Concepts of Justice and The Law [Period 4, Class #6, Feb 9]

[glasses-justice.livejournal.com]

"Let's start today with a hypothetical," Alex said, as soon as class had started. "A man kills his wife. We arrest him. The defense attorney makes a strong case, and our evidence is weak, so the jury votes 'not guilty.' And so, as soon as the trial is over, then we arrest him and try him again. After five 'not guilty' verdicts, we finally get a jury to convict him, and he goes to jail.

"In the cell next to his, in prison, there's a man who likes to rob banks. He was convicted of robbing the Main Street Bank and sentenced to four years in prison. When he's released, the police arrest him, and once again charge him with that same Main Street Bank robbery. Four years just wasn't enough time. Luckily, we still have all that evidence from the last time. The jury convicts again. He's going back in for another four.

Alex lifted her shoulders. "Most people will object to those two scenarios. In the first case, we're going to drag someone through the court system over and over until we receive the verdict we want, which comes off as an abuse of the government's power. The second is even worse: we're punishing a man twice for a single offense. These situations violate our principles of fairness. Justice isn't always fair, but it should certainly strive for it, where it can.

"As protection against the above, some governments institute a rule against double jeopardy." This was helpfully written on the board. "Double jeopardy means that you can't be prosecuted twice for the same crime, regardless of outcome. The State gets one chance to convict you; either you serve your time, or you walk free.

"Double jeopardy seems more fair than the alternative. But like any solution, it has some drawbacks. Here's one. The first hypothetical: we try the man, and the jury votes 'not guilty.' We don't get a second trial, or a third, or a fourth. The man is now untouchable. He hosts a press conference the next day, explaining in detail how and why he killed his wife. He writes books on the topic, and makes a tidy profit. And the law can't lift a finger to stop him. In the eyes of the judicial system, we had our chance, and we blew it. So a murderer walks free.

"That's only one possibility. What if, after the trial finishes, the police find new evidence? Something which dramatically changes everything we know about this case. Should they have a right to re-try the suspect, in light of our discovery? If a man is found not guilty of murder, should we be able to re-arrest him and charge him with manslaughter instead, for that same offense? And at what point in the trial should jeopardy attach? If it's not until the verdict is rendered, what would stop a prosecutor from withdrawing charges if a case seems to be going badly, so that she can start over with a fresh jury?"

"That's today's topic. Double jeopardy." Alex managed a wry grin. "Let's avoid the puns about game shows, all right?"

Comments

Discussion: Double Jeopardy - JST06

[glasses-justice.livejournal.com]

Do you think it's unfair to try someone multiple times for the same crime? If so, should the law have any recourse when an acquitted person makes a full, public confession? If not, won't this result in more imprisonment of innocent people, as one jury or another is bound to convict sooner or later? Are there any circumstances under which you feel double jeopardy should not apply?

Re: Discussion: Double Jeopardy - JST06

[joan-notjane.livejournal.com]

"If someone makes a full, public confession to a crime, they absolutely should be charged," Joan said. "Or, really, if any new evidence is found that casts the crime in a different light. With the technological advances we have, it's possible that five or ten years from now, we'll be able to discern evidence that we can't right now."

Re: Discussion: Double Jeopardy - JST06

[glasses-justice.livejournal.com]

"On what grounds?" Alex asked, about Joan's first point. "If we go back to a judge, I'd like to have a better argument than 'well, he's guilty.' His trial must have resulted in reasonable doubt, which means the prosecution failed to meet their burden of proof."

Re: Discussion: Double Jeopardy - JST06

[joan-notjane.livejournal.com]

"The confession should count as new evidence," Joan said. "It would have definitely had an effect on the jury's deliberations."

Re: Discussion: Double Jeopardy - JST06

[therewaslife]

"In the situations you described, it doesn't sound fair," started Bod, turning the various questions over in his head. "If they're just retrying people because they messed up the first time, it's definitely not fair. I couldn't take an exam again because I got some questions wrong, could I?"

It wasn't the best comparison but it was the one he used and it did make sense in his mind.

"With the other factors, I think there'd have to be serious thought to charging him or her with something," he continued. "If a confession becomes public or new evidence comes to light, it's going to change the case and you wouldn't be arguing the same thing as you were the previous time. I wouldn't see the harm in charging the suspect with a lesser crime or a tangentially related crime just to get him into jail. Something is better than nothing, isn't it?"

Re: Discussion: Double Jeopardy - JST06

[glasses-justice.livejournal.com]

"Not in this class," Alex smiled, liking the analogy. "Besides, if we were being fair about it, then you'd think a defendant would be afforded a do-over on the trial if they are convicted. Nothing would ever be resolved."

The appeals system notwithstanding.

"We could try him for perjury," Alex mused. "If he got on the stand and declared his innocence, then we say he lied in court. It's a small charge, but it's something. And we watch, and we wait, and we keep tabs on his MO."

Re: Discussion: Double Jeopardy - JST06

[blondecanary.livejournal.com]

"Well, the civil trial that O.J. went through is a good precedent," Dinah said, thinking aloud. "I mean, he was acquitted of criminal charges, but civil trials are easier, so. He got sued by his wife's family. That's one recourse. No imprisonment, but a lot less money." She frowned, trying to think, then said, "Isn't there some time limit for bringing charges? Could they maybe bring a lesser charge, if it's still inside the time limit when new evidence comes up?"

Re: Discussion: Double Jeopardy - JST06

[joan-notjane.livejournal.com]

"Statute of Limitations varies depending on the crime," Joan said. "And I'm pretty sure there is no statute on murder. Or, I think kidnapping."

Re: Discussion: Double Jeopardy - JST06

[glasses-justice.livejournal.com]

"Joan's right," Alex said. "Murder doesn't expire, but rape is five years. Civil court is an option, but it lacks the satisfaction of seeing a guilty man behind bars. How do you mean lesser charge? Manslaughter instead of murder, or something in a new category, like assault?"

Re: Discussion: Double Jeopardy - JST06

[blondecanary.livejournal.com]

"Manslaughter instead of murder, yeah," Dinah responded, then doubtfully, "Although I guess assault would work, but that's even less satisfying, if you're sure they're guilty of murder but just can't prove it."

Re: Discussion: Double Jeopardy - JST06

[ihaveniceteeth.livejournal.com]

Gwen paused before replying "For the most part the whole double jeopardy system is a good thing," she said. "Even if there's occasions it can be abused."

"Back home the law was clarified a few years to help cover some of the gaps," she added, scratching at her arm. "If there's new and compelling evidence with regards to certain serious crimes you can refer the case for a new trial. You need approval for both that and the original conviction being quashed, of course, but if someone's going around publicly confessing like that, I don't think you'd have too much trouble."

Re: Discussion: Double Jeopardy - JST06

[glasses-justice.livejournal.com]

"I heard about that exemption," Alex nodded. "Do you have any idea what the parameters are, for new evidence to qualify? It's an reasonable solution to the black-or-white concept of double jeopardy as it stood before. I'll admit, I hope it comes stateside."

Re: Discussion: Double Jeopardy - JST06

[ihaveniceteeth.livejournal.com]

"Well, obviously it needs to be new, which in this case means it wasn't or couldn't have been adduced at the original trial, and for it to be compelling it needs to be reliable, substantial, and highly probative of the case against the acquitted person," Gwen said, marking off the points on her fingers. "For example, the first person convicted of murder under the changed laws confessed to it some years after he was originally acquitted, but at the time they were only able to charge him with perjury."

Re: Discussion: Double Jeopardy - JST06

[likes_scoundrels]

"If new and significant evidence comes to light or the accused makes a confession, they should be tried again," Leia insisted.

Re: Discussion: Double Jeopardy - JST06

[bitten_notshy]

"How can you be sure the confession is true and was made freely?" Jack asked. "Or is that for the courts to decide?

Re: Discussion: Double Jeopardy - JST06

[glasses-justice.livejournal.com]

"How should we determine significance?" Alex asked. "What sort of evidence is compelling enough to allow a new trial?"

Re: Discussion: Double Jeopardy - JST06

[notqueenyet.livejournal.com]

"If new evidence surfaces, wouldn't that create an entirely new scenario?" Aravis wondered. "If, for instance, I was accused of killing my husband, and had an explanation for my whereabouts during his time of death, and appeared to be a grieving widow, and the case was dismissed -- but after dismissal, one found my sword covered in my fingerprints and his blood, wouldn't that create a much different picture of me to the court, and thus give cause to reopen the case? Even if I did not do it, despite what the sword would indicate, wouldn't the question arise as to how his blood ended up on it? And wouldn't that need to be investigated?"

Re: Discussion: Double Jeopardy - JST06

[glasses-justice.livejournal.com]

"That depends on how the case was dismissed," Alex explained. "If we dropped the charges and decided not to take it to trial, we could re-charge you. If we tried you, and a jury found you not guilty, then in the current system, you'd be free and clear. The defense would argue the government should have found the murder weapon, and their lack of doing so in a timely manner shouldn't mean they get another chance at trying you."

She shrugged, easily. "That's only the system I'm familiar with; I'm not implying that's the best system, or the right way to address the issue. So you would consider the murder weapon sufficient grounds to re-try a case?"

Re: Discussion: Double Jeopardy - JST06

[bamf-tastic.livejournal.com]

"Shouldn't they be able to try someone again, if they make a confession?" Kurt asked. "That just makes sense... Except what if the confession is a lie?"

He scratched his head, thinking. "I know you can make an appeal if you're found guilty. Maybe there should be appeals if you're found innocent, too?"

Re: Discussion: Double Jeopardy - JST06

[joan-notjane.livejournal.com]

"Why would someone lie about something like that?" Joan asked.

Re: Discussion: Double Jeopardy - JST06

[glasses-justice.livejournal.com]

"Appeals usually require procedural issues," Alex explained. "Someone has ineffective counsel, or someone's rights were violated. The defendant appeals and said the state messed up. So what grounds should the state get to use, to appeal?"

Re: Discussion: Double Jeopardy - JST06

[likethegun]

"I think the law should have recourse when someone makes a confession after they've been acquitted, especially if they do it publicly, because then it's almost like mocking the lawyers and judges and the judicial system, and I can't even imagine how the members of the jury would feel knowing they let a guilty man go free," Sam said, stopping to actually breathe for a second. "Um, but until we have a way of making sure confessions are really true - I mean, polygraphs can be faked, so I'm talking like a foolproof method - I don't think people can be tried multiple times for stuff like that."

Re: Discussion: Double Jeopardy - JST06

[glasses-justice.livejournal.com]

"It's hard as the prosecutor, too," Alex said with a sympathetic smile. "At least the jury should know that they did what they were supposed to. If we didn't prove the case, then it was their duty to find him not guilty. It's how the system works. Are you saying that mocking the system should, itself, be grounds for re-opening a case?"

Re: Discussion: Double Jeopardy - JST06

[heromaniac]

"I don't think it's right to try someone for the same crime, no. But if they later confessed... that's not right either. Why did they arrest him if they didn't have enough evidence to put him in jail in the first place?"

Re: Discussion: Double Jeopardy - JST06

[glasses-justice.livejournal.com]

"Hard to say," Alex said. "Maybe they had evidence, but the defense was able to argue for that evidence to be excluded. Maybe the defendant's lawyer was particularly good at misdirection and smoke-and-mirrors. You rarely get a perfect case; you have to try the case you have, or decide to let the suspect walk away."