On-Topic Justice and (our) humanity

[JayHawk]

Ah but there is where you are thoroughly and completely incorrect. First, all of them stand accused of one crime or another. Two not a soul in Washington DC is arguing that they deserve to be detained forever because the war on terror will never be declared 'over'. Three it has become a political football but it doesn't affect the average American so they forget it almost as soon as the topic is broached. Four we do have a system in place for trying prisoners of war. However the left wing and now the right wing has blocked its use for political reasons.

 

[palbert]

No, but as I said, the vast majority of accused are guilty. ....

That statement underlies the problem. Incarcerating any one for no matter how long, or worse yet imposing the death penalty, should require good faith attempts to meet constitutional requirements. If not we fail in our duty as citizens. And that puts all of us at risk.

With too great frequency we hear of prisoners released for failure of the evidence on secondary consideration of the evidence. Too often we hear of masses of cases dismissed because of negligence, malfeasance or outright tamoering with evidence at vaunted state labs.

To say "the vast mjority of accused are guilty" allows that a significant number are not.

 

[Benvolio]

If you haven't noticed, our Federal government is broke and local governments are struggling. Yes accused should be given the assistance of counsel, and they do have public defenders. We have no obligation to and cannot afford to give them much more. Every criminal is not entitled to an OJSimpson team to beat the rap.

There are changes in procedure that should be made. In death cases, the Judges including appellate judges should be obligated to join in the finding of guilt before affirming. DNA tests where they would be controlling.
No one can be convicted without proof of guilt beyond a reasonable doubt, but many juries lack the ability to apply that standard or other wise do not.
Miranda should be repealed. There is no valid policy in discouraging the guilty from confessing the Constitution is right; accuseds should not be required to testify against themselves. But the USSC was wrong in expanding it. The law should encourage the guilty to confess, even if the don't know they don't have to, while prohibiting torture and force.

 

[palbert]

@ Benvolio

Your immediately preceding post is a microcosm of the general apologia for doing nothing. SCOTUS, and other courts, have not said that constitutional imperatives are subject to budgetary considerations.

As for juries, I have found them very perceptive when presented with all relevant facts. And that is where your reasoning falters.

Constitutionl imperatives are really not negotiable.

 

[Benvolio]

I ran out of time. It should read: There is no valid policy in discouraging the guilty from confessing. The Constitution is right;

 

[Kulindahr]

Let's not forget the the vast majority of accused people are guilty, and crimes are by their nature, against society. I find it hard to accept that the public, as victims of the crimes, are then expected to pay higher taxes to help the criminals get off. We already pay for public defenders and the law is slanted dramatically in favor of the accused. Enough is enough.

No one with any in the real justice system could claim that. What you find out is that the system is hevily slanted toward sucking money out of people. They don't care if you're guilty or not, they want money.

Besides which, most places decidedly do not "pay for public defenders".

 

[Kulindahr]

The authorities are too numerous to cite. Google "constitutional right to effective counsel."

Unfortunately, what that means in reality is a constitutional right to what the client thinks is effective counsel. Not knowing the system with its ins and outs, not knowing the records of the assortment of attorneys, a client is left to hope and gamble.

The right does, however, give the client the authority to "fire" a court-appointed attorney for perception of not being effective, and get a new one.

 

[palbert]

Unfortunately, what that means in reality is a constitutional right to what the client thinks is effective counsel. Not knowing the system with its ins and outs, not knowing the records of the assortment of attorneys, a client is left to hope and gamble. ....

Lamentably true, except in the rare circumstance the judge steps in and rights the on-going wrong.

 

[Kulindahr]

Death peenalty appeals are arduous and technical. Frequently they come from "prison lawyers" or the defendant alone (pro se); I do not disprage such cases, several have prompted landmark decisions (particularly from the Warren Court). At the other end are pro bono cases handled by organizations like the Innocence Project or private law firms; I think of these cases as involving intriguing legal issues or egregious wrongs in the judicial process.

The problem lies with the cases that fall between the two extremes above. Even if they do not involve the death penalty the right to counsel should obtain where loss of liberty is at stake. Unfortunately, I believe the Sixth Amendment applies only to the trial level. If this is in fact true it would explain why there are so few successful appeals "in the middle."

To all this I submit the vagaries of appellate judges. I recall a Florida appellate case where the court said that the rules required only the filing of a brief, they did not require a good brief.

Too true. The moment you step out of the trial level courtroom, you're on your own.

That's wrong, because the other side gets all the funding the taxpayers can bear. That structure is left over from a legal system where the Crown prosecutor had the backing of the Crown's treasury and the accused had nothing, where the goal was to collect funds in the form of fines -- for the purpose of funding war. In a free country, it makes no sense that the prosecutor has basically unlimited funds and the defense has none. When a unpublished study by a major newspaper (that my dad got his hands on, and I've referenced often) shows that one in five of those who take plea bargains are totally innocent, it's time to fix the system.

 

[Kulindahr]

For the most part cases are won or lost at the trial court level; they arrive at the appellate level with a presumption of correctness. To deny truly competent counsel, with the funds to investigate (e.g., DNA) the case, is to deny constitutionally protected rights.

I don't have to like this any more than others do. It is the law. And it is also a fact that many trials are defended by less than competent legal aid or appointed counsel going through the motions of providing a defense. (I know that I am not competent to handle a criminal defense.)

Perhaps the Justice Department should step in and promulgate directives to ensure constitutional compliance.

That would only change federal practices. Most criminal prosecutions are done by states, though, so it wouldn't change much for most people.

 

[Kulindahr]

That only applies to American citizens just like the Constitution. You would be surprised how few rights immigrants have in the US until they become citizens. This is one of the key issues I deviate from the Liberals on.

SCOTUS has established firmly that the Bill of Rights applies to everyone, even illegal immigrants. There are two instances where this may not be true: first is administrative proceedings, where generally no one has the right to counsel; second is in matters military, and area where Obama has extended the uncertainty to include citizens.

 

[Kulindahr]

Benvolio's point of view: If you are poor you must be guilty.

As the man said: the opposite of poverty is justice.

 

[Kulindahr]

That statement underlies the problem. Incarcerating any one for no matter how long, or worse yet imposing the death penalty, should require good faith attempts to meet constitutional requirements. If not we fail in our duty as citizens. And that puts all of us at risk.

With too great frequency we hear of prisoners released for failure of the evidence on secondary consideration of the evidence. Too often we hear of masses of cases dismissed because of negligence, malfeasance or outright tamoering with evidence at vaunted state labs.

To say "the vast mjority of accused are guilty" allows that a significant number are not.

Yes.

If we truly believe in innocence until guilt is proven, it makes no sense to hold back resources from the accused, resources equal to those for the prosecution. To fail to do so is a commentary on how little we value truth -- and if we value not truth, we cannot claim to value justice.

The Guantanamo situation is a bit beyond the reach of this thread, except in this: the extreme case often illustrates problems not otherwise seen. In this case it shows that politicians are far more interested in their own careers than in treating human beings as people. There's little difference between Gitmo and Texas Death Row: once you're there, you're just a counter in someone's game(s), not an actual person.

 

[palbert]

Re Post 53:

The Crown was just as interested in conscripting an army and navy, as well as populating colonies with labor (e.g., Australia).

 

[Kulindahr]

@ Benvolio

Your immediately preceding post is a microcosm of the general apologia for doing nothing. SCOTUS, and other courts, have not said that constitutional imperatives are subject to budgetary considerations.

As for juries, I have found them very perceptive when presented with all relevant facts. And that is where your reasoning falters.

Constitutionl imperatives are really not negotiable.

Good response.

Benvolio continues to push a view that would just make things worse. The Miranda warning was put in place because the system did not work; police coerced confessions from people, resulting in an unreality that makes today's statistics look like good progress. Even today the police trick confessions from people because SCOTUS has held that the police are entitled to lie to elicit "information". If for no other reason than the corrupting influence, or the appearance of a corrupting influence, that should be undone -- or at least the playing field leveled, so if the cops can lie to people, then people are legally permitted to lie to the cops.

 

[Kulindahr]

Re Post 53:

The Crown was just as interested in conscripting an army and navy, as well as populating colonies with labor (e.g., Australia).

IIRC, the original fines-for-crimes scheme to fund a war was under one of the Edwards.

And Australia -- according to one history of the Royal Navy I read, prison ships in the harbor were the Crown's solution to insufficient gaol space, but when the Royal Navy complained about those ships being in the way, and asked for them to be moved... well, they got moved around the world.

And the thing that makes this on-topic is that according to that and another such history, a large portion of those i the prison ships were there because they couldn't afford counsel to represent them, so they were stuck, unable to pursue their cases. We don't have quite that situation any more, but we do have a situation where probably most people accused of a crime never even see their attorneys until the first court appearance -- and now that we have video appearances, frequently not then.

 

[Benvolio]

@ Benvolio

Your immediately preceding post is a microcosm of the general apologia for doing nothing. SCOTUS, and other courts, have not said that constitutional imperatives are subject to budgetary considerations.

As for juries, I have found them very perceptive when presented with all relevant facts. And that is where your reasoning falters.

Constitutionl imperatives are really not negotiable.

I distinguish between the Constitution and the Supreme Court. There is no Constitutional requirement of defense counsel paid by taxpayers. That is a Supreme Court legislation and is not entitled to our respect. But the present system is not under attack by the court, but by liberals, like Brian in the OP.
The Miranda rule serves no purpose but to discourage the guilty from voluntarily confessing. It does not prevent coercion by the police since the ones coerced are those who do not confess voluntarily.
Plea bargains are different from confessions. They are a form of court-sanctioned coercion. "Plead guilty or we will do something much worse if you are found guilty, perhaps death."

 

[palbert]

That would only change federal practices. Most criminal prosecutions are done by states, though, so it wouldn't change much for most people.

Compliance with Justice Department's competent defense guidelines could be tied -- as a funded or unfunded mandate -- to federal public safety spending.

 

[Kulindahr]

Compliance with Justice Department's competent defense guidelines could be tied -- as a funded or unfunded mandate -- to federal public safety spending.

In general I hate that approach to things; it strikes me as too much like bribery. But this one is worth pondering, because it can be directly linked to a constitutionally-protected right.

 

[palbert]

I distinguish between the Constitution and the Supreme Court.

Unfortunately, you may not. It is the sole duty of SCOTUS to say what the law is. Marbury v. Madison.