Criminal (in)justice.

tag:blogger.com,1999:blog-14564751.post-4699390488094791352008-07-09T08:50:00.077-04:002008-07-10T08:18:33.164-04:00Criminal (in)justice.<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://bp1.blogger.com/_qsVUrWp_qm0/SHVsjslQxXI/AAAAAAAAA8I/MRsXLtyFgaY/s1600-h/12+men.jpg"><img style="margin: 0pt 0pt 10px 10px; float: right; cursor: pointer;" src="http://bp1.blogger.com/_qsVUrWp_qm0/SHVsjslQxXI/AAAAAAAAA8I/MRsXLtyFgaY/s320/12+men.jpg" alt="" id="BLOGGER_PHOTO_ID_5221198703524627826" border="0" /></a>I've been watching a lot of true-crime lately. It's not hard to do; true-crime is the staple content nowadays of TV newsmagazines like <a href="http://www.cbsnews.com/sections/48hours/main3410.shtml">48 Hours</a>, <a href="http://www.msnbc.msn.com/id/3032600/">Dateline</a>, and <a href="http://abcnews.go.com/Primetime/">Primetime: Crime</a>. (Seems like every show on television is either a reality series, a drama set in a hospital or police precinct, or a true-crime newsmagazine.) Invariably as such shows rouse to a finish with the obligatory guilty verdict, thus providing closure to hard-line viewers who otherwise would've felt cheated, I end up leaping to my feet and screaming NO! at the television (which, oddly, does not reply or even acknowledge me). I do this not because I think the defendant is a nice person, or even that he or she is innocent, necessarily; most of the time it seems likely that the cops got the right guy (or gal). But—call me crazy—I always thought guilt actually had to be proved beyond a reasonable doubt (and to a moral certainty, the oft-forgotten part of the admonition given to juries*). In nine out of 10 of these shows, unless whole portions of the prosecution's case unaccountably got left on the cutting-room floor, guilt goes sorely un-proved, at least from my POV. Not only that, but when the reporter convenes jurors after-the-fact to question them on their thinking, it becomes clear that the jury rendered its verdict based on factors that had no business even being included in the case. Again, IMHO. Ergo, I hereby take the liberty of presenting a few recommended changes to a criminal-justice system that—if these shows are any indication—is seriously broken: 1. PLEASE: No so-called evidence rooted in the defendant's demeanor upon learning of the crime. I don't want to hear testimony from cops (or a post-mortem from a juror) that goes, "I was immediately suspicious because he didn't react the way you'd expect people to, when they just found out their wife is dead...." Human beings are different and react differently to things. I know people who fly into a blind rage when confronted with the slightest speck of adversity, and I know people who just sort of swallow and do/say nothing even when faced with major setbacks. "Unexpected reactions" are not evidence of anything, have no direct relevance to the commission of a crime, and should never be admissible at trial. Related to this: 1a. PLEASE: No so-called evidence that suggests that the defendant was happy the victim was dead. I don't care if the defendant started laughing or burst into applause when informed that her husband or former business partner had just been found decapitated and on fire. Maybe she hated the man and wished him dead. That has nothing to do (legally) with whether she killed him. 2. PLEASE: No so-called evidence based on commonplace things the defendant did, or didn't do, or would've normally been expected to do (or not do), in the days following the crime. Look, it's one thing if the defendant was observed out in his yard throwing guns, knives and body parts into a giant vat filled with sulfuric acid on the night his wife disappeared. But I don't want to hear vague evidence about how so-and-so "never called the cops to check on the progress of the case" or "seemed perfectly fine to me" or began screwing the neighbor-lady up the street the day of the funeral. (Nor, for that matter, do I want to hear about how he'd been screwing the neighbor-lady up the street for the past two years. That has nothing to do with what happened the night of the killing.) Once again, people are different, and people in a high-stress situation may act strangely. That's not evidence of anything, has no relevance to the commission of the crime, and should not be admissible at trial. 3. PLEASE: No so-called evidence based on the defendant's behavior/comportment at trial or during testimony. I don't want to hear jurors say things like, "I was watching him as he sat there during the testimony, and he just seemed so arrogant to me" or "I didn't see any emotion in him at all when they talked about the night of his wife's death...." That's not evidence of anything, has no relevance to the commission of the crime, and should not be admissible at trial. Moreover, if the defendant chooses to testify, I don't want to hear jurors later say things like, "I just didn't believe him. He wasn't credible to me." Jurors shouldn't be permitted to simply discount sworn testimony on the basis that "I just didn't buy it." Now let me be clear: Jurors can make that determination if they catch the defendant in a lie, or spot contradictions/inconsistencies in his or her testimony. But no juror should be allowed to disregard otherwise consistent testimony simply because that juror "didn't like the guy's manner" or "didn't find him credible." If the defendant testifies under oath, that testimony must be given proper weight. Not only that, but in the absence of refuting evidence, that testimony must prevail. 4. PLEASE: No cases built entirely on circumstantial evidence. I know, this is a really controversial one that would have prosecutors nationwide screaming bloody murder. But people, I've had bizarre things happen to me in life. In all likelihood, you have, too. There are times when things that just don't happen...suddenly happen. Ergo, you cannot, I repeat, cannot send someone to jail for life (or, god forbid, to the gas chamber!) because a series of bizarre coincidences suggest that s/he committed homicide. If there are no witnesses and there is no direct/physical evidence, there is no case. Period. 5. PLEASE: No cases built primarily on the fact that prosecutors couldn't seem to find anyone else around who would've/could've done the deed. This, to me, is prosecution "by default," and shouldn't even require further comment. Though most of my gripes are with the prosecution, I do have some quibbles with the defense as well. And so: 6. Defense attorneys should not be permitted to advance "alternative theories of the crime" that they know are fictitious. If the defendant has confessed to his attorney, then the attorney's defense of his client must be limited to highlighting the reasonable doubt in the prosecution's case. No attorney should be permitted to put on an affirmative defense that suggests the involvement of other people he already knows had nothing to do with the case. That is fraud. And if laws (and even constitutional protections) need to be changed to effect this, so be it. Reckoning guilt or innocence should be based on a balance sheet. As much as possible, we should seek to remove the "human factor." I'll have more on this as time permits. * though that phrase has now <a style="font-family: verdana;" href="http://www.lectlaw.com/files/cri09.htm">come under fire</a>.Steve Salernohttp://www.blogger.com/profile/12408247867684020178noreply@blogger.com