Tag Archive for 'Court'Page 21 of 27

The Mysticism of Expert Testimony

As a race, we have certainly tried some very unorthodox ways of going about justice.  When confronted with something impossible to know, whether the origin of the universe or a man’s guilt, we tend to drift into rituals, mysticism and speculation.

Take for example the medieval trial by ordeal.  One common way to determine whether someone was guilty of a crime was to make them retrieve an object from a pot of boiling water.  If their wounds healed, they were considered innocent.  Common moral sensibility and actual biblical doctrine aside, people believed God would miraculously spare the wrongly accused from the pain of an unjust trial.

Good thing we’ve moved to a higher plane of cultural enlightenment, right?  Well, we still seem to hold people, even presidents, to a very strict form of oathtaking.  Also, the black gowns of judges and the mortarboards and golden tassels of college graduates can be traced all the way back to pagan mysticism.  If you asked most people, they would probably point to England, only the most immediate parent in a long succession of cultural forefathers.  If you ask me, nothing has really changed.  We apparently just have shorter memories.

Our new modern paragons have made us forget.  They’re especially effective this time around.  Sixty years ago, some questioned whether they would need a phone in their household at all.  Today, we buy Lady Gaga ringtones by the thousands just to get our gizmos to make different sounds.  Each one costs an entire day’s worth of pay according to the world’s median income.  And the immaculate force that has likewise transformed the world hasn’t failed to make an appearance in the courtroom.  It descends from on high to render judgment, just like the reigning force did in medieval times with trials by ordeal.

From the OJ Simpson trial on down, almighty science is called upon to answer the unanswerable.  Instead of clergymen with golden crosses prepping their tongs, scientists in white lab coats go about scrubbing crime scenes for hair follicles, ballistics clues and DNA evidence.  When something like DNA, for example, is argued to show something, no juror with any technology in their pocket seems capable of denying its scientific soundness.  I mean, what could be more scientific than DNA?  The focus seems to be on the magic of the science itself, not the logic of what the evidence actually shows.  Once someone’s blood shows up in a crime scene, for example, there is little attention left over for the question of whether or not the blood evidence actually means that the accused did the crime.  Bleeding is still not a crime in the U.S., but experiment and reason don’t always go hand in hand.

Furthermore, the experiments themselves aren’t always sound.  Specific crime labs across the country are famous for their bogus and doctored results.   But when the experts show up in court, it’s always with an easily digested conclusion for us common folk sitting in the jury.  Under the tutelage of our appointed seers, countless verdicts are rendered that are just as unjust as an innocent man dipping his arm in scalding water.  Some estimate that when the oracles of science deign to testify, they overstep their bounds as often as 60% of the time.

If that’s true, trial by ordeal may have even been a superior method.  According to a recent article that has been a matter of some controversy, it had an interesting way of producing a correct result.  The theory is that the accused, believing in the ordeal was reliable, would be less willing to submit to it if they were guilty.  And since only an innocent man would subject himself to it instead of confessing, priests would know to lighten the test when it actually needed to be performed.  The key, therefore, was the commonly held belief that the system actually worked.  So whether our illumination comes from science or religion, people are prompted to voluntarily divulge their story when they personally believe in an unfailing eye of truth.

At least, that’s how it worked ages ago.  The most important ingredients of faith-based justice are conspicuously lacking from what’s considered the most evolved legal system in the world.  First, the plea bargaining system is viewed as a game of risk minimization rather than a way for the guilty to gain some measure of moral absolution.  Thus, even the innocent sometimes plead out while on the other hand the guilty often just try to get the best lawyers.  While the masses in the jury are certainly just as enthralled with science, it is simply not as good at inspiring remorse in the heart of the wrongdoer.

More importantly, science seems to operate differently on the higher tiers of society.  The effectiveness of trial by ordeal depended on those administering the trial realizing that most who submitted were innocent.  They would then soften the test, which showed that on some level they didn’t share the belief with the common man that divine force itself was what made it fair.  In our society, the adversarial system prevents those who perpetuate the system from ever showing the same sort of restraint.  They are actually the most ardent in the belief that two opposing sides clashing at full force is the best route to truth.  Instead of revealing the smoke and mirrors to juries, judges are clamoring to remain updated on the latest methods.  The highest in the land even seem to suggest that when jurors contradict the science presented, it’s an incorrect verdict that they’re nevertheless entitled to because of that pesky Constitution.

So, it’s starting to look a lot like the Dark Ages.  Even belief systems prided on objectivity and rationale have an irrational side.  Only now our master is an unfeeling one that makes no claim whatsoever to questions of right and wrong.  The only force thought sufficient to reveal the truth at trial is human sophistry.  I sometimes wonder how we’re going to look a thousand years from now.  Like trial by ordeal, people may be scoffing at the irony that our system actually worked.

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Legal Technicalities: A Blight To Our Legal System?

An interesting case caught my eye the other day that made me think about the effectiveness of our criminal justice system.  So let me bounce a question off of all of you: if someone was convicted and sentenced to 15 years in prison, do you think his or her entire trial should be redone if the jury were never sworn in?

Please, one at a time…  The cacophony of replies is defining…

Just kidding, the only time that ever happens is when you ask it to a classroom full of sycophantic first-year law students.  But people do have very divergent point of views on this matter, especially when the exact case I described just happened to a Michigan man.

Apparently the man, Timothy Becktel, was sentenced way back in 2008 for assault with intent to commit murder and was recently granted a new trial because the jury never took an oath of honesty.  Essentially he’s being retried by sheer stroke of luck brought to him by the court’s mistake, or for those who love Law and Order, Becktel’s getting a second chance due to a legal technicality.

Here’s a quick courtroom refresher for those of you fortunate enough to have never been called for jury duty.  All jurors are required to take the juror’s oath prior to being able to serve on a jury.  By taking the oath, the juror essentially swears that they’ll uphold the law and deliver an honest verdict in line with the law and facts of the case – jury nullification not withstanding of course, but that’s a post for another time.

Those convicted of committing a crime and getting off on technicalities has always been in the legal news in some form or another.  Usually in the context of evidence being obtained by police without a proper warrant or being admitted into a case in violation of state or federal rules of evidence on hearsay, and usually to the outrage of the opposing party along with the public in general.  The question always revolves around whether such outcomes are right and in line with delivering justice to the parties involved.  This question becomes especially pointed and heated in cases of murder and child molestation.

The answer to this question really involves delving into the public policy reasons why we are legal system is set up the way that it is, specifically what were the goals our America’s forefathers sought to achieve when they created the system.

Though it can be pretty infuriating when someone who appears to be guilty of a crime is allowed to walk free because some court clerk misspelled a name, the reason we have all these court procedures in place is to ensure justice is served.  And yes it can seem pretty unjust to allow someone to get off because of a silly court mistake, but justice means not only ensuring the guilty are punished, but that the innocent are cleared and freed.  The reason we have all these seemingly arbitrary rules is to weed out things like bad or false evidence, prosecutorial and police misconduct, and ethical violations in general.  From this perspective, these arbitrary rules hopefully can seem less arbitrary.

It’s also good to remember that it’s also quite rare to see the type of Law and Order-esque technicality injustices happen in real life.  The courts rarely allow convicts to go free as the opposing party can still do things like appeal the decision to higher courts and so forth.  Not to say they still can’t happen, of course.  Resentencing?  Come on…

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4 Ways to Avoid Digging Your Own Grave in Court

If you’re a party to a lawsuit or a criminal defendant, it’s generally a good idea to be seen and not heard. Unless specifically called on to speak, parties are well-advised to sit quietly (but attentively) at their table.

Some people, however, think they might be able to help their cases by engaging in some rather unorthodox conduct while in court. You should resist this temptation, whatever it is, should it arise. However, here are a few specific examples of things you shouldn’t do if you want to have a chance at winning your case:

1. Don’t physically assault your lawyer in front of the jury

For a person who’s been accused of a crime, emotions often run high. They might find it difficult to think and behave rationally. This is understandable. However, when you’re in open court, in full view of the jury, and engage in the exact same conduct that you’re currently on trial for, you’ve probably sent yourself up the river.

A man, who is accused of assaulting a police officer, the officer’s police dog, and a civilian, physically assaulted his own defense attorney in court, in the presence of the jury that was to decide his fate. Actually, he attacked his lawyer twice; first slapping him in the face, then (after being shackled) throwing a microphone at him. The lawyer was not injured in either attack.

To his credit, the deputy public defender did not let the violent conduct of an ungrateful client interfere with his job of providing the best defense possible: after the judge denied his request for a mistrial, he reminded the jury that they had to render a verdict based only on the facts presented during the trial, not their emotions. This goes to show that most public defenders, even if they don’t like many of their clients, will still vigorously defend their legal rights.

2. Don’t fake a heart attack hoping to force a mistrial

This is a bad idea.

As long as you demonstrate the minimum level of mental competence to stand trial, you generally have a constitutional right to represent yourself in criminal proceedings. Rarely, however, is this a good idea.

That isn’t to say that it’s impossible for a non-lawyer to mount a successful defense when representing himself in a criminal trial, but it will take a lot of work for that person to become familiar with local court procedures. Oh, and your defense strategy shouldn’t hinge on faking a heart attack in court, as amusing as it may be for the rest of us.

When representing yourself, you still have to comply with all of the applicable rules of court. It just so happens that practically every court in the world has rules against deliberately disrupting the proceedings, and it becomes readily apparent that the defendant in the video linked above did himself no favors. He was left with the choice of admitting that he faked a medical emergency, or going through with the charade as long as possible, thereby letting the prosecution continue to present its case without any rebuttal from the defense.

3. Don’t call on your fans to flood the judge’s computer with emails

Kevin Trudeau, the man who hawks his books on natural “cures” through once-ubiquitous infomercials, is currently facing legal action by the Federal Trade Commission. The author of the popular book Natural Cures “They” Don’t Want You To Know About has for years been criticized by medical professionals for encouraging people to forego real medicine in favor of natural “treatments” which are ineffective at best, and dangerous at worst.

Hoping to accomplish…something, he called on his supporters to send as many emails as they could to the U.S. District Judge presiding over the case. In a short period of time, the judge received hundreds of emails, causing his computer to slow down and crash. Rather than causing the judge to see the light, and dismiss all of the charges against a man who is clearly being persecuted by the big, mean pharmaceutical industry (“oh, a sarcasm detector, that’s a useful invention!”), as Mr. Trudeau might have hoped, it instead prompted the judge to hold him in contempt of court and sentence him to 90 days in jail. Ouch.

4. Don’t file repeated frivolous lawsuits, and (allegedly) suborn perjury

How can a blog post about legal grave-digging be complete without a mention of our good friend, Orly Taitz? Followers of the legal blogosphere are probably familiar with all of the big news stories about her, but here’s a quick recap:

Orly Taitz, a dentist and lawyer in Southern California, began filing lawsuits shortly before the 2008 presidential election, alleging that Barack Obama is constitutionally ineligible to serve as President because he was born in Kenya. The case was dismissed. After having a few more cases dismissed, a federal judge thought enough was enough, and fined her $20,000 for filing frivolous lawsuits. More recently, some people who would have served as witnesses in her lawsuits, had they gone to trial, have claimed that she instructed them to lie on the stand. Finally, she’s currently under investigation by the State Bar of California, which is reportedly considering disbarring her, or at least suspending her license to practice law.

Where to begin? Well, first of all, as an attorney, she has a duty of competence to her clients (some of whom have included military personnel who claim that their orders to deploy to Iraq and Afghanistan are void because Pres. Obama is not the legitimate president), and she has shown that she does not understand even the most basic rules of court procedure. Separate from that, she also has an ethical duty to not file frivolous actions. Multiple courts have already informed her that her claims have no legal or factual basis, and, yet, she persists.

She is now paying for her actions with her credibility as an attorney, and they may now cost her law license.

What have we learned from all this? Well, the main takeaway should be that, when it comes to court proceedings, there are some very strict rules that must be followed. They may not always make sense at first glance, but they usually exist for a good reason. If I had to guess, I would say that some people listed above (besides the ones who are clearly mentally ill) are hoping for a big, Hollywood-style trial. Sadly, perhaps, those trials don’t really exist.

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You Can’t Let The Victim Slap You as Part of A Plea Bargain

Plea bargains are already pretty controversial. The U.S. is one of the few countries in the world that uses them, and certainly uses them more than any other country. Essentially, a plea bargain is an agreement between the prosecution and the defense in a criminal case under which the defendant agrees to plead guilty, in exchange for the prosecution recommending a lighter sentence.

Supporters of plea bargains argue that they encourage those who are truly guilty to admit their guilt, thus foregoing the necessity of a trial, saving valuable judicial resources. There are those who oppose plea bargains, as well – arguing that they encourage (or even coerce) innocent defendants to plead guilty, thus depriving them of the right to a fair trial.

However, regardless of their opinion on the utility of plea bargains, most would agree that they were not meant for this. According to the ABA Journal, a prosecutor in West Virginia has been suspended from his job for one month because he proposed a plea bargain which would allow the victim of the alleged crime to slap the defendant, as part of the defendant’s punishment.

Apparently, the prosecutor sent this proposal to the defense attorney as a joke. Much to his shock, the defendant accepted it. Of course, the judge refused to approve the agreement, which is required before a plea bargain is implemented. The prosecutor’s supervisor called his conduct “unacceptable” and suspended him for a month.

While it’s true that the prosecutor’s conduct was highly unprofessional, and corporal punishment hasn’t been used as a punishment for crimes in any U.S. state for over 50 years, this still raises some very interesting legal and ethical issues. If the prosecutor proposes a punishment, and the defendant accepts it, should the agreement not be honored? Intuitively, one might say “yes” – after all, the prosecutor (the person whose job it is to ensure that the guilty are punished) believes that the punishment fits the crime, and if the defendant is willing to accept the punishment, so much the better. Of course, one could argue that any “punishment” the defendant is willing to take is no punishment at all. I wouldn’t find that argument terribly convincing, but there it is.

On the other hand, a court cannot impose a punishment which is not provided for in the law. Currently, no state law allows for judicial corporal punishment. Therefore, a judge cannot legally approve a plea bargain that calls for it, even if the defendant “consents” to it. A plea bargain is not a license to go outside the legally prescribed range of punishments for a particular crime; it’s just an agreement that allows the defendant to be subjected to the lower end of that range. And since corporal punishment hasn’t been used in any state since the 1950s, a plea bargain cannot include it.

This case also illustrates that, when it comes to executing their official duties, legal professionals should not joke around. This applies doubly to prosecutors who are bound to extremely strict ethical rules, in addition to the ethical rules that bind all lawyers.

Lawyers certainly don’t have to be cold, humorless people. What they do need, however, is the knowledge that there is a time and a place for jokes, and times when absolute seriousness is required, and the ability to tell the difference.

Pop quiz: a person has been charged with a crime – his fortunes, freedom, and maybe even his life, are on the line. Which of the above 2 situations is this? It should go without saying that such situations warrant seriousness. The fact that the defendant accepted the prosecutor’s offer (which his attorney hopefully advised him against) is irrelevant – the offer never should have been made in the first place.

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If You Don’t Shoot Your Attacker In Kansas Then Waive Bye-Bye To Claiming Self-Defense

Kansas is a whacky place, what with its impossibly flat land and endless fields of wheat and sorghum (which is apparently a type of sustainable livestock feed and ethanol fuel source), not to mention the perpetual parade of impervious aliens and supernatural portals.

Well, the crazy Kansans of the Sunflower State can now add a new claim to fame by being the only state that requires you to shoot your attacker with your gun as a prerequisite to claiming self-defense, or else the defense will be waived and you’ll be charged with aggravated assault.

Hmm…  That new one doesn’t quite roll off the tongue as easily as “The Barbed Wire Capital of the World.”

In a recent case before the Kansas Court of Appeals, a majority of the court held that under Kansas law, citizens who attempt to claim self-defense when confronted by either the threat of harm which they reasonably believe will occur or are under actual physical attack, can only claim the defense if they use actual physical force against their attacker.

What constitutes actual physical force?  Well in the case of State v. Flint described in the previous paragraph, it meant that the defendant, Flint, had to actually fire the gun he was holding at his attacker.

Sound weird?  Well it sounds even stranger when you know the actual facts of the case.  Flint and his fiancée were in a bar when his fiancée got into an argument with two male bar patrons.  The argument eventually moved outside of the bar and became more heated.  Then somewhere along the line there was a “scuffle” and Flint’s fiancée end up on the floor.  Flint then grabbed a gun from his car and pointed it at the men who then backed off.

Now you’d think that this might sound like a clear-cut case for self-defense, and a more preferable use of it as well since the situation was resolved with no one getting hurt.  And if anything, the question of whether Flint should be allowed a self-defense claim should revolve around whether his belief that he or his fiancée were under the threat of harm was reasonable and whether his pointing a gun was a reasonable response.

Well, not quite – in Kansas anyway.  The court convicted Flint of aggravated assault.  In legal language assault means threatening another with physical harm, whereas battery means actually physically harm another person.  Aggravated in this case just means a weapon was used.

So you might be wondering at this point how such a seemingly backward result occurred.  It’s because the Kansas Court of Appeals was upholding a previous ruling by the Kansas Supreme Court on a case called State v. Hendrix where the court took a literal interpretation of the Kansas statute on self-defense.  Basically the court said because the statute only allows self-defense claims when a person uses force and makes no mention of using the threat of force, then self-defense is only allowed in Kansas when a person actually uses force on their attacker and nothing less.

It’s a very, very strange ruling.  I mean most states around the country have similarly worded statutes on self-defense and they all seem to understand how weird and potentially dangerous a literal interpretation can be, especially when one takes into consideration how America’s attitudes on guns are evolving.

In the meantime, the only way Kansans can change this interpretation is by soliciting their legislature for a change to the self-defense law.  But it’s not all bad.  Kansan gun-toters must be ecstatic right now.

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