Monday, June 27, 2011

Criminal Justice 101

Essential reading from Radley Balko at Huffington Post:

Criminal Justice Myths 1
Criminal Justice Myths 2
Criminal Justice Myths 3

I would say that these items need to be read by every individual in the American criminal justice system, but I know they won't be. Further, I understand that many individuals in the criminal justice system will find ways to rationalize each and every one of these examples.

So, instead of that, these items need to be read by every American likely voter. And every American likely to spend any time on a jury, anywhere.

Though the traditional criminal justice system response to juries behaving such ways would likely lead to the end of the American trial-by-jury system, and authoritarian advocates would define such behavior as "turning criminals loose" as opposed to seeing the widespread lack of confidence in the system we have.

"The price of freedom is eternal vigilance," - Thomas Jefferson, and he was talking about more than just paying attention to possible terrorists and criminals in the area around you. It is time civil libertarians started going to Police Academy en masse instead of law school.

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10 comments:

patsbrother said...

On May 23, 2011, you posted "Not Justice", a crazed screed against one instance of a court declaring an individual incompetent to stand trial.

You opposed it not because of a general policy against the declaration of incompetency, but because you didn't think that the normal rules should apply to that one incompetent defendant. Because you didn't like the nature or the extent of the allegations against him.

I think you need to accomplish a certain amount of self-reflection. Because you don't appear to be so very different from the people described in the Myths series.

Cousin Pat from Georgia said...

No, my position on competence has been the same for years: we can protect people with limited facilities within our legal system, and that is just. But if their developmental problem is that they are unable to determine that torturing, murdering, kidnapping and raping people is unacceptable behavior, I have no problem with a system that moves forward with charges against them - even if that requires death penalty sanctions. Especially when there is substantial real evidence presented.

patsbrother said...

Sure, that position would make sense in a fantasy world where the standard by which a court declares one incompetent to stand trial was merely his predisposition to commit the crimes for which he is charged.

Only in Real World, the standard has nothing to do with the crimes charged, and focuses on his ability to intelligently make the decisions he is required to make and to assist his attorney[s] in some meaningful way.

Are you serious, or was your response some performance art embodiment of a criminal justice myth which didn't make the list?

Cousin Pat from Georgia said...

This is not fantasy, this is what really happens.

We have too many developmentally challenged individuals railroaded into confessions, even of crimes they did not commit, where the confession is the main evidence against them in court.

Why are our protections in those cases insufficient, but in cases where there is a wealth of hard evidence (fingerprints, DNA, forensics, witnesses) our protections kick in? That is one of the places where people begin to lose faith in this system, and rightly so. There are only so many anecdotes of innocents being convicted and monsters being turned loose that can be accepted without cynicism.

The fantasy world is the one in which the above system is considered the more effective option, because that is what we have. For many reasons, our criminal justice system has become our mental health system, and that is corrupting.

Let me put if for you clearly, since you always seem incapable of taking my words at face value:

I do not believe an inability to assist in your own defense should necessarily negate the ability of the court to move forward with a prosecution. In cases where a confession is the main evidence against the inable defendent, I can see the court being just in their requirements of competency. In cases where the physical evidence against the defendant is overwhelming, I can see the court being just in moving forward despite a defense lawyer's challenges.

But these cases, as in ALL cases, I prefer to let the evidence speak the loudest.

patsbrother said...

You have confused so many different legal issues, your newest comment could stand as why I am petrified of career politicians assuming they know something about a subject with which they have no familiarity, and then passing laws merely because they think those laws sound good and will make them look good.

Whether a confession or an admission has been knowingly, intelligently and voluntarily made is A COMPLETELY SEPARATE LEGAL QUESTION FROM ONE'S COMPETENCE TO STAND TRIAL. They are entirely different inquiries.

In contradistinction to your point, it's kind of important to THE LAWYER to be able to speak intelligently with his client. You want "the evidence to speak loudest" (bravo, you brave man you), but the STATE's evidence is only one side of the evidence. If I can't even ask my client what happened, who else was there, where were you really, in some cases you might just as well assume everything the state alleges is true and bypass the trial. I don't know if you've ever spoken to a floridly psychotic individual about a past event before. I have.

Other decisions, such as whether to even go to trial or to take a plea offer is a decision the DEFENDANT (not the attorney) must make knowingly and intelligently. And if you lack the competency to plead guilty, you lack the competency to plead not guilty.

Your fantasy land is your believing that you could dictate which rules would apply to which people, based upon your magnificent ability to foreordain what evidence will be introduced at trial, and your ability to determine the weight of that evidence, long before its ever even introduced.

Thank you for at least coming out and stating that you WANT the state to convict and incarcerate people who are incompetent to stand trial or assist in their own defenses.

(Yeah. That's really going to lead to a criminal justice system with fewer wrongful convictions.)

I cannot fathom how or why you would send out a rallying cry to civil libertarians.

Cousin Pat from Georgia said...

Both have to do with how our criminal justice system deals with defendants with mental challenges.

On one hand, you have those who are prosecuted because their confession is the main leg the state's case stands on. Too many of them have been proven not guilty at some later time.

On the other hand, you have those who are not prosecuted because, despite the physical evidence against them being overwhelming, they are "unable to assist in their own defense."

Yet, they were able to get their physical evidence (fingerprints and DNA) all over a crime scene and an eyewitness/victim while they forced another eyewitness/victim to watch the crimes being committed.

That suggests to me a level of mental sophistication incompatible with an inability to assist in one's own defense. And yet...

I know it is an extreme case, but there's another one taking place in Seattle where the defendant, despite a mountain of physical evidence, is likely to have his facilities questioned on appeal due to his erratic and suicidal behavior at trial. And we can all see that Arizona gunman is setting up to use the "insanity" plea even though they caught him in the act of reloading his gun to continue shooting people.

At some point, the physical evidence has to come into play.

patsbrother said...

Your suggestions in this comment section would not add a single benefit to the workings of the criminal justice system.

Amazingly, your suggestions actually would lead to heaps more litigation, as someone would have to render a pre-trial opinion on whether the evidence reached either quantum you describe. (Not one, but two trials for everybody!)

[Please note: the word "overwhelming" is, at least in Georgia, a term of art, and sadly does not mean what you likely think it does.]

I believe if anything your suggestions would lead to a greater number of incorrect verdicts than we get now.

Here's an example! Imagine a scene with thousands of the defendant's fingerprints, gobs of DNA indicating the defendant factually had intercourse with the accuser, and there's a witness (the accuser!) saying the defendant raped her. In your scenario, that person's ability to assist in his defense is immaterial. The evidence is overwhelming. Let's get this trial over with!

Now what if it was consensual? You would have just convicted an innocent man, because people are incompetent to stand trial are incompetent to make decisions knowingly and intelligently, such as whether to waive the right against self-incrimination and take the stand. (Not that an incompetent is likely to make much sense up there while incompetent.)

I'm sure you'd like to make an exception to the exception. But then we'd keep finding these exceptions. Can't you agree that one rule, which applies to everyone, is better than figuring out all that on a case by case basis?

[Further, you do realize that the overwhelming majority of people who are declared incompetent to stand trial (at least in my experience) are made competent to stand trial through treatment and medication, right? This isn't a get out of conviction free card. You do realize that, right?]

We live by a rule of law, in which we don't merely change the rules in this case or that one because we don't like this or that defendant. That makes us better. Your suggestions would make us worse.

Cousin Pat from Georgia said...

Further, you do realize that the overwhelming majority of people who are declared incompetent to stand trial (at least in my experience) are made competent to stand trial through treatment and medication, right? This isn't a get out of conviction free card.

I sure hope that's the case.

But I question the methods by which individuals are ruled "incompetent." In the NOLA case, we have an individual whose physical evidence was found at the scenes of multiple home invasions, kidnappings, tortures, murders, and rapes. In some of those cases, the perpetrator made some victims watch him torture other victims. He wanted them to see what he was doing, and was competent enough to use the victims emotional attachment to one another to continue his crimes.

The old "if you scream, I'll kill her" trick.

How is such an individual incompetent? That appears to be some rather high level sadistic thinking.

Now, I absolutely understand that cases of that nature are exceptions. But if the system has trouble handling a case of that nature, we need to reevaluate how defendants are declared incompetent or we have to allow such a wealth of evidence to speak.

Because if the rules as currently written can't take all that into account, then there is something wrong with the rules or the application of the rules.

And there is something very wrong with the rules if that case can be held up because of incompetency, while so many other defendants for whom these protections were written continue to be railroaded by the system.

patsbrother said...

One's current competency is not a defense of insanity, and it has nothing to do with the crimes charges, which remains your focus.

A declaration of incompetency to stand trial is not an assertion that someone was insane at the time of the alleged crimes. It involves his mental state right now, rather than at the time of the alleged crimes.

One's mental health is not a constant. Neither is it a straight, linear up or down. People come in and out of mental competency. You're trying to judge his competency based on his past; regarding competency, the court only cares about the present.

Cousin Pat from Georgia said...

And how.