The Purpose of Criminal Trials

Alan Dershowitz has an op-ed today, The Criminal Trial is Not About Justice for the Victim, which is very much like the post I wrote the other day, The Meaning of a Not Guilty Verdict.

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    actually, the crime is against the state, (5.00 / 1) (#1)
    by cpinva on Fri Jul 08, 2011 at 01:00:26 PM EST
    from english common law, the offense was against the king, by virtue of harm committed against one of his subjects. having no king, we substitute the state. hence, the alleged victim doesn't bring charges or hire attorneys to prosecute, the state does, because the state is the offended party.

    but yes, a trial is simply an attempt by the state to prove, beyond a reasonable doubt, that the accused committed the act in question; truth, justice, mom, apple pie, leaping tall buildings in a single bound, and the american way are all irrelevant.

    Alan Dershowitz' 13 Rules (5.00 / 1) (#16)
    by Jeralyn on Fri Jul 08, 2011 at 03:48:19 PM EST
    Rule I

    Almost all criminal defendants are, in fact, guilty.

    Rule II

    All criminal defense lawyers, prosecutors and judges understand and believe Rule I.

    Rule III

    It is easier to convict guilty defendants by violating the Constitution than by complying with it, and in some cases it is impossible to convict guilty defendants without violating the Constitution.

    Rule IV

    Almost all police lie about whether they violated the Constitution in order to convict guilty defendants.

    Rule V

    All prosecutors, judges and defense attorneys are aware of Rule IV.

    Rule VI

    Many prosecutors implicitly encourage police to lie about whether they violated the Constitution in order to convict guilty defendants.

    Rule VII

    All judges are aware of Rule VI.

    Rule VIII

    Most trial judges pretend to believe police officers who they know are lying.

    Rule IX

    All appellate judges are aware of Rule VIII, yet many pretend to believe the trial judges who pretend to believe the lying police officers.

    Rule X

    Most judges disbelieve defendants about whether their constitutional rights have been violated, even if they are telling the truth.

    Rule XI

    Most judges and prosecutors would not knowingly convict a defendant who they believe to be innocent of the crime charged (or a closely related crime.)

    Rule XII

    Rule XI does not apply to members of organized crime, drug dealers, career criminals or potential informers.

    Rule XIII

    Nobody really wants justice.

    Thanks (none / 0) (#19)
    by jimakaPPJ on Fri Jul 08, 2011 at 04:53:52 PM EST
    I've never seen these before and plan to keep them handy.

    Regarding Rule XIII I offer XIV

    "Everybody always demands justice when what they need is mercy."


    Here's a case where they (none / 0) (#20)
    by Rojas on Sat Jul 09, 2011 at 09:38:36 AM EST
    broke all the rules, or played by them, depending on your perspective I reckon....

    The public needs the education... (none / 0) (#3)
    by kdog on Fri Jul 08, 2011 at 01:11:01 PM EST
    to be sure...we've got it so twisted.

    Like all this talk of the "system failing" in this case.  Hell no, examples of the system failing are innocents wrongly found guilty and caged.  This case, as unsavory as it may be, is an example the system still kinda works.

    kdog (5.00 / 0) (#9)
    by ScottW714 on Fri Jul 08, 2011 at 02:08:18 PM EST
    Yeah, they need education on quite a bit more than this one aspect of law.  I would start with maybe the fact 'God' doesn't appear in any founding documents, or that Saddam wasn't behind 9/11, Microsoft isn't cutting $10k checks for forwarding emails, and... I don't have time for that encyclopedia of American misinformation.

    LOL! (none / 0) (#12)
    by Zorba on Fri Jul 08, 2011 at 02:21:52 PM EST
    Just wander on over to Snopes.com and take a look at the variety of misinformation that is out there.

    Abe and later Bob & Peter... (5.00 / 0) (#13)
    by kdog on Fri Jul 08, 2011 at 02:26:59 PM EST
    may have been right that ya can't fool all the people all the time, but it seems enough can be fooled all the time that effectively we are all fooled.

    Because a "completely innocent" (none / 0) (#5)
    by scribe on Fri Jul 08, 2011 at 01:34:32 PM EST
    choice wold put the burden of proof and of persuasion on the defendant, and be contrary to the presumption of innocence.

    You put that option in, and inside of ten years you'll have people going to prison for many years because they failed to prove themselves "completely innocent" even though they were never convicted of a crime.

    You Can... (none / 0) (#8)
    by ScottW714 on Fri Jul 08, 2011 at 01:58:43 PM EST
    ... have a judge declare something to the effect that factually you could not have committed the crime.  It's rare, but used occasionally when someone truly wants to clear their name.

    Because like many, not guilty only means you couldn't be proved to be guilty, but the public stigma will never die.

    Someone posted a case in which a woman faked her own beating and rape to gain custody of a child.  Because the ex-boyfriend was caught on video somewhere else, the judge issued something to that effect.


    Dershowitz is correct, and his article is (none / 0) (#6)
    by scribe on Fri Jul 08, 2011 at 01:37:12 PM EST
    likewise, but he's the wrong guy to be popping up to chime in.  He was one of the biggest proponents of torture post 9/11 and he's never come back from there.  

    Right message, wrong messenger.

    CNN had Mesereau (he successfully repped Michael Jackson in the last of his child abuse cases) on and he gave a very nice explanation of why the verdict was correct and how it showed the system did and should work.  He also noted that 95 percent of the criminal trials result in a guilty verdict.

    Guilty verdicts (none / 0) (#10)
    by gyrfalcon on Fri Jul 08, 2011 at 02:11:52 PM EST
    I'm not sure he's up on recent statistics.  I read somewhere recently that the rate of conviction in murder trials has plummeted in something like just the last 10 years to somewhere around 60 percent (despite Nancy Grace's best efforts).  Some people attribute that to the "CSI effect."

    Hard to find a perfect (none / 0) (#14)
    by brodie on Fri Jul 08, 2011 at 02:27:52 PM EST
    messenger out there, and AD has been out in public advocating mostly on the side of democracy and civil liberties despite his taking that one (rather narrow) controversial stance a decade ago.  I found Dershowitz a strong advocate for sanity and reason during the MonicaMadness of the 1990s (compare his Stay in office and fight stance with Jonathon Turley's advocacy for impeachment or resignation), and before that advocating for civil liberties during the Reagan-Meese era of rollbacks.

    Meanwhile all most of us know about Mesereau is his competent, successful defense of MJ.  That's fine, but he just doesn't have the long track record of public advocacy that AD does.  And generally he's been outstanding, despite one or two marks against his record (in the opinion of some).

    Good law professor by all indications, and outstanding public teacher to the masses when he's given the chance.  Others would disagree on the one slender exception in torture scenarios (TTB) and perhaps on his stance on Israel-Palestinian issues.  So be it.  He's otherwise quite effective.  


    there is (none / 0) (#15)
    by Jeralyn on Fri Jul 08, 2011 at 03:40:33 PM EST
    it's number one in my post.

    It is interesting Dershowitz now minimizes (none / 0) (#17)
    by oculus on Fri Jul 08, 2011 at 04:15:05 PM EST
    the importance of the O.J. Simpson double homicide trial, in which he was an advisor to the defense re appellate issues.  See Wiki/Dershowitz.  

    Wiki/Dershowitz:on Simpson trial: (none / 0) (#18)
    by oculus on Fri Jul 08, 2011 at 04:20:02 PM EST
    Thansk J, I should have brought this to the (none / 0) (#21)
    by ruffian on Sat Jul 09, 2011 at 01:29:35 PM EST
    dog park this am. Got into a rather heated discussion with a Nancy Grace devotee that was letting loose with all the things we have heard all week.  She topped it off with a worried speech about how her 16 yr old granddaughter who is in a high school legal magnet program is not sure she can ever be a lawyer because her morals are too high.

    I thought my head would explode. I've been worried all day that I may have been a little rough on her - you know, my liberal elitism coming through in loosing patience with the red state average Janes...but I can't help it.

    Speaking of liberal elites, (5.00 / 1) (#22)
    by brodie on Sat Jul 09, 2011 at 02:03:15 PM EST
    I was a little surprised to hear Bill Maher last night go after the Anthony jury and equate their verdict with stupid GOP voters:

    And finally, New Rule.  If you can look at a crime where everything points to one answer and not see it, you're a dumbass.  And if you can look at the deficit and not see that the problem is that the rich stopped paying taxes, you're a Republican.  And before you accuse me of equating the Casey Anthony verdict with Republican thinking, save your breath.  I am.  I am.  I'm equating them.

    Surprised me, first, that Maher was following that case enough to have  a strong opinion of it, and second the way he disagreed -- as if that jury had only one way to vote and failed to do so -- mirrors the unsophisticated and ignorant stance of far too many, especially those usually biased in favor of the prosecution.


    Yeah - I did not agree with him on (none / 0) (#23)
    by ruffian on Sat Jul 09, 2011 at 02:22:28 PM EST
    that, needless to say. I was lucky I was doing some spreadsheet work while watching though cuz Ann Coulter was as insane as ever. If I had been fully concentrating I may have thrown a gin glass at the tv.

    I think he did not pay more than cursory attention to the trial. Probably believed all his pals on the teevee.


    I sometimes suspect Bill (none / 0) (#24)
    by brodie on Sat Jul 09, 2011 at 02:43:56 PM EST
    tries to find an issue where he calculates he won't be penalized too much by his left-leaning fans but which can go to prove he really is an "independent thinker" and not some across-the-board knee-jerk liberal.  I think on the same show last night it was noted he's not against the death penalty, for instance.

    The remarks about the Anthony jury verdict just didn't ring true.  They certainly played to an overall majority popular opinion crowd, and offered a kind of counterfeit way of getting into his argument about stupid GOP voters.