Saturday December 7, 2013
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For a long time I have watched a growing trend in prosecutions which I find very disturbing. Someone is arrested and charged with a serious crime. And then two things happen which should genuinely trouble everyone.
First--in hopes of shortening the process, they say (and I say baloney!)--prosecutors offer the accused a plea bargain. If he is willing to plead to a lesser, included crime, then the more serious charge will be dropped.
I do not agree with that! It can be used to frighten an innocent man into admitting to something he didn't do. It can be used to get a conviction where the evidence concerning the more serious charge is not strong enough to stand up in court. It can be used to allow a wealthy individual, or an individual with political influence, to plead to a lesser charge, even sometimes letting people off with nothing more than a token fine, probation, or time served.
That's bad enough, but when it comes to a trial it is abused even worse. Juries, I am afraid, are rarely "peers" of the accused--unless the accused is a total idiot. As all too often happens they are a hand picked group of poorly informed and less than brilliant individuals who have absolutely no idea of what the law is or how it should be applied. And both judges and prosecutors do and say things during trials that should get the case thrown out, making, or allowing arguments to be made, that make no sense or have no relevance.
I read the words of one juror in Harold Fish's trial who actually admitted that the fact that Fish was carrying a powerful weapon with him in the woods told her that he was guilty.
And now what?
Read this: (EVT) "A new court ruling says Arizona judges can tell trial juries to consider lesser charges against a defendant even if the defense and prosecution object."
"The unanimous state Supreme Court ruling Thursday upholds a man's conviction for manslaughter though he was charged with first-degree murder in the shooting death of another man after an argument."
"The defendant's lawyers argued in the man's appeal that he was entitled to an all or nothing defense."
I agree with the defense lawyer. All too often I read about jurors who say, "Well, we didn't have had enough evidence to convict him of the main charge, but we knew he was guilty of something."
My opinion? One charge. One shot at a conviction. All or nothing.
What do you think?
One of my favorite movies was '12 Angry Men' I won't go into detail but the movie in the 50's still tells the same story of Juries today except, perhaps, for the passion.
This is so convuluted today that I want everyone to step off the 'headed for the future train' and go back 200 years.
It's Virginia, a man in a bar becomes challenging and abusive to other patrons, he has likely embibed to heavily of the local liquor and foolishly challenges another patron to fight. Patron B would like to withdraw from the challenge, Patron A won't let him. Patron A draws a knife, Patron B draws a Flintlock and fires. Patron A dies.
Based on the previous invented Scenario occuring '200 years ago' what do you think would have happened to Patron B? And Why?
I'd like this discussion to go on because I have more to say but I'll await response.
That is also one of my favorite movies. In fact, it's a great movie. It portrays the way things SHOULD work.
These days, judges allow courtrooms to be turned into places for lawyers to make speeches, twisting evidence to fit their needs--either a conviction or the opposite. And because judges do not immediately declare a mistrial, what we up with is INjustice instead of justice.
Quite frankly, I think our justice system is broken, almost beyond repair.
As to the case, there's no way to decide it unless critical missing evidence is added. I'll make some assumptions, though, and take a whack at it. Obviously, some of the things I am about to say were not included in your scenario, so I could easily be wrong.
If Patron B wanted to withdraw and Patron A "prevented it," the question becomes HOW did he prevent it. If he did it by drawing a knife AND trying to use it, then Patron B had every right to defend his life. If Patron A merely drew a knife, then Patron B could still have withdrawn and had insufficient reason for firing his weapon.
This sounds a bit like one of Andrew Jackson's escapades, doesn't it?
The odd thing about this case is that under current law Patron A would have been guilty of a felony when he prevented Patron B from leaving, and so the courts today would find that he was "killed during the execution of a felony kidnapping."
Of course, the way things are today a county attorney can decide to prosecute anyone, on any charge, and make it stick just by making sure that no one on the jury has an IQ in three digits.
By the way, if the incident in your scenario happened in Arizona back in the old days, the answer is simple: Was Patron B part of the in-group. If so he was found not-guilty. :-)
Here's a thought for everyone to think about--and think about very hard.
We all feel that we are "immune" to trouble until it arrives. And so we sit back and complacently ignore things that could change our lives forever.
Suppose you climb into your car this evening and start on a drive to a friend's house. Everything is a normal as it can be. It's a beautiful, cool June evening in the high country, the streets are clear of heavy traffic. You are relaxed, and looking forward to a quiet evening with good friends. You are well known for always arriving with a bottle of good wine. As you start out the door you realize that you it's too late to stop and buy anything, but the invitation came late in the evening, so you just hop into the car.
On the way to your friend's house, filled with happy thoughts, you come to an intersection with a traffic light where you have to turn right onto another street. The light is with you. It just begins to turn yellow as you turn.
Seemingly out of nowhere, a bike and rider appear in your headlights. Your vehicle strikes them even as your foot slams the brakes. You hear the horrifying crunching sound of flesh being and metal being mashed into a single, bloody mass.
Brakes screaming, you stop in feet. You jump out and run around to the passenger side of your car, horrified at what you see--a bleeding and broken but still living human. From somewhere comes the sound of a woman screaming. As you reach for your cell phone with shaking hands to dial 911 another car shows up, passing through the intersection at right angles to the direction in which you were headed. It slams on its brakes and stops in time, but a second vehicle, right behind it, swerves to miss it, slams into your car, and rams it backward onto the bicyclist.
The worst nightmare of your life. You find yourself in court, charged with vehicular homicide, with a prosecutor haranguing a jury about the "incredibly negligent act of stopping a vehicle in an intersection where it was bound to cause a second accident, leading to the death of a youngster who was already badly injured, but still alive at that moment. And I remind you, that the accused, well known for her bottles of wine, may have passed a blood alcohol test but there was an open bottle of wine found at the scene of the accident, apparently thrown into some brush along the road."
He goes on to point out that you were wearing white gloves, which explains the lack of fingerprints on the wine bottle. Then he adds that when your "heavy luxury vehicle" was "driven back over the victim a second time it stole the future of an honor student who was within a few weeks of graduation," and that the intersection is "well lighted, and it would be impossible for anyone driver in full control of a vehicle to fail to see a bike and rider."
A woman who was standing at the intersection testifies that she did not see the cyclist because she was watching the light and waiting to cross, but that she looked up at the moment of the impact and saw that the traffic light in your direction was red. She also testifies that when she ran across the street to help you she saw an open bottle of red wine in a paper bag lying just in the brush next to where you were standing, and that wine was still pouring out of it.
You want to tell your story. You want to explain, but your lawyer says it is best not to testify because the prosecutor will elicit statements from you that will do damage to your defense. The day before the trial ends your lawyer tells you that he believes you will be cleared of the charge. You wait the night out, unable to sleep, and praying that he is correct.
And he is. You are found not guilty of homicide.
But certain that you "must be" guilty of something, the jury finds you guilty of the lesser included charge of manslaughter. At your age, you will spend the rest of your life in prison.
Now how do you feel about "lesser, included charges?"
What really bothers me is the county attorney looks at the report first and decides if it ever goes to court or not and how to charge the person.
A person is just as dead thru manslaughter or homicide or murder or what ever they want to call it.
The example you put up was an accident and the driver should not have been charged with anything.
"The example you put up was an accident and the driver should not have been charged with anything."
Pat, I am really happy that you see it that way. But you can take it to the bank that if the driver were charged she would be found guilty of the lesser charge.
There is not enough evidence to convict her of the greater charge, but that jury is not going home without convicting her of something. That's the way things work these days.
And it's why I feel that a county attorney should be required to charge a defendant with whatever crime the evidence suggests he or she is guilty of. One charge, one trial, one verdict--either guilty or not guilty. No half measures. No juries that can't make up their minds so jump a a lesser charge.
That is not justice. Justice only prevails when a person is tried by a jury of his peers, when no improper and misleading comments are allowed, and when the jury is charged with the duty of coming back with a clear-cut verdict on one--and only one!--charge.
Oh stop. Earlier I spoke of Obits, Here is one that needs to be revived. Common Sense.
How did it die? Where were the mourners that carred the casket? Common sense was master of the world I grew up in yet I have no idea why it died. Make no mistake it's dead. We can only hope it ressurects itself soon.
How did it die? Greed, politics ?
Common sense started from your parents and family with love and guidance. Hard knocks of the real world when you started school and on into life.
Hows that Haapala?
"Where were the mourners that carred the casket?"
You know something? I'll bet that if old George new what was going on in the city that was named after him, and we put a belt on him, and hooked him up to a generator, he would turn over in his grave so fast we could light all of D.C. with the power.
Maybe we could change it to Washington AC.
"Common sense started from your parents and family with love and guidance."
You know something that just popped into my head?
I do not remember once--not even once--ever telling either of my two kids what was right and what was wrong, or what made sense. And yet they turned out fine.
I suspect that when a lot of people look at the world and see a mess that what they are seeing is a reflection of themselves in a mirror of their own creation.
You know what startled me? My son David and I happened to start a conversation about drugs, one where I asked what he thought about just legalizing the whole mess. You know what he told me? He pointed out that by and large they were legal in the rest of the world and that it was our "if it feels good, do it" culture that would make it impossible to legalize drugs here.
Now that's a genuinely depressing thought. Are we really that bad off?
You don't have to tell someone something for them to have common sense. You show by example. Kids pick up on things more than they are given credit for. Monkey see, monkey do.
When did America become the home of Victims? When did it become necessary to hire a lawyer to make sure we got money? How greedy and lazy do we have to be to put an end to the greatest Country the world has ever seen.
It was the late fifties, I was a young teenager riding my bike to the movies on a Saturday morning.
I didn't have a helmet, they weren't invented yet, It was the middle of the morning and I was obeying the traffic laws riding in the right lane closest to the curb ( in this case blocked by parked cars).
I was wearing a windbreaker with pockets and pedaling fast. A 1959 Chrysler Imperial, traveling in the same direction in the same lane, came by me and because his door handles were open to the front of his car, they caught my pocket and pulled me off my bike at 30 mph.
Stop and tell that story in court today and I'd have been set for life with money ongoing because of my victim status.
The reality of late 50s America went like this: When I felt the tug on jacket as the car passed I knew what had happened. Luckily the pocket gave way, I bailed off my bike to the hood of a parked car, my bike went between the parked cars, the driver of the Imperial also aware of what had happened slammed on his brakes and stopped.
I was not hurt, more than a couple of bruises. My bike was not hurt (most important to me at the time). The parked cars were not hurt, the Imperial was not hurt.
The driver asked if I was okay and I said yes. He asked if we should call my parents, I said no.
He got in his car and left. I got on my bike and continued to the Movie.
When I got home hours later I told my parents what had happened......They were glad I was okay.
End of Story.
PS; I did not have a helmet. It may explain my current state of mind. :)
Many years ago my husband bought us dirt bikes. I went to buy helmets and found one I thought was funny (ha ha) the way it was made. I ask the man in the store if it was legal. His answer was yes. Then added, no helmet is going to help you if you crash going more than 20 MPH. on a motorcycle.
The following has nothing to do with what the salesman told me. Different story.
If a small child is wearing a helmet they need a seperate neck pad to keep the helmet from snapping back and breaking thier neck. How about that? It was a rule that young go kart racers wear them. When my grandson went from go karts to Dwarf cars I told him he had to keep wearing the neck pad. Later the Northern Dwarf Car club made it a rule for everyone.
"PS; I did not have a helmet. It may explain my current state of mind. :)"
I like the end of that story. :-)
Good point, Pat. An adult head weighs about eight pounds. Add a pound or two and that's a lot more stress on a fairly fragile neck, and even more so on a kid. I avoid the whole issue by not riding a motorcycle. Somehow never interested me.
Rode a bike, though. In my years in England, I just calculated, I rode over 13,000 miles on one, and I suppose during my days in Japan I might have gotten in another 1,000 miles. Never wore a helmet or any other kind of protection. Never had an accident except once when I was not on the road. I was biking the sidewalk across a wide field that ran from the school to the housing area. A woman and her year old child were walking the grass alongside the sidewalk. the woman was not paying much attention I guess. Just as I came up to them, doing about six or seven miles an hour, the child suddenly turned toward me, arms open, and came running and yelling, "Daddy!" Well, I wasn't, but somehow or other I managed to lift the bike out from under me and toss it off the concrete path away from the kid. I then flew over the kid and slid down the sidewalk on my left knee and shin muscles. My! My! Talk about a scrape, I scraped away a lot of stuff, an area of about half a square foot. So I pedaled the rest of the way home with one leg, which is a skill I had to learn right there and then. Hurt like hell for a week or so, but it healed.
And you're right, Dan. Today, somebody would be suing somebody. In all my life I have never sued anyone, and it's close to too late now. Sermon on the Mount. Know what I mean?
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