RoR: Forum

Just as well they didn't execute him then, isn't it?!

See my earlier comments on this subject here http://www.solohq.com/Forum/ArticleDiscussions/0991_1.shtml#39

Post 1

Monday, February 21, 2005 - 6:23pm

Adam,

Not to be a contrarian, a pain-in-the-ass, or to tweak you, but WHY should the prosecutors apologize? How many criminal defense attorneys apologize when they win freedom for their murderous clients, robbing justice from victims and those who loved them?

The system is set up a certain way. Every player has a part. Prosecutors do their job, (sociopaths!) —Perhaps it’s the jurors who should apologize?

Jon

Post 2

Monday, February 21, 2005 - 7:50pm

Jon,

In the current American legal system, the same official is expected to function both as an objective supervisor of the investigation process, and as a prosecutor if the investigation results in arrests and indictments. The prosecution and conviction of a person who was in fact innocent means that the investigation failed to produce the truth, and that means that the system failed, and that the reasons for this failure should be identified and corrected. An apology is a recognition of the objective fact of this failure, and a recognition that one is obliged to identify, and if possible to correct, its causes.

One plausible explanation for the very high rate of false convictions in the current American system is a conflict of interest: since the public judges the effectiveness of a prosecutor by her conviction rate, the prosecutor is motivated to indict the person who can be most easily convicted, regardless of whether or not that person is objectively guilty of the crime.

Some foreign countries, such as Switzerland, have addressed the problem by separating the investigation from the prosecution. This eliminates the conflict of interest implicit in the current American system, and has the goal of making the process of investigation as impartial, and as objective, as possible. The investigating magistrate is an officer of the judicial rather than the executive branch of government, and is charged equally with bringing the guilty to justice and with protecting the rights and liberties of the innocent. If the investigation results in an indictment, identical compilations of the evidence are given to the prosecution and the defense. In comparison with the Swiss system, the current American system seems very much pre-enlightenment.

Post 3

Monday, February 21, 2005 - 10:03pm

Adam, it's a horrifying, frightening story.

Jon, of course the prosecutors should apologize. Whether knowingly not, they took ten irreplaceable years from the life of an innocent man. We apologize if we bump into someone by accident; this is a bit more significant.

I'm concerned that Michael Jackson may be in an unfair position in his trial. I haven't any idea if he's guilty or innocent, but it does seem that the District Attorney, who failed to send him to jail ten years ago, is determined to do so now at any cost. I don't think the trial should even begin until this possibility is thoroughly investigated. I have an uneasy Jean Valjean-Javert sense of it.

Barbara

Post 4

Tuesday, February 22, 2005 - 8:31am

"An apology is a recognition of the objective fact of this failure, and a recognition that one is obliged to identify, and if possible to correct, its causes."

The apology should be for the incompetence of the prosecution or defence in not checking the DNA on the semen stain in the first place.

However, another apology would be welcome from the victim for falsely pointing him out - when she did not in fact recognize him. Victims have no excuse for not identifying the accused without certainty - a "mistake" is just not good enough!!!

Post 5

Tuesday, February 22, 2005 - 11:58am

Speaking as essentially a lawyer-in-training, wrongful convictions such as this are always deeply distressing. I would emphasise though that DNA testing wouldn't have been available at the time the original trial took place, and given that the victim was 13 at the time of the incident I'm not sure how accurate we should expect her memory of the event to be this far down the line.

There may be something to Adam's suggestion that US district attorneys are influenced by political considerations, but a number of major screw ups have also come to light over here in the UK, where prosecution lawyers are employed by the Crown Prosecution Service and are relatively independent of political influence.

Jon,

I suspect many defence lawyers do wrestle with their consciences when they successfully defend someone who may well be guilty (even the possibility that I may do so in the future is enough to give me pause). In my opinion they ought not to do so, at least not for as long as wrongful convictions like this are occurring.

Barbara,

I absolutely agree about Michael Jackson, and in addition given that he has a reputation for being rather an eccentric to put it mildly, I would actually question whether any jury can reasonably be expected to arrive at a just verdict (with the possible exception of one entirely composed of Objectivists).

There was a time when the legal systems here in the UK and over in the US were firmly weighted in favour of the individual on trial, when neither the state nor the public wouldn't have dreamed of doubting the great English jurist Sir William Blackstone's dictum that "It is better that ten guilty escape than one innocent suffer". It saddens me that both countries (the UK even more so than the US) seem to be gradually whittling down the procedural safeguards on the police that once protected individuals.

MH

Post 6

Tuesday, February 22, 2005 - 10:52am

Lawyers build their careers based on their effectiveness. Effective prosecutors put people in jail. It's never their job to solve a crime. Police routinely enforce laws in a discriminant fashion, choosing who are the "bad guys" and serving them up. There is a good probability that good people will end up in jail. The system really does see everyone as guilty until proven innocent. Poor people are much less likely to afford representation that provide innocence. Every time we give the legal system more power, we provide it the tools to misuse it's power. Often, it can ruin more lives than it protects. I've seen the volumes of books that contain our laws. I can't imagine anybody has read them all. Yet, we insist on more, all the time. Quagmire is a good word to describe this entire situation. I wish, I could offer a simple solution, yet, there's none in sight. Intolerant societies have more criminals than free societies. What kind of society do you belong in?

Post 7

Tuesday, February 22, 2005 - 1:12pm

"DNA testing wouldn't have been available at the time the original trial took place."

DNA testing has been around since the nighteen eighties.

It was definitely used as evidence in court cases ten years ago and maybe more. The OJ Simpson trial being a very famous example.

P.S. It's a bit weird to argue that eccentric people cannot have a fair trial. Does that mean that people like MJ are to be excused from criminal prosecution from now on?

(Edited by Marcus Bachler on 2/22, 1:18pm)

Post 8

Tuesday, February 22, 2005 - 2:34pm

Marcus,

Ok but the article says "after genetic testing, unavailable at the time of his trial, showed he could not have been the source of semen stains on the victim's clothing", and later says "...the tests, using new technology, showed that Rose could not have been the source of the stains...", and that the original conviction was based in part on a blood type match. Would it be more accurate to say that the DNA testing technology has vastly improved since then?

As for Jackson, I said I was "putting it mildly" - there's a lot of evidence, accurate or not, that the guy's a bit of a nutjob. And it's been plastered all over the media, so it's possible that some of the jury will be influenced to some extent by that, rather than reaching an opinion on the evidence. It's recognised that prior conduct can influence a jury, which is why there are restrictions (also being severely whittled down in the UK) on revealing a defendant's prior convictions to a jury.

So no, I don't think Michael Jackson should not be tried at all, but I do think there are legitimate question marks over whether he'll get a fair trial.

MH

(Edited by Matthew Humphreys on 2/22, 2:35pm)

Post 9

Tuesday, February 22, 2005 - 2:38pm

As Deputy District Attorney Brian Short was not the trial prosecutor of this legal abuse, he has no reason personally to extend an apology. But as representative of a public office that erred, he should apologize in the name of that office. Of course, he probably does not want to "offend" someone - like maybe the person who did try the case.

Hats off to the Innocence Project. It is watchdog organizations like this that clean up at least a little of the misuse of government power that occurs for whatever reason. (Mistakes can be made and all power comes with the temptation to corrupt.)

This particular organization has been successful in overturning erroneous convictions in pedophile cases. No amount of money (especially not US$ 100 a day) can make up for the devastation that is wreaked on the lives of these victims and their families by the publicity fallout.

Rape?

Yep. At least an apology is in order.

Michael

Post 10

Tuesday, February 22, 2005 - 7:49pm

Last year, I wrote an article for the Northwest Michigan Business Monthly about private investigators.

The three I talked to all took on different kinds of cases in different mixes. All of them were involved in legal defense one way or another.

The one who did the most of this was a former treasury agent. He pointed out that the police do not seek to objectively find the suspect based on the physical evidence. They have the suspect in custody and then find the evidence to keep him there.

The defense investigator takes another look at the evidence. For a variety of reasons, successful defense investigators have strong reputations for objectivity and honesty.

Post 11

Wednesday, February 23, 2005 - 3:48am

"Would it be more accurate to say that the DNA testing technology has vastly improved since then?"

That might be the case, but if they could identify DNA from blood stains on clothing in OJ Simpson's trial in 1995, I don't see why they couldn't do the same with semen stains here?

Even assuming there was some sort of technical difficulty, that it was not further pursued when it came to his appeal is quite surprising.

Comments on whether MJ and OJ get a fair trial:

Whether or not you believe that there these two are guilty of the alleged crimes, they are usually found innocent due to having the best defence teams money can buy. A good defence team will be able to pick holes in the evidence or the reliability of witnesses testimony in even the most watertight looking cases. They are also very adept at picking the best possible jury for their clients too. So in fact the odds are tipped in their favour, not against them.

Post 12

Wednesday, February 23, 2005 - 2:00pm

Marcus,

That might be the case, but if they could identify DNA from blood stains on clothing in OJ Simpson's trial in 1995, I don't see why they couldn't do the same with semen stains here?

Even assuming there was some sort of technical difficulty, that it was not further pursued when it came to his appeal is quite surprising.

Ok, fair enough. I don't disagree with that.

Whether or not you believe that there these two are guilty of the alleged crimes, they are usually found innocent due to having the best defence teams money can buy. A good defence team will be able to pick holes in the evidence or the reliability of witnesses testimony in even the most watertight looking cases. They are also very adept at picking the best possible jury for their clients too. So in fact the odds are tipped in their favour, not against them.

I think this is a generalisation on the basis of a couple of specific cases, in the same way that considering all defence lawyers to be amoral bastards is a generalisation on the basis of probably a relatively small number that may genuinely be so. (Not saying you believe that but the implication seems to be a not uncommon view.)

As for celebrities being able to afford the best defence teams money can buy, if a case is genuinely watertight then even the best criminal defence lawyer on the planet wouldn't be able to beat it on the facts (jury nullification is a separate issue). On the other hand if defence lawyers pick holes in the evidence to the point of securing an acquittal, the case is plainly not watertight. That's down to the prosecution not doing their job right.

MH

Edited to remove an inaccurate statement.

(Edited by Matthew Humphreys on 2/23, 2:10pm)

Post 13

Wednesday, February 23, 2005 - 3:56pm

"As for celebrities being able to afford the best defence teams money can buy, if a case is genuinely watertight then even the best criminal defence lawyer on the planet wouldn't be able to beat it on the facts."

OJ was acquitted because his defence team could show that the police department investigators were racist. However, that doesn't prove he was innocent.

I think MJ is also going to be acquitted because his defence team is going to show that his accusers have a history of being gold-diggers. However, that also does not prove his innocence.

Post 14

Wednesday, February 23, 2005 - 4:29pm

MH is going to have a field day with this “prove his innocence” business.

Post 15

Wednesday, February 23, 2005 - 4:48pm

Marcus,

OJ was acquitted because his defence team could show that the police department investigators were racist. However, that doesn't prove he was innocent.

I think MJ is also going to be acquitted because his defence team is going to show that his accusers have a history of being gold-diggers. However, that also does not prove his innocence.

So what? Defendants don't have to prove their innocence - the burden is on the prosecution to prove the defendant's guilt "beyond reasonable doubt". (I assume that's what Jon was getting at?)

The prosecution is an arm of the state. Defence lawyers hold the state to account by making sure the prosecution makes it's burden. If (and I emphasise if) the policemen who investigated OJ were in fact racist then that does place a question mark over the reliability of their evidence. I recall though that OJ was subsequently found liable in a civil court (where the burden of proof is looser), which suggests that the prosecution couldn't make the "beyond reasonable doubt" burden. Same deal with Michael Jackson - if the prosecutors' motives are in fact suspect then that does raise questions about the evidence. Barbara's concern is justified.

MH

(Edited by Matthew Humphreys on 2/23, 4:49pm)

Post 16

Thursday, February 24, 2005 - 1:15pm

"However, that doesn't prove he was innocent."

Sorry, badly worded. I did not mean that the defendant has to prove his innocence.

My meaning was that these facts alone do not discredit the evidence against them, in my opinion.

It's just as well I am not a lawyer :-)

Post 17

Saturday, February 26, 2005 - 1:49pm