Found not guilty, then judge says he may be guilty

[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

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.

Oddly, there was a murder case in Germany that did involve consent. The two weirdos* had concocted a cannibalistic suicide plot. They conspired to cut bits off one of them, and cooked and ate them together.

They had "met" on the web. Surely a variant on that porn rule!

But the issue then arose as to whether murder was the appropriate charge, given that the deceased/ingested had fully consented at every step.

But, as with some euthanasia cases, consent did not reduce the charges from murder.

*Is my privilege showing?

[Seth]

Oddly, there was a murder case in Germany that did involve consent. The two weirdos* had concocted a cannibalistic suicide plot. They conspired to cut bits off one of them, and cooked and ate them together.

They had "met" on the web. Surely a variant on that porn rule!

But the issue then arose as to whether murder was the appropriate charge, given that the deceased/ingested had fully consented at every step.

But, as with some euthanasia cases, consent did not reduce the charges from murder.

*Is my privilege showing?

It's a maxim of law in pretty much every civilized nation that one cannot "consent" to being killed. Why such laws exist are diverse and confusing, but that's why euthanasia is generally illegal.

[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.

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

On my reading of it, (and noting that the article was from the Daily Fail*), the judge effectively said thatthe jury were unable to convict on a technicality, but that he, the judge, believed that the defendat was guilty. This was after a jury had taken just 29 minutes to produce a not guilty verdict.

In making this comment, he undermines the law, and indeed the judicial system, by:

1. Implying that technical issues are not a valid route to exhoneration. He implies that such judgements are a matter of a knowing nudge and a wink.
2. He effectively declared that the jury was wrong - something he is only entitled to do if the jury made a technical error themselves, or were corrupted in some way.
3. He also denied the exhinerated the right to his unsullied reputation, to which he is entitled. It is bad enough being falsely accused, but to have such accusations restated immediately after have being found not guilty, and then by the trial judge is a denial of justice.

(In my view).


*...and therefore inclined to ridicule judges, and to deny any relief to those falsely accused of any crime at all

[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.

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.

Typing on my phone seems to be increasing my blonde quotient, and not in a good way!

That is an interesting feature of law, and one with which I was not familiar. It does make sense.

Double jeopardy no longer applies in all cases in Ireland or England/Wales. (Scotland hs a different legal system, so I've no idea about Scotland).

[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 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.

This does seem to be a usurpation of the right to be tried by a jury of your peers. Interpretation and application of the law is (or should not be) the sole domain of the judiciary and the legal profession - such would seem to militate against a jury being able to act as a jury of peers.

That may be my dislike for bureaucracy and state authority coming through though...

[Cormac]

Oddly, there was a murder case in Germany that did involve consent. The two weirdos* had concocted a cannibalistic suicide plot. They conspired to cut bits off one of them, and cooked and ate them together.

They had "met" on the web. Surely a variant on that porn rule!

But the issue then arose as to whether murder was the appropriate charge, given that the deceased/ingested had fully consented at every step.

But, as with some euthanasia cases, consent did not reduce the charges from murder.

*Is my privilege showing?

It's a maxim of law in pretty much every civilized nation that one cannot "consent" to being killed. Why such laws exist are diverse and confusing, but that's why euthanasia is generally illegal.

In some European states euthanasiais not considered murder, and is officially legal and facilitated.

[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.

This does seem to be a usurpation of the right to be tried by a jury of your peers. Interpretation and application of the law is (or should not be) the sole domain of the judiciary and the legal profession - such would seem to militate against a jury being able to act as a jury of peers.

That may be my dislike for bureaucracy and state authority coming through though...

Huh?

Not sure what you mean.

Are you saying that you favor nullification?

[Seth]

Double jeopardy no longer applies in all cases in Ireland or England/Wales. (Scotland hs a different legal system, so I've no idea about Scotland).

That's EXACTLY WHY the US has the double-jeopardy rule, because prior to the Revolution, King George would have someone arrested and tried, only to have them acquitted by a jury...to the displeasure of His Majesty and his minions, so they would just pick a new jury and give it another go, and they would continue to try the individual until they found a jury that WOULD convict him.

We put the no double-jeopardy rule in out Constitution expressly to prevent that sort of thing. The prosecution gets ONE and ONLY ONE shot at convicting you on the evidence. Mistrials and appeals not included.

[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 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.

This does seem to be a usurpation of the right to be tried by a jury of your peers. Interpretation and application of the law is (or should not be) the sole domain of the judiciary and the legal profession - such would seem to militate against a jury being able to act as a jury of peers.

That may be my dislike for bureaucracy and state authority coming through though...

Huh?

Not sure what you mean.

Are you saying that you favor nullification?

Yep. I can see situations where citizens should be able to suspend their own law in doing justice.

After all, in civil matters judges do something similar all the time when they exercise their equitable jurisdiction in the interest of doing justice.

This is theoretical of course. I am skeptical as to whether or not the average juror is capable of making themselves a coffee, let alone understand fine points of law.

[Cormac]

Double jeopardy no longer applies in all cases in Ireland or England/Wales. (Scotland hs a different legal system, so I've no idea about Scotland).

That's EXACTLY WHY the US has the double-jeopardy rule, because prior to the Revolution, King George would have someone arrested and tried, only to have them acquitted by a jury...to the displeasure of His Majesty and his minions, so they would just pick a new jury and give it another go, and they would continue to try the individual until they found a jury that WOULD convict him.

We put the no double-jeopardy rule in out Constitution expressly to prevent that sort of thing. The prosecution gets ONE and ONLY ONE shot at convicting you on the evidence. Mistrials and appeals not included.

Both Ireland and England/Wales had double/jeopardy rules until fairly recently, but they were "adjusted". I'm not sure to what extent.

[Seth]

Yep. I can see situations where citizens should be able to suspend their own law in doing justice.

After all, in civil matters judges do something similar all the time when they exercise their equitable jurisdiction in the interest of doing justice.

This is theoretical of course. I am skeptical as to whether or not the average juror is capable of making themselves a coffee, let alone understand fine points of law.

Jury nullification is a very, very old concept and came from England originally precisely because of the frequent miscarriages of justice perpetrated by the Crown.

When they are in the jury room, jurors have absolutely plenary power to decide guilt or innocence, and although judges and DAs will tell them that they MUST rule in accordance with the law as given to them by the court, that's a flat-out lie that the judicial system has perpetrated in order to preserve their own power and glory. But individuals who educate themselves know that their deliberations in the jury room are both completely secret and entirely unassailable insofar as declaring innocence. As I said, a guilty verdict may be overruled, but NEVER a not guilty verdict.

[Seth]

Double jeopardy no longer applies in all cases in Ireland or England/Wales. (Scotland hs a different legal system, so I've no idea about Scotland).

That's EXACTLY WHY the US has the double-jeopardy rule, because prior to the Revolution, King George would have someone arrested and tried, only to have them acquitted by a jury...to the displeasure of His Majesty and his minions, so they would just pick a new jury and give it another go, and they would continue to try the individual until they found a jury that WOULD convict him.

We put the no double-jeopardy rule in out Constitution expressly to prevent that sort of thing. The prosecution gets ONE and ONLY ONE shot at convicting you on the evidence. Mistrials and appeals not included.

Both Ireland and England/Wales had double/jeopardy rules until fairly recently, but they were "adjusted". I'm not sure to what extent.

One word: "Antiterrorism."

And that "adjusting" of the rules is a fucking good reason to have a Revolution and hang the bastards who did it from London Bridge. That your government can even think about doing that sort of thing is reprehensible and intolerable and takes the UK back at least a thousand years in jurisprudential history.

[Cormac]

Double jeopardy no longer applies in all cases in Ireland or England/Wales. (Scotland hs a different legal system, so I've no idea about Scotland).

That's EXACTLY WHY the US has the double-jeopardy rule, because prior to the Revolution, King George would have someone arrested and tried, only to have them acquitted by a jury...to the displeasure of His Majesty and his minions, so they would just pick a new jury and give it another go, and they would continue to try the individual until they found a jury that WOULD convict him.

We put the no double-jeopardy rule in out Constitution expressly to prevent that sort of thing. The prosecution gets ONE and ONLY ONE shot at convicting you on the evidence. Mistrials and appeals not included.

Both Ireland and England/Wales had double/jeopardy rules until fairly recently, but they were "adjusted". I'm not sure to what extent.

One word: "Antiterrorism."

And that "adjusting" of the rules is a fucking good reason to have a Revolution and hang the bastards who did it from London Bridge. That your government can even think about doing that sort of thing is reprehensible and intolerable and takes the UK back at least a thousand years in jurisprudential history.

I'm in Ireland, but your point stands.



It is even more insidious though. Double Jeopardy is now prohibited under the European Convention of Human Rights, signed but not yet ratified by all EU members.

It prohibits it, an then goes on to make such wide exceptions that it negates the principle entirely.

Typical EU weaselly law.

[JimC]

Cormac wrote:

...justice stops being blond...

[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.

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.

That's sounds like total hyperbole. And fuck, if justice stops being blond, I don't want to know her!