On justice and the law
Towards the end of the Troy Davis thread there was an interesting discussion in the comments section that I thought would be worth giving a post of its own.
The topic? Justice and the law. The two, unforunately, are not exactly the same.
First up, commenter Wolla Dalbo:
I might note that the majority of the professors that taught me at the mid-tier Eastern seaboard law school I attended in the mid 1970s made it quite explicitly clear that “the Law” had nothing to do with either Truth, Justice, Morality or even very much to do with the Constitution, and that, apparently, they were just there to teach me the mentality, the rules and tricks of the Trade or “Game” so that I, as a hired gun, could win for my clients, and earn a good living…
Obviously, I was far more naive and far less cynical than I should have been, but for the first time in my life and academic career I heard professors espousing things that I considered to be evil, ideas and values that I wanted to have nothing to do with. Such a proud, “in your face,” grasping, cynical, and amoral Luciferian attitude on the part of my “professors” was one of the main reasons I left law school after I passed my finals and won my moot court case at the end of my first year, and never looked back.
Next we have commenter Don Carlos:
Neo rebuts, “the other point is that the 22+ years of appeals required Davis to prove he was innocent, which is not an acceptable standard.”
Well, that’s how it worked, and works. There were evidently no other grounds for mandating a new trial, no procedural errors. It was 22+ years of due process. Due process. That you don’t approve of the result, and thus the process”¦.Well, it is acceptable to me…
As Wolla pointed out, the Law often has not as much to do with Justice as it does with debate, a human exercise with winners and losers where no one bats 1000.
And here’s my response to Don Carlos, in which I reference Wolla Dalbo’s observations:
Wolla Dalbo described a cynicism at the law school he attended, a cynicism about justice that offended him and was probably at least part of the reason he quit law school. That does not mean that all law schools are like that (they are not, although cynicism is indeed rife in the law, at law schools, and among lawyers). However, this cynicism is irrelevant to what we as citizens should desire from the law, or even what the law aspires to itself””which is justice.
The entire adversary system of law in this country, which relies on what you call debate (although of course it is a very stylized debate, with many rules, and a debate mainly through the proxy of interrogating witnesses and cross-examining them), has as an ideal the closest approximation of justice possible. The thought is that, through evenly matched adversaries presenting the case for each side, justice is obtained.
Yes, it very often””all too often””is not obtained. But we need to strive for it as much as possible, and that is what my post is trying to do. The cynicism you display when you write that the law is not about justice but is “a human exercise with winners and losers where no one bats 1000”³ is dismaying and offputting. You may just shrug at the injustice done to the “losers,” as though this is a baseball game, but I do not.
Now it’s your turn. Argue on!
I still remember a comment that Judge George Edwards, 6th Federal Court of Appeals, made at a small dinner party about 40 years ago. Inscribed on the Courthouse in Cincinnati is [as I remember it] ‘Equal and exact justice for all’. Judge Edward’s comment was ‘That is impossible. The value of the law is not justice but finality, so that persons can get on with their lives.’ True, he was exaggerating to make a point and he was talking about the vast majority of cases that are not capital cases; but it struck me then, and still does, as a valid (and not cynical) understanding of an important value of the law.
Jim Nicholas: it strikes me as an invalid point, because although finality is one of the law’s goals, it is hardly absolute (as the appeals process demonstrates, at least until the Supreme Court has weighed in), nor is it mutually exclusive with justice. The two things are not inherently at odds with each other.
The “value of the law” is both justice and finality, and if I may be so bold I would say that justice has the edge. Otherwise there would be no appeals process.
However, Edward’s was right when he said that “equal and exact justice for all” is impossible. But the whole thrust of the law is to approach this ideal as closely as possible. Finality is also a goal, but it is not to be sacrificed to justice.
“Justice” has nothing to do with “fairness” or even “certainty of guilt”.
When speaking of “justice” in the context of courts of law, one should understand that what is meant is the “administration of justice”–that is, the application of rules of law to persons accused of misconduct. This administration should, indeed, be fair in the sense that similarly situated people are treated similarly. It can NEVER be “fair” in the child-like sense of the term, in which the “good people” are rewarded and the “bad people” are punished, because such “fairness” does not exist in the real adult world.
How is one to tell who are truly the “good people” and the “bad people”? Neither the court nor the jury witnessed the events in question, so they must necessarily rely on evidence presented which will in turn necessarily be of uncertain value. All they can do is make their best guess based on what is presented to them, and “justice” merely requires (or at least is supposed to try to require) that this “guessing” is more or less the same for everyone standing in the dock (e.g., not more favorable for whites than blacks).
No one is ever found “innocent” in an American criminal court, the best outcome is “not [proven] guilty”. And no one is ever found “guilty beyond any shadow of a doubt”, but merely “guilty beyond a reasonable doubt.”
That’s justice.
Anyone with a better system should feel free to propose it.
And, yes, I’m a lawyer (albeit having elected to leave the practice of law more than two decades ago for more enjoyable endeavors).
Boston12GS: But you are leaving out the fact that “justice” (in the narrowly defined legalistic sense you use) has the purpose of approximating “justice” (in the more generic, philosophical sense in which I used it). The idea is that, by following the first process, you come as close as possible to fulfilling the second. Without that goal, the first type of “justice” would be a meaningless and potentially tyrannical exercise. So the first is supposed to lead (as best as flawed human beings can) to the second.
Also, in Davis’s appeals process (after the original trial), the burden of proof was on him to prove himself innocent. That’s what he was supposed to do in the 2010 evidentiary hearing, the one Judge Moore issued his ruling on. The “better system” I would propose is to keep the current system intact, but to impose a somewhat lower standard of proof on death sentence appeals than “must prove you are innocent.”
And yes, I’ve got a law degree too, although I’m not in the legal profession either.
I think the larger implications to our judicial system must be (or at least should be) considered before any person advocates for the position that a decision made by a jury should be overturned regardless of whether a criminal defendant was afforded each and every procedural protection both at trial and on appeal.
Overturning a jury’s verdict should require a very high standard indeed when there are no procedural errors requiring reversal of the conviction during the appellate process. The verdict of a jury should be regarded as something akin to sacred. It is to my mind the best example of true democrat action by citizens. Each vote of every juror counts, and counts not as one amongst million, but one amongst 12 or even 6. And that single vote amongst 12 or even 6 may mean a finding of guilt, or no guilty, or may cause a mistrial in the event of a jury that cannot make a unanimous decision. It should indeed be no easy matter to overturn such a verdict. After all, a verdict is a finding by the triers of fact that is reached not only upon consideration of the evidence presented but also the demeanor and credibility of the testifying witnesses. And that credibility determination made by those jurors is made only after the witness is made to swear an oath, take the stand in a courtroom open to the public, and then subject to cross examination upon the tesimony given.
Ultimately, many people may agree or disagree with the verdict of a jury. And, if a violation of the defendant’s precious constitutional rights occurred, then the verdict (read: conviction) should be overturned, and the case either remanded or dismissed as appropriate. But advocating that a jury verdict should be overturned after no procedural errors are discovered that mandate a reversal of that conviction, without considering the impacts of such a position on our judicial system seems short-sighted.
What message does such a position send to those people that are going to report to jury duty on Monday? That they need not regard their obligations as jurors as the solemn and scarifying obligation it should be? After all, if such position becomes the norm, a juror can feel confident that her vote means nothing.
And so too for the sentence imposed, whether it be by the jury or the judge. A trial court judge is in the position to have heard not only all pre-trial motions, but to have sat through and listened attentively (one hopes) to the evidence presented throughout trial. A trial court judge bears the burden of imposing a sentence that at once punishes the defendant for her actions, protects the public, inspires faith and fear of the law in the public, and consider the impact of the defendant’s conduct on the victims of that conduct. A governor, particularly when motivated by political considerations, is unlikely to be in the same position to know most essentially and especially the facts of the case as presented at trial. So what burden should be placed on a defendant seeking to overturn a legally-imposed and just sentence? Certainly the burden should belong to the defendant, and it should be no light burden.
Having worked for some time as a prosecutor on the state level, I feel strongly that all due weight must and should be given to both the verdict of the jury and the sentence imposed by that same jury, or as is more often the case, by the judge. The opposite position seems sure to create not only a lack of certainty, which is a laudable goal, but to cut the heart from our judicial system.
neo-neocon: You express a valid opinion, so it’s not really possible to contest–that’s how you feel about justice, and that’s fine, I suppose.
The fact remains that the “justice system” is not at all about “justice” in the sense you describe, arriving at a “right” and “just” outcome. It simply isn’t. Just look at the very many arbitrary and yet draconian laws we have on the books. Firearms laws in many jurisdictions, including at the Federal level, will provide rich fields for such discussion. Too often the law is simply capricious, as are the outcomes of its application.
Here in Boston, and I’m sure elsewhere, the legal profession has a common expression: In the Halls of Justice, the only justice is in the halls.
Note that I’m not claiming that this is an optimal justice system–merely that it’s the one we have.
Neo–Since your blog started out dealing with the process of change, and in the context of this thread, you might find this interesting.
In the year that I attended my unnamed law school I observed a very interesting “change” phenomenon. We used the standard legal textbooks containing the usual cases, and early on in that year–from the comment they made–many of my fellow students were sometimes outraged by the cases we were given, about how the people or groups involved in some cases were so obviously screwed over, about the injustice of some outcomes, so much so that I can remember one student shouting out in protest from the back of the classroom–to some general agreement–as we discussed one particular result.
We were ordinary people–on the outside looking in–and we didn’t, many of us, like what we saw.
And then as the year progressed, a funny thing happened. From what they said and how they reacted the majority of my fellow students changed from a critical stance to one defending the outcomes that they had formerly objected to. Now, they were on the inside looking out, and what they saw from their new “lawyerly” perspective on the inside was fine, the treatment of people and the verdicts we looked at were now seen as justified, and the protests died away.
I, on the other hand, was apparently pretty set in my beliefs and what appalled me early in the year still appalled me at the end of the year, I had not changed.
Neo,
Here is what you wrote on Casey Anthony:
“It seems highly unfair that a child murderer–which Casey Anthony may indeed be–could get away virtually scot free. Unfortunately, murderers get away quite often, due to lack of evidence.”
So in that case you shrug you shoulders, say that if murderers get go – if things are “unfair” – that’s just a result of the system we have, we have to accept that, there was not enough evidence in the jury’s opinion in that case. But now that a jury DID believe there was enough evidence, that the actions WERE proven, you disagree you foam at the mouth at “injustice” because you disagreed with the jury.
So basically you accept our justice system only when you agree with the outcome.
Because we can never be sure we are not sending an innocent person to death, the state should not be able to kill its own citizens. A system of law that even contemplates taking the life of an innocent person and accepting it as part of an acceptable error rate is illegitimate in my mind. And we know a system will be fallible, therefore the death penalty should not be available. I do wonder if this case will cause states to reconsider.
holmes
states wont reconsider anything in this case. when they start executing more women, then they will reconsider as in the past when that happened. men are quite disposable, and in general society does not care much about it, and hasn’t through most of history i can think of.
In the past 100 years, over 40 women have been executed in the U.S, including 12 since 1976.
-=-=-
Actual execution of female offenders is quite rare, with only 568 documented instances as of 12/31/07, beginning with the first in 1632. These executions constitute about 2.8% of the total of confirmed executions in the United States since 1608.
whatever: yours is a very strange interpretation of my Casey Anthony post.
In it, I express no opinion whatsoever about whether Anthony is guilty, so there’s nothing about the outcome in that case that I either agree or disagree with. I did not follow the case very closely at all, in fact. In my post, the most I say about my opinion of Anthony’s guilt is that she may be guilty. The rest of my post is my speculation about why the jury may have refused to judge her guilty of murder; apparently there wasn’t enough evidence to convict her (in the jury’s minds, anyway).
Also, nowhere do I say or even indicate that it is okay if murderers go free, and that I shrug my shoulders when they do. I wrote, “It seems highly unfair that a child murderer–which Casey Anthony may indeed be–could get away virtually scot free. Unfortunately, murderers get away quite often, due to lack of evidence. ” How is saying something is “unfair” and “unfortunate” shrugging one’s shoulders? How is it saying we should just “accept” this and not question it? I am merely stating what sometimes happens, and labeling it unfair and unfortunate when it does.
Nor did I disagree with the jury’s verdict in Troy Davis’s original trial. I actually wrote in my post that the case against him seemed powerful at the initial trial. It is some of the later judicial decisions, occurring during the appeals process—particularly Judge Moore’s 2010 decision—with which I disagree.
Wolla Dalbo, I too went to law school for one year, at the end of which I left with reasons I suspect were similar to yours. What capped it for me was hearing the professor I most admired tell a fellow student who objected to the extreme intricacy of a particular point in Real Property law, “Oh no, you don’t want this to be less complicated, this is how we make our money.”
It had become obvious to me as it did to you that my classmates perspective was being shifted and shaped into a form I personally could not tolerate. Maybe I was too old and too experienced in life; the younger the students the more willing they seemed to be to change their perspective on just about anything. As future lawyers they were learning to detach from humanity and view the legal process as an intricate game. Winning was the goal. Truly, the only ones who do win in court are the lawyers.
Despite having a much more jaded view of the legal process post-law school, I do agree with Boston12GS, Anyone with a better system should feel free to propose it. I may not agree with every decision handed down (*cough* Casey Anthony *cough*) but as flawed as it is, I firmly believe our judicial system is superior to any other currently existent.
“Overturning a jury’s verdict should require a very high standard indeed” — Jenn
IANAL, but since I have served on a jury I certainly agree with that statement.
However, I also try to be logical. Logic tells me that proving innocence is beyond that very high standard, to the point of impossible unless the guilt of another can be proved.
Proving the guilt of another to establish one’s innocence is beyond the capabilities of most (all?) criminal defendants. And that is as it should be. It is most definitely NOT the job of a defendant to prove another’s guilt. The defendant’s job is complete when he shows that another person could be charged/convicted on the same evidence presented against said defendant.
As a juror, I’d call that reasonable doubt.
As a pragmatic person, I’d be willing to give that reasonable doubt great weight when the penalty was death. I’d give it lesser weight if the penalty were a fine and/or a sentence of less than a year.
The greater the penalty the more important is reasonable doubt. IMHO, of course… not legally. Legally, the reasonable doubt standard should apply regardless… because legality depends on fairness to an for all, right?
As far as I have ever known there are both Substantive Due Process (Justice, truth, the right thing) and Procedural Due Process (the decision is arrived at in the right way). Ideally the two should run together but they are not the same thing. It is possible, at times, to get the one right and the other wrong, or both wrong, or both right.
My guess is a lot of this goes back to Aristotle on Virtue – where you have to do the right thing, in the right way, at the right time, for the right reasons, etc., etc. for a thing to be truly virtuous.
Virtue being the mean between extremes is the sort of thing you try for, and should always work for, but in practice you will likely get either some excess of the mean or some deficiency of it.
I define justice as someone getting what they deserve, neither more nor less. The system of laws and courts, aren’t designed to provide justice, for they provide the lowest of criminals the same protections and privileges as the most harmless of accused. The point was not to allow human beings or systems to approximate the accuracy of a person’s need for punishment or reward, but to simply prevent the excesses from going in one way. To prevent false imprisonment and punishment against undeserving individuals, even if this should mean deserving individuals miss out on their just desserts.
Thus the justice system is more to prevent injustices than to execute a just verdict. Only monarchs or individuals who can weigh the human elements of a case, with the power to pardon or execute the offenders, can exercise justice: on an individual level.
So far, of course, the system of law in America is failing to accomplish even the basics due to the simple fact that not all things are equal in the court of law. Even without the exacting perfection of justice to drive their purview, the courts of law are still corrupted in the basic nature of uneven juries, judges, or lawyer advocates. That’s mostly due to a legal code so complicated and tortured that only lawyers and judges understand them.
Random Thoughts — l was 30 when I started my first year at that law school, and I had more life under my belt, including four years in the military, than most of the other students, who were younger. So, I suspect my ideas were more “set,” and I probably had less “plasticity” in my beliefs and attitudes at that point than most of them did.
I found a kindred spirit in the older ex-Marine who sat next to me for each course in our large, 125 student first year class, a guy who–despite seeing the same disagreeable things I was seeing–was grimly determined that he was going to make it though law school.
The part of his approach to that end that I saw involved the thermos of coffee that he drank from throughout the day. At the beginning of the year there was a little rum mixed in with the coffee, and from the smell (and what he said) it appeared that the proportion of rum to coffee increased rather dramatically as our first year progressed.
Did he make it through to graduation? I have no idea. But, if he did, I wonder what the price he paid was, for it was a price that I was not willing to pay.
I enter this debate late, and without the advantage of a legal education.
It is my understanding that the legal appeals process is legally restained to looking ar the process. If you cannot find process violations, are all other options political, even at the higher levels of the judiciary?
WRT Troy Davis, what I can’t get a clear answer to is the question of how many of the alleged 34 eyewitnesses the prosecution actually *called*.
From what I can see, they called 9. And the jury was mean to, what?, take the prosecution’s word on the other 25? That alone would be torn to shreds by a competent defense lawyer and would be grounds for a mistrial in many jurisdictions.
Also, for all the talk of the blood found on his shorts, the fact remains that – whatever the blood itself would suggest – the police obtained those shorts without a warrant. There was no logical reason for that, as Davis – a murder suspect – had fled, they had his residence sealed off and they would have been granted a warrant had they searched the house.
My grandfather, my mother, one of my aunts and one of my sisters are lawyers (or retired lawyers). Another sister is a paralegal. The one thing they all say is that the police officers who go in minus a warrant are the same officers who plant evidence. It completely discredits the evidence that people keep bringing up. And it should have resulted in the case being thrown out.
I’m getting to the stage where my opinions of his defence team is going from “gross incompetence” to “criminal malfeasance”. I have no idea why they didn’t tear this case to shreds – and in some cases, they refused to allow recanted witnesses to testify, despite them being outside the courtroom.
I think that Davis was almost certainly guilty, and his execution does not bother me much. I certainly have no objection to capital punishment itself. However, I worry about what would happen if *I* or someone I love were in front of a court on capital murder charges. The kind of behaviour that the police and prosecution were allowed to get away with in this case terrify me, and reduce my faith in the justice system.
Applying the standards advocated by NNC (and others) here, no one could (or should) be convicted for anything, ever.
Absolute certainty is impossible in any aspect of human endeavor. When a surgeon operates there is no certainty that the surgery will not kill the patient instead of help. When a bomb is dropped, there is no certainty it will not fall on a child instead of the enemy. When you marry, there is no certainty that your spouse will not ruin your life rather than fulfill it.
If someone breaks into my house and acts threatening, I will try to kill them and never know if they were bluffing or really meant to kill my family and myself. Should I do nothing and let them do what they want? For a child that is the only possible response. For an adult, I must choose. Choose to nothing and let the criminal decide my families fate or choose to act and maybe kill someone that didn’t “deserve” it. I will accept the burden of acting, without certainty, because that is what an adult does. The nagging burden of never knowing whether my action was absolutely necessary is better than knowing I did nothing to protect my family and allowed them to be hurt.
We used to be a nation of adult men and women who acted to do the right thing, as they saw it, and accepted that they could err but to be paralyzed by uncertainty was worse than making a mistake.
We have become a nation of children, niggling over every point of fact or law, and ultimately deciding to do nothing because we cannot be certain to do the right thing.
The good have lost all certainty and the bad are filled with it (paraphrase of Yeats).
We are a nation of pathetic children who are doomed to be destroyed by bad people who are certain they are right. I salute your moral certainty. Go back to reading your fairy tales where everyone lives happily ever after and ignore the fact that you and your family will be destroyed. You, and they, deserve it based on the only law that ultimately matters, the law of nature.
The way i see it the point is that the state, while having the right to incarcerate, does not have the right to do so without ‘due process’. putting cynicism aside, what i see this as, is a persons right to challenge the states desire to deny him a basic right. that whether he is actually guilty or not, the state has to show it, and show that it followed the rules by which we all agree that right is granted the state. ie. we all socially agree by one way or another that the right of freedom can be abrogated IF and only IF the state follow these procedures and operate within these limits as the idea is the biblical idea that it is better to let many evils go free than punish one good.
the point to the duel is to make sure that all this is followed correctly so that the person whom the punishment falls does NOT have any more rights of complaint in terms of that particular judgment
the idea of the mistakes being loopholes is the idea of the state not wanting to bother with all that wasteful proceedure. misspell the warrant, too bad. the agreement is that all warrants and documents have to be in order, not haphazard and reckless. right now a whole bunch of cases should be thrown out as they failed to persue first from a sense of innocence. IE. their issuing warrant in silence, and having knock on doors technically violates a persons right to answer charges peacefully. the fact that many dont should not be sufficient justification to deny all that right, as is the case now.
the point is that if your going to lock someone away, you better have the names spelled the evidence clean, the arguments backed, and all that comes with it…
all that technically is WHY free people are submitting to the will of the court in the first place and not generally being forced. if they were forced they would not mostly enjoy freedom on bond.
NONE of this point has anything to do with the attitude that someone may take while looking at it and not getting it. or what would unleash their ability, despite being wrong headed about it, as a pragmatic means
the truth is that you CAN look at lots of things in many ways, and a cynic would say that the job is to get guilty people off. is it valid? sort of… but with that are the million other valid perspectives all converging on one meaning, of which there are better ones if one wants to take the time to find them.
the job IS to get the guilty off, becuase the job is not to serve the state, but to make sure the state does ITS job before it drags someone off and the outcomes of prison life, and all that becomes part of their life.
the state does its job well, with few games building good cases, then the lawyer cynic will have a very hard time getting his client off. in fact, done well, they tend to settle or bargain. (they also settle and bargain for economic reasons which is sad as it clouds the ones in which the work is done well)
so yes, people can select a valid and heinieous perspective as the right one and think its the only one argying best perspective. you can do that with anything…
but the point is that when the state turns its very powerful and very priveliged eye to you and decides that your going to lose your life even temporarily and suffer the company of others who are not really all that polite, that its got its crap in order.
yes criminals are going to exploit that, but the point is not the criminal, the point is the preservation of the rights of the free, and that CANT be done without treating the state as an adversary that will cheat to save money or even be punitive for ideological reasons as transmitted by the custom or self interest of the people acting as agents.
its this pushing of power that puts the state in its place when it comes to the idea that it SERVES the free… and that one is FREE until served and convicted… that until proof is established, what the state claims is hearsay and lie and capricious. just as in any other case of one person against another, police not being special having to defend their accusations as any other might.
no one in this system becomes unreproachable or trusted beyond question.
personally i think that’s a pretty durn good standard compared to the rest… if anyone has another that WORKS with real people who scheme, and play games and so on… let me know… but pitting the games players against each other in favor of freedom… its better than stacking them up on one side with all the money, power, prestige, and deference.
by the way, this is also about the tension between absolute freedom and limited freedom.
under the law of absolute freedom we all can do what we want including murder, and mayhem. the law of the jungle… under limited freedom we cant as we all agree that certain actions are not allowed, and if someone breaks that common peace we will do something about it as a group in agreement.
so when your before the court, the court has to establish whether your act was an act that was within this tiny area of behavior we agree defines our borders of limited freedom that is acceptable to us.
outside this small set of abrogated actions, the framwork we live under is indistinguishable from absolute freedom.
ie, if you dont care to violate the few things out of all the things you can do… your state is indistinguishable from absolute freedom, as limited and absolute are equivalent in outcome if not potential.
In the interest of brevity, which I try for in my comments here:
It seems Neo and I view the word, ‘acceptable,’ differently. I use ‘acceptable’ to indicate ‘satisfactory’, not ‘optimal’ or ‘best.’
I also refer her to the meaning of ‘accept’ found in the Serenity prayer, which opens with, ‘ Grant me the serenity to acccept the things I cannot change.’ My comments should be understood in those lights.
Neo is, in part, a lawyer by education. She may have absorbed some lawyerly argumentative tactics, which she here employs. She belittlingly complains that my ‘no one bats a 1000’ is about baseball, not ‘injustice’. No, it is not; it is an analogy to human endeavors by human beings in general. And Neo is way too smart not to instantly know that, despite her refutation.
I didn’t go to law school, but by accident, 5 years ago, wound up working for an attorney: One man office, overburdened, honest and poor. That’s why I say there are two types of attorneys: honest and poor or crooked and rich. And of course there are exceptions, but generally it is true.
I do believe that legal education programs (brainwashes) its product. It is completely hateful that our legal system is in the hands of those who have no anchor in morals, except what the latest and most educated say. (Remember Buck v. Bell.) The situational morality doesn’t trickle down to decent behavior in ordinary practice. It is a game and the “honest” are at a disadvantage. The courts do not award sanctions (fines), or if they do, not enough, for conduct that is inimical to justice, such as meritless objections to discovery, perjury, etc. Perjury? Are you kidding? Fraud? Bankruptcy fraud? Who cares?If you have a “reputable” attorney, his reputation and connections covers your ass. Judges? Some of them are downright stupid. (Although, most are not, actually, most are pretty smart, but there are the exceptions, mostly the ones appointed for “diversity.” I’d say judges are better than attorneys, on the whole. But that is probably because they are still a remnant of the better past. Wait for what is coming. Whew! You can see it in Obama.)
So, I spin my wheels, but have won most of the briefs I’ve written. I got the chance merely because I wrote my first ones for free, then, started getting paid. It was all so fun and heady at first, but now, that I know what to expect, and why I should even have to be writing this or that motion, it is aggravating. But, I did help an honest man save his practice and gained a new trade in the deal. Given my background, the irony is rich.
It’s not easy being an honest attorney. The courts are so packed they don’t read your briefs if they are too long and detailed, which is bad because an honest attorney relies on the detail, both law and fact, to prove his case.
We’ve got a trial soon. Shouldn’t be a trial. An employer utilized the ole “independent contractor” scheme to not pay overtime and to transfer other costs to the employee. Actually, I have sympathy for the employer. It is a good business model and creates incentive for the employee. And there are ways to use pseudo independent contractors and still meet the labor code requirements.
California burdens employers. But, the employer got hold of an attorney who, instead of being honest, who should have told him he should settle, which he could have done years ago at less than what he has paid his attorney by now (probably $50,000 or more), fought and fought and fought. So the only person who really prevails here is the dishonest attorney. During discovery, the employer provided fabricated time records which the opposing counsel knows are fabricated. They, in fact, provided cover to enable it. If we win too big of a judgment, the employer will just declare bankruptcy, so we will have to settle for an amount to keep the employer out of bankruptcy. And there will probably be dispute about financial records proving the amount which could be paid. And this has all been driven by an attorney milking a client and out of control government regulations.
But still, despite all that, our system works, kind of like an old work horse that is dragging too big of a load. It could work so much better if but for the people working it were not so crooked. So, I believe, there’s no fixing the system: it’s a good system. The answer lies in fixing the people who are gaming the system, people like those who have engineered the Troy Davis issue into a “this is what’s wrong with America” attack. I don’t believe there is really an issue with his execution and the long due process Davis has received is evidence of that assertion. But if people wish to analyze, that’s fine too. Where the wrong comes in, is the deception, hype, and education of those too young or defenseless to know that 99% of the cause celebre is motivated not for justice of “good” people, but justice for welfare demanding, reparations requiring, finger pointing, non-working, smear merchanting, and otherwise draining society “bad” people. When the good overwhelm the bad, you get what we’re getting: poverty and tyranny.
Neo’s previous training is in psychology, not law. It was Bookworm that had training in law school and joined a practice that saw the consequences of hiring a lot of (useless) black affirmative action graduates.
Impossible to fix people. Can only get rid of them by the execution scaffold. The system allows cooperation without that necessity being required all the time, if the system is built correctly. Currently, the system has been hijacked and deconstructed into a new shape and form: transformed by the Left into an evil nation.
Ymar-
From Neo above: ‘And yes, I’ve got a law degree too, although I’m not in the legal profession either.’
Not only that, but I got my law degree a LOOOONG time ago, back when they still talked about justice as though it were a goal. But as I said, I haven’t been a practicing lawyer (although some of my best friends…).
Don Carlos: the analogy you used, about batting 1000, is a baseball analogy, a sports analogy. I don’t “know” something different and pretend not to know it. Yes, of course, “batting 1000” is an analogy, used in contexts other than sports, meaning perfection. But that does not change the fact that it is a sports analogy.
And of course I know it was an analogy, and that you were not actually talking about baseball, but injustice. After all, I wrote in my note to you, “You may just shrug at the injustice done to the “losers,” as though this is a baseball game, but I do not.”
Talk about Justice! Its always the Jews man, always that International Jewish Conspiracy, Protocols of the Elders of Zion crowd of Jooooose.
See the video here (http://www.thegatewaypundit.com/2011/09/oops-obama-says-you-wont-want-billionaires-to-pay-the-same-tax-rate-as-jews-video/) where the appropriately named “King Put” or is it more appropriately “King Putz” suffers a little Freudian slip in talking to the CBC about the unfair tax rates for billionaires and somehow says,
“… you wouldn’t want billionaires to pay the same tax rate as Jews, err Janitors, would you.”
Neo, Neo, Neo, do take care. You’re arguing like a lawyer! You bluster, but miss, or do not address, my point about the imperfectability of all-ALL-human endeavor. Liberals seek perfection, do they not?
If you studied law a LOOONG time ago, that was when you were a liberal, and subject to all, or most, of its fanciful delusions. Perhaps you have not shed that particular snakeskin altogether.
Now, let’s go back to the ‘acceptable’ thingie, shall we?
Neo’s law degree must be similar to Sarah Palin’s journalism degree: something other than what the mainstream would expect or qualify.
Wolla – BO’s gaffe is all the more juicy because of the venue. Remember Jesse Jackson’s “Hymietown” – he thought he could get away with it because he was talking to a black reporter. I know this is way OT the thread but it’s just too good to pass up.
Don Carlos: As I have already said, I made it clear in my original statement that it was a baseball analogy, and that I realized you were talking about injustice.
If you want to call this “bluster” go right ahead, although I can’t quite imagine why. “Blustering” isn’t really my style.
As for the definition of “acceptable,” I have been using the most common meanings of the term:
I used the word in my comment to you to indicate that requiring a convicted person to prove that he/she is innocent is “not an acceptable standard” to me. You said it was acceptable to you. There is no way that I could intuit that you were using the word “acceptable” in the Serenity Prayer sense (the courage to accept those things you cannot change). You say you also used the word to mean “satisfactory”; but I do not think asking someone to prove his or her innocence is satisfactory. There, we differ.
By the way, I haven’t gone into the following before because it is a very complex (and lengthy) matter to try to explain. But I have decided to do so here to clarify on what I’m basing some of my statements about the Davis case, in particular the way the lengthy appeals process went, and just what might be unsatisfactory (or unacceptable) about it.
The record of Davis’s appeals is not quite what one might think, considering how famous the case has become. First of all, just to nitpick a bit, he was sentenced about 20 years ago, not 22. Also, until quite late in the game (around 2007 or so), Davis’s case attracted relatively little attention and money for counsel. It was handled for a long time by the Georgia Resource Center, whose funds had been cut back by 70% in the mid-90s and which was very understaffed and overwhelmed, with hardly any resources to conduct the necessary interviews and to properly prepare the appeals.
Initially, there were many lawyer errors and/or especially omissions, and this went on for years. He had nominal representation, but there is much indication that during those all-important years his representation was extremely substandard, which is (although legal) troubling in a death penalty case. Then, for many of Davis’s appeals during the 2000’s, the courts denied appeals because they had not been raised earlier; the earlier omissions penalized Davis in the appeals process. However, things changed after 2007, when his cause was taken up by groups such as Amnesty, and people such as Tutu (as well as William Sessions, head of the FBI under Reagan and Bush I, and a former federal judge, who wrote a few op-eds supporting a hearing for Davis). At that point Davis finally had the money to get better legal representation.
The upshot of that better representation was that the Supreme Court granted Davis an evidentiary hearing in 2010, allowing him to try to use the new evidence (mostly the recantations) to prove his innocence. I have read the nearly 200-page record written by Judge Moore, who presided over that hearing, and so I am quite familiar with that proceeding. The judge denied Davis’s claim, saying he had not proven he was innocent.
On reading Moore’s ruling, I found (to my surprise, I might add) his reasons for rejecting the recantations to be convoluted and quite illogical. Plus, I found it unacceptable (yes, there’s that word!) that Davis was required to introduce new evidence of his innocence powerful enough so that no reasonable juror could still find him guilty; that is, that all reasonable jurors would now vote to acquit. That is, it would require a unanimous vote for acquittal not only by twelve jurors, but by the set of all reasonable jurors imaginable, which would amount to a certainty. And note that, even if this almost impossibly high standard had somehow been met, it would not have resulted in an actual acquittal, just (in the best possible outcome for Davis) a chance at a new trial.
The standard for proving what’s called “actual innocence” (which is what Davis was needing to prove in the evidentiary hearing) is not completely clear, and at Davis’s hearing [emphasis mine]:
A standard requiring a person to prove his innocence such that no reasonable juror could conclude otherwise is, quite frankly, unconscionable (IMHO) in a death penalty case. The only way I can even imagine it could be fulfilled would be if the convicted person could come up with (a) very clear DNA evidence excluding the convicted person, which would have been impossible in Davis’s case because there was no DNA evidence to be had; or (b) proving that the supposedly murdered person was still alive, which of course was impossible here; or (c) coming up with a video of someone else actually committing the crime (also impossible); or (d) proving in some incontrovertible way that the convicted person had not been there; this possibility was unavailable to Davis because he admitted he had been at the scene, and it was never in dispute. I really have trouble thinking of any other ways Davis could have proven his innocence so that no reasonable juror could doubt it, and for that reason I think it’s an unreasonable and unacceptable standard, especially in a capital case.
You may disagree, of course. But I am taking the trouble to go into this history to show on what I base my opinions.
In addition, it is ironic that, in 2007, four of the original jurors from Davis’s trial signed affidavits that were presented to the Georgia Board of Pardons and Parole, asking that Davis’s sentence be commuted to life imprisonment based on doubts they now had about the justness of the sentence, based on the new evidence. Some called for a new trial.
And lest this leads you to believe that means that the other eight jurors hadn’t changed their minds, that’s not exactly correct either. When an AP reporter tried to track down the other jurors in 2009, in addition to the four who had signed the affidavits, three others had died, two refused to comment, one could not be reached, and two stood by the original verdict and sentence.
As for what I think would have been a better standard, I propose (not that the courts will care what I propose) that in capital cases under appeal, where the convicted person is granted the right to attempt to prove actual innocence, the standard should be a slightly more relaxed one—such as, for example, if a majority of reasonable jurors would have voted not guilty if the new evidence had been available in the first trial. In addition, I would propose legislation forbidding the death penalty in cases (such as Davis’s) that rely only on eyewitness testimony and have no additional forensic evidence. Eyewitness testimony is responsible for 75% of the proven wrongful convictions that have been reversed by subsequent DNA testing. It is far weaker than was previously thought.
Judge Moore: “to establish a claim of actual innocence, a person previously convicted at a fair trial ‘must show by clear and convincing evidence that no reasonable juror would have convicted him in the light of the new evidence’ that was developed after the trial.”
The key is the reversal of a “fair trial.” Reversibility of conviction at a fair (i.e. procedural error-free) trial should require a higher standard than conviction itself, sayeth this judge. Otherwise, all sorts of verdicts (not just the death penalty) of “fair trials” will become subject to reversal actions, IMO.
As to the financial and quality limits of Davis’ legal representation, I give you again “No one bats 1000”. Kidding aside, what reasonable remedy is there for that? The State should fund capital crime defense costs equal to, or greater than, those of the prosecution? The State shall see we all, every one of us, gets an optimal defense? Even then there’s the batting 1000 issue.
I commend to you the “Acceptance” of Kubler-Ross, as well as the “Accept” of the Serenity Prayer, Neo. That will help you deal with your “not that the courts will care what I propose.”
On a personal note, I have had to ‘accept’ one painful adverse civil judgement, wherein the evidence critical to my side, turning my suit into a slam-dunk, was ruled inadmissible because it was discovered and submitted to defendant 59 days before trial, instead of the mandatory 60.
Acceptance. Hard to do. And costly.
Neo:
Thank you for this and the subsequent post. It shows you care more about justice than about ideology.
As far as it goes the death penalty is the single most harmful punishment the state can met out, and it is also irrevocable. For that very reason, as a supporter of the death penalty I co-sign your two amendments to the process above. Reasonable doubt should be able to be introduced at any stage of the process up to and including the wait in the death chamber.
The current justice system gets many things wrong, not the least of which is due to coerced plea bargains, bad (an unreformed, some jurisdictions need forced to get in to the 21st century in terms of forensics) forensics procedures, police coercion, etc, I’m convinced somewhere between 1/10 and 1/4 of our prisoners nationwide are innocent of the charges that were brought against them, probably varying pretty greatly by state.
Mistakes are inevitable and acceptable in most cases and even in the cases where those innocent of the crime are in jail, many are not sympathetic characters. But when it comes to death, anything less than the very highest standards available to humans in terms of evidence and legal representation is unconscionable. If we don’t want to make the reforms needed and spend the money , we don’t really deserve to have a death penalty system.
If -and there is at least decent reason to believe this is the case – Troy Davis was innocent, “oops, sorry about that” isn’t good enough.
On Police actions, I recall at 16 years of age upon getting my drivers permit going to pick up a friend for a sleep over, overstaying my visit it became dark when we left. I was not the best of drivers and hell, I was a teenager so I attracted the attention of a patrolling Policeman who stopped me not 200 yards from my house. I did not know what to do when stopped so I got out and approached the policeman as if we were old friends and came face to face with a S&W Model 10 revolver.
In the dark a policeman has to make fast judgement calls to draw or not draw his weapon.
In my case he was aiming at an un skilled child who was not seen as such in the dark and perceived as a threat.
Officer Mcphail was not expecting to get shot?
He approached two assalents “pistol whipping” a homeless man and did not draw his weapon? What part of whipping with a handgun is not reasons to draw his weapon? Was Mcphail even armed?
clearly both men should have at least done prison time the evidence presented did not support the execution of a possible but not likely innocent man.
ok… so one has to prove innocence, and innocence until proven guilty…
so why in VAWA is it the other way around?
how can one get an order of protection that can put you out of your home, and if home employed, away from your own business, and leave it to the hearsay of the accuser?
http://www.daybydaycartoon.com/092511.jpg
child custody and assets are 95% in favor of the female…
but disparate impact of other than 50/50 is what is used to show discrimination.
so how is a 60/40 in favor of women still discriminatory in education, but a 95/5 split is not a sign of it?
how about six years to be incarcerated without a trial
the accused who died under sentencing at least had motions, and such and was not incarcerated without a trial…
what about the guys who are in jail with NO TRIAL under the communist laws of family court?
William Joseph Christopher
as you can tell… he probably is not a prison islam convert, nor is he a poor black man… he is an engineer with money from intel.
the man with lots of due process over 20 years…
and the invisable man (And men) who dont even get that!
not only that, but forced medication, convenient loss of files, and a whole lot more..
remember, i was up for a capital crime too…
it is illegal to lock someone up without a trial for 1 year
but not in feminist controlled family court which operates like a stalin based kangaroo court favoring the volk over the jewish man in german court as in 1933… (to which the more they punish men for crimes against humanity and women, the more women vote for them)
But SIX years?
Political abuse of psychiatry in the Soviet Union
en.wikipedia.org/wiki/Political_abuse_of_psychiatry_in_the_Soviet_Union
That was way back in 1999, according to the court docket. Now when Mr. Christopher is finally ruled “sane” after years in a nut house and forced
medication [visions of USSR treatment with forced medication of mental
prisoners who claimed the Soviet System was abusive should be conjuring up at this point] until one admits “all is well with the system, and I feel much better now that I have been abused for 6 years, without due process”. THAT is how you “lose” the Courts own official original file. You lock the “defendant” up for half a decade, shred the original file, tell the Court reporter to lose her transcript, and what la. no file. No record by which the defendant, show the record of perjury, etc.
i lost my career… my savings.. my retirement.. my reputation… my friends.. my child… my home… my future…
but i also never got a day to due process…
neither did christopher..
but Troy Davis did…
and note that he WAS at the crime…
its just not determined whether he did it or the other did it… its not like he is innocent and far away at an ATM like the duke kids..
who were also falsely accused… some accused who werent evn there that night, and the school still hasnt apologized for their taking out fill page ads to tell the world they were guilty… (you wouldnt believe what the ‘victim’ has done since then)
Finally Mr. Christopher enters in handcuffs which appear to be slightly too tight and causing him some discomfort, holding his own papers. He sits down with public defender Melvin L. Emerich [408-995-3224] to discuss his current motion and appearance before Judge Yew
notice that in other courts, like the murde case of troy, they take off the cuffs so that he is not presumed guilty… this is what allowed a over 250 lb maniac guarded by a 65 year old granmother, to grab her gun and go crazy in court.
but this intel engineer, denied due process AT ALL… and drugged… and not guilty YET… is in shackles, and such… WHY? (the rest of the article prior talked how the system marked correctly addressed mail as not correct, and made it difficult for the reporter to attend the case!)
there is a huge back and forth as the judge tries to use administration and games to prevent the reporter from knowing waht is going on.
in fact. family court is a secret court… you cant get figures or numbers on it, and analyse outcomes… as the court is the same for outsiders as a high profile terrorist case with state secrets.
and did you know that there is a special organizaiton of feminist judges whose whole purpose is to get women out of prison sentencesa and play favorites?
their literature says its easier to get them out after the case is decided than it is otherwise. why is it easier to get a woman off after, but troy davis cant, and family court people are in even worse position
Though most not having experienced it woudl think otherwise… but in the criminal court, you can get freedom, and go back to a life… or you get killed and its over.
in family court you have already lost everything before you even appear. your job is gone, your friends have split on party lines, store clerks even treat you bad… you can be locked away for years, can have hearsay of second parties treated as witness testimony, have all your evidence and such disbarred as its negative to the ‘victim’… and then when its all done? your either in jail again for failure to pay while in prison… or your in jail for being guilty of what you didnt do.
during those 6 years you can be raped, get aids, be mutilated, and such as your in with the convicted…
when your out… your child is now old enough to hate you for not being there… or has been turned agianst you… or is far away… where your loss of job, home, and such… means you cant visit… everyone htes you, as your still guilty…
but TROY and such get all the help and understanding and the famous people.
where are you all that cared for troy when Thomas James Ball of New Hampshire, needed you?
and you say WHO?
Thomas James Ball wrote a 10,000 word suicide note… why is it notable?
[edited for length by n-n]
Don Carlos: but the new standards I propose are still a very high standard for a convicted person to have to meet, and they at least have the advantage of not being a virtually impossible standard to meet, as was the standard required of Troy Davis by Judge Moore. In addition, the number of people convicted of the death penalty they would affect is very small, and therefore they would not hamper the judicial process unduly. There are very few cases in which a person has been condemned to death on eyewitness testimony alone, as was Davis.
Did you know that if you accuse your man of abuse, you can get instant path to citizenship?
think that might inflate the prove your innocent money maker?
en.wikipedia.org/wiki/Citizenship_in_the_United_States
The New York Times reported that “Mr. Darnell discovered that a 10-year-old conviction for domestic violence involving a former girlfriend, even though it had been reduced to a misdemeanor and erased from his public record, made him ineligible to become a citizen—or even to continue living in the United States.”
they chose a male for the example..
they had to look really hard since its almost all women that do this..
by the way…
removing the death penalty and holding them till death is cheaper than the costs of the death penalty…
but then the left would not have a political foot ball
[edited for length by n-n]
ever notice that you mostly censor when i write long on feminism…
wasnt that YOUR area of work?
seems to me that TROY even here gets more respect than all those men who suicided, and were held for years and all that.
you havent cut down one of my posts in how long?
thanks..
would have been nice to know i was wasting my life energy and time and will never get that back now..
ie.. a part of my life was just deleted.
if it took 40 minutes to write..
you just erased that part of my life
as i could have done something else with that 40 minutes knowing that my point was too long and too politically incorrect.
no?
why bother to write now?
at what point will my life and time be erased?
should have copied positions from others.
or validated you…
no?
problem with censorship is we will never know.
as the public will never see what part of my life you erased…
hey!
why dont we forget all those innocent men, who didnt kill anyone… and help some more cop killers…
i hear h rap brown.. i mean Jamil Abdullah Al-Amin needs help for killing cops too… as does the other gentleman.
i guess you dont realize that there is about 6 cop killers the left are giving the same treatment for as Troy…
i will self censor now..
better to not waste my time, my life, my thoughts, my energy.. or do you think its good for me to waste that, and be used up?
TROY got how many lines, how many famous
so much for giving a crap bout innocence first… eh?
you just wrote all those i listed off…
as did the family court, society and such
none of those people killed anyone…
none of them were present at two murders in one night.
but you erased them too
big statement… even if you didnt think so
freudian slips…
Brad-
None of this is about ideology.
If there’s any ideology involved, please be so king as to state what ideology (-ies) you have in mind. And why. Make your case.
The issue of humans as inherently less than 100% successful, versus the optimization toward perfection of human endeavors, is not an ideological one, in my book at least. Nor, I suspect, in Neo’s.
Sorry, meant “kind”, not “king.”
apachetears: I have read various summaries of the incident in which Officer MacPhail was killed, and as best I can piece it together (without taking the time right now to go back and read 100s of pages again), the pistol-whipping of the homeless man consisted of a single blow to the head which one or two eyewitnesses said was done by a revolver (others couldn’t see). None of the witnesses, however, alleged that both men had pistol-whipped the homeless man; all who saw it at all said it was just one person doing it. Plus, most of them could only say it was done by a man in a white shirt, not necessarily identified as Davis. It was never definitively established what color shirt Davis had on that night, but some people who saw him earlier said it was white (the shirt in question has never been located).
So whatever caused MacPhail to run to the scene of the commotion (and that’s not clear either), it’s probable that he did not witness the pistol-whipping, if a pistol-whipping indeed had occurred. Also, the person with the gun may have put it out of sight and only drawn it again as the officer approached. The eyewitness accounts conflict, and most people didn’t see that part anyway, so it’s hard to tell.
My point is that MacPhail probably didn’t see the man had a gun until too late.
Artfldgr: I do not selectively edit your stuff for content. I edit for length. I almost always lop off the end after a certain point. Almost all of the time I don’t read the posts of yours I edit when I edit them, although sometimes I do, but mostly to make sure I don’t cut the comment off before you’ve made your main points.
Perhaps your posts on feminism tend to be long, and that’s why it appears I am selective. I can assure you that I am not.
That one was incredibly long. I cut off the end part, which is what I virtually always do with your edited posts. I don’t even know what the end part said. I actually should have cut it off much sooner, because it still is incredibly long, but I erred (as I often do with your comments) on the side of leaving it long rather than cutting off more of your thought.
It is okay with me for you to post on this forum. I’ve said many times I think you contribute a unique and valuable point of view. I even allow a certain amount of extra length in your comments; I am quite tolerant of that. But the extreme length is not okay. Every now and then a very long comment of yours gets by, because I’m having an extra-busy day and am not policing the forum as much. But that’s the only selectivity that happens.
Artfldgr: and where you get the idea that my area of work was ever feminism I do not know. It was not.
One other point: I just did a word count on that comment of yours. I included only your words that I didn’t edit out. The length of that particular comment of yours that I left standing was 1561 words. That is an extraordinary length, and what I cut out was at least that long, perhaps even longer.
Random points;
Recall a judge I knew who spoke of his naive shock when, as a new lawyer, he’d told his client he had a solution that was fair to both parties. Screw fair, said the client. I want the whole thing.
Bit from the Masterpiece of Lord Peter Wimsey. Having some legal issue, his barrister says we can do this and say that, neither of which are actually true and which, iirc, could actually be to the disadvantage of a third party. No, says Wimsey, Heaven protect us from the hired advocate.
The more the law reflects generally held notions of fairness and equity, the more the people will support it and abide by it. The more complex it is, the more it favors the insiders, the less it protects the general population, the less it will be respected and abided by. Requiring more force and coercion.
To be effective, law must reflect at least enough of the general population’s views of fairness and equity to keep them from seeking alternate solutions. Blood price replaces blood feud. Etc.
Don Carlo:
You might ask some of the other commenters in this thread and the previous one who couldn’t seem to look at this case via any filter that didn’t involve concepts such as anarchism and leftism. You might wonder why Ann Coulter felt the need to get involved and to downright lie (as Neo pointed out) in her column about this matter.
To me, lots of people can’t help but look at the law and all legal cases through the haze of not just their personal philosophy of justice (we all do that) but from the standpoint of whether it will help or hinder their particular ideology. A good example would be the Duke Lacrosse case where pretty much every left wing commenter on the case (with rare and meritorious exceptions) seemed to assume the guilt of the team, usually based on half-baked class and racial analysis.
Neo took a careful look at quite a bit of the evidence and history of this case -certainly more than I did ( I might have spent 3 hours looking into it over a period of 2 days)or any of the other commenters here. Having then had doubts about the wisdom of applying the death penalty to such a case she made a post about them here. I appreciate that she could and would do that , esp. since it goes against the opinions of some, probably most, of her commenters and of some of the most well-known pundocrats of the right wing.
Brad: thank you.
I have to say, though, that I’m used to it—most of my life out in the “real world” consists of taking unpopular positions. I am so used to being a minority in my POV that it doesn’t faze me much anymore to be odd woman out, whether I’m dissenting from the right or the left.
By the way, what I’ve written here on Troy Davis is just the tip of the iceberg of what I’ve read about the case in the last few days. It has many many fascinating aspects, and it’s the details that are quite extraordinary and very difficult to come by. One thing I can say is that most commenters and pundits on both sides spout claptrap and falsehoods (or errors) about it. And then they repeat and repeat and repeat it—such as what has happened with Coulter’s either mistaken/confused, or purposely lying, assertions, which have traveled around the blogosphere and have been parroted in many places.
Brad- You have not made your case re “ideology”. Please try again. I see nothing in the various remarks made on this topic here that indicate an “ideology” by anyone. The issue, to me, has been about our views on human process perfectability, and the matter of “acceptability.”
If to accept (oops!) that all humans err, however often or rarely, is a conservative “ideology”, then I plead guilty.
Don Carlos:
I’ve said all I’m going to say on the subject, impressing you is not high on the list of my things to do, esp. since most of your posts seem to dance around two points:
A. That humans err, doesn’t mean we can’t set up systems or reform systems to err LESS
B.That most of the comments are really all about how much error is acceptable in death penalty cases
Until you address points A and B with some indication of what your own philosophy is about such things, I think I will be ignoring you in this thread from this point on.
Our legal system is nothing other than trial by combat, with lawyers instead of knights. The side with the better lawyer wins. Or, to paraphrase what I was taught in law school, “The adversary system is the greatest engine for determining who has the better lawyer that has ever been invented.”
That being said, I would agree that the standard for applying the death penalty should be virtual certainty of guilt. (Which doesn’t mean that there was a possibility that aliens descended from their saucer, committed the crime, then hurtled back into interstellar space.) On the other hand, I would prefer a system in which the facts were established outside the presence of the jury, with the jury determining only if the accused had an excuse for the crime.
In other words, after hearing the facts, possibly with the assistance of a panel of scientific advisors, the judge would impanel the jury and say, “we have determined that there is a 99.5% probability that the defendant murdered his ex-wife and her male companion. Mr. Cochran will now present his arguments as to why you should acquit the defendant.”
But I don’t expect such a system would ever be implemented.
Not to worry, Brad. You don’t impress. But to leave me hanging for the next pearl that drops from your lips, well, you disappoint.
@Artfldgr:
I’m going to say what Neo Neocon is obviously too polite to say bluntly.
Stop whining. No, really. Just stop. The self pity just makes your comments even more stupid.
Your comments are complete messes. The spelling and grammar are atrocious. You take 100 words where – at most – 10 would suffice. You don’t seem to understand that you’re expected to use capital letters at the beginning of a sentence.
“problem with censorship is we will never know.”
Oh, grow up. This is Neo Neocon’s blog. She does not have to publish your comments and she does not have to publish them whole. If your insight is so valuable, start your own blog. The right to free speech does not extend to the right to either a platform or an audience.
“as the public will never see what part of my life you erased…”
She edited a ridiculously long comment that you wrote. On *her* blog. She didn’t erase your life, or any part of your life.
Liz
it wasnt any of your business…
passive aggressively taking an opportunity to dog pile on a rabbit, put your hall monitor white sash, and rescue the others… is bs…
by the way..
i am not whining… its only whining if my life has no value or i don’t value it. calling it whining is also a passive agressive way to also say i dont count, and that i am not important enough to value my time, and that you think so, and want me to act towards myself as you regard me.
sorry… that dont work..
my life has value
my time is valuable
and on and on…
yours might not, and your only recourse is to travel around and pretend your entitled to a life of entertainment and pleasure…
but that makes it meaningless, and without substance, and a product of Utopos, the place that can never be
oh.. if you want me to write for your pleasure, and such and meet your standards.. pay me.. i am 400 an hour and am available through the headhunter task management.
if your not going to do that, then why would i waste my time to make such a grump like you happy for no reason, when that 40 minutes was worth over 200 dollars?
ie…my time IS worth something, and people DO put a price tag on it, and i HAVE been paid that.
so… my wasting 40 minutes that will never see the light of day, is a waste.
now. you might be on welfare… or maybe a minumum wage job. a housewife.
or even a worker in a factory, or an office.
but to me you DO have value
want to know how much?
enough to point out that if you didnt have value, then my information and writing could be for MY pleasure, i dont have to research, in fact i dont even have to answer you…
got that?
that my missives are because i have value and YOU have value…
and you just said to me
“i dont have value… other than the pleasure i can get out of life – and my life has no other purpose but such pleasure”
don’t think so?
think deeper…
oh. currently since i am not consulting and underpaid, i make only 50-90 an hour… but even that means 40 minutes is not chump change…
on salary i with top med benefits, 27 vacation days with pay, great dental, and such…
i am a 1.50 a minute…
Through task management (or other management recruiters/ headhunters), i am $6.70 a minute.
so 40 minutes does mean something
by the way… i can see why people who earn little dont value THEIR time…
minumum wage is 16 cents a minute…
and yes…
if your time was worth 16 cents a minute, 40 minutes might not be a big deal..
as 40 minutes of that time value is equal to 1 minute my time…
and just so you don’t think i am all that special… (i am not, and not even highly paid, just upper average), one man who is teaming with me, is worth over a few million a year… so his time is even MORE valuable
i will leave you with a quote from George Harrisson from 33 and a 3rd..
“its all up to what you value”…
put another way
Liz all your offering is that if i work hard i can be “not whipped”…..
not much of a reward
as i can ignore you, expend nothing and achieve the same
We *should* have a justice system that creates laws that the people expected to follow them can understand.
What we do have is the old medieval system of champions fighting each other – instead of swords, they carry briefcases. The winner isn’t determined by who survives, but by who can better impress the judge – who just happens to be another lawyer.
I’m a 3L in law school, which means I have observed and participated somewhat in the practice of law, but have been immersed for over 2 years in the thinking of law.
The real-world practice of law seems as offputting as its stereotype. But that’s hardly surprising given that the adversarial, gamesman practice of law is a civilized system’s attempt at dealing with the dark destructive underside of human affairs.
I’ve found, however, the thinking of law to be impressive and, on a purely educational level, a good follow-up to my political science degree. (Poli sci – application of policy on macro level; law – application of policy-based rules on a micro and macro level.) Described in the most succinct way, the thinking of law is about balancing; even Constitutional interpretation is not absolute, but rather an exercise in fine definition and carving out exceptions. Law professors and students spin out complex ‘what if?’ hypothetical exercises based on complicated real-world and imagined situations. While there are working sets of presumptions, we are taught that equitable balancing often must take the place of simple right and wrong answers. Philosophically, the law is based on ‘rules utilitarianism’ or the broadest benefit for the broadest number of people in the broadest range of situations – which is satisfying in most circumstances but still leaves many odd or undesirable outcomes.