Not so. I filed an appeal once myself. It was for a relatively minor matter. The ADA choose to file no response (and did so in writing), and thus my case was overturned on appeal. Now, I admit it was over a small fine, but still, we had a 3 Judge hearing and everything.
The DA works for “the People”. The People are best served by not having innocent men in prison.
IAAL, and my best lawyer buddy is a prosecutor.
Prosecutors do not always oppose motions for new trials or DNA tests as a matter of course. They have prosecutorial discretion, which includes the personal judgment of prosecutors and their bosses. There have been some notable cases in which prosecutors have not opposed these sorts of motions when it becomes fairly likely that the wrong man has been convicted.
Again, wrong. Prosecutors have discretion. Granted, they work within certain parameters and there are typical ways of doing things…but there is no rule that the prosecutor must fight tooth and nail to sustain an unwarranted conviction. There are actually prosecutors of conscience who would refuse to work to deny someone justice in this fashion. My friend would sooner turn in her resignation than oppose a motion for DNA testing “just because” it was all “downside” for her conviction rate.
They already have this discretion. And some prosecutors already use it badly…as has been described in this thread.
DNA is tangible evidence. It is perhaps the most tangible form of evidence that can be offered at a criminal trial.
Again, not true. Prosecutors of conscience will try to use their discretion to make just decisions, and will refuse to participate in a grossly unjust process.
Furthermore, the real job of a prosecutor is to make sure that the actual guilty person is convicted. It is emphatically not to get a conviction and sustain that conviction at all costs.
Yes, but you are actually making them look worse, and not better, with your comments.
I understood that clause to only apply to capital cases.
My opinions on the morality of law are irrelevant.
As I said, the prosecutor in this case may have based his persual of the case off of other evidence. I’m reluctant to condemn an officer of the court without knowing all the facts. That article was an “outrage piece” not an even-handed examination of the issue. Someone mentioned a documentary-- I haven’t seen it, but, again, was the intention of the film to examine the case fairly, or was it intended to generate outrage?
I’d gander to say such people are few and far between. It takes a truly evil son of a bitch to want an innocent man to die. Playing devil’s advocate, I believe that these prosecutors are basing their persual off of other evidence. I don’t know if I’d even necessarily blame them if they were persuing it from evidence that was supressed.
They may have to if the publis is howling for the blood of a suspect but they decline to prosecute because of their personal feelings on the matter.
Again, not necessarily. For all we know there could have been an unknown accomplice, and one of the rapists could have used a condom. If there is other evidence which points to the man’s guilt, we shouldn’t necessarily claim that the absence of his semen is proof-positive of his innocence.
It’s relevent to talking about the humanity of prosecutors. Juries make mistakes. Crucial evidence is suppressed on technicalities. He may have been as guilty as Cain. If the prosecutor knew this, I can understand why this man would have been a prime suspect. They sometimes go off the assumption that where there’s smoke, there’s fire, in other words.
Not strange at all. I assumed my cites would have covered his post.
I didn’t know he was a lawyer. What sort? Criminal law does differ from civil law. (Not that I’m doubting his qualifications.)
All I was saying throughout this whole mess was that actual innocence is not always an automatic conviction-overturner. There has to be sufficient legal grounds. Secondly, prosecutors do* have discretion, but its their duty to persue cases which they believe to be valid-- meaning that if they still believe the convict is guilty despite the new evidence, they fight.
Of course. I’ve been saying that all along. The prosecutors I know don’t care about numbers. Perhaps people misunderstood, or I didn’t make myself clear. I never said that prosecutors fight “just because”. They fight because they believe the charges have legal sufficiency to merit it, and when this is the case, they have a duty to do so, whether or not they may have niggling personal doubts. They present their side of the argument and let the jury or appellate court decide.
But the trial is already over. Some states have limitations regarding how long after the trial new evidence can be introduced. Yeah, it sucks for people who have actually been wrongfully convicted, but that’s the law.
Yes, I’ve seen similar instances myself, as I said before. However, if the prosecutor had been convinced of your guilt and had a legally-justified case over a serious matter, of course he would have fought it.
Criminal law. Former public defender.
Yes, but you’re dramatically overstating the requirements, at least in most states, for “sufficient legal grounds.” On the face of it, your statement is obvious: of course “actual innocence” must be proved in some legally sufficient way. You’re suggesting a scenario in which iron-clad, unquestionable evidence of innocence would be insufficient to gain someone’s release, and I’m telling you it’s not so.
That’s true.
As I mentioned above, though, you seem to be missing a key understanding: the difference between a direct and a collateral attack on a conviction. A federal habeas petition can be filed regardless of a state’s rule regarding new evidence, for example.
It’s hard for me to offer specifics because every state is different. But pick a state, and I’ll endeavor to sketch out the possibilities an “actually innocent” person in that state has under the law.
Sir, you have just risen approximately 1,000,000 in my estimation. Interestingly my MIL was interested in the idea of my going to law school - right up until I said I would want to be a public defender. :rolleyes:
To be honest, he was likely convinced of my guilt. But the fine was so small, it certainly wasn’t worth his time.
From the article–
There are at least three pardon of innocence applications pending before Gov. Mike Easley besides Silvester Smith’s, all from men who were freed from prison and had the charges against them dismissed:
There’s a nice twist in this one. Gov. Easley was the prosecuter who put him behind bars.
So to avoid compensating these wrongfully convicted men, and perhaps to save face, Easley is dragging his feet (in one case two years!)
This is really not a hard decision, buddy. They were innocent. The state wrongfully convicted them and took away their freedom. Why is it so fucking hard for a politician to find some stones and Do The Right Thing? (Rhetorical)
Then you are in fact not “for the death penalty” as that time will never come. You might want to rething your position on that one.
Just for the record, I’m against the death penalty for the reason you stated as well as other reasons. And the story in the OP is horrifying, btw.
I just think someday in the future they may have a fool-proof brainscan. And when that happens those without any remorse, and total guilt deserve death. Though if in the future such a scan was available maybe they could have a brain changer that can rehabilitate those who break the laws, but lots of steps before we get there.
FTR I am currently when asked for polls, and general issues, anti-death penalty.
I would imagine that the use of such a machine (the scanner) would be unconstitutional in the first place, as it’s difficult to see how it would allow for the Fifth Amendment right to not incriminate oneself. The “brain-changer” is a more Constitutionally ambiguous idea.
But if such a thing was proven 100% effective with no methods of cheating it, a person on death row would jump at a chance to prove innocence. As for the "brain-changer" I would actually prefer that method, it would stop most crime. But abuse could prove to be disastrous, good thing this is only imagining things and not real things.My mistake, then. I though you were proposing it as an involuntary procedure in court.
No your assumption was correct I just modifed when you made me aware of the constitutional challenges to my original idea. Sorry if I didn’t clarify.
Interesting idea.
By way of analogy, breath and blood alcohol tests do not violate the Fifth Amendment, yet they arguably incriminate the person tested. Why wouldn’t the brain scanner be similarly evaluated?
Fingerprint and DNA evidence are exempt from fifth amendment protection, so it may be possible to establish such an exemption for brain scanning. But given the rigorous hoops fingerprinting and DNA testing had to go through before they were accepted by the courts, you would have to demonstrate that brain scanning was infallible. Note that lie detectors are excluded because their are not reliable enough to warrant waiving a defendant’s fifth amendment protection.
Er… yes and no. Poygraph evidence, when exlcuded, is often excluded for lack of reliability, but that has nothing to do with the Fifth Amendment.
The use of any scientific procedure that would allow an expert witness - a polygraph operator, a fingerprint analyst, or the like - to testify in a criminal trial was for many years guided by the “Frye test,” which required that the technique or device’s accuracy be recognized as having gained “general acceptance” in the relevant scientific field.
Interestingly enough, the Frye standard was derived from a case in the 1920s that had to do with an early lie detector. In the 1990s, the Frye test was replaced by the Daubert test, which requires that the technique’s reliability be shown by:
[ul]
[li]Empirical testing[/li][li]Peer review and publication[/li][li]An acceptably low error rate[/li][li]Appropropriate standards controlling the technique’s operations[/li][li]Ability to describe the technique and its results plainly [/li][/ul]
Obviously, the testimony must also be relevant.
So “infalliable” is not necessary for the hypothetical brain scanner, but its use would have to meet the relevance and reliability prongs of Daubert.
Bricker I think you are a lawyer? If so how would you feel about a brain scanner? It would if accurate, put a lot of lawyers out of business correct? When I said about it I was unaware they where even close to making one but looks like they just might be in our future. Link
That might be a good thing, or a bad thing.
The exclusion has nothing to do with the fifth amendment, but if the lie detector met the Daubert test, do you not think defense lawyers would make a fifth amendment objection if their clients were compelled to take a polygraph? Fingerprints, DNA and even a brain scan are not as directly related to self incrimination as the defendant’s own words. Even if it met the Daubert test, I think the court would have a hard time compelling defendents to take a polygraph.
Not necessarily. It depends on the form they take, and on whether or not they could be used on the unwilling. Remember, too, that a lawyer has to argue both what happened, and what that action means under the law. Sometimes the latter question is cut-and-dried; sometimes it is not.
The issue is not strictly compelling a defendant to take the test – it is whether the fact-finder is permitted to draw a negative inference from a refusal.
Right now, in a civil trial, I can compel you to take the stand. I can even ask you questions that may criminally incriminate you. You have a Fifth Amendment right not to answer, of course, but the jury hearing the case may regard your failure to answer as an admission that, if you DID answer, the answers would not be favorable to your side.
In a criminal trial, the state cannot compel you to take the stand, nor so much as comment on your silence or in any way invite the jury to infer that your silence means anything.
If a highly reliable brain scanner or lie detector existed, perhaps a criminal jury could consider your failure to use it as evidence of guilt.
Wouldn’t a functional brain scanner that could detect lies be extremely useful in solving crimes? As I understand it, the rationale for not forcing people to testify against their will in court is to cut down on torture and other unscrupulous methods commonly used by police in distant, and sadly, not-so-distant times. If a technique can detect truth from lies without harming the defendent could be used, it probably SHOULD be used. It’s not the same thing as torture at all.