Criminal law 101

[wasapi]

Anglolawyer. Perhaps I am wrong, but it almost sounds as if you would dismiss any circumstantial evidence?

 

[Loss Leader]

Anglolawyer. Perhaps I am wrong, but it almost sounds as if you would dismiss any circumstantial evidence?

The weight given any piece of evidence depends greatly on what other evidence there is, how it fits in, how it makes the entire scenario more or less likely. No one would dismiss circumstantial evidence. All lawyers would test it for probity.

 

[wasapi]

The weight given any piece of evidence depends greatly on what other evidence there is, how it fits in, how it makes the entire scenario more or less likely. No one would dismiss circumstantial evidence. All lawyers would test it for probity.

Yes, I understand. Thank you for wording it so well. I was attempting to say something tongue-in-cheek to Anglolawyer, and failed, obviously. It just seemed that his posts had a stridency about them, like things always being either black or white. I will never again try to be facetious.

Sorry. It's been a long day. I'll try to shut up now.

 

[newyorkguy]

I've had some involvement with the criminal courts as an observer, a defendant and as a juror. One scenario I think a lot of the public fails to understand -- which I once did too -- is what a Not Guilty verdict really means. It does not mean the defendant has been found innocent. The evidence presented against a defendant can have effects on that defendant beyond the guilty/not guilty charge.

As an example of what I'm referring to: A defendant is charged with two counts. Count One is attempted murder arising out of confrontation where a person was shot in the chest but survived. Count 2 is drug sales. The victim in the case, who was shot, did not see the shooter, and there is conflicting testimony as to who fired the shot. The defendant is acquitted of the assault charge and convicted of the possession charge. At sentencing the judge gives the defendant the maximum sentence possible. The defendant complains to the judge that it's excessive. The judge responds:

Consider yourself lucky. Although the jury found a reasonable doubt in the attempted murder charge it is not at all clear that you weren't the shooter. The prosecution presented a strong case but was unable to clear the 'reasonable doubt' bar. The evidence presented was strong enough that a different jury might well have found you guilty.

A lot of people would say, "No a judge can't say something like that." I would've thought that too. Except I've seen or heard it happen several times.

Another example is sworn testimony. People believe if a defendant tells a compelling story and the prosecutor can't disprove it than the jury has to accept it. That's not entirely true. When I was on a jury in federal court, just before we began deliberations, a fellow juror asked the judge, "If someone has given sworn testimony do we have to accept it as fact?" The judge said we absolutely did not have to accept sworn testimony as fact.

She explained: "The law recognizes people lie under oath. Especially if they have a "compelling interest." As jurors you have the right to disregard testimony." In that case we disregarded certain testimony that indicated the defendant was not guilty and accepted a combination of the victim's testimony, circumstantial evidence and expert testimony that indicated the defendant was guilty as charged.

 

[Loss Leader]

A lot of people would say, "No a judge can't say something like that." I would've thought that too. Except I've seen or heard it happen several times.

I'd like cites, please. As a lawyer, this would be pretty clear sentencing error in my experience.

 

[newyorkguy]

It will take me a while to find them, when I read articles or watch Court TV I'm usually not taking notes. But I'll look. Are you saying as a criminal lawyer you have never heard a judge say something like that? That judges never make errors?

And you didn't respond to my second example, about disregarding testimony. Does that pass muster with you, counselor?

 

[anglolawyer]

Yes, I understand. Thank you for wording it so well. I was attempting to say something tongue-in-cheek to Anglolawyer, and failed, obviously. It just seemed that his posts had a stridency about them, like things always being either black or white. I will never again try to be facetious.

Sorry. It's been a long day. I'll try to shut up now.

I haven't discussed evidence in this thread at all. Almost nobody would be convicted of anything at all without circumstantial evidence. I hope that's strident enough for you, Wasapi

 

[anglolawyer]

I've had some involvement with the criminal courts as an observer, a defendant and as a juror. One scenario I think a lot of the public fails to understand -- which I once did too -- is what a Not Guilty verdict really means. It does not mean the defendant has been found innocent. The evidence presented against a defendant can have effects on that defendant beyond the guilty/not guilty charge.

As an example of what I'm referring to: A defendant is charged with two counts. Count One is attempted murder arising out of confrontation where a person was shot in the chest but survived. Count 2 is drug sales. The victim in the case, who was shot, did not see the shooter, and there is conflicting testimony as to who fired the shot. The defendant is acquitted of the assault charge and convicted of the possession charge. At sentencing the judge gives the defendant the maximum sentence possible. The defendant complains to the judge that it's excessive. The judge responds:


A lot of people would say, "No a judge can't say something like that." I would've thought that too. Except I've seen or heard it happen several times.

Another example is sworn testimony. People believe if a defendant tells a compelling story and the prosecutor can't disprove it than the jury has to accept it. That's not entirely true. When I was on a jury in federal court, just before we began deliberations, a fellow juror asked the judge, "If someone has given sworn testimony do we have to accept it as fact?" The judge said we absolutely did not have to accept sworn testimony as fact.

She explained: "The law recognizes people lie under oath. Especially if they have a "compelling interest." As jurors you have the right to disregard testimony." In that case we disregarded certain testimony that indicated the defendant was not guilty and accepted a combination of the victim's testimony, circumstantial evidence and expert testimony that indicated the defendant was guilty as charged.

Blimey, all hell would let loose in an English court if a judge said what you recall your judge saying. The Scots have an inbetweeny verdict of Not Proven which means 'we think you may well have done it but the case has not been proved beyond reasonable doubt'.

 

[Loss Leader]

It will take me a while to find them, when I read articles or watch Court TV I'm usually not taking notes. But I'll look. Are you saying as a criminal lawyer you have never heard a judge say something like that? That judges never make errors?

Are you saying that's what I was saying?

You presented it as though the judge did not make a mistake. I'd like to see evidence of that. If you have evidence the judge said something like what you wrote, I would imagine that it was an error.

And you didn't respond to my second example, about disregarding testimony. Does that pass muster with you, counselor?

Didn't really feel the need to respond to something that merits no response. Of course testimony must be evaluated for truthfulness. How else could its truthfulness be evaluated?

 

[Grizzly Adams]

You presented it as though the judge did not make a mistake. I'd like to see evidence of that. If you have evidence the judge said something like what you wrote, I would imagine that it was an error.

In October the US Supreme Court actually denied a cert petition based on this claim. The dissent from denial (issued by Justices Scalia, Thomas, and Ginsburg) is found here.

Case basics: three defendants charged with two counts each of drug distribution; more severe charge acquitted by jury; convicted on the lesser count; sentenced by the judge as if they had been convicted of the greater charge.

Justice Scalia authored the dissent from denial, and in it he referenced an "unbroken string of" sixth amendment violations. It seems this is a widespread issue that you just haven't experienced yet.

 

[newyorkguy]

Didn't really feel the need to respond to something that merits no response. Of course testimony must be evaluated for truthfulness. How else could its truthfulness be evaluated?

You'd be surprised the number of posters who've argued the opposite here. That if the prosecution cannot disprove a defendant's testimony than the jurors must accept it as truthful.

 

[newyorkguy]

I'm not a lawyer but I am very interested in the criminal justice system. For the most part I think it works well. But there is a dark underside to the system which often seem to devastatingly impact poor minority defendants. The cases are there if you want to find them.

An example, as reported in New Yorker Magazine, an Alabama trial judge overruled a jury that had convicted a man of murder and then, rejecting the death penalty, sentenced him to life in prison without parole. In reviewing the sentence the judge stated strong doubts as to the convicted man's guilt but nonetheless overruled the jury's recommendation and sentenced the convicted man to death. (He's still on death row.) The judge wrote:

"According to Burdette, and the medical examiner’s opinion of the type of bullet that killed Moore, the person with the .38 or .357 would have fired the fatal shot. That person was Barnes, assuming the testimony can be reconciled, because the evidence from Barnes and Williams is that Barnes had a .357.” In a footnote, [Judge] Gordon wrote that the evidence “suggests that Barnes, not Jackson [the man convicted], fired the shot that killed Moore.” He further acknowledged that the three co-defendants “had an interest in casting Jackson as the leader and prime culprit.” article link

Nonetheless the judge said in reviewing the convicted man's personal history (as required by law in Alabama) the aggravating factors outweighed any mitigating factors and he imposed a death sentence on Shonelle Jackson. Not incidentally, the defendant was an indigent young black man, with a checkered past and a history of child abuse and learning disabilities. In pre-trial testing "the state had found his I.Q. to be just above the threshold for mental retardation." The principal witnesses against him were his co-defendants (also facing the death penalty) and his court-appointed defense counsel presented no expert witnesses.

If you have time to read the article I think you can conclude that this was not an isolated 'misfire' on the part of one judge in one court but symptomatic of a systemic problem. Defendants often get only as much justice as they can afford. As a criminal lawyer commented, if you're going to get arrested, make sure you have money. It helps!

 

[Bob001]

.....
An example, as reported in New Yorker Magazine, an Alabama trial judge overruled a jury that had convicted a man of murder and then, rejecting the death penalty, sentenced him to life in prison without parole. In reviewing the sentence the judge stated strong doubts as to the convicted man's guilt but nonetheless overruled the jury's recommendation and sentenced the convicted man to death. (He's still on death row.)
.....

Was this a region where judges are elected? And if so, was this judge up for re-election anytime soon? Sending a black guy to death row is sure-fire way for a Southern judge to pick up some votes, although it seems odd that he would even have the option of imposing a more severe sentence than the jury recommended.

Judges are politicians in robes. They are either elected, like mayors or congressmen or city councilmen, or appointed by the elected officials they buddied up with when they were working as DAs or corporate hacks. It's always a mistake to hope for more wisdom from a judge than you might expect from any other public official. That's one of the reasons the system provides multiple levels of appeal and review -- if you can pay for it.

 

[newyorkguy]

Was this a region where judges are elected? <snip>

Yes the reporter found the CJ system in Alabama works as you described. From the article I linked:

Cam Ward, a Republican state senator from Alabaster, told me [the reporter], “This is a deeply red state—the death penalty’s still very popular...if you’ve got a judge who’s in a hot election, and the jury returns a verdict of life without parole, and the judge overrides for the sole purpose of politics—I can see where that could happen.”

Even judges who have exercised override [over a jury's recommendation for life] have acknowledged the problem of outside pressure. Politics “has to have some impact, especially in high-profile cases,” Tommy Nail, a circuit judge in Birmingham, once said. “Let’s face it, we’re human beings.”

 

[newyorkguy]

<snip> Are you saying as a criminal lawyer you have never heard a judge say something like that? That judges never make errors?

Are you saying that's what I was saying?

I didn't immediately respond to this question as I had presumed this discussion was going to continue. Anyway, no I was not trying to put words in your mouth, absolutely not. I was asking a serious question in good faith. You also asked for a cite and you got a good one. For some reason the original link to the SCOTUS decision no longer seems to works but here's another link and a brief quote from Justice Scalia's dissent.

A jury convicted petitioners of distributing very small amounts of crack cocaine, and acquitted them of conspiring to distribute drugs. The sentencing judge, however, found that they had engaged in the charged conspiracy and, relying largely on that finding, imposed sentences that petitioners say were many times longer than those the Guidelines would otherwise have recommended.... It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable — thereby exposing the defendant to the longer sentence — is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge. For years, however, we have refrained from saying so.

[Scalia's italics, my hilite.]

Scalia makes it pretty plain that this issue has been percolating for quite a while. I'm surprised a lawyer would be completely unaware of it, at least to the point where they would imply unless a cite was forthcoming "it didn't happen."

What I find even more alarming about this case -- beyond Scalia saying "for years" he has allowed these violations to pass without comment -- Scalia was writing for the dissent. The full court actually upheld the sentencing!

 

[rjh01]

If I was ever asked my opinion on something and then because it was 'the wrong one' it was disregarded then I would consider it insulting and a poor reflection on the person who asked the opinion.

 

[marplots]

I didn't immediately respond to this question as I had presumed this discussion was going to continue. Anyway, no I was not trying to put words in your mouth, absolutely not. I was asking a serious question in good faith. You also asked for a cite and you got a good one. For some reason the original link to the SCOTUS decision no longer seems to works but here's another link and a brief quote from Justice Scalia's dissent.

[Scalia's italics, my hilite.]

Scalia makes it pretty plain that this issue has been percolating for quite a while. I'm surprised a lawyer would be completely unaware of it, at least to the point where they would imply unless a cite was forthcoming "it didn't happen."

What I find even more alarming about this case -- beyond Scalia saying "for years" he has allowed these violations to pass without comment -- Scalia was writing for the dissent. The full court actually upheld the sentencing!

Well, they denied certiorari. Did you look at the ruling from the Appeals Court involved to see their ruling and justification? (I didn't.)

 

[newyorkguy]

First of all before anyone leaps to the defense of the sentencing it might help to know that this is about a defendant receiving a twenty-year sentence after being convicted for the sale of $600 worth of cocaine. The appeals court ruled:

Although we understand why appellants find sentencing based on acquitted conduct unfair, binding precedent of this court establishes that the practice does not violate the Sixth Amendment when the conduct is established by a preponderance of the evidence...We also lack any basis to reconsider the settled rule that enhancing a sentence within the statutory range based on facts found by the judge, as opposed to the jury, does not violate the Sixth Amendment. link

The appeals court judge wrote that the appeal was based on the fact that sentencing based on acquitted conduct is unfair. Sentencing based on "acquitted conduct is unfair?" I think the appeal was that giving a harsher sentence to someone based on acquitted conduct is unconstitutional. Ironically, I thought that was what Loss Leader was saying: that it was a legal error. I wasn't arguing that it wasn't. I was saying that, error or not, it happens. That a jury may find a defendant not guilty on a serious charge and the judge may decide they were actually guilty of that charge and use that as the basis for a heavier sentence.

Do we now all agree that it does happen?

In the case at hand, Scalia wrote that the facts guiding the sentencing are "an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge." I have to say that I agree with Scalia.

 

[newyorkguy]

Look at the case in Alabama where the judge overruled the jury's recommendation the defendant receive a life sentence not the death penalty. In deciding Shonelle Jackson should be put to death the judge wrote:

The evidence “suggests that Barnes, not Jackson [the man who got the death penalty], fired the shot that killed Moore.”

The condemned man said, during an interview on death row, "The judge said he didn't think I did it but to kill me anyway."

By what standard can that be considered justice?