Justice and (our) humanity

[Kulindahr]

The authorities are too numerous to cite. Google "constitutional right to effective counsel."

Unfortunately, what that means in reality is a constitutional right to what the client thinks is effective counsel. Not knowing the system with its ins and outs, not knowing the records of the assortment of attorneys, a client is left to hope and gamble.

The right does, however, give the client the authority to "fire" a court-appointed attorney for perception of not being effective, and get a new one.

[palbert]

Unfortunately, what that means in reality is a constitutional right to what the client thinks is effective counsel. Not knowing the system with its ins and outs, not knowing the records of the assortment of attorneys, a client is left to hope and gamble. ....

Lamentably true, except in the rare circumstance the judge steps in and rights the on-going wrong.

[Kulindahr]

Death peenalty appeals are arduous and technical. Frequently they come from "prison lawyers" or the defendant alone (pro se); I do not disprage such cases, several have prompted landmark decisions (particularly from the Warren Court). At the other end are pro bono cases handled by organizations like the Innocence Project or private law firms; I think of these cases as involving intriguing legal issues or egregious wrongs in the judicial process.

The problem lies with the cases that fall between the two extremes above. Even if they do not involve the death penalty the right to counsel should obtain where loss of liberty is at stake. Unfortunately, I believe the Sixth Amendment applies only to the trial level. If this is in fact true it would explain why there are so few successful appeals "in the middle."

To all this I submit the vagaries of appellate judges. I recall a Florida appellate case where the court said that the rules required only the filing of a brief, they did not require a good brief.

Too true. The moment you step out of the trial level courtroom, you're on your own.

That's wrong, because the other side gets all the funding the taxpayers can bear. That structure is left over from a legal system where the Crown prosecutor had the backing of the Crown's treasury and the accused had nothing, where the goal was to collect funds in the form of fines -- for the purpose of funding war. In a free country, it makes no sense that the prosecutor has basically unlimited funds and the defense has none. When a unpublished study by a major newspaper (that my dad got his hands on, and I've referenced often) shows that one in five of those who take plea bargains are totally innocent, it's time to fix the system.

[Kulindahr]

For the most part cases are won or lost at the trial court level; they arrive at the appellate level with a presumption of correctness. To deny truly competent counsel, with the funds to investigate (e.g., DNA) the case, is to deny constitutionally protected rights.

I don't have to like this any more than others do. It is the law. And it is also a fact that many trials are defended by less than competent legal aid or appointed counsel going through the motions of providing a defense. (I know that I am not competent to handle a criminal defense.)

Perhaps the Justice Department should step in and promulgate directives to ensure constitutional compliance.

That would only change federal practices. Most criminal prosecutions are done by states, though, so it wouldn't change much for most people.

[Kulindahr]

That only applies to American citizens just like the Constitution. You would be surprised how few rights immigrants have in the US until they become citizens. This is one of the key issues I deviate from the Liberals on.

SCOTUS has established firmly that the Bill of Rights applies to everyone, even illegal immigrants. There are two instances where this may not be true: first is administrative proceedings, where generally no one has the right to counsel; second is in matters military, and area where Obama has extended the uncertainty to include citizens.

[Kulindahr]

Benvolio's point of view: If you are poor you must be guilty.

As the man said: the opposite of poverty is justice.

[Kulindahr]

That statement underlies the problem. Incarcerating any one for no matter how long, or worse yet imposing the death penalty, should require good faith attempts to meet constitutional requirements. If not we fail in our duty as citizens. And that puts all of us at risk.

With too great frequency we hear of prisoners released for failure of the evidence on secondary consideration of the evidence. Too often we hear of masses of cases dismissed because of negligence, malfeasance or outright tamoering with evidence at vaunted state labs.

To say "the vast mjority of accused are guilty" allows that a significant number are not.

Yes.

If we truly believe in innocence until guilt is proven, it makes no sense to hold back resources from the accused, resources equal to those for the prosecution. To fail to do so is a commentary on how little we value truth -- and if we value not truth, we cannot claim to value justice.

The Guantanamo situation is a bit beyond the reach of this thread, except in this: the extreme case often illustrates problems not otherwise seen. In this case it shows that politicians are far more interested in their own careers than in treating human beings as people. There's little difference between Gitmo and Texas Death Row: once you're there, you're just a counter in someone's game(s), not an actual person.

[palbert]

Re Post 53:

The Crown was just as interested in conscripting an army and navy, as well as populating colonies with labor (e.g., Australia).

[Kulindahr]

@ Benvolio

Your immediately preceding post is a microcosm of the general apologia for doing nothing. SCOTUS, and other courts, have not said that constitutional imperatives are subject to budgetary considerations.

As for juries, I have found them very perceptive when presented with all relevant facts. And that is where your reasoning falters.

Constitutionl imperatives are really not negotiable.

Good response.

Benvolio continues to push a view that would just make things worse. The Miranda warning was put in place because the system did not work; police coerced confessions from people, resulting in an unreality that makes today's statistics look like good progress. Even today the police trick confessions from people because SCOTUS has held that the police are entitled to lie to elicit "information". If for no other reason than the corrupting influence, or the appearance of a corrupting influence, that should be undone -- or at least the playing field leveled, so if the cops can lie to people, then people are legally permitted to lie to the cops.

[Kulindahr]

Re Post 53:

The Crown was just as interested in conscripting an army and navy, as well as populating colonies with labor (e.g., Australia).

IIRC, the original fines-for-crimes scheme to fund a war was under one of the Edwards.

And Australia -- according to one history of the Royal Navy I read, prison ships in the harbor were the Crown's solution to insufficient gaol space, but when the Royal Navy complained about those ships being in the way, and asked for them to be moved... well, they got moved around the world.

And the thing that makes this on-topic is that according to that and another such history, a large portion of those i the prison ships were there because they couldn't afford counsel to represent them, so they were stuck, unable to pursue their cases. We don't have quite that situation any more, but we do have a situation where probably most people accused of a crime never even see their attorneys until the first court appearance -- and now that we have video appearances, frequently not then.

[Benvolio]

@ Benvolio

Your immediately preceding post is a microcosm of the general apologia for doing nothing. SCOTUS, and other courts, have not said that constitutional imperatives are subject to budgetary considerations.

As for juries, I have found them very perceptive when presented with all relevant facts. And that is where your reasoning falters.

Constitutionl imperatives are really not negotiable.

I distinguish between the Constitution and the Supreme Court. There is no Constitutional requirement of defense counsel paid by taxpayers. That is a Supreme Court legislation and is not entitled to our respect. But the present system is not under attack by the court, but by liberals, like Brian in the OP.
The Miranda rule serves no purpose but to discourage the guilty from voluntarily confessing. It does not prevent coercion by the police since the ones coerced are those who do not confess voluntarily.
Plea bargains are different from confessions. They are a form of court-sanctioned coercion. "Plead guilty or we will do something much worse if you are found guilty, perhaps death."

[palbert]

That would only change federal practices. Most criminal prosecutions are done by states, though, so it wouldn't change much for most people.

Compliance with Justice Department's competent defense guidelines could be tied -- as a funded or unfunded mandate -- to federal public safety spending.

[Kulindahr]

Compliance with Justice Department's competent defense guidelines could be tied -- as a funded or unfunded mandate -- to federal public safety spending.

In general I hate that approach to things; it strikes me as too much like bribery. But this one is worth pondering, because it can be directly linked to a constitutionally-protected right.

[palbert]

I distinguish between the Constitution and the Supreme Court.

Unfortunately, you may not. It is the sole duty of SCOTUS to say what the law is. Marbury v. Madison.

[palbert]

Unfortunately, you may not. It is the sole duty of SCOTUS to say what the law is. Marbury v. Madison.

Correction: change "duty" to "prerogative."

[rareboy]

Unfortunately, you may not. It is the sole duty of SCOTUS to say what the law is. Marbury v. Madison.

Amazing that Benvolio doesn't understand this.

[palbert]

Amazing that Benvolio doesn't understand this.

Many people don't. I give our member the benefit of misspeaking.

[Benvolio]

Amazing that Benvolio doesn't understand this.

You are quite mistaken. Marbury does not say that the sole duty of the Supreme Court is to say what the law is. It has other duties. Nor does it say that the Supreme Court alone has that duty or power. Nothing in the Constitution suggests that the Court can change the Constitution or that it can make new laws or regulations binding on the states. On the contrary, see
Art.I Sec. 1: "All legislative Powers herein granted shall be vested in a Congress of the United States......"
It is beyond question the regulations set forth in the Miranda case were a violation of that section to the extent that they purported to bind the states.

Not every thing the Supreme Court says about the Constitution is true.

[palbert]

.... It is beyond question the regulations set forth in the Miranda case were a violation of that section to the extent that they purported to bind the states. ....

In much the same way that the Court extended, in Heller, the 2nd Amendment to the States.

Not every thing the Supreme Court says about the Constitution is true.

May be, but there are a stunning lack of Constituional Amendments to establish that. Nor, for that matter, that many Congressional overrides for non-Constitutional interpretations.

[Benvolio]

In much the same way that the Court extended, in Heller, the 2nd Amendment to the States.



May be, but there are a stunning lack of Constituional Amendments to establish that. Nor, for that matter, that many Congressional overrides for non-Constitutional interpretations.

But there are a great many instances of the Sureme Court overruling prior decisions.

[JockBoy87]

You are quite mistaken. Marbury does not say that the sole duty of the Supreme Court is to say what the law is. It has other duties. Nor does it say that the Supreme Court alone has that duty or power. Nothing in the Constitution suggests that the Court can change the Constitution or that it can make new laws or regulations binding on the states. On the contrary, see
Art.I Sec. 1: "All legislative Powers herein granted shall be vested in a Congress of the United States......"
It is beyond question the regulations set forth in the Miranda case were a violation of that section to the extent that they purported to bind the states.

Not every thing the Supreme Court says about the Constitution is true.

The power of the Supreme Court to try matters of federal question "in law and equity" arising "under this Constitution" is explicitly stated in the Constitution. Therefore, the Constitution's wording does not limit the Supreme Court's power to trying matters rising under laws passed by Congress.

Also, Congress does not have the power to abrogate the dictates of the supreme law of the land, yet it would be able to do so without Marbury v. Madison.

Surely, you can see that.

[palbert]

But there are a great many instances of the Sureme Court overruling prior decisions.

Which is why each president tries to impress his ideaology on the Court through his nominees. And the opposition seeks otherwise.

As an aside, and speaking of SCOTUS changing course, would you revert to the interpretations of the Fugitive Slave Act and Dred Scott? Fortunately times change and with them -- albeit belatedly -- the Court.

[Kulindahr]

Amazing that Benvolio doesn't understand this.

Computer programs only understand what is put into them.

[Kulindahr]

But there are a great many instances of the Sureme Court overruling prior decisions.

Read this:

http://news.harvard.edu/gazette/stor...outers-speech/

[Benvolio]

Yes, but if you will go back and read the Miranda decision you will recall that the actual holding was that the privilege against self incrimination was not limited to not "testifying" but applied during the investigative phase. BUT then it proceeded to set out a seties of regulations to be followed by STATE and Federal officers. The regulations, including the requirement that the suspect be advised, are not an interpretation or application of the Constitution, but sheer legislation.
Then there Roe v Wade.......

[palbert]

I was reading The Charge of the Light Brigade and this thread came to mind.

[Kulindahr]

Yes, but if you will go back and read the Miranda decision you will recall that the actual holding was that the privilege against self incrimination was not limited to not "testifying" but applied during the investigative phase.

And they were quite right to do so, since anything said to an officer of the court becomes testimony should they wish it.

BUT then it proceeded to set out a seties of regulations to be followed by STATE and Federal officers. The regulations, including the requirement that the suspect be advised, are not an interpretation or application of the Constitution, but sheer legislation.
Then there Roe v Wade.......

I see your point. They could have ordered Congress to draft legislation which would cover the gap -- but perhaps they decided that since the instructions they composed were not likely to be adopted or the legislation Congress might come up with would be insufficient, they would shortcut the process and issue their own.

OTOH, the Constitution is not very clear about how much authority they do have when correcting situations, there's no way to gauge this.

[Kulindahr]

I was reading The Charge of the Light Brigade and this thread came to mind.

Meaning...

you think things will have to get bloody before these injustices get corrected?

[palbert]

Meaning...

you think things will have to get bloody before these injustices get corrected?

I was rather thinking of futility and wasted effort. But I see that in so many CEP threads.

[andysayshi]

TED is truly one of the most amazing online resources ever made. Thanks for posting this thread.

[Benvolio]

And they were quite right to do so, since anything said to an officer of the court becomes testimony should they wish it.



I see your point. They could have ordered Congress to draft legislation which would cover the gap -- but perhaps they decided that since the instructions they composed were not likely to be adopted or the legislation Congress might come up with would be insufficient, they would shortcut the process and issue their own.

OTOH, the Constitution is not very clear about how much authority they do have when correcting situations, there's no way to gauge this.

You and the Court assume a policy that the guilty should not confess. That is not the pupose of the provision. It prohibits REQUIRING the accused to testify against himself. Not because confessing is bad but because requiring it or forcing it is bad. Obviously confessing is a good thing because it brings more certainty to the criminal system, and frees resources for uncertain cases. The Warren court changes reflect an unconscious anti-establishment or libertarian bias, that sees it as a good thing when crminals get off on technicalities, when they beat the system. Only in that sense is it bad for criminals to confess.
I think the Constitution is clear: All legislative power is vested in Congress.

[palbert]

There are confessions and then there are confessions.

Uncoerced and freely given confessions are many of the things you say.

Coerced confessions are none of the things you say. Litigation over the freedom of the confession consume court time and resources.
If I call reading correctly a significant number of inmates have been released -- even from death row -- because of false confessions (frequently prompted by misrepresented "evidence," sometimes even by "evidence" from a compromised state lab).

If there is anywhere counsel is needed it is at the beginning of the interrogation.

[Benvolio]

There are confessions and then there are confessions.

Uncoerced and freely given confessions are many of the things you say.

Coerced confessions are none of the things you say. Litigation over the freedom of the confession consume court time and resources.
If I call reading correctly a significant number of inmates have been released -- even from death row -- because of false confessions (frequently prompted by misrepresented "evidence," sometimes even by "evidence" from a compromised state lab).

If there is anywhere counsel is needed it is at the beginning of the interrogation.

Many prosecutions would be avoided if the accuseds were not discouraged from confessing, so Miranda probably causes more litigation than it solves. In any event the advice requirement is not an interpretation or application of the Constitution. It is a legislative decision which cannot legally be made by the court.

[palbert]

.... In any event the advice requirement is not an interpretation or application of the Constitution. It is a legislative decision which cannot legally be made by the court.

Were that true -- and it may be -- a Constitutional Amendment is in order. I see none on the horizon.

[Kulindahr]

I was rather thinking of futility and wasted effort. But I see that in so many CEP threads.

Ah. But then the futility of that charge is a matter of debate.

[Kulindahr]

You and the Court assume a policy that the guilty should not confess. That is not the pupose of the provision. It prohibits REQUIRING the accused to testify against himself. Not because confessing is bad but because requiring it or forcing it is bad. Obviously confessing is a good thing because it brings more certainty to the criminal system, and frees resources for uncertain cases. The Warren court changes reflect an unconscious anti-establishment or libertarian bias, that sees it as a good thing when crminals get off on technicalities, when they beat the system. Only in that sense is it bad for criminals to confess.
I think the Constitution is clear: All legislative power is vested in Congress.

No, we both assume a legal principle from the time of the Framing: better that a hundred guilty walk free than one innocent be punished. Thomas Jefferson once magnified it, saying it would be better that a thousand guilty walk free than one innocent be punished.

And yet you and other so-called "conservatives" lament that a system in which one in ten or even one in five convicted people are innocent!

All the Court did was take a deeply held principle from the Founders seriously. It's just too bad that they didn't write that principle into the Constitution in the first place.

[Benvolio]

[QUOTE=Kulindahr;8592101]No, we both assume a legal principle from the time of the Framing: better that a hundred guilty walk free than one innocent be punished. Thomas Jefferson once magnified it, saying it would be better that a thousand guilty walk free than one innocent be punished.

The Founding Fathers plainly did not want that "principle" to be a grant of legislative power, since they reserved all legislative power to Congress. Advising the guilty to remain silent does not protect the innocent it protects the guilty while overburdening the criminal system.

[rareboy]

And they were quite right to do so, since anything said to an officer of the court becomes testimony should they wish it.



I see your point. They could have ordered Congress to draft legislation which would cover the gap -- but perhaps they decided that since the instructions they composed were not likely to be adopted or the legislation Congress might come up with would be insufficient, they would shortcut the process and issue their own.

OTOH, the Constitution is not very clear about how much authority they do have when correcting situations, there's no way to gauge this.

I guess that if you subscribe to three branches of government being equal...there is a fair amount of latitude.

[JockBoy87]

Advising the guilty to remain silent does not protect the innocent it protects the guilty while overburdening the criminal system.

Is that so?

The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances."

Talking to the police can never help you, because of the federal rules of hearsay, whether you are innocent or guilty.

That's why when you are a witness, you always always always ask for immunity.

You also might enjoy this video:

[bankside]

If the opposite of poverty is justice, then Obamacare is the first step in the right direction. Obama's tax policy of undermining Boener's tax policy is the next step.

The justice system used to be "duel at dawn" but that is clearly just barbarism. It was removing the self-serve component of "justice" that got us this far. The fact that governments do it wrong is actually an improvement over the self-serve approach, because that means justice is now subject to public scrutiny such as in this thread.

The next step is to eliminate the death penalty.

[Kulindahr]

If the opposite of poverty is justice, then Obamacare is the first step in the right direction. Obama's tax policy of undermining Boener's tax policy is the next step.

The justice system used to be "duel at dawn" but that is clearly just barbarism. It was removing the self-serve component of "justice" that got us this far. The fact that governments do it wrong is actually an improvement over the self-serve approach, because that means justice is now subject to public scrutiny such as in this thread.

The next step is to eliminate the death penalty.

A major step that's needed is the elimination of government profit from prosecuting people. Fines for committing crimes is a relic of "the divine right of kings", and should be ended or at least reformed so that the people levying the fines get no return from it. Best solution: all fines for crimes go against the national debt.

Then the burden of court costs has to be taken from the innocent: any court costs, attorney fees, etc. for a person found innocent should be borne by the state. The court-appointed attorney system needs serious reform as well; in many jurisdictions, the cost of the attorney is charged to the accused anyway, regardless of innocence or guilt.

[JockBoy87]

A major step that's needed is the elimination of government profit from prosecuting people. Fines for committing crimes is a relic of "the divine right of kings", and should be ended or at least reformed so that the people levying the fines get no return from it. Best solution: all fines for crimes go against the national debt.

Then the burden of court costs has to be taken from the innocent: any court costs, attorney fees, etc. for a person found innocent should be borne by the state. The court-appointed attorney system needs serious reform as well; in many jurisdictions, the cost of the attorney is charged to the accused anyway, regardless of innocence or guilt.

Neither is the criminal justice system free. Indeed, the price of freedom in dollars is exorbitant, yet it is itself priceless.

[Kulindahr]

Neither is the criminal justice system free. Indeed, the price of freedom in dollars is exorbitant, yet it is itself priceless.

Building a system of mental health care that could take all the mentally ill currently stuck in jails would save money in the not-too-long run.

[Benvolio]

Building a system of mental health care that could take all the mentally ill currently stuck in jails would save money in the not-too-long run.

Housing the mentally is probably more expensive even now since they get some degree of care by people with training. If mental hospitals were required to take the mentally ill dangerous criminals they would need to become very much like prisons.

[JockBoy87]

Building a system of mental health care that could take all the mentally ill currently stuck in jails would save money in the not-too-long run.

You could correct indifferent prosecutors who cannot tell or cannot care to tell mens rea from diminished capacity.

[bankside]

When the justice system is a theatre catering to the mob's prejudices so that the "actors" can do well at the next election, it says a lot for the Commonwealth practice of appointing judges instead of letting popular opinion hold sway.

How many people voting for judge-actors and prosecutor-actors even understand mens rea?.

[JockBoy87]

How many people voting for judge-actors and prosecutor-actors even understand mens rea?.

Enough since Legally Blonde came out

[palbert]

Those thinking of institutionalizing the mentally ill should revisit O'Connor v. Donaldson, which set stringent safeguards for the rights of the mentally ill. It will not be an easy task.

See http://www.justusboys.com/forum/thre...=1#post8590472

[Benvolio]

How many people want dangerous people with diminished capacity out on the street? Perhaps there will come a time when it will be possible to ascertain mental illness accurately, predict accurately the probability of future violence or crime, and reliably cure or control it. Until then, there will be little support for making diminished capacity or mental illnessa defense.

[Kulindahr]

Housing the mentally is probably more expensive even now since they get some degree of care by people with training. If mental hospitals were required to take the mentally ill dangerous criminals they would need to become very much like prisons.

End the anti-liberty falsely-labeled "war on drugs" and we'd have plenty of space.