Posted on 09/29/2010 6:40:28 AM PDT by wendy1946
One of America's strangest legal cases is gearing up for a next and presumably final stage.
This one appears to be a poster child for the claim I make that the job of District Attorney and the entire so-called "adversarial system of justice" in America need to be scrapped in favor of something like what the French call an "inquisitorial" system in which the common motive of all parties involved is the determination of facts.
As a general rule I cannot support a death penalty in America at this point in time; too many ways it resembles giving the Ronnie Earles, Janet Renos, Scott Harshbargers, Martha Coakleys, and Mike Nifongs of the world a license to kill people.
In theory at least I've got nothing against hanging somebody like Manson, Dennis Rader, Paul Bernardo, John Mohammed...
Here's the problem: I'd want several changes to the system before I could feel good about capital punishment anymore.
1. Guilt should be beyond any doubt whatsoever; the usual criteria of guilt "beyond a reasonable doubt" doesn't cut it for hanging somebody.
2. The person in question must represent a continuing threat to society should he ever escape or otherwise get loose. The "bird man" of Alcatraz would not qualify, John Mohammed clearly would.
3. I'd want all career/money incentives for convicting people of crimes gone which would mean scrapping the present "adversarial" system of justice in favor of something like the French "inquisitorial" system in which the common objective of all parties involved was a determination of facts.
4. I'd want there to be no societal benefit to keeping the person alive. Cases in which this criteria would prevent hanging somebody would include "Son of Sam" who we probably should want to study more than hang, or Timothy McVeigh who clearly knew more than the public ever was allowed to hear.
Given all of that I could feel very good about hanging Charles Manson, John Muhammed, or Paul Bernardo, but that's about what it would take.
In fact in a totally rational world the job of District Attorney as it is known in America would not exist. NOBODY should ever have any sort of a career or money incentive for sending people to prison, much less for executing people. The job of District Attorney in America seems to involve almost limitless power and very little resembling accountability and granted there is no shortage of good people who hold the job, the combination has to attract the wrong kinds of people as well.
They expected DNA testing to eliminate the prime suspect in felony cases in something like one or two percent of cases and many people were in states of shock when that number came back more like 33 or 35%. That translates into some fabulous number of people sitting around in prisons for stuff they don't know anything at all about since the prime suspect in a felony case usually goes to prison.
But the kicker is the adversarial system of justice. THAT we'd need to get rid of, with or without any consideration of death penalties. The price we're paying for it is too high.
I’d suggest you look into emigrating to France, post haste.
We need a reliable source on “..... DNA testing to eliminate the prime suspect in felony cases ......”
None of these problems are unique to the US adversarial system. They are also present with the inquisitorial system, which also has a tendency toward central state control and a susceptibility to corruption and bureaucratic manipulation.
Many of those celebrated DNA “refutations” didn’t refute anything. They just did not prove that the allegee had done the deed.
The first problem is that the DA has an unlimited budget to make himself look good, while the defendant has perhaps a poorly paid over worked defense lawyer with little or no experience most of the time. If the defendant has money he will have to spend a huge amount of it just to prove his innocence. How does he get his money back? He doesn't.
I would have no problem with an adversarial system as long as the State paid both sides and alternated the prosecution and defense so that a DA would get just as much value at winning on the defense as the prosecution. We should all want to find the truth, not get a pound of flesh, anybodies flesh.
In the David Camm case there is substantial evidence that totally exonerates the defendant. He is obviously not guilty but the unlimited pockets of the DA who wants to make a name for himself will do all he can including introducing fake evidence in a trial to try to make himself look good at the expense of Mr. Camm.
Mr. Camm came home and found his family dead and has sufffered unimaginably since then because of grief and because of being prosecuted. I pity the poor guy and would like to see something horrible happen to the prosecutor.
The biggest weakness in all criminal justice systems is the criminal himself.
The only problem with our system is that judges, lawyers and police are free from any personal liability for their actions and misdeeds.
Hold them personaly responsible and they will self correct.
Now I doubt the posters 33% number, completely! And I await ANY source with confirmation of that.
But DNA exonerations have shown that prosecution railroading innocent people into prison is not nearly as rare as it should be, nor are they willing to admit a mistake even when the DNA evidence is ironclad that they guy they imprisoned could not have possibly committed the crime.
You might want to read through post 7 to try to get an idea of what an intelligent reply to an article like this one might look like...
No one would do the job. I think we’ve already gone over that problem thousands of years ago when we invented civilization.
We are discussing relative value of those systems ~ the Spanish system is one ~ and it's got a rather bloodthirsty history.
2. This is irrelevant. He is punished for what he did, not for what he might, or might not do.
3. Even in our system the law requires that the prosecutor share any exculpatory evidence with the defense. Failure to do so should be punished as a crime. And what makes you think that there are not incentives for each side in a French-type system? I don't know what they would be, but these are human beings, so I'm certain that they exist.
4. Like #2, this is completely irrelevant. The best benefit to society would be in punishing criminals, not studying them. We already know what works in preventing crime; as a society, though, we don't seem to have the guts to apply it consistently.
All that being said, it would perhaps be best if the criminal justice system were seriously overhauled, inclulding DAs, defense attorneys, and even judges. Accountability is the answer, not an end to the adversarial system.
I would have no problem with an adversarial system as long as the State paid both sides
Ummm....the State does. They're called "Public Defenders" and in my jurisdiction they're paid exactly what Prosecutors are.
My primary objection to our present system is that it is too easily swayed by the skill and appeal of the lawyers and the wisdom and temperament of the judge. Competence and evidence are not always the deciding factors. Not only the defendant and the victim but many other people’s lives are affected by the outcome.
I would think that a list of requirements could be compiled for guilt by expanding on the motive, means and opportunity requirements already established.
But, bottom line is human nature. We aren’t capable of creating or faithfully following a perfect system.
I think that your objections are well thought out. Still, humans vary in respect to skill and whatever. My objection is not when mistakes are made, as they are going to be no matter what; it is that there is no real remedy for malice such as that of Nifong, who should be in prison this very minute.
"2. The person in question must represent a continuing threat to society should he ever escape or otherwise get loose."
I think in many cases that can't, or won't be determined one way or the other until the person has been incarcerated for a while.
If you haven't read it, you might want to pick up a copy of Mark Fuhrman's "Death and Justice". He draws basically the same conclusion you have.
people forget that criminal trials are supposed to be UNfair. Unfair to the state.
There is a very real problem with prosecutors who have no interest in “this crime” they just say everyone is guilty of something (all people are criminals because it is impossible to obey all laws) so it is ok to cut corners.
I would also submit that anything short of a jury verdict or actual guilty conviction is NOT public record.
Hold them personaly responsible and they will self correct.
That might or might not help anything, hard to say. At least in some cases you'd think it might make unscrupulous and/or incompetent DAs MORE committed to fight to the bitter end to keep wrongful convictions.
I'd rather take my chances with changing the basic set of incentives of the system i.e. to a system in which as I noted the common goal of all parties was to determine facts.
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