related public indecency," which (imo) is vague.

Quote from: The Minsky Moment on April 14, 2015, 09:27:04 PMFirst of all, it is quite common in the US to exclude expert testimony on eyewitness reliability,
Second, most experts charge money for the services, thus putting themselves outside the reach of the majority of criminal defendants.

that may be true. if it is true, i suspect that's changing with advances in social sciences.

while i'm sure it varies from state to state, public defender offices have funds for expert witnesses (along with investigators, etc.). for the non-poor, while expert witnesses can be very costly, i'd imagine there financial options available. are there many studies that show expert witnesses are outside the reach of the majority of criminal defendants?

Quote from: grumbler on April 14, 2015, 09:38:45 AMStill the quotes indicate that the author is on to something.

he very well might be innocent. but, it's such an extreme case that's unlikely to happen very frequently. we can't hold new trials every time a victim recants or an investigator doubts himself about a decades-old investigation. what are ya gonna do but wait for further scientific advances. it's harder to imprison an innocent person today than it was a hundred years ago. a hundred years from now, it'll likely be harder than it is today.

Quote from: LaCroix on April 15, 2015, 12:26:26 AM

Quote from: grumbler on April 14, 2015, 09:38:45 AMStill the quotes indicate that the author is on to something.

he very well might be innocent. but, it's such an extreme case that's unlikely to happen very frequently. we can't hold new trials every time a victim recants or an investigator doubts himself about a decades-old investigation. what are ya gonna do but wait for further scientific advances. it's harder to imprison an innocent person today than it was a hundred years ago. a hundred years from now, it'll likely be harder than it is today.

I agree that it is hard to create general rules based on this case, but the evidence in this case about this case seems pretty clearly to indicate that there should be severe doubt about his guilt.  The prosecutor doubts simply show that even the most unjust prosecutors will eventually see their error ij a case this egregious.  Good prosecutors would have ensured that the photo lineup wasn't a photo frameup during the investigation, not years later.

Quote from: The Minsky Moment on April 14, 2015, 10:54:48 PM
Which case?

Never mind.  Turn out the original source of Timrage was a dissent, not a ruling.  :wacko:

Quote from: LaCroix on April 15, 2015, 12:20:24 AM
while i'm sure it varies from state to state, public defender offices have funds for expert witnesses (along with investigators, etc.). for the non-poor, while expert witnesses can be very costly, i'd imagine there financial options available. are there many studies that show expert witnesses are outside the reach of the majority of criminal defendants?

Fed defenders has a limited budget for experts, and got slammed by cuts in the budget mess.  Not sure, but I would guess that in the states it is worse. 

Quote from: LaCroix on April 15, 2015, 12:26:26 AM

Quote from: grumbler on April 14, 2015, 09:38:45 AMStill the quotes indicate that the author is on to something.

he very well might be innocent. but, it's such an extreme case that's unlikely to happen very frequently. we can't hold new trials every time a victim recants or an investigator doubts himself about a decades-old investigation. what are ya gonna do but wait for further scientific advances. it's harder to imprison an innocent person today than it was a hundred years ago. a hundred years from now, it'll likely be harder than it is today.

I am not so sure about your underlying assumption that it is harder to imprison an innocent person.  Most defendants do not have the financial resources to retain independent expert witnesses who may challenge the scientific evidence produced by the prosecution.   Add to that the fact that many prosecutors in the US are elected and rely on impressive conviction rates as part of the reason why they should remain in office; judges who are elected and rely on hard on crime election platforms to remain in office; and a poorly funded legal aid/public defenders offices.  I don't share your confidence that innocent people are rarely convicted.

Quote from: crazy canuck on April 15, 2015, 11:35:57 AMI am not so sure about your underlying assumption that it is harder to imprison an innocent person.  Most defendants do not have the financial resources to retain independent expert witnesses who may challenge the scientific evidence produced by the prosecution.   Add to that the fact that many prosecutors in the US are elected and rely on impressive conviction rates as part of the reason why they should remain in office; judges who are elected and rely on hard on crime election platforms to remain in office; and a poorly funded legal aid/public defenders offices.  I don't share your confidence that innocent people are rarely convicted.

like before, i seriously question the assertion that "most" or "the majority" of criminal defendants lack financial resources to retain expert witnesses. a man may lose his home for effective legal counsel, but that option is available. if the option isn't available, public defenders are provided. a public defender overseeing a case where the only evidence against a criminal defendant is a single eyewitness is presumably going to receive additional funding. PD offices might not money to throw around, but that doesn't mean they can't allocate funding toward truly winnable cases. they want to win just as much as prosecutors.

as you said, prosecutors are elected and a factor in their election is success. a prosecutor that goes after innocent people is not going to be as successful. on average, there is simply less evidence to convict innocent people compared to guilty people. that's kinda the nature of the game. sometimes, an innocent person will have evidence stacked against him, but there's no evidence that innocent people are frequently convicted for crimes they did not commit. instead, we have extreme cases that are picked up by journalists and used as evidence for their assertions that there's something rotten with the whole system. without more, i don't buy it.

having worked for an appointed judge and an elected judge, the only difference i've seen is that elected judges are little more careful in how they word their orders. from my experience, i've seen little difference in the actual legal analysis. honestly, i don't think there's much of a difference between elected and appointed judges. they both work within the their particular system (election route v. appointment route, whatever that entails) and receive their positions based on politics. the average elected judge does not base his decisions on securing convictions so that he can remain elected because that's a surefire way to get eventually sanctioned.

If a prosecutor convicts an innocent person, who would ever know that fact?  Particularly if your view holds sway that convictions of the innocent is so rare that we need not devote funds to right past wrongs.

Quote from: crazy canuck on April 15, 2015, 12:50:53 PM
If a prosecutor convicts an innocent person, who would ever know that fact?  Particularly if your view holds sway that convictions of the innocent is so rare that we need not devote funds to right past wrongs.

there are organizations that seek to find convicted innocents as the article(s?) in this thread indicate. i'm satisfied with the ability of those organizations to do their job. i'd also support granting federal aid for those organizations. beyond that, eh.

Quote from: LaCroix on April 15, 2015, 12:59:53 PM

Quote from: crazy canuck on April 15, 2015, 12:50:53 PM
If a prosecutor convicts an innocent person, who would ever know that fact?  Particularly if your view holds sway that convictions of the innocent is so rare that we need not devote funds to right past wrongs.

there are organizations that seek to find convicted innocents as the article(s?) in this thread indicate. i'm satisfied with the ability of those organizations to do their job. i'd also support granting federal aid for those organizations. beyond that, eh.

Probably better to properly fund legal aid so that they can mount a proper defense in the first place.

Quote from: LaCroix on April 15, 2015, 12:46:31 PM
... the average elected judge does not base his decisions on securing convictions so that he can remain elected because that's a surefire way to get eventually sanctioned.

And be unemployed when sanctioned, because who is going to vote for a judge that sends innocent voters to prison?

Quote from: grumbler on April 15, 2015, 02:19:16 PM

Quote from: LaCroix on April 15, 2015, 12:46:31 PM
... the average elected judge does not base his decisions on securing convictions so that he can remain elected because that's a surefire way to get eventually sanctioned.

And be unemployed when sanctioned, because who is going to vote for a judge that sends innocent voters to prison?

Well, if the innocents happen to be black, then the answer is Republicans.

There is a lot of research regarding the bias of judges who run for election on tough on crime platforms.  I am not sure what is so controversial with the observation the judges who need to be elected to their positions need to appeal to the voters and it seems a tough on crime stance is appealing to voters.

Quote from: crazy canuck on April 15, 2015, 02:42:23 PM
There is a lot of research regarding the bias of judges who run for election on tough on crime platforms.  I am not sure what is so controversial with the observation the judges who need to be elected to their positions need to appeal to the voters and it seems a tough on crime stance is appealing to voters.

judges can campaign on whatever platform they want, but they must still act in accordance to state law and the rules of judicial conduct. moreover, voters generally don't care about how judges perform unless there's media coverage about something the judge did. for example, the judge in the other thread re: cheating has received negative publicity. this might affect his chances for reelection.

i suspect actual (rather than declared) hard on crime stances depends more on personality rather than anything related to elections. some judges are gonna be a stannis in the courtroom no matter the process that put them on the bench.

So now you are arguing that elected judges are fine because they are elected by a largely ignorant electorate?  I am not sure that improves things.

Yeah unless the judge was personally known by somebody I knew I had no clue when I was picking the judges beyond their campaign slogan.

'A voice for Texans'

Well that sounds good. Guess I will vote for Judge Hangemall.

I remember reading a study by some university a year or two ago (I don't recall whether the study itself was done right then, but it's not very material) showing that judges, in states that elected trial judges and had the death penalty (maybe it was just Alabama, but I think it included other states), imposed the death penalty significantly more often in election years than non-election years.  So, I think that there is evidence that judges pander to voters.  I can't say that it is conclusive evidence, but it is an issue worth researching and discussing.

Quote from: crazy canuck on April 15, 2015, 03:22:11 PM
So now you are arguing that elected judges are fine because they are elected by a largely ignorant electorate?  I am not sure that improves things.

i've never argued that voters actually care about judicial elections. i mean, honestly, why would they? it's a name on the ballot, and people generally have zero interest in the law except when a journalist misconstrues it or they become personally involved. it's hard for joe schmuck attorney to become a judge (via election or appointment) because he has no connections. people make connections either by blowing smoke up everyone's ass or through pure competence. however they get to the bench, i don't see all that much of a difference in how they later judge. i doubt a judge sentences an extra few years imprisonment just to fulfill some "hard on crime" promise. judges are human, not machines. and every trial judge knows that every single decision he makes could possibly be reviewed before a higher court.

Quote from: grumbler on April 15, 2015, 03:30:39 PM
I remember reading a study by some university a year or two ago (I don't recall whether the study itself was done right then, but it's not very material) showing that judges, in states that elected trial judges and had the death penalty (maybe it was just Alabama, but I think it included other states), imposed the death penalty significantly more often in election years than non-election years.  So, I think that there is evidence that judges pander to voters.  I can't say that it is conclusive evidence, but it is an issue worth researching and discussing.

it's also possible state attorneys sought the death penalty more in election years. or any other factor. who knows with statistics. i'd like to read the study if you ever come across it again.

Quote from: LaCroix on April 15, 2015, 03:38:16 PM
it's also possible state attorneys sought the death penalty more in election years. or any other factor. who knows with statistics. i'd like to read the study if you ever come across it again.

Agree that there are other possible factors, and I don't recall how the study accounted for them.  I'll see if I can remember more and find the study.  It's a problem, because the bullshit studies drown out the good ones.

Quote from: crazy canuck on April 15, 2015, 03:22:11 PM
So now you are arguing that elected judges are fine because they are elected by a largely ignorant electorate?  I am not sure that improves things.

He is arguing that your particular claim that elected judges are likely to help convict inoccent people is not supprted by evidence or even your arguments.

Noting that there are overall conceptual problems with electing judges doesn't support your claim, which was much more specific. It just makes you look like someone willing to engage in rhetorical sleight of hand to protect your point when it gets demolished.

Quote from: grumbler on April 15, 2015, 03:30:39 PM
I remember reading a study by some university a year or two ago (I don't recall whether the study itself was done right then, but it's not very material) showing that judges, in states that elected trial judges and had the death penalty (maybe it was just Alabama, but I think it included other states), imposed the death penalty significantly more often in election years than non-election years.  So, I think that there is evidence that judges pander to voters.  I can't say that it is conclusive evidence, but it is an issue worth researching and discussing.

Yeah, that is one of the main concerns - the judges who run tough on crime election campaigns tend to give more severe sentences.

It would be very difficult to study whether such judges also make rulings during the course of a trial which make conviction more likely - those sorts of judgments are not very amenable to objective study.  But that is the other concern.  If being a "tough on crime" judge affects sentencing outcome then it likely does affect other decisions a judge must make during the course of a trial.

Quote from: Berkut on April 15, 2015, 03:55:07 PM

Quote from: crazy canuck on April 15, 2015, 03:22:11 PM
So now you are arguing that elected judges are fine because they are elected by a largely ignorant electorate?  I am not sure that improves things.

He is arguing that your particular claim that elected judges are likely to help convict inoccent people is not supprted by evidence or even your arguments.

Noting that there are overall conceptual problems with electing judges doesn't support your claim, which was much more specific. It just makes you look like someone willing to engage in rhetorical sleight of hand to protect your point when it gets demolished.

My claim that elected judges who run on being tough on crime are biased is well documented.  I just found it amusing that he retreated from a position that the electorate would never elect a judge who convicted innocent people to a position that the electorate has no idea whether they are electing someone who is competent.  Which is probably why the tough on crime judges get elected.

Grumbler,

You might find this paper interesting.


http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-81-3-Weiss.pdf

Quote from: crazy canuck on April 15, 2015, 04:34:37 PMYeah, that is one of the main concerns - the judges who run tough on crime election campaigns tend to give more severe sentences.

It would be very difficult to study whether such judges also make rulings during the course of a trial which make conviction more likely - those sorts of judgments are not very amenable to objective study.  But that is the other concern.  If being a "tough on crime" judge affects sentencing outcome then it likely does affect other decisions a judge must make during the course of a trial.

i don't think "tough on crime" campaign slogans are any more likely to affect sentencing than "a voice for texans" slogan affects a judge's voice for texans. it's a vague, meaningless stance. as your post indicates, how would one even gauge whether that judge was, in fact, tough on crime?

i also don't think judges could realistically make decisions during the course of a trial that would strategically make the conviction more likely. let's ignore how sociopathic that is. employing such a strategy would require considerable planning that your average judge, already overworked in many cases, just doesn't care to do. a bribed judge could layout a strategy for a single trial, but you're suggesting a "tough on crime" judge might do this for every trial!

Quote from: crazy canuck on April 15, 2015, 04:37:25 PMMy claim that elected judges who run on being tough on crime are biased is well documented.  I just found it amusing that he retreated from a position that the electorate would never elect a judge who convicted innocent people to a position that the electorate has no idea whether they are electing someone who is competent.  Which is probably why the tough on crime judges get elected.

but i never said "the electorate would never elect a judge who convicted innocent people."

i did say "the average elected judge does not base his decisions on securing convictions so that he can remain elected because that's a surefire way to get eventually sanctioned."

by "sanctioned," i meant sanctioned through internal disciplinary proceedings.

Quote from: LaCroix on April 15, 2015, 04:48:08 PM

Quote from: crazy canuck on April 15, 2015, 04:34:37 PMYeah, that is one of the main concerns - the judges who run tough on crime election campaigns tend to give more severe sentences.

It would be very difficult to study whether such judges also make rulings during the course of a trial which make conviction more likely - those sorts of judgments are not very amenable to objective study.  But that is the other concern.  If being a "tough on crime" judge affects sentencing outcome then it likely does affect other decisions a judge must make during the course of a trial.

i don't think "tough on crime" campaign slogans are any more likely to affect sentencing than "a voice for texans" slogan affects a judge's voice for texans. it's a vague, meaningless stance. as your post indicates, how would one even gauge whether that judge was, in fact, tough on crime?

The academic research disagrees with your anecdotal observation.

Quote from: LaCroix on April 15, 2015, 04:55:47 PM

Quote from: crazy canuck on April 15, 2015, 04:37:25 PMMy claim that elected judges who run on being tough on crime are biased is well documented.  I just found it amusing that he retreated from a position that the electorate would never elect a judge who convicted innocent people to a position that the electorate has no idea whether they are electing someone who is competent.  Which is probably why the tough on crime judges get elected.

but i never said "the electorate would never elect a judge who convicted innocent people."

i did say "the average elected judge does not base his decisions on securing convictions so that he can remain elected because that's a surefire way to get eventually sanctioned."

by "sanctioned," i meant sanctioned through internal disciplinary proceedings.

How is convicting innocent people a "surefire" way of eventually getting sanctioned if nobody will ever find out that an innocent person was convicted?

Quote from: Admiral Yi on April 15, 2015, 09:24:45 AM

Quote from: The Minsky Moment on April 14, 2015, 10:54:48 PM
Which case?

Never mind.  Turn out the original source of Timrage was a dissent, not a ruling.  :wacko:

What's going on now? :unsure:

Quote from: crazy canuck on April 15, 2015, 05:06:38 PMThe academic research disagrees with your anecdotal observation.

read your article. pg. 1109 is where it gets good. the article cites studies that suggest all judges dole out harsher sentences closer to elections. i concede that added stress of looming elections might lead a judge to act harsher in sentencing. i can see that. but, this doesn't mean "tough on crime" slogans actually do anything. furthermore, harsher sentences may be handed out subconsciously. IMO, this makes more sense than a conscious effort of tacking on extra years for defendants because the judge wants to win that election.

Quote from: crazy canuck on April 15, 2015, 05:09:11 PMHow is convicting innocent people a "surefire" way of eventually getting sanctioned if nobody will ever find out that an innocent person was convicted?

my earlier comment that i quoted, and re-quote now, "the average elected judge does not base his decisions on securing convictions so that he can remain elected because that's a surefire way to get eventually sanctioned," doesn't have to do with innocent people per say. emphasis added.

That fact that all elected judges dole out more severe penalties closer to an election makes my point.  Elected judges' judgment panders to an electorate which is perceived to favour judges who will be tough on crime.  If a the judgment of a judge is influenced in this matter then what makes you think that other judgments they make regarding numerous procedural rulings during the course of a trial is not also influenced.  And if those decisions are influenced how can one argue that innocent people might not be convicted?

Quote from: LaCroix on April 15, 2015, 05:29:28 PM

Quote from: crazy canuck on April 15, 2015, 05:09:11 PMHow is convicting innocent people a "surefire" way of eventually getting sanctioned if nobody will ever find out that an innocent person was convicted?

my earlier comment that i quoted, and re-quote now, "the average elected judge does not base his decisions on securing convictions so that he can remain elected because that's a surefire way to get eventually sanctioned," doesn't have to do with innocent people per say. emphasis added.

Agreed.  You are avoiding the issue.  I gave you the benefit of the doubt that you were trying to defend your original position that it is harder now for innocent people to be convicted.

Quote from: crazy canuck on April 15, 2015, 05:32:09 PM
That fact that all elected judges dole out more severe penalties closer to an election makes my point.  Elected judges' judgment panders to an electorate which is perceived to favour judges who will be tough on crime.  If a the judgment of a judge is influenced in this matter then what makes you think that other judgments they make regarding numerous procedural rulings during the course of a trial is not also influenced.  And if those decisions are influenced how can one argue that innocent people might not be convicted?

you're combining the results of the studies with your own views that judges dish out harsher sentences to pander to the electorate. the results of those studies never said that. as far as i can tell from my own research, your point has never been proven. like i said, assuming the studies are correct, i think it's more likely that the election process as a whole subconsciously affects a judge's sentencing closer to elections. we could argue the pros and cons of an election process vs. appointment system, but a cursory glance at westlaw reveals there's enough law review articles that support both sides. i doubt either of us have the time to cherry pick info and fling it back at each other.

Quote from: crazy canuck on April 15, 2015, 05:33:18 PMAgreed.  You are avoiding the issue.  I gave you the benefit of the doubt that you were trying to defend your original position that it is harder now for innocent people to be convicted.

well, i was. you listed several reasons why you think it's not hard to convict innocent people. one reason you listed was your belief that judges try to get people convicted so they can get re-elected. my argument attacked that assertion. judges who do their best to base their rulings not on the law but because they want the guilty/innocent alike to get convicted are gonna eventually face sanctions.

Your faith in the judicial system is touching. No, wait, I mean it's touched.

Quote from: LaCroix on April 15, 2015, 05:55:29 PM

Quote from: crazy canuck on April 15, 2015, 05:33:18 PMAgreed.  You are avoiding the issue.  I gave you the benefit of the doubt that you were trying to defend your original position that it is harder now for innocent people to be convicted.

well, i was. you listed several reasons why you think it's not hard to convict innocent people. one reason you listed was your belief that judges try to get people convicted so they can get re-elected. my argument attacked that assertion. judges who do their best to base their rulings not on the law but because they want the guilty/innocent alike to get convicted are gonna eventually face sanctions.

And yet you concede that judges are influenced by the fact that an election is upcoming.  I am not sure how you square that circle.

Quote from: crazy canuck on April 15, 2015, 05:32:09 PM
That fact that all elected judges dole out more severe penalties closer to an election makes my point. 

Sounds like an argument for judges to be elected to shorter terms to me.

Quote from: dps on April 15, 2015, 10:39:58 PM

Quote from: crazy canuck on April 15, 2015, 05:32:09 PM
That fact that all elected judges dole out more severe penalties closer to an election makes my point. 

Sounds like an argument for judges to be elected to shorter terms to me.

Yeah, if you don't care about the odd innocent person being convicted and unjust sentences for the guilty its a good strategy.

Quote from: crazy canuck on April 16, 2015, 10:34:04 AM

Quote from: dps on April 15, 2015, 10:39:58 PM

Quote from: crazy canuck on April 15, 2015, 05:32:09 PM
That fact that all elected judges dole out more severe penalties closer to an election makes my point. 

Sounds like an argument for judges to be elected to shorter terms to me.

Yeah, if you don't care about the odd innocent person being convicted

You keep doing this bit where you claim that elected judges contribute to innocent people being convicted, but there is zero evidence that that is the case. Zero. You have not even tried to make that argument except by assertion.

Quote from: Berkut on April 16, 2015, 11:30:17 AM

Quote from: crazy canuck on April 16, 2015, 10:34:04 AM

Quote from: dps on April 15, 2015, 10:39:58 PM

Quote from: crazy canuck on April 15, 2015, 05:32:09 PM
That fact that all elected judges dole out more severe penalties closer to an election makes my point. 

Sounds like an argument for judges to be elected to shorter terms to me.

Yeah, if you don't care about the odd innocent person being convicted

You keep doing this bit where you claim that elected judges contribute to innocent people being convicted, but there is zero evidence that that is the case. Zero. You have not even tried to make that argument except by assertion.

I'm taking it that you didn't read the article that CC pointed out to me above?  Read that, and then you won't argue that there is "zero evidence."  It might not be conclusive evidence (or even, to you, persuasive evidence), but it is evidence.  "Zero evidence' is an extreme position and not, I think, sustainable.

Quote from: grumbler on April 16, 2015, 01:07:21 PM

Quote from: Berkut on April 16, 2015, 11:30:17 AM

Quote from: crazy canuck on April 16, 2015, 10:34:04 AM

Quote from: dps on April 15, 2015, 10:39:58 PM

Quote from: crazy canuck on April 15, 2015, 05:32:09 PM
That fact that all elected judges dole out more severe penalties closer to an election makes my point. 

Sounds like an argument for judges to be elected to shorter terms to me.

Yeah, if you don't care about the odd innocent person being convicted

You keep doing this bit where you claim that elected judges contribute to innocent people being convicted, but there is zero evidence that that is the case. Zero. You have not even tried to make that argument except by assertion.

I'm taking it that you didn't read the article that CC pointed out to me above?  Read that, and then you won't argue that there is "zero evidence."  It might not be conclusive evidence (or even, to you, persuasive evidence), but it is evidence.  "Zero evidence' is an extreme position and not, I think, sustainable.

Fair enough - zero evidence was certainly too strong. But the paper in question is mostly looking at sentencing, not conviction, especially when it comes to actual hard evidence - data.

Quote from: Berkut on April 16, 2015, 11:30:17 AM

Quote from: crazy canuck on April 16, 2015, 10:34:04 AM

Quote from: dps on April 15, 2015, 10:39:58 PM

Quote from: crazy canuck on April 15, 2015, 05:32:09 PM
That fact that all elected judges dole out more severe penalties closer to an election makes my point. 

Sounds like an argument for judges to be elected to shorter terms to me.

Yeah, if you don't care about the odd innocent person being convicted

You keep doing this bit where you claim that elected judges contribute to innocent people being convicted, but there is zero evidence that that is the case. Zero. You have not even tried to make that argument except by assertion.

I will assume you didn't actually read what I posted.  Here is a handy summary for you.



1) The literature clearly shows that the judgment of elected judges in relation to sentencing decisions is affected by the election cycle.
2) If a judge's judgment is affected in relation to a manner which can be objectively measured there is at least reason to suspect that their judgment in relation to other rulings they must make in relation to a case may also be affected.
3) As I already explained at length, it would be difficult to measure this sort of thing objectively because it would be difficult to measure objectively the many decisions a judge makes during the course of a trial from dealing with procedural points to admission of evidence to they way the interact with counsel.
4) I am not suggesting the judges intentionally convict innocent people.  But given the fact the research indicates the many judges run on tough on crime platforms their need to be viewed by the electorate as being tough on crime likely at least influences they way the exercise their judgment

Quote from: crazy canuck on April 16, 2015, 10:34:04 AM

Quote from: dps on April 15, 2015, 10:39:58 PM

Quote from: crazy canuck on April 15, 2015, 05:32:09 PM
That fact that all elected judges dole out more severe penalties closer to an election makes my point. 

Sounds like an argument for judges to be elected to shorter terms to me.

Yeah, if you don't care about the odd innocent person being convicted and unjust sentences for the guilty its a good strategy.

Favoring fairly severe sentences for the guilty doesn't equate to being in favor of the innocent being convicted, except apparently in your section of Canuckistan.

It does tend to coincide with a lower threshold for burden of proof, however.

Quote from: dps on April 16, 2015, 04:20:05 PM
Favoring fairly severe sentences for the guilty doesn't equate to being in favor of the innocent being convicted...

Duh!  Strawman:  BEATEN!

Quote from: crazy canuck on April 16, 2015, 04:03:35 PM

Quote from: Berkut on April 16, 2015, 11:30:17 AM
You keep doing this bit where you claim that elected judges contribute to innocent people being convicted, but there is zero evidence that that is the case. Zero. You have not even tried to make that argument except by assertion.

I will assume you didn't actually read what I posted.  Here is a handy summary for you.



1) The literature clearly shows that the judgment of elected judges in relation to sentencing decisions is affected by the election cycle.

Agreed.

Quote
2) If a judge's judgment is affected in relation to a manner which can be objectively measured there is at least reason to suspect that their judgment in relation to other rulings they must make in relation to a case may also be affected.

Do not agree. Sentencing is a largely subjective process that a judge has incredible discretion around, and is extremly visible to the electorate. Making judgements about other trial proceedings is not nearly as transparent to the electorate, nor is it nearly as safe from scrutiny by defense counsel and appeals courts. Hence their is less incentive for a judge to allow his work to be biased, and less ability to do so without getting themselves in a lot of trouble.

You know what is visible to the electorate though? Having a judge whose convictions get overturned because of shoddy work.

Quote
3) As I already explained at length, it would be difficult to measure this sort of thing objectively because it would be difficult to measure objectively the many decisions a judge makes during the course of a trial from dealing with procedural points to admission of evidence to they way the interact with counsel.

Not at all true - there is already a mechanism in place to review those decisions - it is the appeals process, and judges who convict innocent people routinely because they think erring on the side of putting innocent people in jail would presumably run up against adverse outcomes in appeal much more often than judges who are doing their job in good faith.

Quote
4) I am not suggesting the judges intentionally convict innocent people.  But given the fact the research indicates the many judges run on tough on crime platforms their need to be viewed by the electorate as being tough on crime likely at least influences they way the exercise their judgment

Being tough on crime does not suggest that they would make decisions that would result in an outcome (convicting innocent people) that the entire system is designed to prevent to a relatively extreme extent.

This is by far a much too broad brush - you are basically saying that any judge that could be described as "tough on crime" is by extension engaged in subverting the judicial process (intentionally or unintentionally) to an extent that is going to result in more innocent people being convicted - not just guilty people getting tougher sentences. I don't think that is at all a fair accusation, I think you can be "tough on crime" while still respecting the judicial process.

Quote from: Berkut on April 17, 2015, 01:38:49 PM
Do not agree. Sentencing is a largely subjective process that a judge has incredible discretion around, and is extremly visible to the electorate. Making judgements about other trial proceedings is not nearly as transparent to the electorate, nor is it nearly as safe from scrutiny by defense counsel and appeals courts. Hence their is less incentive for a judge to allow his work to be biased, and less ability to do so without getting themselves in a lot of trouble.

You know what is visible to the electorate though? Having a judge whose convictions get overturned because of shoddy work.

You have missed the argument.

If a judges judgment is so plainly influenced in a way that can be measured, it is naïve to think that other judgments they make are not also influenced.  It is important for you to understand that it is very difficult to win appeals based on admission of evidence or procedural rulings.  The law gives judges a wide degree of discretion (particularly in relation to procedural rulings) and so long as they stay within the boundaries set in the law they judgments will stand.  The issue is whether their discretion is exercised in a manner which strains to ensure an innocent man is not convicted or whether they strain to appease the electorate and obtain convictions of who are charged.

What evidence do you have that a judge is only effected by an election cycle in only the very narrow area of discretion that researchers have so far managed to objectively measure?

Quote
Not at all true - there is already a mechanism in place to review those decisions - it is the appeals process, and judges who convict innocent people routinely because they think erring on the side of putting innocent people in jail would presumably run up against adverse outcomes in appeal much more often than judges who are doing their job in good faith

Appeals are costly and as stated are difficult in areas where judges enjoy wide discretion.  If your argument is really based on a notion judges "who convict innocent people routinely" will eventually be caught out then you should re-evaluate the implications of your position.  If on the other hand you were just trying to create a strawman buy suggesting my position is that there are judges who routinely convict innocent people then you should be ashamed of yourself.  You have made much better men of straw in the past.

QuoteBeing tough on crime does not suggest that they would make decisions that would result in an outcome (convicting innocent people) that the entire system is designed to prevent to a relatively extreme extent.

You are asserting a contention that is the source of the dispute.  The system in the US is not well designed to prevent innocent people from being convicted.  There are much better systems.  Your system has elected prosecutors and elected judges.

Quote from: crazy canuck on April 17, 2015, 03:29:36 PM

Quote from: Berkut on April 17, 2015, 01:38:49 PM
Do not agree. Sentencing is a largely subjective process that a judge has incredible discretion around, and is extremly visible to the electorate. Making judgements about other trial proceedings is not nearly as transparent to the electorate, nor is it nearly as safe from scrutiny by defense counsel and appeals courts. Hence their is less incentive for a judge to allow his work to be biased, and less ability to do so without getting themselves in a lot of trouble.

You know what is visible to the electorate though? Having a judge whose convictions get overturned because of shoddy work.

You have missed the argument.

If a judges judgment is so plainly influenced in a way that can be measured, it is naïve to think that other judgments they make are not also influenced.  It is important for you to understand that it is very difficult to win appeals based on admission of evidence or procedural rulings.  The law gives judges a wide degree of discretion (particularly in relation to procedural rulings) and so long as they stay within the boundaries set in the law they judgments will stand.  The issue is whether their discretion is exercised in a manner which strains to ensure an innocent man is not convicted or whether they strain to appease the electorate and obtain convictions of who are charged.

What evidence do you have that a judge is only effected by an election cycle in only the very narrow area of discretion that researchers have so far managed to objectively measure?

What evidence do you have that judges do so in a manner other than what is measured? Speculation is not evidence.

The onus to prove is not on me. Showing that judges can be biased in one manner is not evidence that they are biased in other manners, and for the reasons I've already stated.

Do these judges who they've seen have higher overturn on appeals rates? Higher incidences of innocents later being shown to be innocent, and convicted on the basis of ruling they made?

Quote
Not at all true - there is already a mechanism in place to review those decisions - it is the appeals process, and judges who convict innocent people routinely because they think erring on the side of putting innocent people in jail would presumably run up against adverse outcomes in appeal much more often than judges who are doing their job in good faith

Appeals are costly and as stated are difficult in areas where judges enjoy wide discretion.
[/quote]

Judges have wide discretion around sentencing, and we accept that we can measure the results. Discretion does not make it harder to measure effects, it makes it easier.

Quote
If your argument is really based on a notion judges "who convict innocent people routinely" will eventually be caught out then you should re-evaluate the implications of your position.  If on the other hand you were just trying to create a strawman buy suggesting my position is that there are judges who routinely convict innocent people then you should be ashamed of yourself.  You have made much better men of straw in the past.

My argument is that you have failed to make any case that in the US there is any significant amount of innocent people being wrongly convicted at all, much less that to the extent that it does happen that a significant contributing factor is elected judges.

Quote

QuoteBeing tough on crime does not suggest that they would make decisions that would result in an outcome (convicting innocent people) that the entire system is designed to prevent to a relatively extreme extent.

You are asserting a contention that is the source of the dispute.  The system in the US is not well designed to prevent innocent people from being convicted.  There are much better systems.  Your system has elected prosecutors and elected judges.

Your argument is entirely circular.

Quote
The system in the US is not well designed to prevent innocent people from being convicted.

This is a conclusion based on no evidence, other than

QuoteYour system has elected prosecutors and elected judges.

Which is also your claim for WHY there are more innocent people being convicted.

It can't be both the cause and the result.

You have zero evidence that more people are wrongly convicted in the US than elsewhere. You have only conjecture that the reason this occurs to the extent that it does (and I am only agreeing that it does happen, not that it happens here any more than anywhere else) is due to elected judges.

And no fair mixing in "judges and prosecutors" at this point. That is very much adding in another much more problematic (in my opinion) variable.

Quote from: Berkut on April 17, 2015, 03:42:24 PM

What evidence do you have that judges do so in a manner other than what is measured?

I am beginning to think you are trying not to understand the argument I am making.  One final attempt.  The argument is that since judges are influenced in at least one way by an election cycle it is naïve to think they are not also influenced in ways that are not easily measured.  If you want to suggest why I should assume that judges are only influenced in a manner that researchers can objectively prove then I would like to hear your argument.  It would seem a remarkable coincidence.  But I suppose anything is possible - although not probable.

I must admit that I am not seeing how a judge's election chances are enhanced by his presiding over a trial in which the jury convicts.  Sentencing is the judge's call.  Convicting isn't.  The fact that judges may give a stiffer sentence once the jury convicts doesn't provide evidence that they would make decisions that would help ensure conviction, but the fact that judges seem to consider their election chances when administering one function of justice doesn't give much confidence that they won't when administering another function of justice.  I think the potential for corruption of justice alone is reason to question the wisdom of electing judges. So, not evidence, but indicative.

I remember that one of my earliest appreciations of the power of mottoes was when I asked my dad why the Washtenaw county courthouse had the motto "justice, though the heavens fall" above the doors.  He explained the meaning of the phrase, and I was duly impressed.  I still think it should be the operative phrase of any legal system.  Electing judges strikes me as contrary to that concept.

Quote from: grumbler on April 17, 2015, 04:39:59 PM
I must admit that I am not seeing how a judge's election chances are enhanced by his presiding over a trial in which the jury convicts.  Sentencing is the judge's call.  Convicting isn't.  The fact that judges may give a stiffer sentence once the jury convicts doesn't provide evidence that they would make decisions that would help ensure conviction, but the fact that judges seem to consider their election chances when administering one function of justice doesn't give much confidence that they won't when administering another function of justice.  I think the potential for corruption of justice alone is reason to question the wisdom of electing judges. So, not evidence, but indicative.

I remember that one of my earliest appreciations of the power of mottoes was when I asked my dad why the Washtenaw county courthouse had the motto "justice, though the heavens fall" above the doors.  He explained the meaning of the phrase, and I was duly impressed.  I still think it should be the operative phrase of any legal system.  Electing judges strikes me as contrary to that concept.

Consider the following situation.  A trial is held close to an election. The judge needs to make an important decision on the admission of a piece of evidence that will greatly assist the prosecution.  The media are not present but there is a chance that a decision to disallow the evidence might be reported.  The judge plans to run on a tough on crime platform and has done in the past.  Within the bounds of the rules of evidence the judge could decide either way - ie there would be no reviewable error one way or the other.

I have picked the admissibility of the evidence as an example but there are numerous rulings a judge must make during the course of a trial that are largely discretionary.

The contention by Lacroix and now Berkut is that the US system of criminal justice is set up to ensure innocent people are not convicted.  My contention is that there a number of weaknesses in the system that call that assumption into question.  Two of those weaknesses are the election of judges and prosecutors.

Quote from: crazy canuck on April 17, 2015, 04:45:44 PM

Quote from: grumbler on April 17, 2015, 04:39:59 PM
I must admit that I am not seeing how a judge's election chances are enhanced by his presiding over a trial in which the jury convicts.  Sentencing is the judge's call.  Convicting isn't.  The fact that judges may give a stiffer sentence once the jury convicts doesn't provide evidence that they would make decisions that would help ensure conviction, but the fact that judges seem to consider their election chances when administering one function of justice doesn't give much confidence that they won't when administering another function of justice.  I think the potential for corruption of justice alone is reason to question the wisdom of electing judges. So, not evidence, but indicative.

I remember that one of my earliest appreciations of the power of mottoes was when I asked my dad why the Washtenaw county courthouse had the motto "justice, though the heavens fall" above the doors.  He explained the meaning of the phrase, and I was duly impressed.  I still think it should be the operative phrase of any legal system.  Electing judges strikes me as contrary to that concept.

Consider the following situation.  A trial is held close to an election. The judge needs to make an important decision on the admission of a piece of evidence that will greatly assist the prosecution.  The media are not present but there is a chance that a decision to disallow the evidence might be reported.  The judge plans to run on a tough on crime platform and has done in the past.  Within the bounds of the rules of evidence the judge could decide either way - ie there would be no reviewable error one way or the other.

I have picked the admissibility of the evidence as an example but there are numerous rulings a judge must make during the course of a trial that are largely discretionary.

I am not sure what your hypothetical has to do with the point I made, other than to reinforce it.  I don't think that there is any actual evidence (even indirect) that judges make rulings based on their election impact, but the perception alone (such as the ability to create reasonable hypotheticals, as you have) is enough to make me oppose judicial elections.  Those elections have no discernible way of improving justice, but they sure have a discernible way of impairing justice.

Quote from: grumbler on April 17, 2015, 04:58:14 PM

Quote from: crazy canuck on April 17, 2015, 04:45:44 PM

Quote from: grumbler on April 17, 2015, 04:39:59 PM
I must admit that I am not seeing how a judge's election chances are enhanced by his presiding over a trial in which the jury convicts.  Sentencing is the judge's call.  Convicting isn't.  The fact that judges may give a stiffer sentence once the jury convicts doesn't provide evidence that they would make decisions that would help ensure conviction, but the fact that judges seem to consider their election chances when administering one function of justice doesn't give much confidence that they won't when administering another function of justice.  I think the potential for corruption of justice alone is reason to question the wisdom of electing judges. So, not evidence, but indicative.

I remember that one of my earliest appreciations of the power of mottoes was when I asked my dad why the Washtenaw county courthouse had the motto "justice, though the heavens fall" above the doors.  He explained the meaning of the phrase, and I was duly impressed.  I still think it should be the operative phrase of any legal system.  Electing judges strikes me as contrary to that concept.

Consider the following situation.  A trial is held close to an election. The judge needs to make an important decision on the admission of a piece of evidence that will greatly assist the prosecution.  The media are not present but there is a chance that a decision to disallow the evidence might be reported.  The judge plans to run on a tough on crime platform and has done in the past.  Within the bounds of the rules of evidence the judge could decide either way - ie there would be no reviewable error one way or the other.

I have picked the admissibility of the evidence as an example but there are numerous rulings a judge must make during the course of a trial that are largely discretionary.

I am not sure what your hypothetical has to do with the point I made, other than to reinforce it.  I don't think that there is any actual evidence (even indirect) that judges make rulings based on their election impact, but the perception alone (such as the ability to create reasonable hypotheticals, as you have) is enough to make me oppose judicial elections.  Those elections have no discernible way of improving justice, but they sure have a discernible way of impairing justice.

I am a bit confused.  A number of pages ago that I think it is impossible to study the numerous discretionary rulings a judge makes during the course of a trial in the same way as sentencing decisions.  There are too many variables.  But if one accepts that a judges sentencing is influenced by an election cycle (something which is reason enough to oppose having elected judges) then the burden should be on those who say elections do not influence any other decisions to demonstrate that as a fact.


The alternative is blind faith that a judge who is influenced in one decision is not in all the others. 

Quote from: crazy canuck on April 17, 2015, 05:43:37 PM
I am a bit confused.  A number of pages ago that I think it is impossible to study the numerous discretionary rulings a judge makes during the course of a trial in the same way as sentencing decisions.  There are too many variables.  But if one accepts that a judges sentencing is influenced by an election cycle (something which is reason enough to oppose having elected judges) then the burden should be on those who say elections do not influence any other decisions to demonstrate that as a fact.


The alternative is blind faith that a judge who is influenced in one decision is not in all the others.

What's probably confusing you is that we are agreeing about something!  :lol:

Quote from: grumbler on April 17, 2015, 06:08:58 PM

Quote from: crazy canuck on April 17, 2015, 05:43:37 PM
I am a bit confused.  A number of pages ago that I think it is impossible to study the numerous discretionary rulings a judge makes during the course of a trial in the same way as sentencing decisions.  There are too many variables.  But if one accepts that a judges sentencing is influenced by an election cycle (something which is reason enough to oppose having elected judges) then the burden should be on those who say elections do not influence any other decisions to demonstrate that as a fact.


The alternative is blind faith that a judge who is influenced in one decision is not in all the others.

What's probably confusing you is that we are agreeing about something!  :lol:

:D

Quote from: jimmy olsen on April 13, 2015, 05:10:14 PM
Heartbreaking :(

http://www.slate.com/articles/news_and_politics/jurisprudence/2015/04/michael_mcalister_wrongful_conviction_will_gov_mcauliffe_exonerate_an_innocent.html

QuoteThis Man Deserves a Pardon

Virginia is still imprisoning an almost certainly innocent man—even after he did the time.

By Dahlia Lithwick

DNA testing has been used 329 times now to prove the innocence of people wrongly convicted of a crime. But what happens when there is no DNA evidence to prove someone’s innocence? What happens when there is only his word, and the mounded doubts of the team that prosecuted and convicted him? And what happens when—despite growing certainty that it has imprisoned the wrong man for more than 20 years—the Commonwealth of Virginia stands poised to keep him locked up, possibly forever?



Of all the maddening stories of wrongful convictions, Michael McAlister’s may be one of the worst. For starters, he has been in prison for 29 years for an attempted rape he almost certainly did not commit. For much of that time, the lead prosecutor who secured his conviction, the original lead detective on the case, and more recently, the current Richmond Commonwealth’s Attorney, Michael Herring, have argued that McAlister is innocent and that someone else—a notorious serial rapist with the same MO as the perpetrator of the crime for which McAlister was convicted—is in fact the real criminal. “I think our justice system is one of the best on the planet,” Herring told the Richmond Times-Dispatch last week. “But this case makes me ashamed of it.”

Beyond the injustice of his wrongful conviction, McAlister, now 58, faces yet another legal nightmare: His release date of Jan. 15, 2015, has come and gone, and he is still locked up. He faces the possibility of almost indefinite commitment because Virginia plans to hold him as a sexually violent predator based largely on his 1986 conviction, a conviction that prosecutors long ago began to doubt. The indispensible Frank Green of the Richmond Times-Dispatch, who has been reporting on this case since 2002, has the whole story here. The short version is that McAlister may well continue to be imprisoned indefinitely by a justice system that operates along your basic “Hotel California” principles: You can check out anytime you like, but you can never leave.



In a last-ditch effort to end this march of the surreal, McAlister’s lawyers and Herring filed a petition Wednesday to Virginia Gov. Terry McAuliffe for an absolute pardon. Absent that, the system will grind onward and an innocent man may be incarcerated for years for a crime nobody truly believes he committed.

Here are the facts: In 1986, McAlister was convicted of attempted rape and abduction with the attempt to defile, after a 4½-hour bench trial. The only evidence presented was the victim’s identification based on her partial glimpse of her assailant’s face, much of which was covered with a mask. The photo array she was shown by the police did not include a picture of Norman Derr, a serial rapist who had already attempted to attack another woman in the same apartment complex. But it did include a photo of McAlister, and the two men looked astonishingly similar.



Derr is currently serving three life sentences. He was caught after the brutal rape of a woman in 1988 and is now linked to six other violent offenses through DNA cold-case testing. (There was no biological evidence from the crime McAlister was convicted of, and thus nothing to implicate Derr and exonerate McAlister.) But the similarities between Derr’s crimes and the alleged McAlister assault are remarkable: Derr attacked women with a knife in apartment-complex laundry rooms, wearing a plaid shirt and a stocking mask. These details all match the crime for which McAlister is still in prison. Subsequent police affidavits reveal that Derr was already being trailed by the police in 1986 and that he had in fact pulled on a stocking mask and approached a female undercover cop in the same apartment complex in which McAlister allegedly later assaulted his victim. Several other laundry room attacks happened after McAlister was already in jail but before Derr was caught.

In the petition asking McAuliffe to release McAlister, his lawyers write that the officers who convicted him are now certain Derr was in fact to blame and that they “believe it is highly improbable that another stocking-mask-wearing, knife-wielding, 6-foot-tall white man with shoulder-length blond hair was terrorizing women at night in the Town & Country apartment complex laundry rooms during that same period in time.”

Bureaucracy and haste were responsible for the fact that in the moment the cops failed to draw the obvious conclusions. Instead, they focused their investigation on McAlister, who had been involved in several incidents of alcohol-related public indecency. A detective investigating the rape asked McAlister to wear a plaid shirt, took his photograph, and then included it in a photo lineup shown to the victim. The attacker had worn a plaid shirt. McAlister was the only one in the photo array wearing one. Derr was not in the original photo array at all.



The original assistant commonwealth’s attorney assigned to the case, Mark Krueger, was reluctant to prosecute from the very outset because the victim was unable to give a definitive description of the suspect. He admitted to one Richmond police officer that he was feeling “he may have the wrong suspect.”

Based only upon the identification testimony, McAlister was sentenced to 35 years in prison. After he was convicted, evidence continued to pile up that Derr had committed the crime. In 1993, both the prosecutor and the investigator appeared at a parole hearing for McAlister, testifying that they both believed the wrong man had been convicted. McAlister was not paroled or pardoned then, and he served out most of his sentence. In 2002 the Richmond Times-Dispatch’s Green began writing about the case, quoting the prosecuting commonwealth’s attorney, Joe Morrissey, saying “it’s the one case out of thousands that has always troubled me. I’m literally shocked that he’s still locked up.” McAlister’s 2002 petition to then-Gov. Mark Warner was denied in 2003 because there was no DNA evidence to exonerate him.

McAlister was finally paroled in 2004. He fell into a depression, started drinking, and violated parole by driving under the influence. He was sent back to prison the following year and has been there ever since. His release date should have been in January of this year.
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Here is where we are stuck. Virginia passed a statute in 1999 requiring civil commitment for “sexually violent predators,” a designation that includes McAlister because of his initial, almost certainly wrongful conviction. As the time neared for his release, rather than being freed, he was shuttled into a system that will determine whether he is too sexually dangerous for release. He faces a probable cause hearing on May 18 at which a judge will decide whether he is a sexually violent predator and whether to initiate proceedings that could result in his indefinite detention at a secure state rehabilitation facility.

At this upcoming civil commitment hearing, McAlister is not allowed to challenge the validity of his prior convictions, and he cannot ask the judge to consider his actual innocence. Moreover, if McAlister declines to admit to the offense for which he served time, it will likely count against him. (It gets worse: McAlister admits to having a sexual disorder—exhibitionism—but he was not able to get sex offender treatment while in prison without first admitting to his guilt with respect to the attempted rape.) To summarize, he was jailed for a sexually violent act he maintains he didn’t commit, and in order to avoid prolonged civil commitment for that act, he needs to admit that he did it. A Catch-22 without the laugh line.

Herring, the current Richmond Commonwealth’s attorney, told the Richmond Times-Dispatch that, “McAlister’s case presents the nightmare scenario we all fear—overwhelming evidence of systemic failure at just about every juncture.” He added that although the prosecution team had contemporaneous doubts about his guilt, “the concerns were ignored. Roughly 29 years later, the commonwealth is poised to double down on its mistake by seeking to have him declared and held as a sexually violent predator for a crime he didn’t commit.”

Seeking an absolute pardon is a serious remedy. But unless he is pardoned for the underlying crime that will trigger civil commitment, McAlister is trapped in a world that makes no legal sense: Nobody believes he did the crime, but he will never, ever stop doing the time. As the petition filed with McAuliffe notes: “The power of the pardon is a weighty responsibility and is not to be exercised lightly. But there is unlikely to be another non DNA-based pardon petition in which the evidence of innocence is as strong as it is here.”



Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project, which involved itself in McAlister’s case last year, choosing it from among thousands, explained in a phone interview that allowing this to play out in the civil courts may take years and years and that really the only recourse that could free McAlister immediately is action by the governor: “The only person who can end this nightmare is Gov. McAuliffe, and if he doesn’t do it, there’s no telling when it ends. It’s already gone on for 29 years too long.”

http://www.dailymail.co.uk/news/article-3080665/Va-man-wrongfully-convicted-attempted-rape-pardoned.html

Looks like he was eventually pardoned.

Just 29 years in jail for a crime he did not commit.

Good news. :)

EDIT: Wow, hadn't seen those pictures before. They do look unbelievably alike.