but this changes the meaning and I am feeling anal today.
Delete “not”.
Quit making statements about the law that are wrong.
(I know, Diane, I know – here we go again with meaningless legal mumbo jumbo.)
The thing is… as I have gently suggested before… this is ABOUT THE LAW AND HOW IT IS APPLIED. Therefore, the “mumbo jumbo” is highly relevant. If you cannot understand it, don’t argue it. Don’t make false statements. They don’t help.
An appellate court reviews different aspects of the trial with different techniques. The court accepts all the findings of fact made by the trial court, except if such findings are clearly incredible or have no support in the record. They review de novo - anew, from the start, with a fresh slate - the conclusions of law drawn by the trial court.
What does this distinction mean?
Let’s say the issue was consent to sex, and the accused was tried for rape after having sex with a mentally disabled girl. The trial court may find, as a matter of fact, that the victim was 19 years old, had an IQ of 72, could read at a fourth-grade level, and was unable to discuss any of the possible consequences of sexual intercourse.
The trial court may find that, based on those facts, as a matter of law, the victim lacked the capacity to consent to sex.
The appeals court must accept the finding of the trial court concerning the victrim’s age, IQ, and reading level, as long as there was some testimony concerning it. Note that if the trial had five experts testify, and four of them said the girl’s IQ was in the 90-100 range, and one said the IQ was 72… it doesn’t matter. The appeals court will still accept the trial court’s finding. Only if there was NO TESTIMONY WHATSOEVER concerning the girls’ IQ could the appeals court reject the trial court’s finding of fact.
However, the appeals court is free to determine, as a matter of law, that those facts do not add up to a finding that the victim was unable to consent.
Now, let’s consider our case. You said, “The appealate [sic] court comes to an independant conclusion based on all the circumstances, but in practice it is difficult to get a confession invalidated at that point.”
That’s not true. The appellate court accepts as true the factual findings of the trial court, but comes to its own conclusion as a matter of law.
How about evidentiary rulings? By what standard does the appellate court judge the trial court’s decision?
The standard is “abuse of discretion.” This means that the appeals court does NOT come to an independent conslusion. They examine the record and ask, not “Would I also have ruled this way?” but rather, “Could any reasonable judge have ruled this way?”
And that ruling was not an absue of discretion, as a matter of law. Why not? Because the highest court in Arkansas has spoken on the issue, and the US Supreme Court refused to overturn them. They are the arbiters of what constitutes abuse of discretion in Arkansas, and they have spoken. Therefore, the BURDEN WAS MET!!! There is no argument here, except for you to keep repeating that in your opinion, the judge’s decision was wrong. But that means nothing here. What means something are the opinions of the Court of Appeals - and they didn’t agree with you – and the Arkansas Supreme Court - and they didn’t agree with you - and the US Supreme Court - and they didn’t agree with you.
That’s also misleading. Dr. Osfhe was permitted to testify. He was NOT permitted to invade the province of the jury by testifying as to a fact which was in the jury’s purview.
Is this unusual? Or are there rules of evidence that ROUTINELY, TYPICALLY, prevent this sort of testimony?
You wanted the doctor to repeat what Jessie told him in interviews, for the purpose of establishing the truth of the statements made? There’s a word for that: hearsay. It’s not permitted, except for cases in which the rules of evidence allow it. This is not one.
Nor is any witness ever permitted to testify to a conclusion which is the jury’s to make. A witness cannot say, “In my opinion, he’s innocent.” That’s a decison for the jury to make, and the ruling forbidding Dr. Osfhe to so testify was a correct one. He was asked, directly, “Have you formed an opinion with regard to the specific issue of the voluntary nature of the defendant’s statements to the police?” At that point, the prosecution quite properly objected. An expert witness may testify to the general signs of coerced confessions, just as he may testify to the general signs of, say, sexual abuse. But he cannot say, “This confession was coerced,” any more than he can say, “The defendent sexually abused the victim.” That’s for the jury to decide.
That’s the rule everywhere. It’s not the result of “biased judges.” It’s how the system works.
You’re getting outraged at things you don’t appear to understand, and I doubt that a few messages on a message board will substitute for a true, in-depth study of the rules of evidence. But if you don’t have that background, how can expect to be taken seriously with complaints like this?
In other posts, Diane accused me of taking a “you’re not a lawyer and so you don’t understand” attitude.
Perhaps I am.
But this is like listening to someone discuss a medical procedure gone wrong, and hearing them say, “The cardiac surgeon didn’t even check the EKG for a Thissional-Burns pattern before the surgery! Of course there would be problems!” The reality may be that no one EVER checks for a Thissional-Burns pattern before heart surgery (in fact, I’m sure that’s true, since I just made it up). An actual cardiac surgeon may come along and say, “Hey - that’s nonsense. The only reason to check for such a pattern would be if the patient was heliotropic, and it’s not a breach of standard practice to fail to do that check.” (Made up, of course, also).
Is he sneering at non-surgeons? No. He’s just pointing out that surgery is a complex practice, and you’re not likely to know what’s correct or incorrect unless you’re a surgeon.
So, too, in the field of law. People study law for some pretty intense years and take a pretty intense test before they are permitted to practice. If you haven’t made that study, I’m not sure why you think your legal analysis would be more accurate that those that have.
- Rick
Bricker - Aside from all the legal aspects of the case, do you personally feel comfortable with the three verdicts? Why or why not?
Diane,
(italics mine)
I think this is fairly insulting and presumptuous. Just because someone doesn’t come to the same conclusion you do as to the importance of this situation, then that person is obviously just not connected enough? If someone feels comfortable making a few off-hand jokes than he or she just doesn’t get it?
Perhaps from your perspective this is nothing to joke about and the immediate well-being of these guys is of dire importance. That doesn’t mean other people are wrong if it doesn’t mean the same thing to them.
When you ask someone to walk in someone else’s shoes, remember that there are two variables there: the shoes and the person. Just because we put on the same shoes doesn’t mean we’re going to feel the same mile under our feet.
Throughout this conversation I get the impression that you feel like people just don’t understand how horrible this all is. And it’s true, many posters here don’t feel the same way you do about it, even if they have reached most of the same conclusions that you have.
However, and I think you’ve probably realised this, trying to get people to change how they fundamentally feel and react to a situation is like banging one’s head against a brick wall. I think that accepting other people’s emotional involvement, whatever that may be, and moving on from there would be not only respectful of other people’s opinions, but would also save you a lot of stress and anger.
Bricker has throughout this thread offered (IMO) some very interesting insights into law and court procedings. He views this situation from a different perspective than you. Why not go with that, and see what walking down a different path of inquiry, lead by a man who agrees with you that justice has not been served, and see where it takes you? When Bricker et al say, “Diane, that doesn’t matter and/or isn’t admissible,” they’re not saying you’re wrong, they’re just taking a different, perhaps more pragmatic approach to the same facts that you’re looking at.
I guess my point here is that it seems sad that with the massive amount of passion and knowledge you obviously have about this case, and the wealth of legal knowledge and experience being lent by Bricker, that we’ve spent four pages and change arguing about who cares more about this case.
I believe he’s already answered that.
he’s attempted, several times, to get at what can legally be done at this point. So have I (which doesn’t include re-trying the case on a message board). raise $$ for DNA testing (and given the level of interest you have, and the web sites etc, and the length of time, I’m surprised that the couple grand for DNA testing is still an issue). Lobby your legislatures for changes in laws re: confessions of folks w/developmental disabilities, cognative disorders, mental/emotional handicaps, under the influence etc. Get intimately acquainted w/how the system fares in your local - try and elect prosecutors and judges who will look to a level of fairness vs. the quick easy solve. Hell, I’ve personally advocated for years that folks should sit in courtrooms on sentencing day (when there’s no newsworthy case involved) just to see what your judges and prosecutors are really doing.
and of course, refrain from judgemental stances re: other people when you have less than all of the facts.
I’d noted that. I’m still looking for Griffis’ other 3 books.
Diane, I have answered that question at least three times in this thread. I can only conclude that one reason I’m not getting through to you is you’re not reading my posts.
Shodan got a pop quiz earlier, on the names of the victims and the defendants. Now I’d like to give you one: what have I said about the verdicts here?
- Rick
Bricker:
That is not what I mean by independant. It was suggested that the defense had to prove its case in the appeal, and I said that that was not the case. The defense does not get another chance to prove its case - they did that at the trial.
And as you know, I have already agreed with you earlier in this thread about how appeals work. I have already agreed with you that they do not judge the evidence again, listen to witnesses, etc. Now you seem to think that I am saying they do judge evidence again, but my previous posts make it very clear that I know they do not. We are going in circles.
I agree with what you have said, but I don’t see how it conflicts with what I said.
Again you misunderstand. I am not saying it was legally an abuse of discretion, although I do believe that other, less biased, judges would have decided differently.
As I have said over and over again, I think that the laws which allowed it to happen are wrong! You are just ignoring that and saying, “but it was legal.”
Well, yeah. We have been agreeing on that from the start.
Look, I know you have considerable legal knowledge. But there are more ways to look at life than from a purely legal standpoint. I think that the wrong decision was made MORALLY, not legally. And I think that the laws should be changed. You have not even weighed in on that issue, and as such your response is not addressing anything I have said. How many times do I have to agree with you that what happened was legal? I’ve said it multiple times already.
Huh? What sort of testimony?
I said that Dr. Ofshe was not allowed to refer to the interview, which is in conflict with A.R.E. Rule 703 that an expert must be able to reveal the factual bases for his opinions. On appeal, this was determined not to be prejudicial, however, again, I think this is a law that needs looking at.
What are you responding to? I never said that a witness was allowed to say “The defendant is innocent.”
From the appeal decision: “The next point concerns the testimony of Dr. Richard Ofshe, an expert in the coercive influence of police interrogation techniques. Dr. Ofshe was allowed to offer an opinion that the tactics used by the West Memphis Police were suggestive and led the appellant to make his statements.”
Does this not contradict what you have just said? The Supreme Court of Arkansas say that Ofshe DID offer that opinion. You are arguing against things that I never said.
Although it may not seem like it, I do appreciate Bricker’s contribuations to this thread. I apologize for being harsh. But I do think that there was moral, not legal, abuse in this case, and I think we should look at and change the laws that allowed it to happen. I don’t think there is only one way to look at the case. We can look at it from a purely legal standpoint, and also from a moral standpoint.
To clarify: you have not weighed in on the issue of whether or not the decisions made, while legal, were immoral. However, I feel it is unfair to ask that question since you could not possibly have enough information to answer, and I admit you cannot just accept my information as fact. So I take it back.
wring - all of those things are being done, and more. However, some of us feel that getting the case in the public eye is only PART of the support. Of course no one feels that “trying this case on a message board” is going to change the verdicts - it isn’t, and as far as I can see no one is doing that.
I have a very strong opinion regarding the circumstances surrounding this case. Maybe the way I have stated my feelings don’t meet with your approval (or Brickers). Maybe I haven’t convinced you of jackshit. Maybe Bricker feels I am a liar. Maybe Shodan will never give a shit.
Can’t win 'em all.
But just maybe this thread has brought a new interest to people who care enough to help bring changes that will insure that something like this can’t happen again. I’ll gladly accept that trade off.
my post got eaten.
but.
shorter version:
I’ve tried to point out to you that with me you’re preaching to the choir. I already believe there’s problems in the system that need fixing.
Your real audience **aught to be ** Shodan, and those like him. 'cause w/o the masses of folks who currently don’t believe the system is in need of work, it ain’t gonna get fixed.
but you’re willing to write him off, secure in the knowledge that you’ve ‘reached’ some folks. Perhaps, but frankly those you’ve reached were those who were probably with you in the first place (who believed that problems could occur, were perhaps unfamiliar with that specific case). IOW, the choir.
But you, like your Nightime will do what you like, and if this thread is any evidence, you’ll continue to use tactics that will not likely convince anyone except those who were with you to start with. More’s the pity.
Yes I have, but it certainly appears that you talk out two sides of your face at times. Maybe I read you wrong, but I get the impression that although you are uncomfortable with this case, your complete trust in the judicial system forces you to accept those things without question.
Am I wrong in that assessment?
Fair enough, Nightime. But the problem with saying, “Oh, morally, this case wasn’t handled correctly,” is, in my view, that we lose track of why we have specific laws and procedures for criminal trials. We start with a basic moral framework, and construct a set of rules that preserves - or should preserve - that morality. But if every judge were permitted to design his own rules, with the only guidance being “keep it moral” – then I believe we’d have chaos.
I gather in this case you believe Dr. Osfhe should have been permitted to testify as to what Jessie told him. But the MORAL reason we don’t allow hearsay is that is admits testimony that is beyond the reach of cross-examination. If Dr. Osfhe testified, for example, that Jessie didn’t know what it meant to be inside or outside the circle, and just knew it was bad to be in the circle, the prosecution has no way of discrediting that comment. They can’t ask Jessie if he remembered being told what the circle was, for instance, and thereby discredit the self-serving conclusion that he didn’t know. It’s unfair to get testimony in that way; if it were admitted against an accused, he’d MORALLY - as well as legally - have every right to object on appeal.
So you tell me. What should the MORAL rule for admission of hearsay be?
In fact, let’s go further: overall, what specific changes in law or procedure do you advocate?
I’ll repeat mine: the Strickland standard for ineffective assistance of counsel is unworkable and has the potential to result in a miscarriage of justice. The “prejudice” prong of Strickland is set way too high. I would re-write Strickland by statute as follows:
-
The appellant must show that his attorney’s performance on a particular issue fell below an objective, measurable standard of competence; and
-
That, because of that failing, there is at least a probability that the outcome of the case would have been different, and
-
That there are certain acts and omissions which constitute per se prejudice and require no showing of #2 above, and such acts include procedurally defaulting an appealable issue which, had it been preserved, could have resulted in reversal or remand.
Now, I realize #3 will open a can of worms, and I’m willing to debate it or rephrase it. I know it could result in “gaming” the system by deliberately failing to object to a prejudicial issue and guaranteeing a reversal. I believe that can be fixed by:
- The Disciplinary Committee of the State Bar shall investigate every case which is reversed for an error as described in #3.
I’d be willing to try that on for size and see what happens.
- Rick
No, I wrote him off because he has made it clear that he isn’t interested in learning about this case. I have other things to do than waste my time on him.
I disagree!
It is obvious that we reached more than a few people who had never heard of the case and who are now interested in learning more and will hopefully feel the need to become actively involved.
Read the entire thread to see for yourself.
There are more that you didn’t see. E-mail requests for information asking me how to write letters or information on other ways to become involved. This thread has been linked to more than one LiveJournal.
So no, I don’t agree with you. Not at all.
Sure you are.
For one thing, you didn’t read, or didn’t understand, or didn’t accept, my harsh criticism of the Strickland rule. That is a huge part of the judicial system, and one I believe is badly flawed, and which is, in my view, the principal reason these guilty verdicts stood up to appeal.
I don’t agree with people that have nitpicked the judge’s evidentiary rulings. I believe that they were for the most part correct. What was abhorrent was the number of issues the defense let go by without investigation, comment, or objection.
I have identified a number of them in this thread.
- Rick
Fair enough.
I don’t expect you to answer the following question because I think that any involvement in any cause should be a personal decision and not open to judgment.
How far are you willing to act, if at all, on your disdain for this case?
I don’t propose letting each judge decide the rules. What I am saying it that if a particular law has immoral results, then that law needs to be looked at and possibly changed, for everyone, not just one judge.
For instance, I believe that the police tactics in the interrogation, especially given the mental capacity of the accused, were immoral and should not be allowed, and I think that allowing the confession to stand was immoral and should not have been allowed.
Therefore I believe that we should look at the laws that allowed both, and perhaps change them for the better.
As for hearsay, it seems we just had a misunderstanding. I understand why hearsay is not admitted. However, the judge in this case refused to let Dr. Ofshe even REFER to the interview, which is in conflict with A.R.E. rule 703. He would not have had to introduce hearsay in order to refer to the interview.
I don’t know that I can give specific changes in the law, but I’ll tell you some of my ideas.
As I have said, I think the police tactics which were used should not have been allowed. Playing a tape of a boy’s voice saying “nobody knows what happened but me” was a tactic even the Arkansas Supreme Court found disturbing.
Perhaps the law could be changed making it much harder to get a confession admitted if the confession was not taped, and/or if there are other circumstances such as the accused being mentally disabled and the police using questionable tactics.
Also, I do not believe that Jessie understood what he was doing by waiving his rights, and it might be a good idea to require parental permission in cases like his.
I’m not sure what can be done about a lying witness. I have to admit that it is not usually possible to prove that they were lying, even if they admit they were lying. However, at the same time, if a conviction happens almost entirely because of one witness whose story is extremely unlikely to the point of impossibility, and who admits the story was false, it seems like there should be something we can do about it. There may be no legal solution to this problem.
I also think your suggestion about Strickland is a good one.
I’m sure there are many other changes I would suggest, but I am not a lawyer and my legal knowledge is not sufficient to know which specific laws should be changed, and how. That is part of the reason I feel compelled to bring attention to the bad things that happened in this case, in the hopes that someone with more legal knowledge will recognize which specific laws allowed them to happen, and will have, like you, a suggestion to help fix the problem.
I’ve been unwilling to contribute to the “Support Fund.” When it was run by Kathy Bakken (is it still?) back in 1998, I explored the possibility of contributing specifically to offset legal expenses, but I was told at the time that the fund existed for the purpose of “raising awareness”, not defraying defense expenses, and they would not assure me that my contribution would go to the legal expenses alone.
Since then, I have confined my activities to lobbying my state and federal elected officials for a change in the law along the lines of what I’ve outlined above - and it’s not for this case in particular, but for many cases which have suffered from inadequate representation.
- Rick
Diane you still misunderstand my point.
I’m sure you’ve informed some people who were not aware of this case before, and they’re now interested. I’ve never doubted that.
However, as some one who works daily in the field of re-entry issues for convicted folks, I can assure you that IME, that’s the ‘choir’ I"ve been referring to. There are people out there who are willing to believe that there are miscarriages of justice, that at times police can act in a less than ethical manner, that at times, prosecutions are more interested in convictions than in ‘what’s right’, that judges are more interested in reelection than doing the right thing.
they’re in the minority. Anytime we’ve had a public hearing to establish or expand on a re-entry program for folks w/even minor convictions (probation vs. prisoners for example, and non violent, non drug dealing), I see the masses. the ones you need to convince. the ones who believe that even if the proof isn’t there as much as was promised, they’re probably guilty anyhow, or guilty of something else, so it’s all ok. the ones who talk gleefully of “Bubba” justice. The ones, frankly who frequent pit threads about crime. Hell, just look at the one about Scott Peterson case - where there’s not a single fucking piece of testimony under oath available, nor much in the way of physical evidence available, and yet a whole ton of folks were gleefully proclaiming him scum. and that’s here, where we’d hope the bar is set a tad bit higher.
Change will not happen with the small numbers of folks who see problems w/in the system. Change will only happen when you’re able to convince the Shodans of the world that the sort of thing that happened in this case happens frequently enough that we need to make changes. That it isn’t a case of ‘coddleing criminals’ or ‘making it easier for scum to avoid prison’, but righting some essential wrongs. And as long as the masses believe that it only happens to folks who were guilty of something anyhow, they aren’t going to care about changes.
there’s too much reliance on jailhouse testimony (where one convict will testify against another, in exchange for some other conditional deal for themselves). there’s a fascination/awe for scientific evidence that often is misplaced (the forensics on fiber evidence, for example), if not outright fraudulent in some cases (the recent scandals involving DNA testing in Texas, FBI labs techs using bad science as testimony - cateloged in the book from the INnocence project to name a couple), etc.
As you know, funding the defense is only one way to show support. Funding has been broken down into specific areas, for example - what she referred to is a fund that helps defray the cost of making the case public, to include the cost of the website, mailings, t-shirts, etcs. There is another fund for the defense which includes DNA testing. You can also send money directly to Damien, Jessie, and Jason for commissary and college.
I support the awareness fund by purchasing t-shirts AND wearing them, but most of my financial support has gone directly to the defense fund. Regardless of the outcome of the DNA test, I personally feel it is important to know one way or the other.
I commend you for taking action with your lobbying.
wring - I agree with you 100%, however, one thread on a message board is not going to make a big impact. Information was offered to anyone interested enough to read then make their own decision if and how they want to be involved. I’m not here to recruit and convince the masses.
Most of my involvement involves writing letters, corresponding with others involved with the case, and present enough information to peak interest and hopefully cause someone to become actively involved.
There are people like Shodan and the guy who will take your flier, sneer, then toss into the first bin. They don’t want to know or learn about the case no matter how hard you try to convince them.
I have learned that it is much more productive to continue doing these things and understand that some people just don’t want to be involved.
I refuse to waste my time on those who can’t be reached.