Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

I recently heard a prosecutor make the comment that a defendant was "wasting his time" because he wanted to go to trial. Sadly, I've also heard defense lawyers say the same thing. Usually its a case where the evidence of guilt is overwhelming, and there is no realistic chance to win. Sometimes its a case where the prosecutor has made an offer that's more than reasonable - i.e, less than the defendant will probably get from a jury or judge.

Such comments are always centered on the interests of the prosecutor and the defense attorney. Prosecutors usually have too many cases, which is why they make offers in the first place. They look at the situation as taking up time they could devote to another case - one they feel really does need to be tried. Some Defense lawyers on the other hand don't like to get stomped on, and don't like to handle cases they know they have no shot at.

What both forget too often is the interests of the defendant. Defense lawyers too often think they have to make all the decisions, because after all they are  the lawyer. Clearly, they do have to provide their insights and experience. However, the decision on whether or not to go to trial is not one the lawyer gets to make; its up to the client.

So why might a defendant want to go to trial in a hopeless case? No doubt, there are some who are incapable of assessing the situation rationally. Just like people who go in every week and purchase lottery tickets, they think they might hit the jackpot. Sometimes hope is immune from common sense.

But there are other defendants who just want their day in court. Maybe they've also copped out and taken pleas, and they are tired of it. Or maybe they just thing its time to get up and fight for themselves. If thats what they want, it's our job to give it to them.

I've had cases where the defendant just wanted to fight. Sometimes we came out better, sometimes worse. Even in those cases where they came out worse though (i.e they got more time than offer), I don't think some regretted it. That was the price they paid for their day in Court. They were appreciative that someone would get in a fight for them, even when the situation appeared hopeless

We need to remember the system doesn't just exist for the lawyers. It's really all about the defendants. When all they want is to fight, we need to give them the opportunity, and not complain about it. In other words, look at the situation from your client's eyes - after all, that is who you are representing. And for the prosecutor, your job is to try the case; you might learn something too.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A grand jury in Kentucky recently indicted a high school for reckless homocide for the death of one of his players from heat stroke. According to various reports, the coach refused to provide players with water. At first blush this appeared to be another attempt to hold someone criminally responsible for what is basically an accident. That may still be the case. However, as more facts come out, I can understand why the prosecutor decided to pursue this.

It appears the coach was forcing players to run until they could no longer do so. That is nothing out of the ordinary, and probably happens at some point everywhere - after all coaches must teach players to learn their limits, which is something you cannot do without being pushed. What is disturbing about this situation though is that before the young man, another player collapsed. When you combine that with the failure to provide water you have a situation that is out of the ordinary. In short, I can see why the prosecutor took action in this case.

I grew up in the day when we didn't about the need for hydration. It is was not something encouraged in my time. Instead of water, salt tablets were common - everyone believed they replaced the salt you were losing through sweat. We now know that is less than a great idea. We also know a lot more about what is necessary to avoid injury, especially heat stroke. This is not the first time something like this has happened, and you have to believe coaches are aware of it. Maybe the coach had a reason for what he did, but it seems to fly against conventional wisdom.

There is no doubt the school could be sued, and may well be. In the past, that has been how these type of issues were resolved. In fact, around the same time the widow of Minnesota Vikings player Korey Stringer settled a suit they had filed against the team. The 11th circuit also issued an opinion in a similar case filed against a school. In a 1983 suit, the court held the coaches were entitled to qualified immunity since the player voluntarily participated in the program. That would seem to effectively defeat any such suit, since almost all such programs are voluntary. I wonder whether the same facts would suuport a criminal prosecution.

Texas has the offense of criminally negligent homocide - the elements are that a person causes the death of another by criminal negligence. There is also an offense of manslaughter, which covers deaths resulting from recklessness. Criminal negilgence exists where a person "is aware of  but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's viewpoint."

So what does that long legal definition mean? Basically, the State must prove he either knew, or should have known that the player would die. Ultimately it will be up to a jury to determine that question. I can see both sides, which usually means it is they type of case that should be resolved by a jury of citizens.

Normally, I'm suspicious any time it appears someone is being charged just because something bad happened. Not every unfortunate occurence is a crime; we have a civil system designed to take care of those things that are simply reckless or negligence. Criminal prosecution should be reserved for the most serious cases; those that are the result of more than simple mistakes in judgement. Until we know all the facts, I don't know where this case comes out in that continuum. No doubt it is a tragic situation; not only for the student and his family, but also the coaches, the other players and the school. Hopefully its not made worse by dragging the coach through a criminal prosecution.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Larry Swearingen is set to be executed on Tuesday for a 1988 rape/murder in Montgomery County. Like many, Swearingen claims he is innocent; unlike most though, he is probably right. And like several before him, his claim of innocence may get lost in the ridiculous maize of legal rules limiting such claims. This is truly an area where form prevails over substance.

The evidence against Swearingen was focused on time of death. The victim was not found until a month after she disappeared. Swearingen was in jail most of that time, having been picked up on tickets 3 days after she disappeared. At trial the State's expert concluded she could have been killed, and her body dumped the same day she disappeared, which meant Swearingen could have committed the offense. The expert, Harris County Medical expert Joye Carter, now says that she was killed at least one week after she disappeared - when Swearingen was in jail. Several other experts have also examined the evidence and concluded she could not have been killed while Swearingen was still out. Those experts included a Gil Grissom type who examined insect larvae.

You would think that is enough, but there is more. Blood samples were found under the victim's fingernails, as well as a foreign pubic hair in the vaginal swab. Those came from someone other than Swearingen, although at the time they could not match it.

Swearingen has already taken his claims to the Court of Criminal Appeals, and they have been rejected. Although the Court acts like they are concerned about innocence, and spend money on innocence training, they seldom take action when a valid claim comes before them. They want everyone to believe they are truly concerned about innocence (they even created a judicial integrity unit), but the facts speak for themselves. But that's for another post.

Swearingen has petitions pending in federal court, but those are being opposed by Greg Abbott, the Texas Attorney General. He has taken the predictable position that Swearingen has not met the almost insurmountable burden to obtain relief in federal court. He also has a request for clemency/commutation pending with Governor Perry.

This will not be the first time Governor Perry has presented with a claim of innocence. Cameron Willingham presented evidence that the arson he was convicted of was not arson. A number of experts have since agreed, and the case is currently being studied by a State commission. As with other petitions, I would expect governor Perry to take the politically popular position - after all, he he has been convicted. We wouldn't want to appear to be soft on criminals.

As I get older, I start worrying more about things eternal. As most Christians, I believe we will have to account for what we have done on earth. Although I'm not always successful, I try to keep that in mind when making difficult decisions. I don't know how you can explain a decision to go forward with an execution in the face of a legitimate claim of innocence. Somehow I don't think legal arguments are going to carry much weight. I realize politicians don't think like that, but maybe they should.

I also fail to see what harm there is postponing the execution, and having a full and complete hearing on this claim - which hasn't happened yet. You would think the system wants to make sure we get it right - but those involved in post-conviction litigation know that isn't something the courts even give lip service to. We need a better way to address these claims; preferably one that removes the political aspects. Let's hope the Legislature will make some inroads this session; Sen.Rodney Ellis has carried the torch for the last few sessions, and continues to do so.

For Larry Swearingen, and all those working or him, I pray you are successful.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The local Waco paper published an interview with Baylor Law Professor Mark Osler. Mark (who is a really good guy by the way) was the attorney who wrote the briefs in Spears. Before coming to Baylor, Mark was a federal prosecutor in Detroit. As such, he saw a lot of crack defendants, and recognized the irrational disparity between sentences for crack and powder cocaine.

What struck me about the interview was the story he told about a routine sentencing in a crack case. The judge asked the defendant's lawyer if he wanted to make the usual futile to the crack guidelines. The lawyer proceeded to launch into a 20 minute argument setting out the lack of any basis for the disparity, as well as the racial discrimination created by the guidelines. According to Mark, he realized at some point during the argument that something needed to be done to change the guideline. Since he has come to Baylor he has embarked on a mission to do just that, which culminated with Spears.

So what do I get out of this story? The need to persevere, and continue banging your head against the wall. There is no doubt the same objections had been routinely made in case after case, with the same results. There is probably also no doubt that the lawyer had no expectation that his objection would be successful. More than a few lawyers had probably even been chastized for making those objections. The lawyer did his job  though, and  although he didn't win in that case, his objection achieved something he probably could have never imagined.

Too often lawyers give up, and don't make objections they know they are going to lose Change is slow most of the time, especially with the law. Lawyers made the same objections for years to the Texas Special issues, and were eventually successful in Penry. Without lawyers to push that issue, as well as others, we would never see change.

So if you know the law is wrong, don't give up. Keep making the objection, even when you know it's futile. Sooner or later someone may listen - as in this situation, it may be someone you never expected.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Mark Bennett and Scott Greenfield have both recently posted recently on the role a defendant's children should play in sentencing. It started with discussion about one of the first responses prosecutor's are taught: "he didn't care about his children when he committed the offense, so why should be care about them now?" I want to throw out another of those learned responses: "just because he grew up without a father (or poor, or on the wrong side of the tracks) doesn't give him an excuse to commit a crime".

I just finished a trial where the only issue was punishment. I spent a lot of time addressing his upbringing, including his regular trips to juvenile detention. I don't want to go into details, but his upbringing was horrible, which was made worse by the fact that he was mildly retarded. In response, the State claimed it was insult to all those who came up in similar situations and made something of themselves. They also used another of their taught responses - he knew right from wrong, along with you can't help someone who doesn't want it.

Normally you see this come up in death penalty cases, when much of the focus is on mitigation. Mitigation has a place in other cases also, and in my opinion we out to spend more time on it. That's another post though.

Like the argument about children, the response here makes some sense. After all, a lot of people who come up in bad environments don't go on to become career criminals. Some even go on to achieve great things, and excel. You also can't argue with the statement that a bad childhood (or mental retardation) isn't an excuse for criminal activity. No one seriously suggests it is an excuse. However, it can be explanation for some behaviors.

People are more than their upbringing, but it is still part of them. You cannot truly understand a person without knowing something about their past. To ignore that flies in face of reason. Their past may provide into their behavior, and it is foolish to ignore it. It also provides insight into their future, and may help predict the chances of rehabilitation.

I know there are prosecutors who have come up through difficult circumstances. Many though are children of privilege. They cannot  empathize with the things many of the defendants they prosecute. Instead, the pass judgment, often with arrogance and self-righteousness. I'm willing to bet you that more than a few of those same prosecutors would be sitting in the defendant's chair if they were brought up in the same environment and under the same circumstances.

No one can dispute that the incident of criminal behavior is higher in certain socio-economic groups. The crime rate is higher in the inner city than in the suburbs. If background and upbringing don't contribute to behavior, then how can you explain that?

I have been practicing long enough to know that there are some people who are never going to change, and there is nothing you can do. Society can only protect itself by locking them up. I also know, though, that some people can change, if they only have the guidance and the opportunity. Many only want a chance, and need someone to help them. You can't identify those people without knowing something about them.

For those who profess to be Christians we are told that we will be judged by how we treat those who are the least among us. Prosecutors should remember that more often. And for the next case, try to come up with something more original, and something that actually addresses the issue.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I'm late jumping in on this, but I've been in trial for the last two weeks. It seems everyone has put forth their opinion on the impact of Herring v. United States, where the court held an innocent mistake was not enough to invoke the application of the Fourth Amendment. A good collection of those posts can be found  here. Predictably, some have declared the decision the death of the Fourth Amendment. I wasn't surprised by the decision; I would have been if they decided for the defendant. However, I don't think it spells the end of the exclusionary rule; I think the court won't abandon it, because it makes them feel like they are doing something to uphold the Fourth Amendment.

The rationale for the exclusionary rule is that it acts as a deterrent. The argument is that if there is no sanction, there is no reason for the police to comply. The rationale makes sense; a rule without a remedy is basically no rule. The court recognized though that the consequences of excluding evidence can be detrimental to law enforcement; you are keeping out what is probably the most probative and relevant evidence of guilt. The court basically adopted a sort of balancing approach. As a result, concepts such as good faith have emerged.

In Herring, the defendant was stopped, and placed under arrest when the officers were told there was an outstanding warrant. Evidence of illegal activity was recovered, and he was prosecuted. It turned out there was no valid warrant at the time; it had been withdrawn, and the clerk had not removed it from the system. Mr. Herring moved to suppress the evidence recovered following his arrest, arguing there was no probable cause to arrest him, because there was not a valid warrant. The Supreme Court held that the mistake by the record's clerk was not enough to invoke the application of the exclusionary rule.

In the decision, the Court concluded that application of the exclusionary rule in this circumstances would not encourage better record keeping. The court viewed the incident as a mistake, that was at best negligence. It was not not the sort of deliberate or reckless act the exclusionary rule was designed to curb.

The question is how far this ruling is going to be applied. I don't know how often mistakes like this are made. I know I've had a couple of similar situations over the years. Mistakes are going to be made, but I don't I do not think that relieves agencies of responsibility for the actions. For example, an agency couldn't adopt a policy of not removing old warrants, because that would establish some type of systemic problem. There may also be an issue if the agency knows there are widespread problems with their records. However, what about less compelling situations.

The problem with the Court's reasoning thoughout the years is they assume decisons are thought out, and rational. In reality, most decisions to search or arrest are made on the spur of the moment. They are also made by people who do not have signficant legal training. Rarely are issues clear cut; more often than not, there is no readily available answer. Just look at how much time lawyers and judges spend assessing a situation, and determing the applicable law. The more exceptions you have, the more you encourage police to ignore the fourth amendment. If all you have to do is claim you were mistaken, why would you ever forego a search or arrest.

The job of protecting the Fourth Amendment is left to the courts; not the police. If its worth protecting, then we should do everything we can to ensure compliance. The more exceptions you create, the more you encourage its violation. After all, until the wrong decision truly has consequences, you  have no reason to take it seriously.

So my prediction is we will continue to have a exclusionary rule, so the Court can claim it is protecting the constitution. And the Fourth amendment will continue to violated on a daily basis because there is no reason not to.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

. The stories were probably eye opening for many people. Most of the public holds judges in high esteem. Sometimes that is warranted, and sometimes it is not.

You would hope judges would honor their position, and fulfill the obligations they have been granted. They are real people though, and just because the title of judge has bestowed doesn't mean their character changes. They are who they were before they came to bench, and their isn't some magical transformation that occurs when they are sworn in.

We have been fortunate in McLennan County to have good judges. I have been all over the State, and seen firsthand how some judges are consumed with their power. They treat everyone who comes before them with contempt - especially criminal defendants. I know its easy to become jaded when every day  people are paraded before you who have engaged in some despicable behavior. Good judges are able to keep the proper perspective; they know they are dealing with human beings and fellow citizens. They recognize that people are not always what they do; sometimes their behavior is an aberration, and there are reasons behind it. No one wants to be judged on the worst thing they have ever done, and good judges remember that. Good judges also remember that they were once lawyers too. We have to deal with other lawyers, clients, families, and judges. They recognize the world does not revolve around them, are able to empathize with those appearing before them.

One of things Judge Gray was admonished for was the tone of his opinion. There is no doubt he has written a lot of dissents, and that is right. No judge can be admonished for his decisions, and the admonishment in this case was not based on the fact he dissented. Instead, it was based on the personal attacks in those dissents. It is not unusual to see an personal address in an opinion, but attacks are a different matter. Many of those were accompanied by scripture quotes, which I have a problem with. I take my faith seriously, and spend a lot of time working on it. Unfortunately, some use faith to justify their conduct, and attack others. I believe that is decidely un-Christian, and is one of the reasons people hold Christians in such low regard.  It always surprises me that people use scripture most often to condemn. Seldom do they note that we will be judged by how we treat the least among us.

Appellate court judges occupy a different position. They don't have to deal with clients, and rarely deal with lawyers. The get to sit in their offices, and read about what happened at trial. They were all lawyers before, and some remember what it was like to actually try a case; on the other hand, some forget too easily.  They exercise a tremendous amount of power, which sometimes goes to their head. Judges are not immune from the adage "absolute power corrupts absolutely". We have also been fortunate in McLennan County to have excellent appellate court judges, which makes the current situation more unusual.

The moral of this incident is that judges are real people, and are expected to act like.  No matter who they are dealing with, they should treat them with the dignity and respect they deserve as children of God. For those who Christian, they should remember that their time to judge is limited; in the end they will be judged like everyone else. At that point the first shall be last, and the last shall be first. In more secular terms, they only need to treat others as they would want to be treated.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

If you practice criminal defense, you've encountered "jail house lawyers". They might be your client, who thinks he knows the law, and wants to control his defense. More common though is the friend who is advising your client, and second guessing everything you do. If your client is incarcerated, you can rest assured they are getting advice, whether solicited or not.

Since I handle a fair number of appeals and post-conviction matters, I encounter jail house lawyers fairly often. Inmates in prison have access to law libraries, and many spend a lot of time there. Of course, they have no one to guide them, except for other inmates. It's sort of like turning a Fifth grade class over to six graders. They might know more than the fifth graders, but they certainly don't have anywhere close to the knowledge their teacher has.

For some reason, people seem to think the law is simple. All you have to do is read a statute, and maybe a couple of court opinions, and you will know what the law is. I can't tell you how many times I've had people tell me they have researched their case, and they know something was illegal. Very seldom are they ever right; if they are, its usually for a completely different reason. Even relatively bright people think that's a simple matter to learn what the law is on any particular issue; after all, we do have the internet now.

There is a reason you need a degree before you can even apply to law school. There's also a reason why you have to go to law school for 3 years. It's not simple. All you need to do is ask a first year law student; they spend a major portion of their year just learning how to read and interpret legal decisions and statutes. In many ways it's like learning a new language; lawyers don't talk write or talk like other people, which is something you would think is apparent to everyone. If it was as simple as most people seem to think, you wouldn't need to go through that torture.

I've taught post-conviction procedure at a law school, and I know how difficult it is to understand some legal concepts. I've taught some young people who were the smartest ones in College, and I haven't had one yet who would turn over a case to. Sure they can do research, but they still don't have the knowledge and experience to put it all together. I don't know many defendants who would let a student represent them; yet they have no problem trying to control their own defense, believing they know what the law is. The sad part is that many of those people don't even have a high school degree.

People don't do this in other professions. I consider myself fairly bright, yet I don't go read up on a medical condition and try to treat myself, or tell my doctor how to treat me. For the same reason, I don't try to tell my mechanic how to fix my car. I understand they have the experience and expertise I don't have.

The most common thing you hear defendants say when they are going to prison is that they are get into the library and work on their case. Some are nice enough to tell you they are going to help you out, since they will have a lot of time to spend. I'm all for bettering yourself, but that is not the way. Work on a degree or learn a trade. There are plenty of ministries in prison, and you can work on your faith. Those activities will help you; working on your case is not going to do anything but make your lawyer's life more difficult. Time for lawyers is a premium. If they have to spend time trying to educate client, and explain why the great case he found doesn't apply to his situation, that is time they are not spending on your case.

You hire a lawyer for a reason. Let them do their job, and trust their judgment.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

There's been a lot of discussion about the problems big law firms (Bigaw) are facing as a result of the recession. With very few exceptions, big law firms handle civil and transactional matters (e.g. real estate and estate planning). Most criminal defense attorneys are solos; a few may have partnerships with other lawyers. There are several reasons for that, one probably having to do with our personalities - we don't work well with others.

For those who don't know,big law firms consider them businesses, and they are run like businesses. Some of the bigger even have a managing partner, who does nothing else. Their focus is on generating income, to pay salaries,and hopefully big bonuses at the end of the year. They are profitable because they utilize leverage; they get paralegals and lawyers who generate more revenue than they get paid in salary. The excess is profit for the partners. The more work they can generate, and the more they can delegate, the more profitable they are.

There are a number of reasons why criminal defense practices are not set up on the same model.  For one, we don't have clients who can write checks every month in the amount we determine. We also don't have an endless number of associates and paralegals. Criminal defendants want to know who is handling their case, and they want it to be the lawyer they hired. They hire based on your reputation and skills, and they expect you to use them. There are situations where a lawyer gets help, and most clients understand that. For instance, many lawyers have law clerks do research, and they use investigators to locate evidence. In the end though, it is the lawyer making the decisions, and it is the lawyer you hire that goes into court with you.

There are some firms/clinics who have tried to implement the Biglaw model into criminal practice. They advertise extensively, and try to draw in a large number of clients. Those clients are assigned to lawyers who are on salary; many with little or no experience. Its a volume practice, and assumes criminal cases are routine, and can be processed just like a will or a real estate transaction. Nothing is farther from the truth, and most clients recognize that.

So what are the two models; basically, one is a high volume, lower cost practice. The other is a low volume practice, with higher fees. Depending on where you are, some or most of the criminal defense lawyers handle court appointments. The pay for those is always lower than what you would normally charge a client. Some lawyers make a living on such appointments; to do so, they have to handle a large number of cases. Obviously, the more cases you have, the less time you can spend on each case.

When you hire a criminal defense lawyer you are paying for several things. One is experience and expertise.  Another is time - you want your lawyer to have enough time to handle your case properly. The more time a lawyer spends on your case, the less time he has for other cases; thus, they will charge a higher fee, and accept fewer cases.

I don't know why people think hiring a lawyer is different from anything else in life - you get what you pay for. If you want a good lawyer - one who will devote the time necessary for your case - you are going to have to pay for it. There are only so many hours in a work day. Most good criminal defense lawyers aren't getting rich; but they do want to make a decent living. They have to choose which model they are going to use; not surprisingly, most want to be compensated for their expertise, and want to be able to continue providing quality representation.

There's one last factor at play which is unique to criminal law; everyone is entitled to a lawyer. If you can't afford to hire a lawyer, you are going to get one, either though a public defender's office, or private appointment. Obviously, this limits the number of available clients; lawyers are competing for clients that have at least some ability to pay. Not everyone has the ability to come up with a substantial fee, and there is a need for lawyers to represent those people.
 

The two  models are not absolute, and you will see good lawyers with a high volume practice, or taking cases for a lesser fee.They have made that choice; many will make exceptions, even if they are in low volume practice. They voluntarily make that choice though, and its not a matter of necessity. Hopefully you never need to hire a criminal defense lawyer (yes I know I would have to find something else to do), but if you do, realize what you are paying for.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Ask anyone in the criminal justice system what a plea of "not guilty" means, and they will probably tell you it means I am putting the government to it's proof. The first thing that happens after charges if filed is that  a defendant is arraigned, and asked to enter a plea. You don't expect anyone to enter a guilty plea at that point. It appears though that some people view a not guilty plea as a denial of guilt, and question the ethics of entering that plea when you are really guilty.

Scott Greenfield at Simple Justice provided his usual keen insight into the ongoing discussion about the "two most loaded words in the courtroom". He was responding in part to a post by a former defense lawyer turned prosecutor who argued that a defendant who actually committed the offense acts immorally by entering a not guilty plea. I can't add to Scott's discussion of the futility in trying to impose absolute moral guidelines onto an issue that is not absolute. I do want to pose some of my own questions though.

If we are to impose absolute morality into a criminal case, shouldn't it apply to both sides. Prosecutors know by now the problems with eyewitness identifications. At best, the far from accurate; at worst, they are no more reliable than chance. Does a prosecutor have a moral obligation to bring that information to a jury; does he violate some type of moral code when he argues that a defendant is guilty, where the only evidence is an eyewitness? What about where there are reasons to question the accuracy of the identification?

One of the legal obligations prosecutors have is to disclose exculpatory evidence. What is exculpatory is often in the eye of the beholder. Most prosecutors think there is nothing exculpatory in their file. In fact, at least under the legal definition, there is probably a lot; basically anything which points to someone else, or impeaches a witness's credibility can be exculpatory. Does a prosecutor lie when he says there is nothing exculpatory in the file?

Our system is an adversarial one. Many prosecutors take that to an extreme, and believe it is not their job to determine guilt or innocence, but it is up to the court or the jury. If they have doubts about a defendant's guilt, whether strong or not, do they act immorally when arguing for a conviction?

As Scott points out, there are few absolutes in the criminal justice. A person may commit an act, that may actually be less serious than what he is charged with. Does he have to admit to committing the act, and leave it up to the judge to decide what the appropriate offense is?

This is not something distinctive about the criminal justice system. The same process exists in the civil system. If you are sued, something like a general denial is entered. Is that immoral, if you actually did what you are being sued for?

Let's also look at the flip side of this. If a juror finds you not guilty, most people recognize that means the state didn't meet its burden of proof. However, under the morality approach, does it actually mean you are innocent.

As I stated before, our justice system is an adversarial one. It requires advocates on both sides. The day the defense lawyer becomes a representative of the prosecutor is the day our freedoms are lost. There are other systems that don't involve criminal defense lawyers - however, those trying to impose morality in this decision would never agree to live under those systems.

Not guilty means nothing more than I am going to make you prove your case. To assign any other meaning would turn the justice system on its head.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It's now a  new year - do you feel any different? Can you tell it's now 2009? I got up this morning, and as usual read the paper's recap of 2009, and predictions for 2009. I then went to the blogs to see how many end of the year/start of the new year blogs there were - a lot. Everyone seems to be making resolutions - some of them probably the same ones that were made at the beginning of 2008. Since everyone is focusing on 2009, I thought I would offer a more limited perspective. I realize this has almost nothing to do with criminal, but I wanted to get it down somewhere - after all, why else have a blog.

I've wondered why have such a pre-occupation on the start of a new year. I understand the need for new beginnings, and the start of a new year is a good time to do that. I also appreciate the need to focus on what has gone on before, and how we would like to things to be in the future. The beginning of the new year seems to be the universal time for reflecting on those things. There's nothing wrong with that, and I've spent some time over the last few weeks doing exactly that. Unfortunately, if you are like most people, your plans and resolutions will be forgotten within in a few weeks. If you  make a resolution, and stick with it until February you are truly in the minority.

My resolution for the new year is treat each day as the end of a year; reflect on what occurred that day, and resolve what to do better (or maybe the same) the next day. Each day can be the beginning of a new year. Maybe you didn't follow through with a resolution - so what, you can start again tomorrow  There's no guarantee we will be here tomorrow, or until December 31, 2009. Having goals is a great thing, but we need to assess how we are doing each day.

So have a great New year - each day of 2009.

• Email This
• Print
• Comments
• Trackbacks
• Share Link