How Do You Fix This?

[kenberg]

I liked Adam's post a great deal. I have less overall enthusiasm for Obama, but the comments on his character are accurate and important. And I agree with the comments about HC and politics as usual, both that it is a bit depressing (my words, not Adam's) and that even though it's depressing it may give her a good chance to get things done. And of course that combination of facts is a bit depressing.

 

 

Sometimes it's the little things. I was watching Gone Baby Gone the other night, a so-so movie. The hero is talking with a cop he has been working with closely on a kidnapping, and later he replays the conversation in his mind and the plot takes a sharp turn. Hillary speaks of having a whole bunch of litmus tests for a Supreme Court nominee and I think "Hey wait a minute". I lack total recall, but as near as I can remember nominees steadfastly refuse to answer questions about how they would rule on any hypothetical case. Having a whole bunch of litmus tests plays well with her core base, but it is going to cause her trouble down the line. If she can have a whole bunch of litmus tests then so can the Senate. I, and I think by far most people, think the Senate should have long ago considered Garland, and if he is as qualified as advertised, he should have been confirmed. HC's comments undermine this position. And I find it ominous that she seemed unaware of this.

 

During the 1964 Democratic primary, Eugene McCarthy (a.k.a. the good McCarthy) commented that "Hubert Humphrey wants too much to be president". His meaning was clear. We expect a leader to lead. This requires solid political skill, but it also requires core beliefs. These two requirements can be in conflict. I wish her well.

[cherdano]

I don't mind the comments about litmus tests.

Let's be real. There are tens of thousands of people who have the intellectual capability of deciding supreme court cases. Maybe their prose wouldn't win nominations for the Nobel prize of literature from SCOTUS commentators, but they would be perfectly able to understand the legal issues involved, as well as the relevant precedents. The differences amount to their "qualifications" (i.e., their CV points), and how they relate these legal arguments to real life (i.e., their political opinions). It would be disingenuous to pretend to only care about the former.

 

Of course, my own litmus tests would be somewhat different than Clinton's. I think its good that the New York Times and the ACLU and the United Auto Workers and individual Chrysler workers have first amendment rights. It would be inconsistent and illogical and counter-productive not to give the same rights to Breitbart and AEI and the chamber of commerce and the CEO of Chrysler.

 

On the other hand, a large number of cases taken by SCOTUS concern due process. It bothers me that both SCOTUS and federal courts are heavily tilted towards former prosecutors rather than defendse attorneys. If you have been a prosecutor for a while, it seeems highly likely that you develop a highly skewed perception of these issues. To take just one point: if someone gets sentenced to life or death despite being innocent, that should be sufficient evidence that due process wasn't served. (And whether you agree with me or not, I don't think 20 years on the federal bench, aka "qualification", give anyone any additional insight into this question.)

But SCOTUS has always carefully avoided making a ruling establishing that logic.

[kenberg]

Real is good, and largely that is my concern here.

 

"litmus test" is perhaps vague in this context, after all it is borrowed from chemistry. But the common understanding is that the potential Justice will be asked how s/he would rule on certain issues and, if the answer is unsatisfactory, the person is out.

 

This differs from asking for a general orientation. Over the years, it seems to me that it has become not only acceptable but expected that the President will nominate someone with a general orientation that the President finds congenial. Obama's nomination of Garland fits that mold. Then the Senate is expected to look into qualifications and history. Some deference to the President regarding general legal philosophy is expected. Yes, I know this does not always happen. But, traditionally, the Senate then gets criticized.

 

Of course a President hopes for Supreme Court rulings to go in certain ways, and chooses a nominee that, by legal history, can be expeceted to be generally on the same page as the Pres. . But, traditionally, it has been acceptable for a President to select based on the general legal philosophy of a potential nominee, but not on specific promises to rule in specific ways on specific issues. And that is my understanding, and I think the widespread understanding, of a litmus test.

 

Short version: Nominating a cabinet secretary is nominating someone for the Administrative Branch. Nominating a Supreme Court Justice is choosing someone to serve in the Judicial Branch. Litmus tests may be ok in the first case, but they are not in the second.

 

And, as I said, it can be self-defeating since it undermines the argument that a qualified nominee should be approved even when the nominee's philosophy is not what the Senator might have hoped for.

 

Many in her base will cheer the use of litmus tests. They may be less cheerful about where this leads.

 

Playing to the base is, to some extent, expected. But it has consequences.

[barmar]

I don't mind the comments about litmus tests.

To take just one point: if someone gets sentenced to life or death despite being innocent, that should be sufficient evidence that due process wasn't served.

That's like saying that when a weather forecast is wrong, the meteorologists were asleep at the wheel.

 

Sometimes you follow all the proper procedures, but still come to the wrong conclusion, because we live in an imperfect world.

[hrothgar]

That's like saying that when a weather forecast is wrong, the meteorologists were asleep at the wheel.

 

Sometimes you follow all the proper procedures, but still come to the wrong conclusion, because we live in an imperfect world.

 

And that is why its a bad idea to deliberately choose to use a badly flawed process to decide whether or not to kill someone.

[cherdano]

That's like saying that when a weather forecast is wrong, the meteorologists were asleep at the wheel.

 

Sometimes you follow all the proper procedures, but still come to the wrong conclusion, because we live in an imperfect world.

So, of course the actual question is the following: if someone is sentenced to death, but can prove in front of an appeal's court that he is innocent, is that sufficient enough of a reason not to kill him?

Obviously, any process will sometimes lead to wrong conclusions. But when you can prove that it led to a wrong conclusion, then surely there must have been something wrong when that person was declared "guilty beyond reasonable doubt" - there should have been reasons to doubt.

[barmar]

And that is why its a bad idea to deliberately choose to use a badly flawed process to decide whether or not to kill someone.

Only the death penalty? It's OK to use a badly flawed process to sentence someone to life imprisonment?

 

I'm not a fan of capital punishment, but absolute statements like that don't seem appropriate. We can't let the perfect be the enemy of the good.

[barmar]

So, of course the actual question is the following: if someone is sentenced to death, but can prove in front of an appeal's court that he is innocent, is that sufficient enough of a reason not to kill him?

Obviously, any process will sometimes lead to wrong conclusions. But when you can prove that it led to a wrong conclusion, then surely there must have been something wrong when that person was declared "guilty beyond reasonable doubt" - there should have been reasons to doubt.

Not necessarily. Sometimes the information that would lead to doubt simply wasn't available at the time. You can't keep investigating forever, eventually you have to decide that you've done enough and it's time to hold the trial, and you have to make decisions based on the information available at that time.

 

Consider people who have been exonerated using DNA evidence. DNA analysis simply didn't exist at the time of their trial, or it would have provided the necessary doubt then (they might not even have been charged). But you can't conclude that there should have been reasonable doubt because of some type of evidence the court couldn't even envision at the time. You do the best you can with what you have.

 

Or consider eye-witness testimony. In recent years, scientists have learned that this is not very reliable. But for hundreds of years, it has been assumed to be reasonable. So when a victim pointed to the defendant and declared "That was the guy that shot me", this was considered very reliable. There was little reason to doubt it. With what we know now, we perhaps should doubt it more, but tradition and psychology still make it difficult for jurors to discount it.

 

There also have been reports that forensic science isn't nearly as reliable as is assumed. Samples get contaminated, for instance.

 

But where does all this leave us? If we only depend on completely indisputable evidence, we'll rarely be able to convict anyone of anything. Note that the phrase is "beyond a reasonable doubt", not "beyond any conceivable doubt".

[cherdano]

What are you arguing for, Barry?

I am not saying it is possible that the justice system never makes a mistake. I am saying, when we do know that it made a mistake, then we should correct it. If we don't correct it, we are putting finality of the process over fairness of the process. That does not seem process of the "proper quality and extent".

[barmar]

What are you arguing for, Barry?

I am not saying it is possible that the justice system never makes a mistake. I am saying, when we do know that it made a mistake, then we should correct it. If we don't correct it, we are putting finality of the process over fairness of the process. That does not seem process of the "proper quality and extent".

Who is arguing that we shouldn't fix mistakes? Not me.

 

It seemed like you were saying that we can't convict people in the first place because we can never be sure beyond a reasonable doubt. Or that when we discover errors, it calls all previous convictions into question. Maybe I misunderstood you.

[cherdano]

Who is arguing that we shouldn't fix mistakes? Not me.

 

It seemed like you were saying that we can't convict people in the first place because we can never be sure beyond a reasonable doubt. Or that when we discover errors, it calls all previous convictions into question. Maybe I misunderstood you.

 

The question I raised is the following. Person X is convicted. Person X has exhausted all their appeals. Person X obtains new evidence that proves that they are innocent. Does X have a constitutional right to present this evidence in court, and a right to have their conviction overturned if they can indeed convince the court of their proof of evidence?

 

SCOTUS has quite carefully avoided answering this question. I think the answer is obviously "yes". SCOTUS' refusal to answer this question has the practical consequence of clearly innocent prisoners staying in jail.

[helene_t]

The question I raised is the following. Person X is convicted. Person X has exhausted all their appeals. Person X obtains new evidence that proves that they are innocent. Does X have a constitutional right to present this evidence in court, and a right to have their conviction overturned if they can indeed convince the court of their proof of evidence?

 

SCOTUS has quite carefully avoided answering this question. I think the answer is obviously "yes". SCOTUS' refusal to answer this question has the practical consequence of clearly innocent prisoners staying in jail.

But what does it mean that X "obtains evidence"? Isn't it the job of the court to decide if that is indeed the case? And isn't it reasonable that at some point the appeals are exhausted, to prevent an endless sequence of appeals?

 

I think the safeguard here must be that the governor or president can pardon X.

[Zelandakh]

"litmus test" is perhaps vague in this context, after all it is borrowed from chemistry. But the common understanding is that the potential Justice will be asked how s/he would rule on certain issues and, if the answer is unsatisfactory, the person is out.

Why is this? It seems to me that a perfectly good Litmus test would be that a judge has a record of ruling consistently rather than following the fashion of public opinion, or even just someone that you would not mind having a long dinner sat next to. It perhaps says something about the nature of American politics when such a phrase can acquire such a specific and charged meaning. Has HC clarified exactly what she herself meant?

[Zelandakh]

And isn't it reasonable that at some point the appeals are exhausted

Is it? Surely it is at least as reasonable to allow hearings for a judge to decide if new evidence has enough merit to warrant a new appeal rather than limiting a person to a fixed number of appeals. Otherwise you can have the situation of new evidence coming in that is not immediately conclusive in showing X to be innocent but very likely calls a conviction into question and now the Governor has to make a personal decision, perhaps one that might swing votes for their re-election, rather than going through the due process in a court.

[cherdano]

But what does it mean that X "obtains evidence"? Isn't it the job of the court to decide if that is indeed the case?

I am not sure what you mean by this. In the adversarial US legal system, evidence can only be considered by a court if one of the two parties provides this evidence. (There might be exceptions to that, not sure, but as a general rule it holds.) The court makes no effort to obtain evidence on its own.

 

I don't think a rule allowing for post-appeal evidence that proves innocence would lead to endless appeals in all but a few cases. The bar would be extremely high. The defendant could file a claim saying "Please consider the attached evidence proving that I am innocent." Unless the judge finds that this may well prove innocence, and agrees that the defendant couldn't have known of this evidence earlier, he'd throw this claim out without a hearing, and the defendant would gain nothing but legal costs.

 

There is no such finality on other possible due process claims, either. For example, I believe in most US states defendants could file claims of Brady violations (prosecutors withholding important evidence that is helpful to the defense) at any point, as long as they did not learn of these violations earlier. This does not lead to endless appeals except in cases where prosecutors withheld evidence.

 

In fact, let me continue my original point. Again, personally I would argue that prosecutors intentionally withholding exculpatory evidence is an obvious violation of due process, and thus defendants should have a constitutional right to bring such a claim at any time (within a reasonable period of the defendant learning of such a violation). Yet to my knowledge neither SCOTUS nor federal courts have found this to be the case (that's why I wrote "most states" not "all states" above).

[Zelandakh]

In fact, let me continue my original point. Again, personally I would argue that prosecutors intentionally withholding exculpatory evidence is an obvious violation of due process, and thus defendants should have a constitutional right to bring such a claim at any time (within a reasonable period of the defendant learning of such a violation). Yet to my knowledge neither SCOTUS nor federal courts have found this to be the case (that's why I wrote "most states" not "all states" above).

Has there ever been a case in America of a defendant being denied the right to appeal where a prosecutor has deliberately withheld significant evidence that would call the conviction into question? (other than during the days of the KKK)

[cherdano]

Has there ever been a case in America of a defendant being denied the right to appeal where a prosecutor has deliberately withheld significant evidence that would call the conviction into question? (other than during the days of the KKK)

If there is a time limit, defendant cannot even file an appeal. Yes, this has happened.

Side note: intention by the prosecutor is irrelevant.

[helene_t]

Is it? Surely it is at least as reasonable to allow hearings for a judge to decide if new evidence has enough merit to warrant a new appeal rather than limiting a person to a fixed number of appeals. Otherwise you can have the situation of new evidence coming in that is not immediately conclusive in showing X to be innocent but very likely calls a conviction into question and now the Governor has to make a personal decision, perhaps one that might swing votes for their re-election, rather than going through the due process in a court.

Yes you are right. Thanks.

[mike777]

Has there ever been a case in America of a defendant being denied the right to appeal where a prosecutor has deliberately withheld significant evidence that would call the conviction into question? (other than during the days of the KKK)

 

 

If you do a plea deal you lose many rights of appeal, not all but many/most. Roughly 99% of federal cases end in a plea deal. Most state/local cases end in a plea deal.

 

Keep in mind that today most trials really mean the period before trail called "discovery". To answer your question, yes there have been examples of where the prosecutor has been found to deliberately withhold significant evidence during "discovery" There have been many more accusations of such withholding but the judge found it to be insignificant in their judgement.

[mike777]

The question I raised is the following. Person X is convicted. Person X has exhausted all their appeals. Person X obtains new evidence that proves that they are innocent. Does X have a constitutional right to present this evidence in court, and a right to have their conviction overturned if they can indeed convince the court of their proof of evidence?

 

SCOTUS has quite carefully avoided answering this question. I think the answer is obviously "yes". SCOTUS' refusal to answer this question has the practical consequence of clearly innocent prisoners staying in jail.

 

 

It is important to note that the vast number of appeals do not deal with the issue of whether person x is innocent. The question most often is was the law followed.

 

So regarding the issue of new evidence found years later the issue is what is the law in the given jurisdiction regarding presenting new evidence after the trial. Not all "new evidence" is equal under the law, the law varies from place to place.

 

In general judges and the law make it very very difficult to overturn the trial court decision.

[barmar]

It is important to note that the vast number of appeals do not deal with the issue of whether person x is innocent. The question most often is was the law followed.

True. The general idea is that as long as due process was followed and the defendant received a fair trial, the decision stands.

So regarding the issue of new evidence found years later the issue is what is the law in the given jurisdiction regarding presenting new evidence after the trial. Not all "new evidence" is equal under the law, the law varies from place to place.

 

In general judges and the law make it very very difficult to overturn the trial court decision.

Yeah, we don't want to be forever retrying cases.

 

I think it depends on the nature of the new evidence. If it's evidence that the defense could have found and presented in the original trial, but for some reason they didn't, they don't get a second bite at the apple. But if it was infeasible at the time, they may get another chance. That's why DNA evidence works for reopening very old cases: if DNA analysis technology was not adequate at the time of the original trial, that's not the defendant's fault, and we presume the defense would have presented it if they could (or if the police had done the DNA check, they probably wouldn't have charged him in the first place).

[Zelandakh]

True. The general idea is that as long as due process was followed and the defendant received a fair trial, the decision stands.

 

Yeah, we don't want to be forever retrying cases.

 

I think it depends on the nature of the new evidence. If it's evidence that the defense could have found and presented in the original trial, but for some reason they didn't, they don't get a second bite at the apple. But if it was infeasible at the time, they may get another chance. That's why DNA evidence works for reopening very old cases: if DNA analysis technology was not adequate at the time of the original trial, that's not the defendant's fault, and we presume the defense would have presented it if they could (or if the police had done the DNA check, they probably wouldn't have charged him in the first place).

Am not sure historical precedent is with you here Barry. Take the other big DNA scandal, that of statistical probability. In the early days of forensic evidence it was standard practice for the Prosecution to present astronomical numbers for the likelihood of the defendant not being guilty given the evidence presented. Obviously defence lawyers were able to challenge these numbers but they were widely believed and accepted leading to many convictions. Some time later it was shown that the entire basis for the probabilities was completely false and this led to re-trials and appeals in most advanced countries, presumably also in America. It was not new evidence so much as the old evidence being re-examined. New evidence comes in many forms.

 

A further point is this. If you are able to afford a good defence lawyer they are much less likely not to have found a vital piece of evidence and presented it. Not accepting evidence that proves someone's innocence because of lax work by the defence team strikes me as a penalty against the poor, which goes against the widely accepted ideal of justice being blind. In truth the poor have more than enough disadvantages in the legal process without adding additional artificial ones.

[mike777]

It is rare very rare for a defense to have a team. In practice you get lawyer with a bunch of other cases...only on tv or the very rich do you see these "teams" going out and looking all around for evidence. Keep in mind at the federal level 99% of cases end in a plea deal, not a trial...I also expect the number is very high for local cases.

 

 

On a civil case where money is involved, a lot of money paid by some insurance company you may get your lawyer to do a bit of searching.

[onoway]

A question of justice; http://deadstate.org/anger-boils-over-as-oregon-occupiers-acquitted-while-standing-rock-protesters-are-arrested-and-tear-gassed/

 

Armed white men attempting to seize land are acquitted while unarmed people peacefully protesting are shot with rubber bullets, bitten by attack dogs, their horses shot at with real bullets (one killed) people injured with the combined might of riot police from 5 states brought in to force them off their own land so as to permit big oil to move through there without issues. In the meantime, Sunoco has just had a pipeline fail and pollute miles of river elsewhere, underlining the validity of the Dakota Sioux concerns. Broken promises once again.

 

Clinton was asked for help and basically said nothing, only that everyone ought to talk to each other, Trump reportedly asked why the Indians dont pay taxes.

 

The Treaty Camp is named in reference to the 1851 Treaty of Fort Laramie, which designated the land as belonging to the Great Sioux Nation. Despite the order to halt construction by three federal agencies, DAPL construction has encroached approximately 17 miles into the 20-mile voluntary exclusion zone.

 

If those white men had not been white, they would undoubtedly have been labelled terrorists and the book thrown at them. Give them names like Mohammad and the public outcry for blood would have been heard across the country. But publicly funded police being used to attack people camping on their own land is perfectly acceptable..as long as they aren't white. Or rich.

 

Just what will it take for the US to become the country it claims to be? At the moment it looks to be unravelling at the seams, to say the least.

[Zelandakh]

It is rare very rare for a defense to have a team.

This is patently untrue Mike. The lawyer will usually have at least one admin clerk to call upon and the clerk will often attend hearings in place of the lawyer if no legal arguments are required, such as entering a guilty plea. This is not inconsistent with the lawyer also having many other cases and (usually) not doing any investigative work. In general, the police are assumed to have investigated any substantial evidence.