Elon Musk: Always A Douche

[Barrister]

I've always thought civil cases when the defendant was found innocent are hinky.  I'm not as OK with it as you are.

The standards of proof are just different, as is the party bringing the proceeding.

OK, the following is from Canadian law.  I'm sure Joan will let me know if the US is different.

A criminal court is extremely limited in being able to award compensation.  A criminal court can award compensation (restitution) under s. 738 of the Criminal Code, but such an amount has to be "readily ascertainable" (amongst other requirements).  So as an example - let's say someone steals your car and proceeds to total it.  In a criminal trial you can submit a claim for the value of the car.  That's very easily ascertainable and such restitution awards are not uncommon in criminal court.  (collecting on them is a different story).

But let's say that when the car was totalled it hit you instead.  Now you have a very complicated case dealing with lost wages, various health care bills, plus trying to determine how your health will be affected for years in the future.  Damages for such cases are almost never awarded in a criminal court.

So what if you're prohibited, through some kind of double jeopardy, from proceeding in separate criminal and civil trials.  You're then left in a terrible conundrum.  Take the OJ case, perhaps the most famous case of both civil and criminal proceedings.  Should the state's criminal case against OJ take precedence?  If so then the Goldman family loses out on any chance of compensation, and they have a much better case due to the lower standard of proof.  Or should the Goldman's take precedence?  If so then Simpson is guaranteed to never seen the inside of a jail cell.

[crazy canuck]

Sort of.  It's not really a question of how damages are dealt with. It's a question of the burden of proof.

Under Canadian Law if a person is convicted of a Criminal offence, they cannot take the position in a subsequent civil proceeding that they did not commit the act.  The reason for that is they have already been found to have committed the act under a higher standard of proof.  And so the civil case just becomes a question of the calculation of damages.

But if a person is acquitted of a criminal offence the civil proceedings can still proceed on all issues because they might be found to have committed the act under a lower standard of proof. And so the civil case is a question of both liability and damages.

edit: In the Canadian context the doctrine of Abuse of Process would be applied, as it was developed in the CUPE v. City of Toronto case and the cases which followed that line of authority. 

[Admiral Yi]

He said both punishments were available.  I'm not understanding the significance of the distinction. The Supreme Court's decision is not based on that distinction at all - immunity applies whether articles of impeachment were brought, whether the Senate convicts, or not. The double jeopardy problem (or lack of problem) is the same whether the Senate convicts or not. It's actually more problematic if the Senate convicts because it raises the prospect of double punishment as well as jeopardy.

It's a particularly odd objection to raise in this specific context, because a bunch of the GOP Senators who acquitted (including McConnell) did so explicitly on the reasoning that impeachment wasn't appropriate for the circumstances and that he should be tried by the criminal law instead. At the time, no one raised the argument that Trump couldn't be tried criminally.

I've already agreed that the ruling is heinous for exactly the reason you stated.  I don't see a double jeopardy problem with impeached presidents presidents because I distinguish between the two punishments.  Removal from office is not sufficient punishment to satisfy my desire for justice/retribution/deterrence/etc.

I didn't catch McConnell saying that.  If he had I might have objected.

That's fine, you can argue it's unfair, but it is and always has been a basic attribute of the American legal and constitutional system. 

In the Presidential context, the dual purposes are pretty compelling.  Imagine a President commits an unimaginably heinous crime - let's say he directs the US military to kidnap 100 American children, murders their parents, sells the kids to depraved foreign pedophiles and pockets the proceeds.

On your "double jeopardy" view, the President could be removed from office by impeachment or charged criminally, but not both. Either the President is removed but lives happy and free. Or Americans have to wait out the rest of his full term in office and then punish him criminally.

Perhaps you would counter that it is OK to do both as long as the impeachment comes first and results in conviction.  But imagine in my hypothetical that the President threatens the families of 34 Senators with murder and torture if they convict him in an impeachment.  Then he is safe: any impeachment fails, and therefore he stays in office and is free from any criminal consequences after he leaves office.

Sure.  And if Trump disbands Congress and suspends the Constitution my beliefs about double jeopardy would have no relevance.  And neither would yours.

[Admiral Yi]

So what if you're prohibited, through some kind of double jeopardy, from proceeding in separate criminal and civil trials.  You're then left in a terrible conundrum.  Take the OJ case, perhaps the most famous case of both civil and criminal proceedings.  Should the state's criminal case against OJ take precedence?  If so then the Goldman family loses out on any chance of compensation, and they have a much better case due to the lower standard of proof.  Or should the Goldman's take precedence?  If so then Simpson is guaranteed to never seen the inside of a jail cell.

The criminal case should take precedence.  Tough titty for the Goldmans.  They're taking money from an "innocent" man.

I've been thinking about differing burdens of proof.  At grad school I was taught to think of burden of proof as 51% probability of guilt and beyond a reasonable doubt as 95%.  I will use these numbers because they're easier to type than burden of proof and beyond a reasonable doubt.

So the OJ jury found him innocent.  That tells us they collectively thought the probability of his guilt was somewhere between 0% and 94%.  Differing burdens of proof only works on a portion of that range, 94 to 51.  If they found him innocent in the range 50-0, then it fails.  The second jury is overruling the first jury.

The 94 to 51 range is why I call it hinky and not dead wrong.

[grumbler]

Yi, the case of impeachment is equivalent to the taking of a cop's badge after he apparently commits a felony.  If the administrative procedure (similar to an impeachment) finds that they don't have grounds to take his badge (perhaps because he's the son of a powerful man the members of the board fear to offend, or perhaps the board is corrupt) is he then free, under your standard of double jeopardy, from the possibility of criminal trial?

No one is found innocent in a criminal court of law.  They are found not guilty.  They may not be innocent (as in the OJ case) but the grounds for conviction were not strong enough (as in the OJ case, where the lead investigator was proven a perjurer, thus introducing reasonable doubt).

[The Minsky Moment]

In one light, it certainly does seem counterintuitive that an officeholder can elude Senate conviction by resignation or expiration of term.

But this just underscores that impeachment was never meant to be the final forum for American justice.

Impeachment, conviction, and removal are a specific intra-governmental safety valve. It is not the criminal justice system, where individual accountability is the paramount goal.

Indeed, Justice Story specifically reminded that while former officials were not eligible for impeachment or conviction, they were – and this is extremely important – "still liable to be tried and punished in the ordinary tribunals of justice."

Put anther way, in the language of today: President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run, still liable for everything he did while in office, didn't get away with anything yet – yet.

We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.

Senator Mitch McConnell, speech explaining his vote not to convict.

IIRC his comments were echoed by others.

[The Minsky Moment]

McConnell's citation was to the Commentaries on the Constitution, of Justice Joseph Story, the leading constitutional scholar in the generation following the founding generation.  The relevant text:

Another inquiry, growing out of this subject, is, whether, under the constitution, any acts are impeachable, except such, as are committed under colour of office; and whether the party can be impeached therefor, after he has ceased to hold office. . .  If, then, there must be a judgment of removal from office, it would seem to follow, that the constitution contemplated, that the party was still in office at the time of the impeachment. If he was not, his offence was still liable to be tried and punished in the ordinary tribunals of justice. And it might be argued with some force, that it would be a vain exercise of authority to try a delinquent for an impeachable offence, when the most important object, for which the remedy was given, was no longer necessary, or attainable. And although a judgment of disqualification might still be pronounced, the language of the constitution may create some doubt, whether it can be pronounced without being coupled with a removal from office. There is also much force in the remark, that an impeachment is a proceeding purely of a political nature. It is not so much designed to punish an offender, as to secure the state against gross official misdemeanors. It touches neither his person, nor his property; but simply divests him of his political capacity.

[grumbler]

Why did early, American political figures, love so much, inserting commas where they don't, make sense, in modern English?

[crazy canuck]

So, I don't know, but look, I am no expert, and I believe modern written communication is big yikes.

[The Minsky Moment]

Why did early, American political figures, love so much, inserting commas where they don't, make sense, in modern English?

Inadvertent ink stains were common and unavoidable at time. Smaller ones could be turned into commas without forcing a complete rewrite of the page.

[Barrister]

So what if you're prohibited, through some kind of double jeopardy, from proceeding in separate criminal and civil trials.  You're then left in a terrible conundrum.  Take the OJ case, perhaps the most famous case of both civil and criminal proceedings.  Should the state's criminal case against OJ take precedence?  If so then the Goldman family loses out on any chance of compensation, and they have a much better case due to the lower standard of proof.  Or should the Goldman's take precedence?  If so then Simpson is guaranteed to never seen the inside of a jail cell.

The criminal case should take precedence.  Tough titty for the Goldmans.  They're taking money from an "innocent" man.

I've been thinking about differing burdens of proof.  At grad school I was taught to think of burden of proof as 51% probability of guilt and beyond a reasonable doubt as 95%.  I will use these numbers because they're easier to type than burden of proof and beyond a reasonable doubt.

So the OJ jury found him innocent.  That tells us they collectively thought the probability of his guilt was somewhere between 0% and 94%.  Differing burdens of proof only works on a portion of that range, 94 to 51.  If they found him innocent in the range 50-0, then it fails.  The second jury is overruling the first jury.

The 94 to 51 range is why I call it hinky and not dead wrong.

A lot of ink (real and virtual) has been spilled trying to define the term "Proof beyond a reasonable doubt".  All of it says you never reduce it to a number.  If it's too long to type just use BRD (beyond a reasonable doubt).

Because it doesn't matter how much doubt you have - it matters what kind of doubt.  No judge, no jury, will ever be sure to some kind of metaphysical certainty.  What matters is whether your doubt is based on reason or not.

If your doubt based on the concern that there's a giant police conspiracy that fabricated evidence, even though there's been no evidence that even remotely suggests that?  That's not a doubt based on reason.  The jury should convict, even though I suppose theoretically the giant conspiracy might actually be true.

Is your doubt based on the fact the prosecution can't explain where the victim was for 5 minutes, and maybe someone else caused the injuries?  That's a doubt based on reason, and the trier of fact should acquit.

It is axiomatic that "not guilty" is not the same as "innocent".