Found not guilty, then judge says he may be guilty

[Pappa]

This is the real travesty:

His accuser, now a 34-year-old ballet dancer, said he had been left emotionally distraught.
Lancel was charged under his real name of Andrew Watkinson with six counts of indecent assault on the youngster in 1994 when the teenager was attending a theatre group.

That's nineteen years. I seriously question whether or not a fair trial can be had on a "he said, he said" basis with no forensic or documentary evidence at all after such a long time.

19 years is nothing. Another actor from the same TV show has just been charged with similar offences - 50 YEARS after the fact.

Which is an even more egregious miscarriage of justice...

Not really. In that case there are multiple independent corroborative witnesses. Generally the CPS don't allow cases to go to trial if the evidence isn't strong enough to lead to a potential conviction.

[devogue]

This is the real travesty:

His accuser, now a 34-year-old ballet dancer, said he had been left emotionally distraught.
Lancel was charged under his real name of Andrew Watkinson with six counts of indecent assault on the youngster in 1994 when the teenager was attending a theatre group.

That's nineteen years. I seriously question whether or not a fair trial can be had on a "he said, he said" basis with no forensic or documentary evidence at all after such a long time.

19 years is nothing. Another actor from the same TV show has just been charged with similar offences - 50 YEARS after the fact.

Which is an even more egregious miscarriage of justice...

Not really. In that case there are multiple independent corroborative witnesses. Generally the CPS don't allow cases to go to trial if the evidence isn't strong enough to lead to a potential conviction.

IIRC Bill Roache came out with some pretty controversial remarks about paedophilia not long before his arrest, Max Clifford also put his head above the parapet when he mentioned clients being worried about the fallout of Savile. This sort of publicity might have made them targets for the unscrupulous or for people with a vendetta. The mood following Savile is unprecedented and I think the police may be in uncharted waters - they have to act, and especially if there are independent witnesses, but all of this could be happening through a particularly twisted prism.

[Seth]

Not really. In that case there are multiple independent corroborative witnesses. Generally the CPS don't allow cases to go to trial if the evidence isn't strong enough to lead to a potential conviction.

Sorry, but 50 years is a lot of time to gin up false testimony.

It's also a lot of time for memories to fade, change and be changed.

If there was evidence at the time, then the victim should have come forward at that time.

Waiting 50 years is unconscionable and should not be allowed. That's why statutes of limitation exist, and I hope the courts rule that 50 year old testimonial evidence and prosecutions are inherently unreliable and that charges cannot be brought in such cases.

[Cormac]

Not exactly. She could be mistaken. Her recollection could be faulty. She could be honestly pointing the finger at one guy when it really was another - i.e. she could have been raped, but by someone else. Under many many circumstances, she could be trying to be honest, but wrong. And, of course, sometimes people lie.

It's not like other crimes, if someone is found innocent of murder in most cases no one is going to say a murder didnt take place (a successful self defence please is incredibly rare here) just that the person on trial didnt do it.

In the case of rape its going to be rare for someone to say sex didnt happen and rare for the victim to not be able to identify the attacker, its almost always comes down to consent, if the accused is found innocent the victim consented is the only reasonable thing to draw from it and hence no crime took place at all.

It's one of the reasons women often don't want to go to court, the only real evidence is going to be their statement and that of the accused, one will be believed and the other won't

Grounding for this statement?

[pErvinalia]

I think what Devogue and others are saying is right, but in this case I'm having trouble drumming up much sympathy for the guy. Sounds like he was a sick fucker who got off on a technicality. This is low on my list of things to get fired up about these days.

[Cormac]

I think what Devogue and others are saying is right, but in this case I'm having trouble drumming up much sympathy for the guy. Sounds like he was a sick fucker who got off on a technicality. This is low on my list of things to get fired up about these days.

...demonstrating precisely why judges should not make comments that undermine the finding of a jury in their own court.

[pErvinalia]

I don't know that it demonstrates anything, other than my particular view of it. I haven't actually read the article. Did the judge say this in court or out of court? If in court, then I'm not convinced it is a great problem. Judges are allowed to instruct juries how to decide in some cases and they obviously have the legal knowledge to appropriately influence a jury. The fact that he might have done this after, but still in the court, is not that big a problem for me.

Let's remember who the likely victim is in this case.

[Cormac]

I don't know that it demonstrates anything, other than my particular view of it. I haven't actually read the article. Did the judge say this in court or out of court? If in court, then I'm not convinced it is a great problem. Judges are allowed to instruct juries how to decide in some cases and they obviously have the legal knowledge to appropriately influence a jury. The fact that he might have done this after, but still in the court, is not that big a problem for me.

Let's remember who the likely victim is in this case.

1. The complainant may or may not be a victim.
2. The jury found that the accuser was not guilty.

The judge may not instruct a jury as to what their decision should be. He may not offer an opinion on that matter one way or the other that might influence the jury. What he or she can do is decide what evidence is pertinent and what is not. He can instruct the jury to disregard evidence, and he can advise the jury as to the mechanics of the delivery of their verdict. A judge may not instruct a jury as to what decision he thinks they should make.

Neither should the judge undermine the decision made by the jury.

It is wrong precisely because doing that prevents the exhonerated from enjoying the unsullied reputation to which they're entitled having been exhonerated by a jury of his peers.

In other words, if the judge had said nothing, it is unlikely we'd have a strong "no smoke without fire" attitude. It is not unknown to e falsely accused you know.

[pErvinalia]

I thought in some jurisdictions the judge could tell a jury how they should decide. Or perhaps overrule the jury's verdict.

edit: actually it says effectively this in the article: "Last week the judge told the jury to dismiss two of the six charges..."

Without knowing the specifics of the case, I obviously can't say; but the defendant sounds like a dodgy cunt who got off on a technicality. If that was the case, and could be objectively shown, then I have no problem with the judge making a comment in the course of the court proceedings. As I said, let's remember who the likely real victim is here.

[Coito ergo sum]

Not exactly. She could be mistaken. Her recollection could be faulty. She could be honestly pointing the finger at one guy when it really was another - i.e. she could have been raped, but by someone else. Under many many circumstances, she could be trying to be honest, but wrong. And, of course, sometimes people lie.

It's not like other crimes, if someone is found innocent of murder in most cases no one is going to say a murder didnt take place (a successful self defence please is incredibly rare here) just that the person on trial didnt do it.

In the case of rape its going to be rare for someone to say sex didnt happen and rare for the victim to not be able to identify the attacker, its almost always comes down to consent, if the accused is found innocent the victim consented is the only reasonable thing to draw from it and hence no crime took place at all.

It's one of the reasons women often don't want to go to court, the only real evidence is going to be their statement and that of the accused, one will be believed and the other won't

No, that's why it IS like other cases.

What kind of system would you want? A system where an accuser can point the finger with no evidence but his own testimony, and that is sufficient to convict?

A murder is not a consent crime-- murder is essentially 'the unjustified, unexcused killing of another human being with malice aforethought (intent or recklessness)" - a rape is sexual intercourse without consent. So, saying "sexual intercourse never happened" is one defense, but so is -- "yes we did have sex, but she expressed what I reasonably interpreted to be consent."

On the issue of consent, you say that if the jury acquits then they are saying that she consented. No, they're not. Like any other crime, they're saying that the particular element of the crime could not be proved beyond a reasonable doubt. They're saying they have reasonable doubts. Having reasonable doubts is not the same thing as saying "she consented."

Another way to look at it is that the jury can even be of the mind that she "probably" did not consent, but they would still have to acquit if they could not erase all "reasonable" doubts. i.e. -- something might have "probably" happened, but one may still find that it may not have happened and that the doubt about whether it did happen is "reasonable." Reasonable does not mean that they have to find the defendant's story is more probable than the accuser's story. Reasonable just means that there is a significant possibility.

[Coito ergo sum]

You forget the formula "Ei incumbit probatio qui dicit, non qui negat", found since the Digest of Justinian (22.3.2) (sixth century) ... the principle, though formulated differently, has been known for damn long, and includded in pretty much every legal system acquainted with Roman Law...

In English and American law, it is embodied in the "beyond reasonable doubt" standard and the fixing of the burden of proof on the prosecution. That's what the presumption of innocence is.

and placing the burden of proof on the accusator stems from what maxim of Roman Law?

English law doesn't come from Roman law, though. English law comes from Anglo-Saxon common law, which likely has a common ancestor with Roman law.

[Coito ergo sum]

I think what Devogue and others are saying is right, but in this case I'm having trouble drumming up much sympathy for the guy. Sounds like he was a sick fucker who got off on a technicality. This is low on my list of things to get fired up about these days.

...demonstrating precisely why judges should not make comments that undermine the finding of a jury in their own court.

Agreed in principle, but what of the quoted material -- what the judge actually said - undermines the finding of the jury?

[Cormac]

I thought in some jurisdictions the judge could tell a jury how they should decide. Or perhaps overrule the jury's verdict.

edit: actually it says effectively this in the article: "Last week the judge told the jury to dismiss two of the six charges..."

Without knowing the specifics of the case, I obviously can't say; but the defendant sounds like a dodgy cunt who got off on a technicality. If that was the case, and could be objectively shown, then I have no problem with the judge making a comment in the course of the court proceedings. As I said, let's remember who the likely real victim is here.

The judge can dismiss charges during a case for a variety of legitimate reasons, from jurisdiction to delay. But he can neither influence the jury, nor overturn their decision.

With the unfettered approach to law you suffer, justice stops being blond, and becomes very focussed indeed. In other words, judges become political, and in fact, justice evaporates.

[Seth]

I thought in some jurisdictions the judge could tell a jury how they should decide. Or perhaps overrule the jury's verdict.

edit: actually it says effectively this in the article: "Last week the judge told the jury to dismiss two of the six charges..."

Without knowing the specifics of the case, I obviously can't say; but the defendant sounds like a dodgy cunt who got off on a technicality. If that was the case, and could be objectively shown, then I have no problem with the judge making a comment in the course of the court proceedings. As I said, let's remember who the likely real victim is here.

The judge can dismiss charges during a case for a variety of legitimate reasons, from jurisdiction to delay. But he can neither influence the jury, nor overturn their decision.

With the unfettered approach to law you suffer, justice stops being blond, and becomes very focussed indeed. In other words, judges become political, and in fact, justice evaporates.

Well, not quite. A judge can always ACQUIT a defendant over a jury verdict of guilty. This is in place so that a judge can overrule a jury when he sees a miscarriage of justice occurring. But a judge CANNOT overturn a verdict of not guilty. Once a jury has handed down a not guilty verdict the trial is over at that moment and the defendant is free to leave, and cannot be tried again on the same charges.

And "justice stops being blond?" You been watching "Legally Blonde" too much? I can't blame you, Reese is way hot.

[Seth]

I don't know that it demonstrates anything, other than my particular view of it. I haven't actually read the article. Did the judge say this in court or out of court? If in court, then I'm not convinced it is a great problem. Judges are allowed to instruct juries how to decide in some cases and they obviously have the legal knowledge to appropriately influence a jury.

The hell they do. The only thing a judge can do is overrule a jury verdict of GUILTY if he believes a miscarriage of justice has occurred, which is called "acquittal notwithstanding verdict."

Judges only instruct juries IN THE LAW, which is to say what the law says, it's the plenary, sovereign and absolute decision of the jury to acquit a defendant. They can "nullify" if they want by acquitting someone who is clearly and unequivocally guilty of the crime if they feel that the application of the law in this particular instance would cause a miscarriage of justice, and once they nullify (the law) by delivering a verdict of not guilty the judge cannot declare a mistrial or force them to reconsider.

That's why DA's and judges do everything possible to eliminate people who understand jury nullification from a jury. Most judges will dismiss a juror during voir dire if they express nullification sentiments. You're always asked "can you deliver a verdict based on, and only on the law as given to you by the court?"

I get out of jury duty every time because I just put on the questionnaire that I believe in jury nullification. Most times I'm not even called in. Once I had to sit through the process and waste a day only to be questioned during voir dire where I repeated my position on nullification and was dismissed immediately. I found out that the judge liked to make it a PITA for nullificationists by forcing them to waste a day or two sitting in the jury waiting area. I was called next to last, which proves that theory.