Federal Judge Refuses Most Plea Deals

Gaius46 · Apr 21, 2018

Posted in the Constitution subforum because the judge's decision is written in terms of Constitutional issues and not strictly legal ones.

Federal District Judge Joseph Goodwin of the Southern District of West Virginia is making it a policy of not accepting plea bargains as a matter of course. He is demanding prosecutors and defendants provide reasons that go beyond simply wanting to avoid a trial. His overriding reason for doing so it because, in his view, the right to a trial by jury is a right shared by all people and not one that belongs only to the accused. The people have a right to participate in juries and by not being able to do so, since something like 95% of cases end in a plea bargain, there is no effective check on government power and justice system becomes one more bureaucracy. As he states:

A common view of the grand jury is that it functions to merely check whether the prosecutor has probable cause to believe that an individual has committed the alleged crime.[32] At minimum, such a check protects everyone from inappropriate prosecutorial action, such as harassment or malice, because it prevents the prosecutor from initiating a criminal case where there is insufficient evidence to establish probable cause that the individual has committed the alleged crime.[33]

Beyond an evidentiary gatekeeping function, however, the grand jury plays an additional role in checking government power.[34] One commentator has gone so far as to label the grand jury as a "quasi-legislative body" and "a grassroots political `fourth branch' of government."[35] This comes from the grand jury's absolute discretion to indict or not indict.[36] "Where the grand jury truly adds value is through its ability to exercise robust discretion not to indict where probable cause nevertheless exists. . . ."[37] As another commentator details, colonial grand juries "did not refuse to indict because of a lack of proof that the accused had violated a criminal statute. Rather, they refused because they fundamentally disagreed with the government's decision to enforce these laws at all."[38]

The grand jury's structural check on the government reaches all three branches of government.[39] With respect to the judiciary, "jurisdiction cannot be exercised in felony and capital cases without the grand jury's consent."[40] With respect to the executive, "[t]he grand jury may frustrate the [e]xecutive's efforts to prosecute an individual," and it "may exercise its discretion to send the [e]xecutive a message about its preferred allocation of law enforcement and prosecutorial resources."[41] With respect to the legislature, the grand jury "determin[es] when conduct that Congress has proscribed will be subject to criminal prosecution."[42] As such a powerful check on the government, the grand jury is meant to provide additional protection for the individual threatened by the government with a serious deprivation of his liberty.[43]

Finally, with the near disappearance of the jury trial,[44] the grand jury is the last vestige of the voice of the people in their criminal justice system.[45] When the grand jury returns a true bill, it conveys to the prosecutor, and the general public, the will of the people that the accused be compelled to answer the accusation(s) of criminal conduct.[46] A true bill returned by the grand jury affirms the people's belief in the appropriateness of the law being applied and the importance of holding the individual accountable for breaking it.[47] The grand jury indictment functions as a "democratic force within the prosecutorial function."[48]

The decision is a worthwhile and very easy read. It can be found here: https://scholar.google.com/scholar_case?case=11196158518995119861

I, for one, applaud the man. We need more judges to do exactly this.

Rich2018 · Apr 21, 2018

Gaius46 said:
Posted in the Constitution subforum because the judge's decision is written in terms of Constitutional issues and not strictly legal ones.

Federal District Judge Joseph Goodwin of the Southern District of West Virginia is making it a policy of not accepting plea bargains as a matter of course. He is demanding prosecutors and defendants provide reasons that go beyond simply wanting to avoid a trial. His overriding reason for doing so it because, in his view, the right to a trial by jury is a right shared by all people and not one that belongs only to the accused. The people have a right to participate in juries and by not being able to do so, since something like 95% of cases end in a plea bargain, there is no effective check on government power and justice system becomes one more bureaucracy. As he states:

The decision is a worthwhile and very easy read. It can be found here: https://scholar.google.com/scholar_case?case=11196158518995119861

I, for one, applaud the man. We need more judges to do exactly this.

Really ?

Why do prosecutors agree to plea deals ?

1. To cut costs - do you want to pay for additional / longer trials ?
2. To gain more convictions - do you want to see more criminals walk free ?
3. To cut their workload - do you want to pay for more prosecutors/staff/courts or see more criminals walk free because of a lack of resources for the prosecution ?

If you want to improve the US judicial system, scrap trial by jury. I have never been tried for anything, BUT if I were to be, I'd want to be tried by a panel of professional judges and not a jury of people too stupid to think of a way to get out of jury service.

Thoreau72 · Apr 22, 2018

Great news! Judge Goodwin is a brave and conscientious man.

Thomas Jefferson was right--the jury is the best device yet designed by mankind to keep government within its lawful confines.

Rich2018 · Apr 22, 2018

Thoreau72 said:
Great news! Judge Goodwin is a brave and conscientious man.

Thomas Jefferson was right--the jury is the best device yet designed by mankind to keep government within its lawful confines.

A jury of 12 Thomas Jeffersons maybe, a modern jury that votes on social-racial lines ?

Juries are made up of ordinary people - hence the best lawyers are the best actors and orators.

Is that the kind of person you'd want to decide if you were guilty or innocent ?
Put it another way, if I were guilty, I'd want trial by jury and see if my lawyer can fool them.
If I were innocent, no way would I put my life in the hands of 12 randomly picked people.

Gaius46 · Apr 22, 2018

Rich2018 said:
Really ?

Why do prosecutors agree to plea deals ?

1. To cut costs - do you want to pay for additional / longer trials ?
2. To gain more convictions - do you want to see more criminals walk free ?
3. To cut their workload - do you want to pay for more prosecutors/staff/courts or see more criminals walk free because of a lack of resources for the prosecution ?

If you want to improve the US judicial system, scrap trial by jury. I have never been tried for anything, BUT if I were to be, I'd want to be tried by a panel of professional judges and not a jury of people too stupid to think of a way to get out of jury service.

Yep really.

Is the point of the legal system to achieve a just result or just push people through the system? Honestly I don't care what it costs because I want a system that fairly punishes the guilty and absolutely minimizes the chances that innocent people get punished. If that costs more money so be it. And if we're worried about money and clogging up the courts we could stop criminalizing behavior that of itself is not dangerous to society.

Prosecutors don't agree to plea deals, they offer them, and often entice people to take them by overcharging. That leads to innocent people going to jail. I want the guilty punished as much as the next guy but I want more for the innocent to not be jailed.

As far as the jury trial goes I agree many people see it as a chore to be avoided. The solution to that isn't professional juries, it's to change the societal mindset that says civic duty is to be avoided. As the judge notes the point of the jury is for us - citizens - to act as a counterbalance to government, you lose that with professional jurors. And if you want a judge to act as jury you can always ask for it - it's called a "bench trial" where the judge is both judge and jury.

Rich2018 · Apr 22, 2018

Gaius46 said:
...is the point of the legal system to achieve a just result or just push people through the system?

The purpose of criminal justice is to convict the guilty and acquit the innocent.

The most accurate and efficient way to do this is through an inquisitorial system, not an adversarial system.

The more complex the evidence, the more likely a defendant will be acquitted because ordinary people have no idea of what is being argued over. Good example is tax evasion trials...no jury can hope to keep up with the evidence unless they're qualified accountants.

...I don't care what it costs because I want a system that fairly punishes the guilty and absolutely minimizes the chances that innocent people get punished. If that costs more money so be it....

It would cost a lot of money as well as impose a much higher burden on prosecutors.

How many times do we see juries acquit people because they have expensive, slick lawyers who confuse the hell out of the jury. The average jury member wants to get their service over as fast as possible. The majority of people don't want to do it.
Moreover how many times do we see juries vote on racial lines - they are not impartial. (OJ trial? the scandalous Rodney King trial?)

...if we're worried about money and clogging up the courts we could stop criminalizing behavior that of itself is not dangerous to society....

You have a point here. Though I'd be interested in knowing what offences you're thinking of.

...prosecutors don't agree to plea deals, they offer them, and often entice people to take them by overcharging....

OK, the prosecutor makes a deal with the defense - the judge agrees to it.

...that leads to innocent people going to jail. I want the guilty punished as much as the next guy but I want more for the innocent to not be jailed....

That's usually because people forced to use "public defenders" are left with Hobson's choice. Public Defenders don't give a crap...it's just to show "due process" is being followed.
What should really anger you and everyone else is that rich people go to jail a lot less because their lawyers are better than the prosecutors.

Why do the best court room lawyers make millions ? Because they play juries like puppets.

...as far as the jury trial goes I agree many people see it as a chore to be avoided. The solution to that isn't professional juries, it's to change the societal mindset that says civic duty is to be avoided. As the judge notes the point of the jury is for us - citizens - to act as a counterbalance to government, you lose that with professional jurors. And if you want a judge to act as jury you can always ask for it - it's called a "bench trial" where the judge is both judge and jury.

Better still have a panel of 3-5 judges - like a military court martial.
I would hope that fancy lawyers wouldn't be able to bamboozle them.

As to your other point - you're fighting the tide of social trend. Very few people want to do jury service and more than a few seek to strike back at the state for making them give up a week of their lives. They vote not guilty.

ttwtt78640 · Apr 22, 2018

Rich2018 said:
Really ?

Why do prosecutors agree to plea deals ?

1. To cut costs - do you want to pay for additional / longer trials ?
2. To gain more convictions - do you want to see more criminals walk free ?
3. To cut their workload - do you want to pay for more prosecutors/staff/courts or see more criminals walk free because of a lack of resources for the prosecution ?

If you want to improve the US judicial system, scrap trial by jury. I have never been tried for anything, BUT if I were to be, I'd want to be tried by a panel of professional judges and not a jury of people too stupid to think of a way to get out of jury service.

It is not that a trial by jury of one's peers is a bad idea it is that many of the laws are written in such a way as to confuse a jury. A criminal charge, and the resulting criminal trial, is the defendant vs. the state so if you leave out the jury then the state has even more chance of winning (convicting) and overcharging would be even more prevalent - not less.

IMHO, the use of lesser included offenses is the major problem. If a jury had but two choices: guilty or not guilty as charged then the system would be much improved and trials would be much shorter and simpler affairs.

For example, I was charged with speeding at 69 mph in a 30 mph zone. The officer testified as to seeing my car stopped at a light, accelerating to the professed RADAR confirmed speed of 69 mph and then being pulled over (safely stopped) in less than a 1/4 mile. I was able to prove that the 200 cid vehicle (1971 Mercury Comet) was not capable of that performance. Instead of being found not guilty as charged the judge reduced the speeding charge to 45 mph in a 30 mph zone and found me guilty but added "court costs" making the fine identical to a simple admission of guilt and paying the unwarranted ticket.

Rexedgar · Apr 22, 2018

A thought crossed my mind this morning over coffee and the Sunday paper. Reading of all the lawyering going on at the present time, I put myself into a defendant's position. If I were wrongfully charged of a major crime, the process would probably bankrupt my family and I. I consider us comfortable financially. HBO ran a series a while back "The Night Of." Person in the wrong place, wrong time and the downward spiral that ensued...

Gaius46 · Apr 22, 2018

Rexedgar said:
A thought crossed my mind this morning over coffee and the Sunday paper. Reading of all the lawyering going on at the present time, I put myself into a defendant's position. If I were wrongfully charged of a major crime, the process would probably bankrupt my family and I. I consider us comfortable financially. HBO ran a series a while back "The Night Of." Person in the wrong place, wrong time and the downward spiral that ensued...

Absolutely. It's actually one of the reasons that some defendants who are innocent take plea bargains.

Rich2018 · Apr 22, 2018

ttwtt78640 said:
It is not that a trial by jury of one's peers is a bad idea it is that many of the laws are written in such a way as to confuse a jury. A criminal charge, and the resulting criminal trial, is the defendant vs. the state so if you leave out the jury then the state has even more chance of winning (convicting) and overcharging would be even more prevalent - not less.

IMHO, the use of lesser included offenses is the major problem. If a jury had but two choices: guilty or not guilty as charged then the system would be much improved and trials would be much shorter and simpler affairs.

For example, I was charged with speeding at 69 mph in a 30 mph zone. The officer testified as to seeing my car stopped at a light, accelerating to the professed RADAR confirmed speed of 69 mph and then being pulled over (safely stopped) in less than a 1/4 mile. I was able to prove that the 200 cid vehicle (1971 Mercury Comet) was not capable of that performance. Instead of being found not guilty as charged the judge reduced the speeding charge to 45 mph in a 30 mph zone and found me guilty but added "court costs" making the fine identical to a simple admission of guilt and paying the unwarranted ticket.

In Scotland a jury has three options - Guilty, Not Guilty (meaning that the defendant shouldn't have been in court in the fist place) or Not Proven (meaning he's not convicted BUT the Crown can try him again.

Being judged by ones peers is a fine and noble aim but in reality, no-one wants to serve on juries. We've seen way too many suspect verdicts where it's clear the jury has been voting with ulterior motives.

I definitely think that juries should not be involved in civil cases.

Rich2018 · Apr 22, 2018

Rexedgar said:
A thought crossed my mind this morning over coffee and the Sunday paper. Reading of all the lawyering going on at the present time, I put myself into a defendant's position. If I were wrongfully charged of a major crime, the process would probably bankrupt my family and I. I consider us comfortable financially. HBO ran a series a while back "The Night Of." Person in the wrong place, wrong time and the downward spiral that ensued...

You're in a no-win situation. If you trust the public defender (which you may not get if you have any money saved) you risk going to prison and ruining your life for something you didn't do.

OR

You risk bankrupting yourself, your family, ruining your children's lives by eating up their college fund and any other money you have saved. This is another reason why trial by jury is a bad thing.

You shouldn't have to pay an expensive lawyer to get justice.
But you do have to in reality because your life is dependent on the decision of 12 random, uneducated people who really don't want to be there.

Thoreau72 · Apr 23, 2018

Rich2018 said:
A jury of 12 Thomas Jeffersons maybe, a modern jury that votes on social-racial lines ?

Juries are made up of ordinary people - hence the best lawyers are the best actors and orators.

Is that the kind of person you'd want to decide if you were guilty or innocent ?
Put it another way, if I were guilty, I'd want trial by jury and see if my lawyer can fool them.
If I were innocent, no way would I put my life in the hands of 12 randomly picked people.

You are correct that today's jury is grossly uninformed of their duties and powers, but a large factor for that is the way jurors have been misinformed and manipulated since the Sparf decision in 1895.

And it is true that the jury system is not perfect, but when informed of their power, and when they see themselves as the conscience of the local community, the jury can deliver justice.

What would you offer in its place?

Harshaw · Apr 23, 2018

Gaius46 said:
Posted in the Constitution subforum because the judge's decision is written in terms of Constitutional issues and not strictly legal ones.

Federal District Judge Joseph Goodwin of the Southern District of West Virginia is making it a policy of not accepting plea bargains as a matter of course. He is demanding prosecutors and defendants provide reasons that go beyond simply wanting to avoid a trial. His overriding reason for doing so it because, in his view, the right to a trial by jury is a right shared by all people and not one that belongs only to the accused. The people have a right to participate in juries and by not being able to do so, since something like 95% of cases end in a plea bargain, there is no effective check on government power and justice system becomes one more bureaucracy. As he states:

The decision is a worthwhile and very easy read. It can be found here: https://scholar.google.com/scholar_case?case=11196158518995119861

I, for one, applaud the man. We need more judges to do exactly this.

There's no right to be on a jury. The Sixth Amendment speaks only of the right of the accused in a criminal proceeding.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Kal'Stang · Apr 23, 2018

Gaius46 said:
Posted in the Constitution subforum because the judge's decision is written in terms of Constitutional issues and not strictly legal ones.

Federal District Judge Joseph Goodwin of the Southern District of West Virginia is making it a policy of not accepting plea bargains as a matter of course. He is demanding prosecutors and defendants provide reasons that go beyond simply wanting to avoid a trial. His overriding reason for doing so it because, in his view, the right to a trial by jury is a right shared by all people and not one that belongs only to the accused. The people have a right to participate in juries and by not being able to do so, since something like 95% of cases end in a plea bargain, there is no effective check on government power and justice system becomes one more bureaucracy. As he states:

The decision is a worthwhile and very easy read. It can be found here: https://scholar.google.com/scholar_case?case=11196158518995119861

I, for one, applaud the man. We need more judges to do exactly this.

Sounds to me like a judge that is in full favor of jury nullification rights. Good on him.

chuckiechan · Apr 23, 2018

First of all, I have never served on a jury. I always get kicked out by one side or another. BUT. I always wanted to know if jurors are informed if witness cut a deal with a prosecutor, or were jail house witnesses or what. I think the jury deserves to know the witnesses motive. I've never got far enough along to ask that question.

Back to copping a plea. I don't like the idea of this "You can go to jail for 100 years, or tell me what I want to hear and you will get a $50.00 fine".

It's always been my belief in fairy tails that made me feel that the job of the DA was justice, not case closing. I've felt the DA should seek to resolve the case in a fair and honest matter and hold no ex exculpatory evidence back from the defendant. This should not be a contest, it should be a process. Why should a "not guilty" plea put a defendant at risk for 20 years, whereas a plea deal is an agreement that he serve 5? Do you have one case or two?

They don't even bother to call me anymore but If I could choose, I would ask for a white collar criminal case.

Gaius46 · Apr 23, 2018

Harshaw said:
There's no right to be on a jury. The Sixth Amendment speaks only of the right of the accused in a criminal proceeding.

The ninth amendment is pretty clear about the BoR not being an exhaustive list of rights.

Anyway while it may not be an individual right clearly if there is a right to a jury trial then there is a need for jurors. And given jury nullification it follows that juries can potentially be check on all three branches.

Harshaw · Apr 23, 2018

Gaius46 said:
The ninth amendment is pretty clear about the BoR not being an exhaustive list of rights.

There's no legal tradition, under which the 9th Amendment was conceived, which considered the right to trial by jury to be anything but the right of the accused.

You can still be in favor of jury nullification -- which I am -- while acknowledging that. The judge is just wrong.

Anyway while it may not be an individual right clearly if there is a right to a jury trial then there is a need for jurors.

That doesn't give anyone a particular right to serve on one.

Rich2018 · Apr 23, 2018

Thoreau72 said:
You are correct that today's jury is grossly uninformed of their duties and powers, but a large factor for that is the way jurors have been misinformed and manipulated since the Sparf decision in 1895.

And it is true that the jury system is not perfect, but when informed of their power, and when they see themselves as the conscience of the local community, the jury can deliver justice.

What would you offer in its place?

Most juries don't know to pick a foreman before the trial starts.

They sit there and are too afraid to hold up their hand if they don't understand anything - and it's the defense attorney's job to make sure a lot of the evidence is not understood by the jury. He/she intentionally clouds the evidence and puts doubt in the jury's collective minds.
The more complex the evidence, the easier it is to totally confuse the jury.

I would replace the adversarial system with an inquisitorial system of justice. Replace the jury with a panel of judges (5-7) similar to how military court martials work.

Thoreau72 · Apr 23, 2018

Rich2018 said:
Most juries don't know to pick a foreman before the trial starts.

They sit there and are too afraid to hold up their hand if they don't understand anything - and it's the defense attorney's job to make sure a lot of the evidence is not understood by the jury. He/she intentionally clouds the evidence and puts doubt in the jury's collective minds.
The more complex the evidence, the easier it is to totally confuse the jury.

I would replace the adversarial system with an inquisitorial system of justice. Replace the jury with a panel of judges (5-7) similar to how military court martials work.

That is an interesting proposal. I did a few years in the Army and had to participate in the system a few times.

I'm partial to the jury system, as 6 or 12 men can find justice, depending upon the case. Your point about complex evidence is right on. Sometimes it's so "complicated" as to be near fraud.

Especially in criminal cases the jury is the conscience of the community, it should know right from wrong and stand up for individual rights. A panel of judges usually gets all bogged down in legal details and loses sight of justice and the individual.

Skeptic Bob · Apr 23, 2018

Rich2018 said:
Really ?

Why do prosecutors agree to plea deals ?

1. To cut costs - do you want to pay for additional / longer trials ?
2. To gain more convictions - do you want to see more criminals walk free ?
3. To cut their workload - do you want to pay for more prosecutors/staff/courts or see more criminals walk free because of a lack of resources for the prosecution ?

If you want to improve the US judicial system, scrap trial by jury. I have never been tried for anything, BUT if I were to be, I'd want to be tried by a panel of professional judges and not a jury of people too stupid to think of a way to get out of jury service.

I disagree with your post but that was a good one.

Gaius46 · Apr 23, 2018

Harshaw said:
There's no legal tradition, under which the 9th Amendment was conceived, which considered the right to trial by jury to be anything but the right of the accused.

You can still be in favor of jury nullification -- which I am -- while acknowledging that. The judge is just wrong.

That doesn't give anyone a particular right to serve on one.

I never said it did give any particular person a right to serve. The judge stated, and I reiterated, that it is a collective right - the right of the community to punish it's members.

I've spent a little time reading up on this evening and I'm pretty well convinced that the judge got it right.

First a jury trial is not only spoken of in the BoR but also in Article III Section 2:

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

There is no mention of the accused there, only the fact that trials are to be done by jury. Scalia and Thomas both have taken the view that the jury trial right is primarily about the community's right to punish it's members. Scalia wrote in his concurrence to Apprendi v NJ:

I feel the need to say a few words in response to Justice Breyer’s dissent. It sketches an admirably fair and efficient scheme of criminal justice designed for a society that is prepared to leave criminal justice to the State. (Judges, it is sometimes necessary to remind ourselves, are part of the State–and an increasingly bureaucratic part of it, at that.) The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free.

This paper, https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1092&context=ilj , goes on for 51 pages on the topic. I read much, though not all, of it and the author makes a convincing case for the collective rights interpretation of the jury trial right. It's interesting reading

Gaius46 · Apr 23, 2018

Rich2018 said:
The purpose of criminal justice is to convict the guilty and acquit the innocent.

The most accurate and efficient way to do this is through an inquisitorial system, not an adversarial system.

The more complex the evidence, the more likely a defendant will be acquitted because ordinary people have no idea of what is being argued over. Good example is tax evasion trials...no jury can hope to keep up with the evidence unless they're qualified accountants.

It would cost a lot of money as well as impose a much higher burden on prosecutors.

How many times do we see juries acquit people because they have expensive, slick lawyers who confuse the hell out of the jury. The average jury member wants to get their service over as fast as possible. The majority of people don't want to do it.
Moreover how many times do we see juries vote on racial lines - they are not impartial. (OJ trial? the scandalous Rodney King trial?)

You have a point here. Though I'd be interested in knowing what offences you're thinking of.

OK, the prosecutor makes a deal with the defense - the judge agrees to it.

That's usually because people forced to use "public defenders" are left with Hobson's choice. Public Defenders don't give a crap...it's just to show "due process" is being followed.
What should really anger you and everyone else is that rich people go to jail a lot less because their lawyers are better than the prosecutors.

Why do the best court room lawyers make millions ? Because they play juries like puppets.

Better still have a panel of 3-5 judges - like a military court martial.
I would hope that fancy lawyers wouldn't be able to bamboozle them.

As to your other point - you're fighting the tide of social trend. Very few people want to do jury service and more than a few seek to strike back at the state for making them give up a week of their lives. They vote not guilty.

(sorry for the delayed response)

I don't know much about the workings of the inquisitorial system but it seems to perpetuate the exact thing the founders were apparently trying to avoid - giving the government too much power in the area of criminal justice. The whole point was to give the people the lions share of the power to punish their own. The inquisitorial system may be more efficient and even more accurate but it isn't the system envisioned in our Constitution and I think the founders would have recoiled at the idea of giving all that power to government employees.

That's not to say our system is perfect - it has lots of flaws and you've point out some of them - one of the biggest ones for me is cost to defendants. I don't really care all that much that prosecutors would have to work harder they should have to work hard if they're working towards depriving someone of their freedom, but bankrupting someone brought to trial is a huge problem. So is our apathy. And I honestly don't have good answers to either. I just have a gut feel that giving all the authority to the state isn't the answer.

As to offenses that shouldn't be offenses in my view - things like drug use, prostitution, gambling (which is still illegal in some places). The usual suspects of so-called "victimless" crimes.

Rich2018 · Apr 23, 2018

Skeptic Bob said:
I disagree with your post but that was a good one.

Thank you (I think).

Rich2018 · Apr 23, 2018

Thoreau72 said:
That is an interesting proposal. I did a few years in the Army and had to participate in the system a few times.

I'm partial to the jury system, as 6 or 12 men can find justice, depending upon the case. Your point about complex evidence is right on. Sometimes it's so "complicated" as to be near fraud.

Especially in criminal cases the jury is the conscience of the community, it should know right from wrong and stand up for individual rights. A panel of judges usually gets all bogged down in legal details and loses sight of justice and the individual.

I'm not saying a jury doesn't know right from wrong but in complex trials - especially fraud and tax evasion, they simply don't know enough to know if a crime has been committed.

In an inquisitorial system of criminal justice, the judges examine the witnesses to get to the truth. It's a bit like a congressional hearing.

Slick lawyers don't work so well and I would hope that the defendant would stand a more even chance even though he/she can't afford an expensive lawyer. That's really the aim - to get to the truth regardless of how much you're paying your lawyer.

Rich2018 · Apr 23, 2018

Gaius46 said:
(sorry for the delayed response)

I don't know much about the workings of the inquisitorial system but it seems to perpetuate the exact thing the founders were apparently trying to avoid - giving the government too much power in the area of criminal justice. The whole point was to give the people the lions share of the power to punish their own. The inquisitorial system may be more efficient and even more accurate but it isn't the system envisioned in our Constitution and I think the founders would have recoiled at the idea of giving all that power to government employees.

That's not to say our system is perfect - it has lots of flaws and you've point out some of them - one of the biggest ones for me is cost to defendants. I don't really care all that much that prosecutors would have to work harder they should have to work hard if they're working towards depriving someone of their freedom, but bankrupting someone brought to trial is a huge problem. So is our apathy. And I honestly don't have good answers to either. I just have a gut feel that giving all the authority to the state isn't the answer.

As to offenses that shouldn't be offenses in my view - things like drug use, prostitution, gambling (which is still illegal in some places). The usual suspects of so-called "victimless" crimes.

It is said that the judiciary are a branch of government but I don't think they should be looked upon that way. The judiciary must be wholly independent of government and be seen to be 100% independent.

The inquisitorial form of criminal justice works like a military court martial or a congressional hearing. A panel of judges (with appropriate expertise pertaining to the case before them) examine witnesses that both the prosecution and the defense present.

The attorneys can ask questions to establish the witnesses authority to be in court, they make their points to the judges but the judges examine the evidence presented before them.

This hugely reduces attorneys "play acting" in court and delivering emotional speeches etc. It falls on deaf ears of experienced judges.

Even the greenest, poorest public defender can match the smartest DA.

Too often what decides a case (criminal and civil) is not the weight of evidence, but the quality of the presentation.

Think of it this way, is a fast talking salesman gets you in his office he might pressure/convince you to buy almost anything...from a dud car to a worthless time share.
Would he be as successful with a professional corporate buyer with 20 years experience ?

Federal Judge Refuses Most Plea Deals

Gaius46

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