Thoughts? Reactions? I think we've had discussions on this trio in the past. I'm not sure I get this whole Alford plea business. It's like the State is accepting a plea that they are essentially guilty, but they're still letting 3 child killers free? I think there is no credible evidence these guys committed the crime, but it looks like the State essentially offered them a deal of "get out of prison but make a plea so you can't sue us for malfeasance."
Quote from: OttoVonBismarck on August 20, 2011, 09:31:00 PM
Thoughts? Reactions? I think we've had discussions on this trio in the past. I'm not sure I get this whole Alford plea business. It's like the State is accepting a plea that they are essentially guilty, but they're still letting 3 child killers free? I think there is no credible evidence these guys committed the crime, but it looks like the State essentially offered them a deal of "get out of prison but make a plea so you can't sue us for malfeasance."
My (cursory) understanding is that this is entirely correct.
After fifteen years in prison, if I were the death penalty guy, I think I might've refused and demanded they finish the job of killing me, if they weren't going to vacate the conviction. But maybe not. Hell, I'm pretty sure I'd have attempted suicide dozens of times by that point, and probably succeeded in one of them.
I can't imagine how messed up these guys are. It's very sad.
I hope the high-profile nature of the case at least means they won't be terribly prejudiced when trying to find work. "Hey, you're that guy. This first degree murder thing is bullshit, isn't it?" "Entirely."
Also bogus is that if they "reoffend," they'll be in huge, huge trouble.
To me it is almost like Arkansas said, "We know you're innocent or at least that we can't convict you in a new trial, but we want to deny you the ability to sue us, insuring you will be super impoverished and have no ability to live a normal life." The truth is celebrity prisoners like this have 0% chance of getting a normal job on the outside, without a big settlement from the state or some way of making money they are screwed. Since they had to plead guilty it's very likely they won't even be able to sell their story or anything, because most places you aren't allowed to profit from your crimes.
Even $1m per person honestly isn't a huge sum...if they put it in an annuity they might get around $3500 a month for 50 years. Not horrible but works out to about $42,000 a year gross. But these guys apparently won't get a dime from anyone.
Quote from: OttoVonBismarck on August 20, 2011, 10:05:56 PM
To me it is almost like Arkansas said, "We know you're innocent or at least that we can't convict you in a new trial, but we want to deny you the ability to sue us, insuring you will be super impoverished and have no ability to live a normal life." The truth is celebrity prisoners like this have 0% chance of getting a normal job on the outside, without a big settlement from the state or some way of making money they are screwed. Since they had to plead guilty it's very likely they won't even be able to sell their story or anything, because most places you aren't allowed to profit from your crimes.
Even $1m per person honestly isn't a huge sum...if they put it in an annuity they might get around $3500 a month for 50 years. Not horrible but works out to about $42,000 a year gross. But these guys apparently won't get a dime from anyone.
Well, the vox pops seem to indicate the populace thinks they're getting shafted, so there may be at least moderate donations incoming for these guys.
Also, where do the Alford pleas stand with respect to appeals? A coerced plea should be kaput, so, malfeasance aside, couldn't the state still be sued for coercing a guilty plea?
Quote from: OttoVonBismarck on August 20, 2011, 10:05:56 PM
To me it is almost like Arkansas said, "We know you're innocent or at least that we can't convict you in a new trial, but we want to deny you the ability to sue us, insuring you will be super impoverished and have no ability to live a normal life." The truth is celebrity prisoners like this have 0% chance of getting a normal job on the outside, without a big settlement from the state or some way of making money they are screwed. Since they had to plead guilty it's very likely they won't even be able to sell their story or anything, because most places you aren't allowed to profit from your crimes.
Even $1m per person honestly isn't a huge sum...if they put it in an annuity they might get around $3500 a month for 50 years. Not horrible but works out to about $42,000 a year gross. But these guys apparently won't get a dime from anyone.
They can assert their innocence, so I think they can sell book rights, etc.
But you are correct that this plea is a disaster for them. I am betting it gets overturned on the basis that it was coerced.
Quote from: DontSayBanana on August 21, 2011, 08:11:51 AM
Quote from: OttoVonBismarck on August 20, 2011, 10:05:56 PM
To me it is almost like Arkansas said, "We know you're innocent or at least that we can't convict you in a new trial, but we want to deny you the ability to sue us, insuring you will be super impoverished and have no ability to live a normal life." The truth is celebrity prisoners like this have 0% chance of getting a normal job on the outside, without a big settlement from the state or some way of making money they are screwed. Since they had to plead guilty it's very likely they won't even be able to sell their story or anything, because most places you aren't allowed to profit from your crimes.
Even $1m per person honestly isn't a huge sum...if they put it in an annuity they might get around $3500 a month for 50 years. Not horrible but works out to about $42,000 a year gross. But these guys apparently won't get a dime from anyone.
Well, the vox pops seem to indicate the populace thinks they're getting shafted, so there may be at least moderate donations incoming for these guys.
Also, where do the Alford pleas stand with respect to appeals? A coerced plea should be kaput, so, malfeasance aside, couldn't the state still be sued for coercing a guilty plea?
The principal effect of an Alford plea is that the defendant is not estopped from relitigating the issue in a civil matter. I.e., if the victims' families attempted suit against the West Memphis 3, the West Memphis 3 could defend themselves without conceding their alleged role in the homicides.
What would be their basis for appeal? If the threat of punishment reached coercion, every plea would be coercive. That has certainly never been the standard. Perhaps lack of factual basis by which the trial court accepted the Alford plea could justify an appeal--but a court may accept a plea of guilty (or a plea that accepts the state has enough evidence to convict, either nolo contendere or Alford) even when a viable defense may otherwise have been presented.
Going into the issue of whether the WM3 may profit...
I'm not sure how it would interact with the Ark. Son of Sam law (Sec. 16-90-308) prohibiting profiting from a crime. An Alford plea has the same legal effect, in regard to criminal matters, as a regular guilty plea. Presumably this would trigger any such law. There is no Ark. law on point. After reading a bit, however, there's a split of opinion about how seriously this is taken; Carroll v. Commonwealth, a Virginia case involving a sex offender who Alford pled and who, as part of his probation, attended sex offender therapy where he was required to admit responsibility, has a good discussion, and winds up considering a lot of persuasive authority from other states. The Virginia C.o.A., while recognizing the tension between the state's assignment of guilt and the defendant's protestation of innocence, nevertheless found against the appellant on the grounds that he accepted the consequences of a conviction, regardless of the particular form of his plea.
So, given that there's money in it, I would expect some litigation on this.
I hear what you say about motivation for pleading, but this sounds like the guys were handed a real fait accompli: say we're guilty and stay in prison or contend we're innocent, but still say we're guilty and stay in prison. I'm wondering about the court's motivation in offering the Alford pleas in the first place- it sounds (and admittedly, I'm working on one side of the story here) like the court's using it for face-saving to avoid having to vacate a conviction.
There was a guy on Jon Stuart's show last week who spent 5 years in prison for hacking NSA in 1990s and now wrote a book about it and was promoting it. So not sure about the "not profiting from one's crime" thing. :huh:
Sadly, state politics played a large role in why Arkansas was so reluctant to free them. Our (Democratic) attorney general will be running for governor in 2014, and he had invested a lot of capital in preventing a new trial from taking place. DontSayBanana had it exactly right - everyone here knows they're innocent, but to save face, the court basically said "well, admit guilt even though we know you didn't do it, so we're all "happy".
Since Governor Beebe has pretty much picked AG McDaniel to be his successor, the chances for a pardon in the next several years are, unfortunately, very low. :(
Bonnie Prince Hymie.
Quote from: Fireblade on August 22, 2011, 10:20:34 AM
Sadly, state politics played a large role in why Arkansas was so reluctant to free them. Our (Democratic) attorney general will be running for governor in 2014, and he had invested a lot of capital in preventing a new trial from taking place. DontSayBanana had it exactly right - everyone here knows they're innocent, but to save face, the court basically said "well, admit guilt even though we know you didn't do it, so we're all "happy".
Since Governor Beebe has pretty much picked AG McDaniel to be his successor, the chances for a pardon in the next several years are, unfortunately, very low. :(
Why doesn't America wisen up and have a system of independent, non-political judges and prosecutors?
Quote from: Martinus on August 22, 2011, 01:57:56 PM
Why doesn't America wisen up and have a system of independent, non-political judges and prosecutors?
Doesn't exist.
Quote from: Ideologue on August 21, 2011, 12:03:28 PM
I'm not sure how it would interact with the Ark. Son of Sam law (Sec. 16-90-308) prohibiting profiting from a crime.
As a statute limiting speech, I would imagine it would be narrowly interpreted to avoid burdening legitimate speech rights.
Statute says: "Any person . . . convicted of or pleaded guilty or nolo contendere to any crime
who contracts to reenact the crime by use of any book, motion picture . . .[etc.]
or from the expression of his or her thoughts, opinions, or emotions regarding the crime, l pay to the circuit court wherein the charges were filed any money or thing of value contracted to be paid to the defendant or his or her spouse, heirs, assigns, and transferees."
presumably they aren't going to "reenact" the crime since they claim they didn't do it. The second clause about "expression of thoughts" is pretty vague -- maybe could be sidestepped by focusing their thoughts and opinions on their experiences in the justice system as opposed to the crime itself.
Quote from: Martinus on August 22, 2011, 01:57:56 PM
Why doesn't America wisen up and have a system of independent, non-political judges and prosecutors?
Good question. Why don't all the European countries do the same thing?
Hola, Baltasar Garzon?
Quote from: The Minsky Moment on August 22, 2011, 02:16:41 PM
Quote from: Martinus on August 22, 2011, 01:57:56 PM
Why doesn't America wisen up and have a system of independent, non-political judges and prosecutors?
Good question. Why don't all the European countries do the same thing?
Hola, Baltasar Garzon?
I know taking shots at Marty is fun and all, but :rolleyes:
You guys have some of the least independent, least political prosecutors and judges going. At the state level your Chief prosecutors are elected, and at the Federal level they are explicit political patronage positions.
I was awaiting the hooting of the foreigners in this thread. And surprise, suprise, it is 'ol king Fag and Mart.
Quote from: Martinus on August 22, 2011, 01:57:56 PM
Why doesn't America wisen up and have a system of independent, non-political judges and prosecutors?
How exactly would that work?
Quote from: Ed Anger on August 22, 2011, 02:28:11 PM
I was awaiting the hooting of the foreigners in this thread. And surprise, suprise, it is 'ol king Fag and Mart.
I wouldn't think it was surprising. I would have thought it was terribly predictable. :bowler:
And I can't see how it's possibly any more "coercive" a plea deal than is any plea deal ever reached in any courtroom.
Quote from: Valmy on August 22, 2011, 02:33:25 PM
Quote from: Martinus on August 22, 2011, 01:57:56 PM
Why doesn't America wisen up and have a system of independent, non-political judges and prosecutors?
How exactly would that work?
:huh: Seriously?
Try soemthing like this for Prosecutions:
http://en.wikipedia.org/wiki/Crown_Prosecution_Service
For judges, well, start by not electing them. Then, have appointments come from a bipartisan committee, not from the executive.
You have your ways, and keep your commie ways off mah flag. Commie.
Quote from: Barrister on August 22, 2011, 02:24:50 PM
at the Federal level they are explicit political patronage positions.
? where would you get that idea ?
In the SDNY US attorney's office - which I am most familiar with -- most of the appointed US attorney's were former assistants in the office. Of course it helps to have connections in DC, but they are all experienced prosecutors.
And yes at the state level, the DAs are elected, but at least in NY county - the candidates are all experienced prosecutors and the electoral campaigns focus on substantive issues.
You can't really judge an entire country by what goes on in certain counties in Arkansas.
Overall I would say that the US does not stand out for having a politicized judiciary. No jurist in the US could ever exercise the kind of politically motvated authority like Garzon did in Spain. And while I pick on him, I have seen other examples from Italy, France, Belgium.
Quote from: Barrister on August 22, 2011, 02:38:00 PM
:huh: Seriously?
Try soemthing like this for Prosecutions:
http://en.wikipedia.org/wiki/Crown_Prosecution_Service
For judges, well, start by not electing them. Then, have appointments come from a bipartisan committee, not from the executive.
The judge who gave Herr Schicklegruber an hour and a half in the pokey for trying to overthrow the state was appointed, no?
Quote from: The Minsky Moment on August 22, 2011, 02:51:37 PM
Quote from: Barrister on August 22, 2011, 02:24:50 PM
at the Federal level they are explicit political patronage positions.
? where would you get that idea ?
In the SDNY US attorney's office - which I am most familiar with -- most of the appointed US attorney's were former assistants in the office. Of course it helps to have connections in DC, but they are all experienced prosecutors.
And yes at the state level, the DAs are elected, but at least in NY county - the candidates are all experienced prosecutors and the electoral campaigns focus on substantive issues.
You can't really judge an entire country by what goes on in certain counties in Arkansas.
Clarify it for me though - on a change in the Whitehouse most of those USDA positions are fileld by the incoming adminisration.
Merely having experienced prosecutors is hardly the same as having independent prosecutors.
I can tell you that if the Alberta government were to change, I would expect our Deputy Minister to change, but that would be it. When I was with the Feds, because of the Public Prosecution Service model nothing at all would change.
Quote from: The Minsky Moment on August 22, 2011, 02:14:59 PM
Quote from: Ideologue on August 21, 2011, 12:03:28 PM
I'm not sure how it would interact with the Ark. Son of Sam law (Sec. 16-90-308) prohibiting profiting from a crime.
As a statute limiting speech, I would imagine it would be narrowly interpreted to avoid burdening legitimate speech rights.
Statute says: "Any person . . . convicted of or pleaded guilty or nolo contendere to any crime who contracts to reenact the crime by use of any book, motion picture . . .[etc.] or from the expression of his or her thoughts, opinions, or emotions regarding the crime, l pay to the circuit court wherein the charges were filed any money or thing of value contracted to be paid to the defendant or his or her spouse, heirs, assigns, and transferees."
presumably they aren't going to "reenact" the crime since they claim they didn't do it. The second clause about "expression of thoughts" is pretty vague -- maybe could be sidestepped by focusing their thoughts and opinions on their experiences in the justice system as opposed to the crime itself.
Good points all.
Quote from: Barrister on August 22, 2011, 02:56:06 PM
Clarify it for me though - on a change in the Whitehouse most of those USDA positions are fileld by the incoming adminisration.
It is not that strict - for example, Bob Fiske was appointed by Ford but served throughout most of the Carter administration. Mary Jo White was appointed by Clinton but served about a year into the Bush administration and was appointed by Ashcroft to do a special investigation of the Marc Rich pardon. New administrations tend to move new people in but it not like the cabinet where there is immediate and automatic turnover.
QuoteMerely having experienced prosecutors is hardly the same as having independent prosecutors.
It depends what you mean by independent. The US attorney's offices are all ultimately part of the Justice Department, and thus ultimately answerable to the President. There is a good reason for having that structure -- accountability and ensuring the rule of law. To do otherwise is to have prosecutors who can act autonomously without having to answer to the elected civil authorities -- IMO that is very problematic and considerably more dangerous, as the examples of overweening and uncontrollable European magistrates illustrates.
the US atty appointments may be literally political in the sense that the political branch has the power to make the appointment, but they are not "politicized" Key distinction.
Quote from: Barrister on August 22, 2011, 02:38:00 PM
Quote from: Valmy on August 22, 2011, 02:33:25 PM
Quote from: Martinus on August 22, 2011, 01:57:56 PM
Why doesn't America wisen up and have a system of independent, non-political judges and prosecutors?
How exactly would that work?
:huh: Seriously?
Try soemthing like this for Prosecutions:
http://en.wikipedia.org/wiki/Crown_Prosecution_Service
For judges, well, start by not electing them. Then, have appointments come from a bipartisan committee, not from the executive.
Bah, one of the reasons we (unlike you Canucks) threw out the British was so that we, the people, could chose our own judges, instead of having somebody appoint them to rule over us.
The problem with elected judges is that same as with any other elected public official--shitholes like Arkansas tend to elect shitty officials.
OK, both those statements were over-the-top, but there's some truth to them.
Quote from: The Minsky Moment on August 22, 2011, 02:16:41 PM
Quote from: Martinus on August 22, 2011, 01:57:56 PM
Why doesn't America wisen up and have a system of independent, non-political judges and prosecutors?
Good question. Why don't all the European countries do the same thing?
Hola, Baltasar Garzon?
Seriously? Is this the best you can do? I'd take a prosecutor going after the mass-murdering leaders of nations vs. one that ruined the lives of a bunch of innocent teenagers.
Quote from: The Minsky Moment on August 22, 2011, 03:17:24 PM
Quote from: Barrister on August 22, 2011, 02:56:06 PM
Clarify it for me though - on a change in the Whitehouse most of those USDA positions are fileld by the incoming adminisration.
It is not that strict - for example, Bob Fiske was appointed by Ford but served throughout most of the Carter administration. Mary Jo White was appointed by Clinton but served about a year into the Bush administration and was appointed by Ashcroft to do a special investigation of the Marc Rich pardon. New administrations tend to move new people in but it not like the cabinet where there is immediate and automatic turnover.
QuoteMerely having experienced prosecutors is hardly the same as having independent prosecutors.
It depends what you mean by independent. The US attorney's offices are all ultimately part of the Justice Department, and thus ultimately answerable to the President. There is a good reason for having that structure -- accountability and ensuring the rule of law. To do otherwise is to have prosecutors who can act autonomously without having to answer to the elected civil authorities -- IMO that is very problematic and considerably more dangerous, as the examples of overweening and uncontrollable European magistrates illustrates.
the US atty appointments may be literally political in the sense that the political branch has the power to make the appointment, but they are not "politicized" Key distinction.
Oh I agree you don't want complete independence. Even in the more hands off PPSC model, the PPSC is answerable to Parliament, the Director of Public Prosecutions is appointed by the government for a (I think) 5 year term). But by adding one, or more, levels of separation it avoids the phone call from an MP or MLA saying 'drop this charge against my political contributor or I'll have you fired'.
POlitical, but not politicized - I don't think that's a distinction that's possible to make. In any event often the problem is just as much one of appearance as actual bias. You could have the most principled and upstanding prosecutor in the world, but when that person directly owes their job and livelihood to an explicitly political appointment process, how much faith can you have?
You'll note that I've focused much more on prosecutions than judges. hat's where I see the much more substantial difference on either side of the border. Our judicial appointments have gotten a lot fairer over the years, but can still be a fairly political process.
Quote from: Martinus on August 22, 2011, 03:26:14 PM
Quote from: The Minsky Moment on August 22, 2011, 02:16:41 PM
Quote from: Martinus on August 22, 2011, 01:57:56 PM
Why doesn't America wisen up and have a system of independent, non-political judges and prosecutors?
Good question. Why don't all the European countries do the same thing?
Hola, Baltasar Garzon?
Seriously? Is this the best you can do? I'd take a prosecutor going after the mass-murdering leaders of nations vs. one that ruined the lives of a bunch of innocent teenagers.
I do not think you understand the meaning of the term "non-political"
Hint: it does not mean "political agenda I agree with"
Quote from: Barrister on August 22, 2011, 03:36:34 PM
But by adding one, or more, levels of separation it avoids the phone call from an MP or MLA saying 'drop this charge against my political contributor or I'll have you fired'.
POlitical, but not politicized - I don't think that's a distinction that's possible to make.
Scenario above never happens - that's what the distinction means. A few years back, Bush fired a few US attorneys and there were vague accusations about it being related to their failure to purse voter fraud cases. Even though the evidence was weak, it became a huge scandal. The norm and tradition is that these are non-partisan appointments, and deviations are considered unusual and scandalous.
If a member of Congress made the call you just indicated, the likely result would not be compliance or a firing. It would be indictment of the member of Congress.
I think we should contract all our legal decisions to magical flying unicorns.
Quote from: MadImmortalMan on August 22, 2011, 05:01:36 PM
I think we should contract all our legal decisions to magical flying unicorns.
Or like on the robot planet from
Futurama, an old Mac.
Quote from: Ed Anger on August 22, 2011, 05:02:26 PM
Quote from: MadImmortalMan on August 22, 2011, 05:01:36 PM
I think we should contract all our legal decisions to magical flying unicorns.
Or like on the robot planet from Futurama, an old Mac.
Waiting for a human judge can be tedious enough - I'd hate to be starring at that spinning beach ball waiting for my decision. <_<
Quote from: The Minsky Moment on August 22, 2011, 04:52:39 PM
Quote from: Barrister on August 22, 2011, 03:36:34 PM
But by adding one, or more, levels of separation it avoids the phone call from an MP or MLA saying 'drop this charge against my political contributor or I'll have you fired'.
POlitical, but not politicized - I don't think that's a distinction that's possible to make.
Scenario above never happens - that's what the distinction means. A few years back, Bush fired a few US attorneys and there were vague accusations about it being related to their failure to purse voter fraud cases. Even though the evidence was weak, it became a huge scandal. The norm and tradition is that these are non-partisan appointments, and deviations are considered unusual and scandalous.
If a member of Congress made the call you just indicated, the likely result would not be compliance or a firing. It would be indictment of the member of Congress.
If I talk to the old-timers around here, such phone calls were known to happen. Now mostly it's a result of an MLA not thinking through what he is saying, but still.
But bias is a lot more subtle than that. If USDA positions are only a brief stop over in your career, then you're going to be worried about what your next position is going to be. That's certainly going to impact what cases you focus on, and which cases you take an easy resolution on.
I don't want to get all Marti-esque, but I find the US system of prosecutions shocking, and am amazed at how blase you can be about it. "Oh sure I was appointed once the Obama administration came into power, but don't worry, I'm not politicized".
Quote from: Barrister on August 22, 2011, 05:10:18 PM
But bias is a lot more subtle than that. If USDA positions are only a brief stop over in your career, then you're going to be worried about what your next position is going to be. That's certainly going to impact what cases you focus on, and which cases you take an easy resolution on.
That is a problem no matter what the method of appointment is.
Experience suggests, however, that the former US attorneys that have the most successfuly subsequent careers do so by acquiring reputations for probity and toughness, not for doing errands for pols.
For example, Rudy G. made his rep not by carrying water for the Reagan administration (which appointed him) but by going in hard on the mob and by prosecuting Boesky and Milken (guys who had friends in high GOP places).
That dynamic has a problem of its own, but it is a problem relating to the fact that there can be life after being a US attorney, and not due to the precise method of appointment.
QuoteI don't want to get all Marti-esque, but I find the US system of prosecutions shocking, and am amazed at how blase you can be about it. "Oh sure I was appointed once the Obama administration came into power, but don't worry, I'm not politicized".
I find it a good deal more troubling that autonomous magistrates with wide-ranging powers and near unlimited jurisdiction can operate without effective supervision and constraint in certain civil law systems.
I agree the Canadian system as you describe seems a more happy medium. But at least federally there is little impetus for reform because other than the mini-scandal a few years back, there is no real sense the system is being materially abused.
Quote from: The Minsky Moment on August 22, 2011, 05:31:21 PM
Quote from: Barrister on August 22, 2011, 05:10:18 PM
But bias is a lot more subtle than that. If USDA positions are only a brief stop over in your career, then you're going to be worried about what your next position is going to be. That's certainly going to impact what cases you focus on, and which cases you take an easy resolution on.
That is a problem no matter what the method of appointment is.
Experience suggests, however, that the former US attorneys that have the most successfuly subsequent careers do so by acquiring reputations for probity and toughness, not for doing errands for pols.
For example, Rudy G. made his rep not by carrying water for the Reagan administration (which appointed him) but by going in hard on the mob and by prosecuting Boesky and Milken (guys who had friends in high GOP places).
That dynamic has a problem of its own, but it is a problem relating to the fact that there can be life after being a US attorney, and not due to the precise method of appointment.
QuoteI don't want to get all Marti-esque, but I find the US system of prosecutions shocking, and am amazed at how blase you can be about it. "Oh sure I was appointed once the Obama administration came into power, but don't worry, I'm not politicized".
I find it a good deal more troubling that autonomous magistrates with wide-ranging powers and near unlimited jurisdiction can operate without effective supervision and constraint in certain civil law systems.
I agree the Canadian system as you describe seems a more happy medium. But at least federally there is little impetus for reform because other than the mini-scandal a few years back, there is no real sense the system is being materially abused.
:huh:
The federal system came into place precisely because of the full-blown sponsorship scandal from a few years ago.
And as you point out, the dynamic you describe is equally as troubling. Around here, most prosecutors do this for life (absent the chance at a judicial appointment, which certainly does happen).
Prosecutors in the Canadian system make all kinds of small p political choices in the course of their decision of whether to proceed with a case or not. I am not aware of those decisions being influenced by which government appointed them.
I am not sure your system is as different form the US system as you make out.
Quote from: Barrister on August 22, 2011, 05:45:16 PM
Quote from: The Minsky Moment on August 22, 2011, 05:31:21 PM
Quote from: Barrister on August 22, 2011, 05:10:18 PM
But bias is a lot more subtle than that. If USDA positions are only a brief stop over in your career, then you're going to be worried about what your next position is going to be. That's certainly going to impact what cases you focus on, and which cases you take an easy resolution on.
That is a problem no matter what the method of appointment is.
Experience suggests, however, that the former US attorneys that have the most successfuly subsequent careers do so by acquiring reputations for probity and toughness, not for doing errands for pols.
For example, Rudy G. made his rep not by carrying water for the Reagan administration (which appointed him) but by going in hard on the mob and by prosecuting Boesky and Milken (guys who had friends in high GOP places).
That dynamic has a problem of its own, but it is a problem relating to the fact that there can be life after being a US attorney, and not due to the precise method of appointment.
QuoteI don't want to get all Marti-esque, but I find the US system of prosecutions shocking, and am amazed at how blase you can be about it. "Oh sure I was appointed once the Obama administration came into power, but don't worry, I'm not politicized".
I find it a good deal more troubling that autonomous magistrates with wide-ranging powers and near unlimited jurisdiction can operate without effective supervision and constraint in certain civil law systems.
I agree the Canadian system as you describe seems a more happy medium. But at least federally there is little impetus for reform because other than the mini-scandal a few years back, there is no real sense the system is being materially abused.
:huh:
The federal system came into place precisely because of the full-blown sponsorship scandal from a few years ago.
What sponsorship scandal? Are you talking about the Canadian federal system? 'Cause Minsky was talking about the U.S. federal system.
There's only like 95 U.S. Attorneys in the country, I imagine most of the men actually trying cases, the "real" prosecutors, probably are in the Federal civil service for much of their careers.
Like most civil service jobs (and I see this, being a civil servant) you have a group of people who go in right out of college and who have their eyes on bigger things, and use it as a 1-2 year stepping stone. Then you have retirees from other things (military is common) who want to work another 20 years, then you have lifers (most of the civil service.)
Quote from: OttoVonBismarck on August 22, 2011, 09:55:53 PM
There's only like 95 U.S. Attorneys in the country, I imagine most of the men actually trying cases, the "real" prosecutors, probably are in the Federal civil service for much of their careers.
Like most civil service jobs (and I see this, being a civil servant) you have a group of people who go in right out of college and who have their eyes on bigger things, and use it as a 1-2 year stepping stone. Then you have retirees from other things (military is common) who want to work another 20 years, then you have lifers (most of the civil service.)
But in comparison to your 95 US Attorneys... there is *one* federal appointment in Canada - the Director of Public Prosecutions, Brian Saunders. And as my one time boss I've met him - he comes across as a sweet old man. And he was the least political boss I've ever had. And he was utterly non-political from when I remember his appointment.
http://www.ppsc-sppc.gc.ca/eng/bas/dpp-dpp.html
Hell his public service goes back to the liberal era.
Like I said I'm just surprised how blase americans are about how political their prosecutors are. :mellow:
Quote from: Barrister on August 22, 2011, 10:07:43 PM
Quote from: OttoVonBismarck on August 22, 2011, 09:55:53 PM
There's only like 95 U.S. Attorneys in the country, I imagine most of the men actually trying cases, the "real" prosecutors, probably are in the Federal civil service for much of their careers.
Like most civil service jobs (and I see this, being a civil servant) you have a group of people who go in right out of college and who have their eyes on bigger things, and use it as a 1-2 year stepping stone. Then you have retirees from other things (military is common) who want to work another 20 years, then you have lifers (most of the civil service.)
But in comparison to your 95 US Attorneys... there is *one* federal appointment in Canada - the Director of Public Prosecutions, Brian Saunders. And as my one time boss I've met him - he comes across as a sweet old man. And he was the least political boss I've ever had. And he was utterly non-political from when I remember his appointment.
http://www.ppsc-sppc.gc.ca/eng/bas/dpp-dpp.html
Hell his public service goes back to the liberal era.
Like I said I'm just surprised how blase americans are about how political their prosecutors are. :mellow:
I think that you're really overestimating how political our prosecutors are.
Quote from: dps on August 22, 2011, 10:12:43 PM
Quote from: Barrister on August 22, 2011, 10:07:43 PM
Quote from: OttoVonBismarck on August 22, 2011, 09:55:53 PM
There's only like 95 U.S. Attorneys in the country, I imagine most of the men actually trying cases, the "real" prosecutors, probably are in the Federal civil service for much of their careers.
Like most civil service jobs (and I see this, being a civil servant) you have a group of people who go in right out of college and who have their eyes on bigger things, and use it as a 1-2 year stepping stone. Then you have retirees from other things (military is common) who want to work another 20 years, then you have lifers (most of the civil service.)
But in comparison to your 95 US Attorneys... there is *one* federal appointment in Canada - the Director of Public Prosecutions, Brian Saunders. And as my one time boss I've met him - he comes across as a sweet old man. And he was the least political boss I've ever had. And he was utterly non-political from when I remember his appointment.
http://www.ppsc-sppc.gc.ca/eng/bas/dpp-dpp.html
Hell his public service goes back to the liberal era.
Like I said I'm just surprised how blase americans are about how political their prosecutors are. :mellow:
I think that you're really overestimating how political our prosecutors are.
Or you are downplaying how political they appear.
That's the same argument as Minsky made - well they might be political appointments, but they're not politicized. :wacko:
Quote from: Barrister on August 22, 2011, 02:56:06 PM
Quote from: The Minsky Moment on August 22, 2011, 02:51:37 PM
Quote from: Barrister on August 22, 2011, 02:24:50 PM
at the Federal level they are explicit political patronage positions.
? where would you get that idea ?
In the SDNY US attorney's office - which I am most familiar with -- most of the appointed US attorney's were former assistants in the office. Of course it helps to have connections in DC, but they are all experienced prosecutors.
And yes at the state level, the DAs are elected, but at least in NY county - the candidates are all experienced prosecutors and the electoral campaigns focus on substantive issues.
You can't really judge an entire country by what goes on in certain counties in Arkansas.
Clarify it for me though - on a change in the Whitehouse most of those USDA positions are fileld by the incoming adminisration.
Merely having experienced prosecutors is hardly the same as having independent prosecutors.
I can tell you that if the Alberta government were to change, I would expect our Deputy Minister to change, but that would be it. When I was with the Feds, because of the Public Prosecution Service model nothing at all would change.
In Poland, prosecutors now operate like civil servants.
Quote from: dps on August 22, 2011, 03:22:12 PM
The problem with elected judges is that same as with any other elected public official--shitholes like Arkansas tend to elect shitty officials.
The problem with electing judges is that the voters have no grounds on which to distinguish between the candidates other than rhetoric. Choosing judges by lottery would be better - I can't think of a method that would be worse.
Quote from: Barrister on August 22, 2011, 10:17:09 PM
Or you are downplaying how political they appear.
That's the same argument as Minsky made - well they might be political appointments, but they're not politicized. :wacko:
But here you're talking about a political appointee in Canada who is the "least political boss" you had ever had. The U.S. Attorney really isn't a prosecutor position, it's an administrator / supervisory position, so you shouldn't think of our prosecutors, at least our Federal prosecutors, as being political. Our Federal prosecutors are Associate U.S. Attorneys and they are hired through a rigorous civil service process, not through any political process.
Keep in mind that a huge portion of cases Federal prosecutors handle are brought to them by law enforcement, so their political affiliation is irrelevant. When the DEA busts a drug smuggling ring or the FBI uncovers various types of interstate crime U.S. Attorneys don't decide not to try these cases based on political concerns.
Instead where you see the head guy being important is he sets an "agenda" and tries to push certain investigations from his end. For example Rudy Giuliani was big into going after the mob, but by and large the process is:
1. LEO investigates a crime
2. LEO Makes an arrest
3. Prosecutor tries the case
Since law enforcement is very removed from the political process by the time a case actually gets to a U.S. Attorneys office I'd wager 95% of them are cases totally unrelated to anything that even touches the world of politics. Further, when a political appointee holds a position in which they are not supposed to behave as a partisan politician it's actually in my opinion more likely that they will rigorously uphold the letter of their legal responsibilities, any failure to do so could come out in the public precisely because they are a political figure, and it could get them in massive amounts of trouble.
Apolitical prosecutors can decline to prosecute any case they wish and it is very unlikely the press will care or look into it. If the press finds out a U.S. Attorney chose not to prosecute an obvious case, and then finds out the defendant is tied to a political patron, that's pretty much a field day. Their relative anonymity makes less political prosecutors much less accountable, because no one pays attention to what they are doing.
Much of the procurement process (something I am very involved in) is handled by life long civil servants. It's an extremely political process with horrible amounts of favoritism that goes on and various ways to undermine the RFP / RFQ process. Lots of times companies get contracts based on having old buddies on the inside, and these are all civil servants, not political appointees. So as a long time civil servant I don't see the apolitical civil servants as being less prone to political influence, I just see them being
less accountable because they can hide behind the wall of the civil service system.
Quote from: Martinus on August 23, 2011, 03:40:01 AM
In Poland, prosecutors now operate like civil servants.
Same in the US - see Otto's comment. Only the bosses are appointed.
Quote from: OttoVonBismarck on August 23, 2011, 07:22:27 AM
Instead where you see the head guy being important is he sets an "agenda" and tries to push certain investigations from his end.
It is mostly a matter of allocating resources and staff to certain priorities.
Quote from: Barrister on August 22, 2011, 10:17:09 PM
Quote from: dps on August 22, 2011, 10:12:43 PM
Quote from: Barrister on August 22, 2011, 10:07:43 PM
Quote from: OttoVonBismarck on August 22, 2011, 09:55:53 PM
There's only like 95 U.S. Attorneys in the country, I imagine most of the men actually trying cases, the "real" prosecutors, probably are in the Federal civil service for much of their careers.
Like most civil service jobs (and I see this, being a civil servant) you have a group of people who go in right out of college and who have their eyes on bigger things, and use it as a 1-2 year stepping stone. Then you have retirees from other things (military is common) who want to work another 20 years, then you have lifers (most of the civil service.)
But in comparison to your 95 US Attorneys... there is *one* federal appointment in Canada - the Director of Public Prosecutions, Brian Saunders. And as my one time boss I've met him - he comes across as a sweet old man. And he was the least political boss I've ever had. And he was utterly non-political from when I remember his appointment.
http://www.ppsc-sppc.gc.ca/eng/bas/dpp-dpp.html
Hell his public service goes back to the liberal era.
Like I said I'm just surprised how blase americans are about how political their prosecutors are. :mellow:
I think that you're really overestimating how political our prosecutors are.
Or you are downplaying how political they appear.
That's the same argument as Minsky made - well they might be political appointments, but they're not politicized. :wacko:
How political they might appear to a foreign observer, I don't really give a shit about. And I was talking more about the elected prosecutors at the state level, while Minsky was talking more about federal appointees.
And anyway, what I was actually getting at was the point that OvB makes--the political appointees at the federal level and the elected prosecutors at the state level are mostly in administrative positions. The actual prosecutorial work is done by people who are in the civil service system (though of course, with the usual caveat that at the state level, it varies quite a bit from state to state. It's probably less true on the state level generally).
Quote from: OttoVonBismarck on August 23, 2011, 07:22:27 AM
Quote from: Barrister on August 22, 2011, 10:17:09 PM
Or you are downplaying how political they appear.
That's the same argument as Minsky made - well they might be political appointments, but they're not politicized. :wacko:
But here you're talking about a political appointee in Canada who is the "least political boss" you had ever had. The U.S. Attorney really isn't a prosecutor position, it's an administrator / supervisory position, so you shouldn't think of our prosecutors, at least our Federal prosecutors, as being political. Our Federal prosecutors are Associate U.S. Attorneys and they are hired through a rigorous civil service process, not through any political process.
Keep in mind that a huge portion of cases Federal prosecutors handle are brought to them by law enforcement, so their political affiliation is irrelevant. When the DEA busts a drug smuggling ring or the FBI uncovers various types of interstate crime U.S. Attorneys don't decide not to try these cases based on political concerns.
Instead where you see the head guy being important is he sets an "agenda" and tries to push certain investigations from his end. For example Rudy Giuliani was big into going after the mob, but by and large the process is:
1. LEO investigates a crime
2. LEO Makes an arrest
3. Prosecutor tries the case
Since law enforcement is very removed from the political process by the time a case actually gets to a U.S. Attorneys office I'd wager 95% of them are cases totally unrelated to anything that even touches the world of politics. Further, when a political appointee holds a position in which they are not supposed to behave as a partisan politician it's actually in my opinion more likely that they will rigorously uphold the letter of their legal responsibilities, any failure to do so could come out in the public precisely because they are a political figure, and it could get them in massive amounts of trouble.
Apolitical prosecutors can decline to prosecute any case they wish and it is very unlikely the press will care or look into it. If the press finds out a U.S. Attorney chose not to prosecute an obvious case, and then finds out the defendant is tied to a political patron, that's pretty much a field day. Their relative anonymity makes less political prosecutors much less accountable, because no one pays attention to what they are doing.
Much of the procurement process (something I am very involved in) is handled by life long civil servants. It's an extremely political process with horrible amounts of favoritism that goes on and various ways to undermine the RFP / RFQ process. Lots of times companies get contracts based on having old buddies on the inside, and these are all civil servants, not political appointees. So as a long time civil servant I don't see the apolitical civil servants as being less prone to political influence, I just see them being less accountable because they can hide behind the wall of the civil service system.
Guys, I'm aware that senior prosecutors don't actually go into court. I work in a prosecutor's office. When I brought up Brian Saunders, the Director of Public Prosecutions, he doesn't go to court himself. He only sets directives and policies. But I still think it's far better to have someone apolitical setting those policies.
Otto, my relative anonymity doesn't make me immune from critique. I've avoided it so far in my career, but every year or so there's a big news story about the Crown not proceeding on an 'obvious' case. Being separated from the poltiical process also helps us in thosse cases, as we can't be pressured by the politicians to run a case that may be politically popular, but is ultimately a loser.
A regional manager, a Us District Attorney, a Chief Crown Prosecutor - whatever the title, even without going into court they hold enormous sway over how prosecutions are conducted. And I'd much rather that person be an apolitical appointment, someone who has risen through the ranks, rather than a political appointment from Ottawa, Washington, or the voters.
Quote from: Barrister on August 23, 2011, 09:20:49 AM
A regional manager, a Us District Attorney, a Chief Crown Prosecutor - whatever the title, even without going into court they hold enormous sway over how prosecutions are conducted. And I'd much rather that person be an apolitical appointment, someone who has risen through the ranks, rather than a political appointment from Ottawa, Washington, or the voters.
The expectation of being apolitical is a fantasy, no matter how they get the job. Might as well have some say in it as a voter.
Quote from: MadImmortalMan on August 23, 2011, 10:56:05 AM
Quote from: Barrister on August 23, 2011, 09:20:49 AM
A regional manager, a Us District Attorney, a Chief Crown Prosecutor - whatever the title, even without going into court they hold enormous sway over how prosecutions are conducted. And I'd much rather that person be an apolitical appointment, someone who has risen through the ranks, rather than a political appointment from Ottawa, Washington, or the voters.
The expectation of being apolitical is a fantasy, no matter how they get the job. Might as well have some say in it as a voter.
No it isn't. :huh:
Us career civil servants are pretty careful to keep politics far away from work.
Are you allowed to vote? :P
Quote from: MadImmortalMan on August 23, 2011, 11:02:28 AM
Are you allowed to vote? :P
Secret ballot. :ph34r:
But more than that - I have been in the past, and will again, been a card carrying member of a party. But I restrict my work for the party to behind the scenes stuff - and I would likely recuse myself from prosecuting any politician.
Well not exactly - I did prosecute the mayor of a small town that I didn't live in for fraud. But municipal politics aren't party-based.
I'm sure you are very meticulous about maintaining your neutrality, beeb. Personally, I'd vouch for it. Would you vouch for every single person working in the Crown system? I don't think so. You'd be a fool to do so. People are human beings, regardless of how aloof the rules say they are supposed to be or how well the organization is designed.
May as well embrace the partisan nature of humanity and have it out in the open.
Quote from: MadImmortalMan on August 23, 2011, 11:08:55 AM
I'm sure you are very meticulous about maintaining your neutrality, beeb. Personally, I'd vouch for it. Would you vouch for every single person working in the Crown system? I don't think so. You'd be a fool to do so. People are human beings, regardless of how aloof the rules say they are supposed to be or how well the organization is designed.
May as well embrace the partisan nature of humanity and have it out in the open.
It's not as much about being neutral (noone is) but about being independent from political pressure. It's like being a civil servant in a country like the UK - noone is saying they do not have political views, but they cannot be fired for their political views and they are not up for reelection. So, in the example of the Memphis 3, the prosecutor simply has no immediate, direct incentive to pursue a conviction of innocent people.
In European/Canadian culture this kind of thing is a plus, not a minus, as it apparently is in the US. But then we have always been more positive about the whole "unelected wisemen" rule.
There is also another, philosophical, difference that exists between the Anglosaxon and the continental model (not sure if Canada is somewhere in between, due to its French influences). I.e. in the continental model, the state prosecutor is a state official whose role (at least in theory) is not just to secure a conviction, but also to act as a first gate keeper against baseless charges being brought against a person. So if a prosecutor, having analysed the evidence, thinks that there is only say 10% chance of the accused being guilty, he normally should not bring the charges (of course in practice they often do but I am talking about more of a philosophical difference).
So a prosecutor who blatantly brings unwarranted charges against someone is not just shitty at his job - he is betraying the very ethos of his office.
Quote from: Martinus on August 23, 2011, 11:23:06 AM
(not sure if Canada is somewhere in between, due to its French influences).
Well a huge difference between Quebec and other former French colonies is the fact it never had the Civil Code. Even Louisiana had the Civil Code and it still plays a role in their legal system.
Since French law was such a clusterfuck prior to that (would Roman law or customary law have precidence?) it is hard to say what sort of system they actually did have. Any Canadian lawtalkers want to comment?
Quote from: Martinus on August 23, 2011, 11:23:06 AM
So a prosecutor who blatantly brings unwarranted charges against someone is not just shitty at his job - he is betraying the very ethos of his office.
I doubt he cares. Presumably, there are structures in place to sanction behavior of that kind. We can vote the bums out. :P
Or impeach.
But what if the guy doing that is backed by powerful other interests in government? You don't want to have to throw out the whole sitting government in some extreme situation just in order to get rid of a crooked prosecutor. (Not that Canada would be like that, I don't know.)
I think the difference is that if you try to keep them divorced from politics, you're essentially protecting them from the electorate. Maybe it's a bit populist, but I think that's a bad thing.
Quote from: Valmy on August 23, 2011, 11:27:39 AM
Quote from: Martinus on August 23, 2011, 11:23:06 AM
(not sure if Canada is somewhere in between, due to its French influences).
Well a huge difference between Quebec and other former French colonies is the fact it never had the Civil Code. Even Louisiana had the Civil Code and it still plays a role in their legal system.
Since French law was such a clusterfuck prior to that (would Roman law or customary law have precidence?) it is hard to say what sort of system they actually did have. Any Canadian lawtalkers want to comment?
Quebec absolutely has the Civil Code. Not sure the history of it, but that's the basis for Quebec law.
Quote from: MadImmortalMan on August 23, 2011, 11:33:37 AM
Quote from: Martinus on August 23, 2011, 11:23:06 AM
So a prosecutor who blatantly brings unwarranted charges against someone is not just shitty at his job - he is betraying the very ethos of his office.
I doubt he cares. Presumably, there are structures in place to sanction behavior of that kind. We can vote the bums out. :P
Or impeach.
But what if the guy doing that is backed by powerful other interests in government? You don't want to have to throw out the whole sitting government in some extreme situation just in order to get rid of a crooked prosecutor. (Not that Canada would be like that, I don't know.)
I think the difference is that if you try to keep them divorced from politics, you're essentially protecting them from the electorate. Maybe it's a bit populist, but I think that's a bad thing.
I think it's a good thing. The judicature has to be independent of the electorate - otherwise there is no protection against the tyranny of majority.
Incidentally, I think there's also the thing of courts in the continental system (again, not Canada probably) having much less power than in the Anglo-saxon system. Judges in the continental system can apply the law but cannot overturn it (there is usually a single, special, constitutional court for doing that and it is usually appointed by the Parliament).
Quote from: MadImmortalMan on August 23, 2011, 11:33:37 AM
Quote from: Martinus on August 23, 2011, 11:23:06 AM
So a prosecutor who blatantly brings unwarranted charges against someone is not just shitty at his job - he is betraying the very ethos of his office.
I doubt he cares. Presumably, there are structures in place to sanction behavior of that kind. We can vote the bums out. :P
Or impeach.
But what if the guy doing that is backed by powerful other interests in government? You don't want to have to throw out the whole sitting government in some extreme situation just in order to get rid of a crooked prosecutor. (Not that Canada would be like that, I don't know.)
I think the difference is that if you try to keep them divorced from politics, you're essentially protecting them from the electorate. Maybe it's a bit populist, but I think that's a bad thing.
There's a word for justice being dictated by majority rule - it's called mob justice.
Absolutely prosecutions should be separated from day to day politics. The individual decisions to prosecute, or not prosecute, should never be dictated by public pressure, but only by the evidence available.
Quote from: Martinus on August 23, 2011, 11:23:06 AM
There is also another, philosophical, difference that exists between the Anglosaxon and the continental model (not sure if Canada is somewhere in between, due to its French influences). I.e. in the continental model, the state prosecutor is a state official whose role (at least in theory) is not just to secure a conviction, but also to act as a first gate keeper against baseless charges being brought against a person. So if a prosecutor, having analysed the evidence, thinks that there is only say 10% chance of the accused being guilty, he normally should not bring the charges (of course in practice they often do but I am talking about more of a philosophical difference).
So a prosecutor who blatantly brings unwarranted charges against someone is not just shitty at his job - he is betraying the very ethos of his office.
That's absolutely the role in common law systems as well.
I don't think it's useful to talk about "anglosaxon" justice system. First of all there's a betetr term for it - common law systems. But more importantly, there's some very big differences between the British model (which we largely follow) and the American system.
Quote from: Barrister on August 23, 2011, 11:34:49 AM
Quebec absolutely has the Civil Code. Not sure the history of it, but that's the basis for Quebec law.
I meant when it was a colony. I had no idea they adopted it while part of the British Empire.
Quote from: Barrister on August 23, 2011, 11:40:45 AM
Quote from: Martinus on August 23, 2011, 11:23:06 AM
There is also another, philosophical, difference that exists between the Anglosaxon and the continental model (not sure if Canada is somewhere in between, due to its French influences). I.e. in the continental model, the state prosecutor is a state official whose role (at least in theory) is not just to secure a conviction, but also to act as a first gate keeper against baseless charges being brought against a person. So if a prosecutor, having analysed the evidence, thinks that there is only say 10% chance of the accused being guilty, he normally should not bring the charges (of course in practice they often do but I am talking about more of a philosophical difference).
So a prosecutor who blatantly brings unwarranted charges against someone is not just shitty at his job - he is betraying the very ethos of his office.
That's absolutely the role in common law systems as well.
I don't think it's useful to talk about "anglosaxon" justice system. First of all there's a betetr term for it - common law systems. But more importantly, there's some very big differences between the British model (which we largely follow) and the American system.
I think we can call common law "anglosaxon", if we can call civil law "Soviet".
Quote from: Valmy on August 23, 2011, 11:51:21 AM
Quote from: Barrister on August 23, 2011, 11:34:49 AM
Quebec absolutely has the Civil Code. Not sure the history of it, but that's the basis for Quebec law.
I meant when it was a colony. I had no idea they adopted it while part of the British Empire.
After some brief googling, and from what I remember, the Napoleonic Code was of course based on French law anyways. So in the 1860s (which had maintained its own separate legal system) passed its own Civil Code, which of course drew heavily on the Napoleonic Code.
Oex (or any other Frenchy) should feel free to correct or elaborate.
Quote from: Martinus on August 23, 2011, 11:23:06 AM
There is also another, philosophical, difference that exists between the Anglosaxon and the continental model (not sure if Canada is somewhere in between, due to its French influences). I.e. in the continental model, the state prosecutor is a state official whose role (at least in theory) is not just to secure a conviction, but also to act as a first gate keeper against baseless charges being brought against a person.
That is also part of the obligations of state and federal prosecutors in the US, but in practice you are correct that the adversarial orientation of the system (at least in the US context) tends to vitiate that obligation. After the fiasco over the prosecution of Senator Stevens and other high profile mishaps, the US attorney general has reinforced policies to protect against such abuses at the federal but it is still a work in progress IMO.
Quote from: Barrister on August 23, 2011, 11:40:45 AM
Quote from: Martinus on August 23, 2011, 11:23:06 AM
There is also another, philosophical, difference that exists between the Anglosaxon and the continental model (not sure if Canada is somewhere in between, due to its French influences). I.e. in the continental model, the state prosecutor is a state official whose role (at least in theory) is not just to secure a conviction, but also to act as a first gate keeper against baseless charges being brought against a person. So if a prosecutor, having analysed the evidence, thinks that there is only say 10% chance of the accused being guilty, he normally should not bring the charges (of course in practice they often do but I am talking about more of a philosophical difference).
So a prosecutor who blatantly brings unwarranted charges against someone is not just shitty at his job - he is betraying the very ethos of his office.
That's absolutely the role in common law systems as well.
I don't think it's useful to talk about "anglosaxon" justice system. First of all there's a betetr term for it - common law systems. But more importantly, there's some very big differences between the British model (which we largely follow) and the American system.
Quite. The US is sui generis. The idea of elected judges in the UK combined with our tabloid press makes me shudder. It'd be way worse than it is in the States, where journalists at least retain some vestige of professionalism.
Quote from: The Minsky Moment on August 23, 2011, 12:13:19 PM
Quote from: Martinus on August 23, 2011, 11:23:06 AM
There is also another, philosophical, difference that exists between the Anglosaxon and the continental model (not sure if Canada is somewhere in between, due to its French influences). I.e. in the continental model, the state prosecutor is a state official whose role (at least in theory) is not just to secure a conviction, but also to act as a first gate keeper against baseless charges being brought against a person.
That is also part of the obligations of state and federal prosecutors in the US, but in practice you are correct that the adversarial orientation of the system (at least in the US context) tends to vitiate that obligation. After the fiasco over the prosecution of Senator Stevens and other high profile mishaps, the US attorney general has reinforced policies to protect against such abuses at the federal but it is still a work in progress IMO.
I think the system is less adversarial in Europe, at least in Poland. Maybe it's because there is very little movement between prosecutors (who are more like civil servants) and attorneys (who are a self-governing legal profession bar).
Quote from: The Minsky Moment on August 22, 2011, 04:46:14 PM
Quote from: Martinus on August 22, 2011, 03:26:14 PM
Quote from: The Minsky Moment on August 22, 2011, 02:16:41 PM
Quote from: Martinus on August 22, 2011, 01:57:56 PM
Why doesn't America wisen up and have a system of independent, non-political judges and prosecutors?
Good question. Why don't all the European countries do the same thing?
Hola, Baltasar Garzon?
Seriously? Is this the best you can do? I'd take a prosecutor going after the mass-murdering leaders of nations vs. one that ruined the lives of a bunch of innocent teenagers.
I do not think you understand the meaning of the term "non-political"
Hint: it does not mean "political agenda I agree with"
Garzón is a very political judge. On the other hand, he seems also the perfect example of a magistrate fiercely independent from politician influence. He's made bitter enemies on both parties and acted often against the opinion of the whoever is in power regardless of the consequences.