You lost me at bifurcated. Perhaps if it wasn’t so late in the day I would look up that word. Perhaps if I didn’t have injustice fatigue I might. I’m sure it’s good article, I just can’t do it tonight.
One obvious problem: if nobody’s specifically on trial in the first phase, does anyone have standing to dispute the claim that a crime was committed? If not, then the prosecutor can get away with just about anything. (In short, doesn’t it become the grand jury system?)
Or is the first phase part of a specific defendant’s trial, except that the defendant isn’t in the room and nobody’s allowed to talk about him? That would seem to create Sixth Amendment problems, and I’m not sure what you’d do in a case where the defendant chooses to testify.
2) What is the threshold for determining if a crime has been committed? Is it “beyond a reasonable doubt”, “preponderance of evidence”, “probable cause”, or “reasonable suspicion” (to use current examples)?\
On one hand, if the bar is set too low, it’s just a formality–one that ties up the court system with more bureaucracy and costs the tax payers more money–without proof of any actual benefit in justice.
On the other hand, if the bar is set too high, it’s likely to let the worst of the guilty go free. I’m quite sure that there have been a significant number of trials for horrific crimes in which the jury’s initial reaction is “nobody could do *that*!”, but when presented with specific information about the defendant–and seeing him face-to-face–it suddenly became all-too-real.
I love the idea on a purely intellectual level, but the cynic in me wants to know how it would behave in the real world.
Given the old joke that a prosecutor could get a grand jury to indict a ham sandwich, not sure how well this would work. If prosecutors are telling a jury that a crime was committed, it’s likely the jury will say that a crime was committed.
The problem is that the Prosecution already determined that a crime was committed, With no defendant you just have a Grand Jury… as already indicated.
What needs to happen is for the defendant to be adequately represented during the trial, with experts that can derail the presumption of a it being a crime in the first place.
If there’s no crime, the defense can argue, then the trial is over. You must acquit. This requires a strong defense, that requires money.
But more often than not. Ok, virtually every time… these defendants are given shoddy defenses with access to a fraction of the resources given to the Prosecution.
The problem, simply, is that the SAME branch of government funds both the Prosecution and the Public Defender’s office. Given the religious “Eye for an eye” feelings of retribution and punishment in this country, that branch must side with the Prosecution just to stay in office.
The Office of the Public Defender must NOT be under the purview of the same branch of government as the Prosecution (The Executive), and it should be required to be equally funded with the Prosecution.
If you can pay to prosecute a man for murder, you can pay to defend a man against the charge.
If the case is weak, and the prosecution runs with it anyway, it will result in THE PROSECUTOR costing the state a giant pile of money. Support for hinky cases will dry up fast. Prosecutors wil be forced to tell the police “No, I can’t prosecute this because you violated this guy’s 4th amendment rights, and I will be ass raped in court… I have to look out for number 1, here”.
However, this will never happen because then very few capitol crimes will even make it to court after the first few high dollar boondoggles. Prosecutors will blame Police, Police will blame Prosecutors, and both them and the badge lickers will blame the “Liberal courts”, when in reality… the problem was the failure of the Police to bring constitutionally sound cases to the table in the first place.
I don’t understand exactly how this would work. My impression had been that the only disputed element in the Willingham case was whether the fire was intentionally set or not. I don’t recall identity being an issue in the case. Like it or not, his actions and demeanor after the fire are relevant evidence to whether the fire was intentional – as was the jail house informant (probably perjured, but still relevant.)
Very rarely does a defendant assert both that no crime happened, but if it did, it wasn’t me. A defendant retains the ability to move for a directed acquittal if the prosecution doesn’t produce legally sufficient evidence to sustain any element of the charge, e.g. a judge has to order acquittal if the prosecution produces no evidence of jurisdiction before closing its case. Such motions allow for a bulwark against prosecutors who want to try someone based on character alone even if the jury pool wants to go along with it.
Interesting idea, but it seems problematic. What would happen in an arson case where you have a guy legitimately confessing to the crime, but no proof remains that the fire was due to arson? In a bifurcated system is he convict-able? How about the guy who poison’s his wife with arsenic (not easily detected). The fact that he bought a jug of arsenic the day before seems like it would be relavant to his guilt, but not to whether a crime was commited.
How do you really separate out the evidence that a crime was committed from evidence of who committed the crime?
I really don’t want to sound snarky – my question is asked with all love & sincerety: what’s the point of The Agitator if we just get rehashed Hit & Run and Reason writings, with the very occassional dog blogging, photos and Nashville stuff thrown in? I started out reading here at The Agitator some years ago, but I don’t see much point in continuing when I can get the same content & more at Hit & Run, with a lot more comments to boot (including some really good trolls and bots).
Yizmo Gizmo |
September 14th, 2010 at 10:16 am
I think just the finding that the defendant *has* DNA
should be enough to sway the grand jury. But hell, maybe I watch
too much Nancy Grace.
I understand the idea, but I’m not sure how or even if this would work in all cases. If you are unsure of whether a fire was an accident or arson it makes sense to bifurcate. On the other hand, the fact that the alleged perpetrator took out a large fire insurance policy the week before and was seen buying a jerry can of gasoline, and has a prior conviction for arson, does suggest arson, no?
Irving Washington |
September 14th, 2010 at 1:10 pm
Procedurally, it’s not that hard. You set a date by which the defense has to plead a defense that triggers the bifurcation (accident is the one that comes readily to mind; not an affirmative defense, BTW). Then you can have whatever level of review you want. If I set it up, the prosecution would then be required to challenge bifurcation or it would be granted automatically. If challenged, you’d have a hearing (with whatever level of evidence; I’d make it all affidavit to reduce costs). Then the judge weighs the increased cost (which realistically is always going to be low; you add maybe a day or two to a complex trial) against the probity of the defense’s evidence.
A grand jury is not doing the same thing. The GJ only determines whether sufficient evidence exists for a continued prosecution without any consideration of defenses. A bifurcation would require the jury to explicitly find that a crime had been committed by proof beyond a reasonable doubt. The jury only has to implicitly find that today, and I think Radley’s point is that they don’t give sufficient consideration to the question when an explicit finding isn’t required.