Frankly, I Don't Care How Due Process Makes You Feel

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240 Responses

  1. Ken says:

    I shouldn't have to explain it, but I probably do: BoingBoing is a private site, and they can delete every comment that doesn't suit their flawed narrative if they like.

  2. Michael K. says:

    Ken, you rock. I can't tell you how many arguments I've stupidly gotten myself into about this very issue. It's amazing what people cease to care about when they feel justice has been thwarted by process, and cannot be persuaded that justice without process is imaginary.

    I think that, from now on, instead of arguing, I'll just print out a copy of this post, wrap it around a broom handle, and start hitting people with it.

  3. Efemmeral says:

    The Trickle Down effect explains the moderation. Company culture. The principals are not known for deep or critical thinking. BoingBoing's headlines are often intentionally misleading but I refer to your Oct.2 post, "Confronting Junk Science: Keep Calm and Carry On."

  4. James Pollock says:

    Well, there's the question of WHY double jeopardy applies IF the only reason for dismissal is that the person was charged under the wrong section of the statute, AND this wasn't known until the case reached the state Supreme Court.
    To the average person, it seems that the "prize" for winning that appeal SHOULD be the right to a trial based on the correct charge, rather than receiving a free pass for all variations, both the one(s) that didn't apply as well as the one(s) that do(es).

    It seems to me (and probably a lot of others) that perhaps the order of the court should be to permanently dismiss the charges under the wrong section of the statute, but allow leave to amend the charges and request a new trial, if appropriate, with a requirement for the state to cover the defendant's legal costs IF it wants to amend the charge. That seems to balance the public's interest in having offender's charged properly with the public's interest in not having any of its individual members financially disadvantaged by flawed prosecution. (People getting off on "technicalities" other than "the prosecutor couldn't convince the jury that the defendant did it" contributes a LOT to public distrust of the justice system.)

    Hmmm. Maybe you'll also need an implied waiver of qualified immunity if the second trial results in acquittal, to help keep down the number of times this comes into play, by making the prosecutor be damn sure he's got the goods on the defendant when charging under the proper statute. (Otherwise, you'd get the "Sheriff Joe" effect.)

  5. James Pollock says:

    It should also be pointed out that there are also cases of CONVICTION on a technicality, which don't get nearly the same press as ACQUITTAL by technicality.

    My favorite example is the guy who was helping an acquaintance move. The acquaintance had medical issues that prevented him from driving, but also resulted in his being eligible for a medical marijuana card. Thus, when they got pulled over, the MM patient immediately claimed ownership and possession of the contraband and displayed his card; no arrest. However, since it was in the car and the defendant was driving, constructive possession applies and HE gets arrested, charged, and convicted. For helping someone move.

  6. Agent T says:

    IANAL… and I don't know the most of the details of this case. I am a woman. I guess the thing that troubles me about the ruling is that the supreme court interpreted groaning and kicking as communicating consent. A groan isn't a word. If a woman gives a kicky little flutter is this a kick that communicates consent? Or does it withhold it? Or perhaps a bruising kick on the shin, that is the one that means consent withheld? Perhaps we can turn to the Oxford Kick Dictionary to determine the meaning of the kicks of which she is capable?

    My issue with the CT SC ruling is their assertion that groans and kicks equal communication. I personally like the idea of expressing words with my mouth (such as "Yes" and "No", "More", and "Not there") to communicate.

    It's the sort of ruling the flies in the face of common sense about what "communication" and what "physically unable to communicate" means.

  7. Grifter says:

    I am reminded in debates such as this, where someone pointing out what is essentially a factual truth is called something awful that doesn't at all apply, of a bit from a story:

    Humpty Dumpty smiled contemptuously. "Of course you don't—till I tell you. I meant 'there's a nice knock-down argument for you!' "
    "But 'glory' doesn't mean 'a nice knock-down argument'," Alice objected.
    "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."
    "The question is," said Alice, "whether you can make words mean so many different things."
    "The question is," said Humpty Dumpty, "which is to be master–that's all."

    Antinous is quite the character. While I never was notified of the reason for or who performed my banning at that site, I believe from the chain of events that it was Antinous. I had, at one time, a good opinion of Cory Doctorow, but the way the dialogue on that site (which is he's the front man for) is handled leaves a bad taste in my mouth.

    On a side note, as a guy with a screen name that translates to "con man", I'm one to talk, but the choice of Antinous as SN is very odd to me.

  8. Ken says:

    @Agent T: no, that's not what the court said at all. Read one of Gideon's posts.

    @James: it applies because then you've been twice put in jeopardy for the same crime. The remedy you suggest is available before trial, not after.

  9. Grifter says:

    @Agent T:

    The blog post that Ken linked to explains it pretty well, I think (which is why he linked it):

    Quote of a quote in the post:
    "The Appellate Court claimed, in justifying its decision, that because the defendant could “communicate by gesturing and vocalizing … and that witnesses testified that she could indicate her displeasure by means of gestures, physical aggression — including biting, kicking and scratching — and by making screeching and groaning sounds,” then “no reasonable jury could have concluded that she was physically helpless at the time of the assault.”

    Regular quote from the post:
    "The argument, simply, once again, is that if she could have indicated her refusal physically, then she is not physically unable to indicate refusal. "

    It's sort of like if he had been convicted of rape under a subsection that required "tying a person's limbs to restrict movement with a rope or similar restrictive device", and the person was a quadraplegic whom he didn't tie up…yes, the person couldn't move, but they definitely weren't tied up.

    The courts didn't say he wasn't a rapist, just that he clearly didn't commit the very specific crime, with its very specific requirements, that he was charged with. Unfortunately, that means he can't be charged again for the same issue…which is why prosecutors should be careful when charging and prosecuting.

  10. Grifter says:

    @Ken:

    Does the inherent hypocrisy of the use/users of the term "mansplaining" incense you as much as it does me?

  11. M. says:

    Maybe I'm way out of line here, but perhaps having so many subsections is a bad idea?

  12. ElSuerte says:

    How come the concept of a lesser included offense didn't come into play?

  13. Jay Z says:

    Can Fourtin be charged in civil court? Wouldn't that be an appropriate way to seek justice without having to deal with double jeopardy?

  14. TimG says:

    Xeni Jardin is, and always has been an idiot and I say that as someone who likes BoingBoing. While I'm not a lawyer, but I am a scientist. And I can honestly say she gets more things astoundingly, stupidly wrong when she writes about science than she ever gets right. I assume her writings on law are the same.

  15. StephenM3 says:

    Seems that the progressives, and everyone who would object to this outcome, shouldn't be angry at the court for applying the rules, but be very angry at the prosecutors for screwing this up so badly. From what you're saying, this seems to be simply a case of an incompetent prosecution, and that is where all the "blame" lies.

  16. Jake says:

    I really appreciated your political comparisons. It has been my opinion for years that the two primary political orientations are merely different expressions of a common human characteristic. When someone tells me I should hate the other side for all the (sometimes genuinely) terrible things they've said and done I cannot help but look at them and marvel that they cannot see these same things reflected in themselves (albeit in slightly different form). Therefore I have difficulty believing that I should despise someone for what amounts to being human.

    It's frankly just not as simple as we make it out to be. Ever. There are always reasons (good and bad), justifications (valid and invalid), and motivations (pure and sinister) behind all the controversial issues that raise so much ire – but when looked at with as little bias as any human is capable of almost everything comes out fairly neutral, or at least well intentioned if a little stupid/shortsighted.

    There is a mindlessness involved in each of your examples – a sort of tunnel vision or short-circuiting of reason – that is both frightening and frighteningly common. It's personal bias unchecked by rational, logical consideration. On one hand I sit here wondering how people can stand to live like that, and on the other I have to acknowledge I probably do it myself in some other way that I'm not even consciously aware of. This thought more than any concern about individual laws and injustices keeps me up at night, as it is symptomatic of our entire species and inherent in so many of our "smaller" problems (bigotry, terrorism, etc). Politics and law are one of the easiest facets to live with, but I'm glad there are people like you to point it out when it shows up.

    Side note: I'm not advocating a third/fourth/whatever party or alternative political theory – picking an unpopular/unusual path doesn't spare you from bias, it only changes where and how it applies. I think the only real safeguard against it is awareness of what your own biases are, so that you can actively keep them in check – but at the same time I'm not convinced it is possible to know yourself well enough to make much of a difference.

  17. @ElSuerte To preface, I'm not a lawyer, but if I read the post right there aren't any lesser included offenses because rather than charging the man with rape (general, top of the pyramid) they charged him with very specific kind of rape (bottom of the pyramid). Looks like the prosecution team should be updating their résumés to me.

  18. Another Woman says:

    Ever since I was on a jury which acquitted a man who we were certain HAD committed a crime against another man, just not the one they charged him with, I have had a much clearer understanding of how this sort of stupid stuff happens.
    What I don't understand, similar to Raving Rambler, is WHY all these little sub-sections must be used as *separate* crimes. Why is a law covering rape not written to say that rape is rape and that CAN include these following situations – and then demonstrate that at least one or more of those situations apply, instead of Pick One and Prove THAT One Only?

  19. Doctorow really needs to get away from that site and the other people that run it. I like his work, both fiction and non. But then he associates his web presence with those clowns…

  20. Brid F says:

    What was the correct charge?

    Is double jeopardy applied to the crime or the specific law? If there are different laws for the same crime should double jeopardy be relevant to the crime or the specific law?

  21. Damon says:

    And people wonder why I shake my head ruefully at humanity. I've nothing but utter contempt for this type of behavior. "feeling" > thinking. Pff. I blame in large part, the crappy public schools for our society's lack of critical thinking skills. And you're right Ken, it's found on both "sides" of the alledged political spectrum. This kind of douchebag behavior reminded me of the whole Lacross Rape fiasco. Facts get in the way of a good outrage/wichhunt.

  22. TJIC says:

    > Over the course of an hour, I saw moderators delete comments pointing out that this frame was wrong.

    Boing Boing is left wing. Fine. I've got good aquaintances who are lefties.

    The problem I have with them is that they are censorious douche-nozzles who ROUTINELY put dissenting opinions down the memory hole.

    After I made a public comment once on my own time, in my own space, I even had one of the four owners of the site violate California civil law by punishing me (via cancelling a contract).

    Yes, they have the RIGHT to memory hole anyone who disagrees with their preferred worldview. But that does not change the fact that they use this power in a very evil, nasty, self-aggrandizing way.

    Scum-bags, all.

  23. Joe Pullen says:

    Recalling outrage and witch hunts, anyone remember the whole Trayvon / Zimmerman fiasco. The mob howling for Zimmerman's head even though they were not present during the incident they still "felt" they had all the facts and he was guilty, etc. etc. etc.

    Emotions be dangerous things when it comes to interpretation and application of the law.

  24. piperTom says:

    This is why I love Popehat — Ken cleared the fog on a topic badly botched in the news reporting. And, while I agree with Ken's points, I see value in James Pollock's point, too. The double jeopardy rule is needed to limit prosecutorial abuse. But if other — hopefully stronger — protections existed against over zealous prosecutors, then the double jeopardy rule would not be needed and some injustices avoided.

    But it ain't gonna happen. Since the double jeopardy rule is in the Constitution, it takes really heavy political support to change. Even to get my support, the "improved" protections would need very strong evidence of being better than the old.

  25. Joe Pullen says:

    http://news.sky.com/story/995338/facebook-man-spared-jail-over-comments

    Seems a large contingent of our friends across the pond want to let their "feelings" deteremine whether someone should go to jail. Most of the public comments on this article make me sick, I just hope that thought process doesn't spread over here – although I'm already seeing signs of an outbreak.

  26. Mercury says:

    Bravo.

    Although in some cases how you *feel* is actually an integral part of the law itself. It is my understanding that in some states if you felt like you were about to be assaulted that is sufficient to result in the other party being charged with (physical) assault even if it is agreed that no actual contact between the two parties was made.

    Obviously if you wave a gun around (but don't actually fire it) for reasons that can't reasonably considered self-defense, that action should probably be legally punished but in cases of heated verbal arguments that don't actually come to blows, there is a lot of wiggle room, feelings-wise available to all involved in terms of deciding what crimes should be considered.

    And what are "hate" crimes but laws that punish feelings and thoughts? It's not like murder, whether arbitrary or instigated by love, hate or anything else isn't already illegal. But with the right feeling/thought evidence such an act can (now) be upgraded to a hate crime as well.

    BTW I've always thought that being tried for the same crime twice = double jeopardy plain and simple and the whole "yeah but the first time was in criminal court and the second time was in civil court" is pure BS but I guess only lawyers can see the true justice shining through something like that.

  27. TJIC says:

    Oh, also: Ken, you rock.

    This post is A++++.

    I sometimes take this sort of thing for granted here and don't comment on it, but every now and then I am reminded of how rare clear sane thinking is on the internet (or anywhere else).

    Keep up the good work.

  28. Ali says:

    I really enjoy being left-wing and reading Popehat, it's good to see when our own brands of fuzzy thinking and hot-button topics get in the way of clear, sane thinking.
    Thanks Ken!

  29. AF says:

    It is things like this that really made me have to stop reading boingboing. When its good, its good but almost everything they post is from somewhere else. And their truly original content isn't all that gripping in my opinion.

    Now, when they are bad, they are awful. The comment section is particularly bad. If they post on a few hot button topics there is a mob mentality goes wild even if the post is wrong or misleading.

    I think you hit the nail right on the head with this post.

  30. Gideon says:

    Thanks for posting this, Ken. Said it far better than I could.

    @ElSuerte: He was also charged with and convicted of a "lesser included offense" of sorts: Sexual Assault in the Fourth Degree. Unfortunately, that subsection also had the same "physical helplessness" requirement.

    There are no other LIOs for this particular allegation.

  31. CourtneyLee says:

    I'm so glad I read Popehat–my feelings (haha) about this case were pretty damn intense and I was pissed that he "got off on a technicality." But now that I know that none of the reports I read presented the legal details of the case, I can direct my anger where it belongs–on the people who report the news not to inform the public, but to increase web traffic/circulation/ratings. And on the prosecutors who botched the charge, the idiots.

    One of the great things about reading blogs that step back from political party hype and apply reason and logic consistently is that I am often confronted with how my own biases make no rational sense. I need that–everyone needs that. I feel like I can't rely on any news media anymore for actual logical analysis of issues. Thank goodness for the blogosphere.

  32. Dawnsblood says:

    Thanks for this Ken. This case is flying around the internet at the moment. If you are not a lawyer able to research it yourself, the Boinger's opinion is the version of fact the story is assigned. I'm glad I was able to read a more objective account of the case.

  33. ShelbyC says:

    The Hartford Courant repeated the error today here.

  34. Rich says:

    Thanks for an excellent post. I have not heard much about it yet, but from what was described, I don't see how the Ct. Supreme Court could not have ruled the way they did. This is sounds like prosecution malpractice.

  35. ShelbyC says:

    @Brid F "What was the correct charge?"

    I'm too lazy to look up the CT statutes, but they could have charged him with having sex with her without her consent (first degree sexual assault in CT I believe) and they could have charged him with having sex with someone who was mentally unable to consent, in addition to what they charged him with, but they didn't.

  36. TheOtherMatt says:

    I think it's time for a musical interlude
    http://www.youtube.com/watch?v=CkBxopffIBw
    Switchfoot — Selling the News (2011)[3:34]

    Sums up this whole discussion
    Side note Ken Thanks for narrating the screencap saved me five minutes of my life not having to go back and magnify it

  37. Ken says:

    Via Gideon, the statute:

    " (a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than three years older than such other person; or (2) such other person is mentally defective to the extent that such other person is unable to consent to such sexual intercourse; or (3) such other person is physically helpless; or . . . ."

    They went with (3) instead of (2).

    Or, for that matter, this section:

    " Sec. 53a-70. Sexual assault in the first degree: Class B or A felony. (a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person, or (3) commits sexual assault in the second degree as provided in section 53a-71 and in the commission of such offense is aided by two or more other persons actually present, or (4) engages in sexual intercourse with another person and such other person is mentally incapacitated to the extent that such other person is unable to consent to such sexual intercourse.."

  38. Damian P. says:

    Sort of related: the legal aid clinic at Ontario's University of Windsor, a school that prides itself on facilitating "access to justice," will not represent people accused of domestic violence: http://www.lawtimesnews.com/201210089359/Headline-News/Windsor-Law-clarifies-stand-will-no-longer-represent-men-or-women-in-domestic-violence-cases

  39. JohnM says:

    Ken – I am also very interested in finding out what the answer to the question "Another Woman" posted (shown below). Any thoughts?

    What I don't understand, similar to Raving Rambler, is WHY all these little sub-sections must be used as *separate* crimes. Why is a law covering rape not written to say that rape is rape and that CAN include these following situations – and then demonstrate that at least one or more of those situations apply, instead of Pick One and Prove THAT One Only?

  40. Shane says:

    Ok … law newb here. Can't the prosecutor go back and charge under the correct subsection? I think (<– this is why I hire lawyers) that this is like someone breaks into a house and burglarizes the house kills owner and is caught. Prosecutor is idiot and only charges on murder. Can the prosecutor go back and charge for burglary if he didn't originally? Are these the same … if not what is difference. Am confused.

  41. l8gravely says:

    Thanks for this post Ken. I had read the previous one at Boingboing which is a fun site I like, but at times they don't go very deep and look at the facts. But usually they're good about publishing a retraction or correction. But hey, it's their site and they can do what they want. And I prefer the rule of law, rather than mob rule. So glad I found your site.

  42. C. S. P. Schofield says:

    Part of the problem is that of you dare bring up the Rule of Law, people think you are talking about Lawr 'n' Owda. Both sides have abandoned the notion that for the Law to be fair, it must be applied evenly. Both sides want to tilt the playing field in certain cases of their choosing. Both sides are blind to the fact that if the playing field can be tilted, it is as likely to be used against them as for them.

  43. TheOtherMatt says:

    @Shane:
    INAL (yet) Your scenario would not happen in reality, because of the felony murder rule. Which states that if A commits a felony, and B dies in the course of the crime then A is guilty of murdering B. So no matter what he gets murder conviction. I'm still an undergrad, and I may never become a lawyer, so you'd have to be an extremely stupid prosecutor to miss that. But The answer to your question is Nope I think, and Ken please correct my prelaw newbieness.
    Because the two offenses are not separate meaning SA2 is SA2 no matter what subsection its under, and once you've been acquitted of SA2 you cannot be tried again for the same incident.

  44. plutosdad says:

    I got into a similar argument when a few kids killed an old man here. They were playing a "game" that involved knocking people down. So they pushed him down and stole his wallet (brainiacs recorded it on their phones) and the old man died a few hours later because he hit his head when he fell (you could hear it on the video he hit so hard).

    Anyway, to me that is pretty clear felony murder, but the prosecutor decided to charge the kids with 1st degree murder (also trying them as adults). Now you can tell me I'm wrong due to this and that reason and precedent. After all I could be wrong.

    But only one person did that, the rest all told me that I am soft on crime and a liberal. Apparently nowadays even thinking a teen should be charged with murder is still being soft on crime, it's 1st degree or nothing. And everyone needs to be charged as an adult not based on their age or ability to comprehend their actions, but on the heinousness of their crime

  45. Kinsey says:

    One of Glenn Reynolds' hobby horses is getting rid of qualified immunity. Cases like this make you think it's a good idea. I'm not sure if it would cause more problems than it solves, but incompetent prosecutors-like this guy- and stupid/corrupt/biased prosecutors-like Nifong in the Duke lacrosse case-would seem to be poster boys for the idea.

  46. Walter 59 says:

    so in the original proceeding the jury listened to the testimony and viewed the evidence and came to the conclusion that the woman could NOT communicate lack of consent, and thus was "physically helpless" under the statute.

    then along comes the CN Supreme Court which found that the evidence showed that the victim could communicate lack of consent, and thus wasn't "physically helpless" under the statute.

    so the technicality is that the CN Supreme Courts' conclusions differed from the conclusion reached by the jury….am I reading that right?

  47. James Pollock says:

    Actually, Kinsey, the poster boys for dispensing with qualified immunity for prosecutors would the ones who routinely and systematically violate the rules on pretrial disclosures. (I'm not naming names because I have no idea if they're still at it, but a Google search on "Brady violations" should give you an idea who I'm talking about.)

  48. ShelbyC says:

    @JohnM, @Another Woman: IANAL, but I don't think they had to pick just one. If they have evidence to show that he violated more than one section of the statue, as they did here, they can charge him with violating more than one section. Their failure to do so here seems inexcusable.

  49. ShelbyC says:

    This outrage seems to have been stired up by botched reporting from the CT Post, NBC, and the NY Daily news. As we should have learned from the health care decision fiasco, never ever rely on the MSM for information on court decisions, get it from the legal blogs.

    I wonder if there's a way to start a letter-writing campaign to get the major news outlets to just stop covering court decisions. There's plenty of accurate information about them to be had, and spreading inaccurate info doesn't help anybody.

  50. James Pollock says:

    Is the statute in question applicable to cases of rape where the rapist incapacitates the victim with drugs or alcohol, or is there a separate section of the code for that? Because if there isn't, I think the CT court has set a poor precedent. (Drug the victim into unconsciousness before you rape them and get charged, leave them mumbling and incoherent but able to move clumsily and the statute doesn't apply because they aren't totally and completely helpless, just practically so.)

  51. PhilG says:

    So let me pose a hypothetical:

    What if the CT Supreme Court had upheld the conviction and stated that her mental deficiency was enough to diminish her physical capability to the extent that she was physically helpless?

    Would you be damning those judges for setting precedent based on their feelings of mental disability affecting physical helplessness? Would their decision not still be mob rule (albeit a mob of 8) because they felt that given X then Y? Or do you think they would cite medical journals and hard scientific fact directly in their finding? Let's look at the definitions in the statute.

    "Mentally defective" means that a person suffers from a mental disease or defect which renders such person incapable of appraising the nature of such person's conduct.

    "Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

    There is obvious room for interpretation there and I think that it is just as believable that the court could have ruled in the other direction. There isn't a "rule of law" answer here, there is only the feeling that 8 people had that the victim didn't meet the definition of "physically helpless." I'm guessing based on:

    Uncontradicted evidence that complainant could communicate using nonverbal methods, including screeching, biting, kicking and scratching, and lack of evidence that complainant was unable to use these forms of communication at time of alleged assault, preclude finding that complainant was "physically helpless" under section. 118 CA 43.

    However, I think a passable argument that she was mentally incapable of communicating lack of consent through any of the nonverbal methods listed could have been made and accepted by a different set of judges.

    I don't really have a problem with the ruling, I think it's (probably) the correct one given the facts of the trial. I do have a problem with the idea that the rule of law is somehow not based on feelings and instead based on some objective impartial thing. The law is based on the whim of legislatures (who are elected based on the whims of voters, hellllloooo prohibition) and enacted by lawyers and judges who, last I checked, are still humans prone to those pesky human feelings. Until we replace the entire legal system with Borg, I think feelings are going to be an inextricable part of the law and if enough people feel that the law should be something it isn't, it might very well become that.

    /end rant

  52. NL7 says:

    Self-righteousness is the most dangerous emotion. Everyone is prone to it. We all need to discipline ourselves with humility.

  53. Brid F says:

    @Ken Thank you Ken.

    @James Pollock @PhilG Good points.

  54. Ken says:

    @James:

    Is the statute in question applicable to cases of rape where the rapist incapacitates the victim with drugs or alcohol, or is there a separate section of the code for that?

    Check out the link to the statute and quotes I put in an earlier comment.

  55. David says:

    Antinous was always the most haughty of the suitors.

  56. Ken says:

    Self-righteousness is the most dangerous emotion.

    Okay, but bear in mind that you are on a blog.

  57. Ken says:

    @PhilG: great comment. I will respond at length when I'm not in a mediation stealing CPK's wifi signal.

  58. mojo says:

    Yes, moderation at BoingBoing is fascistic at best, and moronic at worst. I got deleted and banned for daring to question the anti-GMO line.

    Selah.

  59. Kinsey says:

    James: Oh, no doubt. I think I'm in the anti-qualified immunity camp.

  60. David says:

    However, I think a passable argument that she was mentally incapable of communicating lack of consent through any of the nonverbal methods listed could have been made and accepted by a different set of judges.

    @PhilG When the judges determine whether her disability made her unable to consent non-verbally, there's a question of methodology: do they decide what her gesticulations mean (or decide that they are effectively meaningless) based on their desired outcome (i.e., the emotional approach) or do they look for prior decisions that address what counts as incapacity and what counts as non-verbal consent (the juridical approach)?

    Being conscientious 'prudes, the Nutmeg Supremes looked to how the statute and its subsection had previously been interpreted by courts, including theirs. They apparently considered what constitutes communication in various contexts according to those precedents. And they inferred, in keeping with the latter, that for this person, these gesticulations often counted as signal, as information, as communication within contexts where appropriate recipients understood them, and that they were not known to count as anything else (or as meaningless).

    So yeah– the judges would not be draggin' in external scientific or pseudo-scientific justifications for their interp, since their interp must be based on facts in evidence and the application of properly construed law to those facts. But yeah– it could've gone the other way if the judges had found in the law and the record some basis for disregarding or trumping the demonstrations of her communicative (and therefore mental) capability. But they didn't.

  61. C. S. P. Schofield says:

    KEN,

    Since you mention Double Jeopardy, I would like to ask your opinion on something. It is the accepted wisdom of the articulate right (National Review & co) that the federal government drove a large truck right through the core of the double jeopardy principle when the Feds tried the Rodney King cops on Federal charges after they had been acquitted in a state court. Do they have a point? Or is this another case of "We wanted another result, so the people who got us here must be undermining hundreds of years of Common Law tradition"?

  62. different Jess says:

    We have a long history in this country of protecting prosecutors from the consequences of (when not outright rewarding) their incompetent, evil, against-the-public-interest, and otherwise regrettable decisions. Lefties have bought into this nearly as much as righties have. After all, government agents almost always have the benefit of the doubt. The only exception is when some other sacred cow is threatened, like the omniscience of movie stars. Then the prosecutor must be thrown over like Jonah to save the creaking, leaking ship of the justice system from the whale of contradictions and injustice that constantly threatens it.

    TL;DR: The lefties at BB can't consider this case rationally because that would require them to question the competence of a prosecutor in a properly-governed northeastern state, which DOES NOT COMPUTE.

  63. Pat Greene says:

    Lurker coming out of the woodwork, here. Great post. As a former lawyer (real property transactional, though, not criminal law), I applaud your statements about the importance of due process. As a self-identified progressive, it frustrates me to see people who I otherwise agree with politically be so stupid.

    This reminds me of the reaction after the Casey Anthony case. I got tired of people crying that there had been "no justice for Caylee." It was annoying to have to explain that the system had worked the way it was supposed to, that just because you felt that Anthony was guilty (based on what the media reported), you were not in the courtroom hearing the evidence, and the jury was, and that "beyond a reasonable doubt" was a higher standard the popular feeling.

  64. Ken says:

    Please see second update to post.

  65. Ken says:

    @C.P.S.: the separate sovereign doctrine is definitely very troublesome — though there are also some decent arguments for it. It's a subject for a separate post.

  66. ShelbyC says:

    A Quibble:

    "convicted of sexually assaulting a profoundly mentally and physically handicapped woman, a woman who clearly had no capacity to consent."

    Why is it clear that she had no capacity to consent? Some of the news outlets were reporting that she had the mental capacity of a three-year old, but that appears to have been a reading-comprehension fail of the opinion, and the reference has been silently removed from the news sites' pages (but not from sites like hufpo). ISTM that this woman may have had the capacity to consent, though of course it seems clear that she did not consent, and it would have been a slam dunk to prove that, had the state charged 53a-70(a)(1).

  67. Scott says:

    Ken, I've observed over the years that Antinous' "moderation" seems more like trolling – this isn't the first time I've observed this sort of comment pruning from him when people disagree with his views.

    I've considered their credibility shot for some time because of his actions – they've been pretty good lately with updating stories (such as the way Xeni did with this one as you note in the 2nd update) but they keep Antinous in the moderator position – I have no idea why.

  68. C. S. P. Schofield says:

    Ken,

    Thanks. I'll look forward to that more detailed post, if you ever feel like writing it. My gut reaction to the second trial was "They can't do that", but I also know that, even when it isn't being an ass, the law is often more complicated than that.

  69. Bill says:

    Never commented here before, but this post strikes me as worthy of breaking out of lurker mode temporarily. Because it's exactly why I stopped reading BoingBoing – I happen to like many of those people, and the topics they address, and found it to be an interesting source of news that you wouldn't find in the mainstream. Then I happened to find a topic I disagreed with enough to post and explain the position, and rapidly learned that since not agreeing with that topic meant you were part of the problem, comments that didn't agree with it were not welcome.

    As has been said – it's their right. It's their living room, or den, or whatever, and they can do what they liked. But it rapidly disillusioned me. They are not only living the very definition of cognitive dissonance, they're enforcing it in the comment blocks. And honestly, I can listen to an echo chamber all alone, I see no reason to send ad dollars their way just to do it online. And once you know that dissenting opinions are not even tolerated, let alone pondered rationally, then it doesn't seem like news anymore, but rather just propaganda.

    As for the real issue being discussed, I will say that I find myself *wishing* that the law were different, and that the person was not released on technicalities (and isn't all of law technicalities? Very technical discipline, it seems). But in enlightened self interest, I'd much rather have strong defense for the accused than strong powers to keep the accused in the system forever. I guess I'd rather have a criminal on the street than an innocent person in jail.

  70. Davey says:

    I see a big problem with the folks that want the law to be 'flexible' and allow the intention of the legal action to be considered – i.e., "he really is guilty, regardless of the technically flawed charge". I'm afraid of a legal system that bends like that.

  71. For thosw who favor random, ever-changing charges until something sticks…

    (more than 20 years ago, I could be mis-remembering some details)

    In Germany, a female airman accused a male airman of sexual assault. Male admitted encounter took place but insisted it was consensual. Authorities rightly took it very seriously, but rumors around the base started immediately: that the woman would and did jump on anything, and was a little strange besides. I discounted those rumors at first. Then the rumors started that this wasn't the first time she'd made such an accusation… only to recant.

    Male airman's attorney looked into rumors. Discovered this was the _third_ time the accuser had made a sexual assault complaint, during previous assignments at two different bases. In the two prior cases, she had recanted, and the authorities gave her immediate permanent change of station orders to new locations. Since the defense was based on a consensual encounter claim, attorney wanted to bring this up. Judge(s) said it wasn't germane to _this_ case. Trial starts.

    "Victim" admitted under oath that she _had_ consented, but decided the _next_ _day_ that she wished she hadn't and filed the rape complaint.

    "Court" then convicted the accused of "consensual sodomy" (oral sex), which he had never been charged with. I _think_ he was sentenced to two years in Leavenworth.

    The "victim" was never charged with making a false report nor her own participation in the "consensual sodomy". She very shortly after received yet another emergency PCS to somewhere else.

    People were _pissed_. I don't know if guys who feared going to prison for consensual activities between consenting adults were angrier than women who were [censored] [deleted] [yeah, this one, too] outraged that this woman had done so much to trivialize _real_ sexual assaults… and that the military let her get away with it. Three times.

    And I never understood why the woman wasn't discharged for — at the very least — mental instability.

    I lost track of the case after that due to my own PCS, so I don't know how the appeal went; maybe it got overturned. But it should _never_ have happened that way to begin with.

    But folks, this is what can happen if you let the authorities change charges after the fact, and imprison _you_ for whatever momentary impulse passes through their malfunctioning-blob-of-gray-they-call-brains.

  72. eddie says:

    "serious credibility problem for BoingBoing"

    Comedy gold.

  73. Lizard says:

    @Davey: I've heard this quote before. I think it's appropriate. From "A Man For All Seasons", which I've never watched.

    William Roper: So, now you give the Devil the benefit of law!

    Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

    William Roper: Yes, I'd cut down every law in England to do that!

    Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

  74. eddie says:

    "they keep Antinous in the moderator position – I have no idea why"

    Pageviews?

  75. Thad says:

    You know, I've always liked Antinous and appreciated his aggressive pruning of troll posts. I didn't see the original comments section, but from what you've said here it definitely sounds like he fucked up in this case and really DID go after reasonable arguments based purely on emotion. A pity.

  76. Hasdrubal says:

    However, I think a passable argument that she was mentally incapable of communicating lack of consent through any of the nonverbal methods listed could have been made and accepted by a different set of judges.

    I don't think it's that, really.

    The CT Supreme Court looked at a conviction for having sex with someone physically incapable of consent, where physically incapable was defined at another place in the law.

    There was evidence introduced in the trial (by the prosecution, even) showing that she could, in general, communicate whether or not she could consent to something. So she doesn't generally fit the definition of physically incapable of granting consent (the way a comatose person would, for example.) There was no evidence introduced to show that she was physically incapable of consenting at the time of the act.

    The court applied logic and came to the conclusion that none of the facts in the trial record showed that she was (under the definition in CT law) physically incapable of consenting at the time the act happened. Therefore the jury had erred in convicting him.

    No mood affiliation, no personal opinion, no distractions. That's what the jury did. Instead they asked if a very specific question had been answered. Think of it this way: The prosecution wrote a brilliant essay on the relationship between skirt length and the price of gold. Unfortunately, the exam question asked about the flight speed of an unladen swallow. It's easy to want to give him a good grade, but the Supreme Court was honest and gave him the F he deserved.

    Yes, she was probably mentally incapable of consenting. Unfortunately, that has nothing to do with the law Fourtin was convicted under. Therefore, that conviction should not stand. There are laws protection the mentally deficient from sexual predation, unfortunatelly the prosecutor decided not to use them to prosecute Fourtin and used a law about physical incapacity instead. There really isn't much room for opinion or feeling, the definition of physical incapacity is unconsciouness or the equivalent, and the evidence did not indicate that she was incapacitated in that way.

  77. Demosthenes says:

    Ken says:

    "'Well, hell, he didn't do what he's charged with, but he did something else awful' is tyrannical."

    Well, hell. He DIDN'T do what he was charged with.

    But he DID do something else awful. Something that was, in fact, just as bad as what he was actually accused of. I can see why that would stick in the craws of people who believe that courts are all about securing justice. I truly am sympathetic to those feelings.

    The problem with that view, of course, is that securing justice is ONE aim of a court, but not the only aim. Another is protecting rights, and a subset of that is following due process — you have the right not to have your rights violated, even if you yourself are a rights violator.

    Ken has it absolutely right. Convict this man of a crime for which he did not stand accused, and you mock the very idea of justice, even as you attempt to "secure" it. I don't know if this man can be retried…I don't know if double jeopardy would apply, though I think it probably would. If it doesn't apply, he should be brought to trial on the right charge post-haste. If it does apply, and this man gets away with what he did based on the fact that the charges brought were wrong, heads should roll at the DA's office.

  78. Josh M. says:

    Oh, Connecticut…My home state makes me shake my head sometimes, but I can't fault SCOCT here. I'll fault the prosecutors all day, but the SCOCT made the right call, as galling as it might be to a layman.

    As a progressive, I want to see vigorous protections for all, but at the same time, prosecutorial idiocy like this…It makes me wonder, why can you get a mistrial for defense incompetence, but not prosecutorial? Or can you, and I'm just being an ignorant non-lawyer?

  79. Luke says:

    Ken –

    What are your thoughts on the Michigan vs Evans double jeopardy case that will be going before the Supreme Court this session? The initial arson case sounds similar to this one, but with the acquitting judge being in error of what the statute required.

    Non-lawyer quick recap of case: Two statutes in Michigan for arson, one with a higher penalty specifically for houses and the other for non-houses. Defendant charged with arson for burning down a non-house building acquitted because the prosecution didn't prove the building wasn't a house. The Michigan SC ordered a new trial because the trial judge made an error in law.

  80. Ken says:

    @Luke:

    Evans, as I read it, is fairly narrow. What happened was that Evans was charged with burning a house. On Evans' motion, the trial judge directed a verdict of not guilty, based on the trial judge's incorrect legal finding that there was an additional element to the offense (that the burned house was not a dwelling) and the prosecution had not satisfied it. Everyone agrees that the judge got it wrong, and that was not actually an element.

    So the question is not whether you can be retried if the judge incorrectly instructs the jury resulting in the jury acquitting you, or if the judge rules based on the correct elements that the evidence was insufficient and directs a verdict. The question is narrow: if the judge invents an element and directs a verdict based on it, was that an acquittal for purposes of double jeopardy?

    On balance, I favor a finding that an acquittal is an acquittal even if the judge was wrong.

  81. Grifter says:

    I'm confused…SCOTUSblog says it was a "midtrial directed verdict"… why is that a thing? If midtrial the case should go away, shouldn't it be dismissed?

  82. James Pollock says:

    I don't think it was "prosecutorial idiocy" to charge under the wrong branch of the statute. If we assume that the prosecutor thought that both applied (which seems a reasonable, though not ironclad, assumption), (s)he chose the one that didn't require that he drag the victim into court and prove, as an element of the crime, that she is mentally deficient to the point of inability to consent. Whether that was a strategic decision or an act of mercy for the dignity of the victim, I can't say. Hindsight is 20/20.

  83. James Pollock says:

    "On balance, I favor a finding that an acquittal is an acquittal even if the judge was wrong."
    If I may so inquire, why? Isn't accuracy (of law and of outcome) the highest goal of judicial process, over finality? (This is, after all, why appeals courts exist at all.)
    If judges can acquit people regardless of whether they've committed the elements of the charged crime, aren't they taking on an enumerated power of the executive?

  84. JRM says:

    I'd recommend to those interested to read the actual case. It's quite informative; it appears to me that the prosecution had a colorable, but weak, argument based on case law. In California, going to out-of-state cases is a sign that you're in a particularly obscure area of law or one which the court is trying to puzzle out; I'm guessing it's more common in Connecticut.

    Several people raise Double Jeopardy – it's usually double jeopardy to prosecute someone on the same set of facts, and for good reason. Else, you could charge someone for one felony under the facts, lose, and try them again for something else (try them for attempted murder, lose; try for assault with a firearm, lose; try them for negligent discharge of a firearm, win! Yay! Or Boo!, depending on which side you're on.)

    James Pollack/1:13 p.m.: It looks like error by the prosecutor from across the country via the reports we have. I assume they could have charged in the alternative, and this particular victim…. I don't think it's insulting to say she's got serious mental deficiencies. Your scenario is plausible, though.

    (I'm a prosecutor.)

  85. SamanthaJ says:

    It strikes me as odd that no one has brought up Obamacare… Did the Supreme Court not re-write the legislation because technically it was unconstitutional? Isn't that what we expect all our judges to do when it just "feels like" the wrong result?

  86. Ken says:

    OK, @PhilG. Dramatic and narrative convention suggested that I should swear at you and call you an injustice apologist and delete all the comments, but I decided no one would get the joke.

    So let me pose a hypothetical:

    What if the CT Supreme Court had upheld the conviction and stated that her mental deficiency was enough to diminish her physical capability to the extent that she was physically helpless?

    The dissent suggests that some judges might agree with that interpretation of the law. If the court interpreted it that way based on an honest evaluation of the facts and law, even if I disagreed with it, I would recognize it as an application of the rule of law.

    Would you be damning those judges for setting precedent based on their feelings of mental disability affecting physical helplessness?

    That's a different question. If the judges said "all our precedent indicates that the evidence here was insufficient to convict under the established meaning of the words of the statute. But it would be unfair to let a rapist go free. So, notwithstanding the words of the statute and our precedent, to further the value that rapists not go free, we will re-interpret the words of the statute and agree that these facts are sufficient," then yes, I would be damning them.

    Would their decision not still be mob rule (albeit a mob of 8) because they felt that given X then Y?

    Well, no. Bad judicial rulings may be unjust or unprincipled, but they are not mob rule.

    Or do you think they would cite medical journals and hard scientific fact directly in their finding? Let's look at the definitions in the statute.

    There is obvious room for interpretation there and I think that it is just as believable that the court could have ruled in the other direction.

    Perhaps, from the raw words of the statute. I think the majority makes a compelling case that the prior decisions have already interpreted what those words mean, and they don't extend to what happened here. As I said, I'm not saying no judge could decide in the other direction. I'm saying that when judges make a decision based on established precedent, and it produces a result you don't like, that's not a civilized or just basis to lie about what the case said.

    There isn't a "rule of law" answer here, there is only the feeling that 8 people had that the victim didn't meet the definition of "physically helpless."

    I'm not clear, when you say that, whether or not you are taking into account all of the prior decisions interpreting the statute, or whether you are taking a fresh look at the statute and ignoring prior law.

    I don't really have a problem with the ruling, I think it's (probably) the correct one given the facts of the trial. I do have a problem with the idea that the rule of law is somehow not based on feelings and instead based on some objective impartial thing. The law is based on the whim of legislatures (who are elected based on the whims of voters, hellllloooo prohibition) and enacted by lawyers and judges who, last I checked, are still humans prone to those pesky human feelings. Until we replace the entire legal system with Borg, I think feelings are going to be an inextricable part of the law and if enough people feel that the law should be something it isn't, it might very well become that.

    /end rant

    Sure. But again, I'm fine with people having feelings about what the law should be. And though I am aware, as a legal realist, that feelings will play into analysis of facts and law, I'm criticizing coverage of legal matters that is primarily feelings-based — that is, premised on a visceral reaction to the result, not on a reasonably careful reading of actual decisions or any familiarity with the legal issues involved.

    Put another way: we have established processes for adjudicating disputes, and I am impatient with gut-level reactions that ignore the process in favor of being upset at the result.

  87. Careless says:

    So IANAL- this guy targeted a disabled woman, the feds can charge him with a hate crime for this now?

    " reasonable cause to believe that the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of any person was a motivating factor underlying the alleged conduct of the defendant"

    Reasonable cause to believe he wouldn't have tried to rape her if she hadn't been disabled? I don't think CT will object to the feds cleaning up their mess. Any other hurdles?

  88. Ken says:

    Careless: What statute are you quoting from?

  89. TheOtherMatt says:

    Sounds like 18 USC sec 249(a)(1), but 18 usc sec 245(b)(2)(B) fits better. assuming disability is a protected class

  90. C. S. P. Schofield says:

    Josh M.,

    IANAL, but my understanding is that the theory on which the principle of No Double Jeopardy is based in the assumption that The Crown (remember, were, coming from British tradition) should not be able to keep trying some subject the King doesn't like until something sticks. In the modern day the principle becomes a little more abstract, but I believe it should still hold. And the reason for that belief is the number of really bad laws (RICO being a case in point) written to satisfy the sovereign public's thirst for blood to "get" people who everyone (or at least a majority of voters) was 'sure' were guilty of something.

    The State can steamroller people into prison, regardless of actual guilt, and does so frequently. The State has a large range of advantages against most (if not all) defendants. The state should, therefore, be required to give it its best shot ONCE, and then pass on. If the defendant is a real scumbag, worthy of this principle being bent to 'get' him, then he almost certainly will give the State another shot at him without the rules getting bent. And no single criminal is as dangerous to life and liberty as the unfettered State.

  91. Nick says:

    Isn't it a bit unfair (to the government) to call the BoingBoing moderator "objectively, the government's stooge"?

    In the spirit of 'caring what the law is, not on how you feel about it': I know that this blog tends to be a bit down on the government for the not unreasonable reason that it's biggest player in town in terms of violating civil rights and due process. But just because you don't like it when the government does it, doesn't actually mean that violating civil rights is its goal, and this is a case where it's the government who's enforcing due process.

  92. Ken says:

    @Nick: you are missing the parallelism — he's the government's stooge in the same sense that someone explaining what the case actually said is a rape apologist.

  93. Gideon says:

    @James Pollock (1:13pm) comment: she did, in fact, testify during this trial. What she testified to is unknown, but neither the majority nor the dissenting opinion state that she testified about her reaction to the assault at the time it was happening.

    As to whether they'd require her to prove that she was "mentally defective", I think it would be no more than she was already required to do. The additional testimony would come from her doctors and mental health experts (which, I believe may also have been presented at this trial – look at the footnotes).

    So assuming that all the pertinent testimony relating to both subsections was already presented to the jury, then it was indeed prosecutorial idiocy to not pursue the other subsection.

  94. ElSuerte says:

    @rovingrambler @gideon
    Thanks for the explaination!

    I hadn't looked at the statute, so I had the impression that the rape of of a helpless person was 'worse' and a form of aggravated rape.

    That is to say, I thought that regular rape would have folded into helpless rape.

    I'm kinda surprised it was the lesser crime.

    Could the judge have instructed the jury that they could have made a finding of regular rape?

  95. delurking says:

    Ken is doing an admirable job of explaining to the objectors the legal points here. I would like to try to go a little closer to the root.

    I think what a lot of people are missing is this:
    In any complex rule-driven system involving many people, whether criminal justice, or torts, or taxation, or insurance, etc., there will be errors in both directions. In criminal justice and in torts, some guilty will go unpunished and some innocent will be punished. In taxation, some people will be forced to pay more than was intended, and some will pay less. In insurance, some will be unfairly inadequately compensated for losses, and some will be unfairly overcompensated for losses.

    So, here we have a case where a guilty person goes free because of an error by the prosecution. We have many people claiming that something needs to be done about this.

    The overarching point behind Ken's defense of due process is that a change in our due process rules that will prevent this sort of thing from happening in the future will NECESSARILY result in more innocent people being punished for crimes they did not commit. Now, game-theoretically, you could in principle come up with a poor system of rules where a rule change results in better overall accuracy, but our legal system has been around for long enough, and draws enough on knowledge of prior legal systems, that this is highly unlikely. It is far more likely that a due-process rule change will simply shift the balance between false-conviction errors and false-acquittal errors.

  96. PhilG says:

    @Ken On the one hand, thank you for the detailed response. On the other hand, I HATE YOU AND I'M NEVER TALKING TO YOU AGAIN!

    (I'm too scared to go against narrative conventions, blame Terry Pratchett)

    I'd like to jump back to a few of your other points but it's been a long day so that might have to wait until tomorrow but let me respond to this one bit.

    Put another way: we have established processes for adjudicating disputes, and I am impatient with gut-level reactions that ignore the process in favor of being upset at the result.

    If as a legal realist, great term by the way, you admit that the process itself has some involvement with feelings and gut-reactions (thus my petition to make crushing enemies, driving them before me, and hearing the lamentations of their woman legal, it is what is good in life after all) isn't a gut-level reaction to result not only to be expected but a valid way to go about changing the law? Understanding how it came about should be an important part of that (which was lacking here), but simply accepting the result and moving on because of that understanding seems just as dangerous. Call it educated mob rule, be upset at the process and the result.

    @C. S. P. Schofield I believe you are referring the legal theory first espoused in Benatar v HitMeWithYourBestShot

  97. Gideon says:

    @ElSuerte: "regular" rape involves the use of force, which is why it's a more serious crime. Interestingly, subsection (4) which I mistakenly used to argue that he could have been found guilty of sexual assault in the first degree actually is also very specific and is referring to someone who is drunk or high and can't consent: so essentially either a date-rape scenario or taking advantage of someone who is drunk.

    THAT scenario is deemed more serious than the one in Fourtin, which is a bit odd. In my opinion, at the very least they're on equal footing.

  98. Efemmeral says:

    Ken, barking was good but now you have barked up the wrong tree. Calling for Antinous’s head was wrong.

    Need proof? Imagine Popehat & Partners ran a moderated public lobby. Would your moderator operate in a vacuum independent of your approval? Unlikely. You would know what was happening.

    Antinous isn't the devil incarnate but he has engendered a lot of resentment. You should have spanked Cory/Mark/Xeni /Rob for the lobby thuggery.

    Your opinion carries weight over there. That is why they back peddled so fast. Don’t encourage them to throw Antinous under the bus. Encourage them to grow up.

  99. ShelbyC says:

    @Gideon, I'm not sure why he couldn't have been found guilty of first degree sexual assault under subsection (1). The jury instructions say force can mean "superior physical strength" and under the circumstances ISTM that the force required to complete the act would be sufficient.

  100. Gideon says:

    @ShelbyC: I was referring to subsection (4). As to sub (1), however, you may have a point. Typically, though, the force or use of threat of force, while possibly superior physical strength, is used to reference using that force to get someone to submit to sexual intercourse by either hitting them, pinning them down or overwhelming them. I'm not saying it can't be proven, but it's certainly a longer shot than Sex 2.

    Further adding to the uncertainty about Sex 1 (1) is that we have absolutely no idea how this went down or what she testified about it.

  101. Duracomm says:

    Defense attorneys provide a critical, under-appreciated service. The link below shows why.

    Hickory man found innocent after 24 years in prison

    NEWTON, N.C. — A man who spent almost 24 years in prison after he was convicted of rape has now been found innocent of the crime.

    Grimes' lawyer presented evidence during the weeklong hearing that showed police did not question a half-dozen people who said Grimes was somewhere else when the rape happened.

    They also showed that two fingerprints found at the home where the rape happened were linked to another man, who has been charged with several rapes during the 1970s.

  102. ShelbyC says:

    @Gideon, thanks. Out of curiosity, if the force used here were not sufficient for 53a-70(a)(1), what would the charge be in a case without the capacity issues? Say the woman were fully compentent and verbal, but unable to resist? ISTM that that would be a pretty big loophole, no? Or am I missing something?

  103. LadyTL says:

    I think in regards to the comments and feelings behind being accused of being a rape apologist is due to people not wanting to understand both the complexities of law and the complexity of issues behind rape. It's more comfortable to them to think of rape as a black and white area where everything is clear cut. There is also the feeling of wanting the law to stand for what they stand for personally when often that may not be the case in the protection of innocent people. I dealt with similar accusations when talking about false rape accusations and people talking about how if they weren't true then the accusation wouldn't have been made in the first place.

  104. Gideon says:

    @ShelbyC: So we would have to assume: 1) that the victim can verbally state unwillingness to consent; 2) that there is absolutely no force whatsoever used, and; 3) the victim has no control of any physical movements.

    The only scenario I can imagine is someone who is paralyzed from the neck down. Assume that's the case. I think you can make the argument that superior physical strength is required to have that person submit to sexual intercourse without their consent. So that would be Sex 1.

    It also depends on the relationship between them: if there is any relationship that's prohibited by statute, that's a Sex 2.

    If we're assuming that this is a stranger attack and all the above caveats are also true, then I think you're right and there is really no statute that addresses that situation, but that to me seems rather a far-fetched scenario. In reality, especially with someone who is paralyzed, there will always be the use of some force or superior physical strength to engage in sexual intercourse.

  105. bacchys says:

    Good post, and dead on. There's a difference between liberals and progressives, imo, and these kinds of issues highlight that difference.

    On your GTMO analogy: I've never bashed any lawyer for defending a client, let alone those doing so pro bono for detainees at GTMO. It would be nice, however, if those who think detained enemy combatants- lawful or otherwise- must be charged with a crime in order to be detained would familiarize themselves with the Law of War.

  106. M. says:

    You know, this blog really is quite the fortress of sanity in the middle of the visceral emotion-ruled shit ocean that is the Internet. I'd honestly expect to get DDOSed off the Internet if I made a post like this (or Gideon's).

  107. different Jess says:

    bacchys: What is the "Law of War"? Does it override the Constitution? Does it require prisoners to be tortured?

  108. On a much, much, much smaller note – really, I need to emphasize just how much less significant this is than the case described above – I once received a parking ticket because I was "parked on the sidewalk". In fact, I was parked improperly within the confines of the teacher's parking lot of my high school. I tried to fight it, but my efforts were fruitless. Perhaps it would have helped if I knew this was a Sixth Amendment issue.

    I like that you called out that moderator, Ken. His actions, like my parking ticket story, are relatively minor, but, like my parking ticket story, are rather frustrating. I hope he looks back on this in short order and realizes how silly he has behaved.

  109. @Efemmeral – I disagree. Antinous has been more of a troll with authority than a moderator for years. This isn't a new development for him.

    But as has been pointed out, moderation in general at BoingBoing has always been lacking. And given her track record on memory holing people and things she doesn't like and not admitting to it, I don't trust Xeni Jardin any farther than I can throw her.

  110. V says:

    @ShelbyC
    thanks for you answer to @Brid F's "What was the correct charge?". I had been wondering myself if they couldn't have charged with multiple rape/non consensual sex statutes.

  111. I remember this case from Western Australia a few years ago. Somebody successfully pleaded self-defense against a charge of assaulting a police officer in a way that apparently the writers of the law hadn't intended. Said officer had been left partially paralysed by the attack.

    The response to this problem, from the WA Attorney General, was to suggest restricting the accused's right to silence and reducing the exemptions available for getting out of jury duty. Because that's the real problem in this story that needs fixing.

  112. Anonymous says:

    @bacchys:
    "On your GTMO analogy: I've never bashed any lawyer for defending a client, let alone those doing so pro bono for detainees at GTMO. It would be nice, however, if those who think detained enemy combatants- lawful or otherwise- must be charged with a crime in order to be detained would familiarize themselves with the Law of War."

    Now I of course cannot know what kind of idiots have written the arguments that you've read, but it is not so much that they must be charged to be detained, and rather that they must be charged if they are detained as criminals, rather than as prisoners of war.

    The old administration and, to my shame, the new administration, operate with a policy that is on shaky legal ground. During war you can take your enemies prisoner and not charge them, yes. These are called "Prisoners of War" and are to be released when the war is over.

    Since we are no longer at war with Afghanistan and no longer at war with Iraq, those all need to be released.

    Then there are the prisoners you detain because they are criminals. They may be accused of having attacked you without being in uniform or otherwise identifiable as soldiers. They may be accused of having stockpiled weapons. They may be accused of planting bombs, or encouraging others to do the same. What they may NOT be is detained without charge, which is apparently what the administrations old and new do.

  113. David Schwartz says:

    "I'm confused…SCOTUSblog says it was a "midtrial directed verdict"… why is that a thing? If midtrial the case should go away, shouldn't it be dismissed?"

    If the State finishes putting on its case and there's insufficient evidence to permit a reasonable Jury to return a guilty verdict, the Defendant is entitled to a not guilty verdict.

    "Well, there's the question of WHY double jeopardy applies IF the only reason for dismissal is that the person was charged under the wrong section of the statute, AND this wasn't known until the case reached the state Supreme Court."

    Double jeopardy applies because the guy was charged with a crime, the State made the best case it could, and the guy was found not guilty.

  114. Mike says:

    One question comes up here for me. I'm a veterinarian, not a lawyer, but malpractice is part of both professions. Should this prosecutor be brought before the bar for malpractice, since They misapplied a statute fairly egrigeously? How "severe" a mistake is this? Does this fall under the heading of "professional judgement", or is it a clear error?

  115. Grifter says:

    @David Schwartz:
    I should have gotten that. Durr. I don't think I really processed midtrial as literal. Thanks.

  116. Grandy says:

    If Due Process made me feel like rainbows, would you care?

  117. Kevin Horner says:

    BoingBoing has a huge credibility problem: Cory Doctorow. But I'm a hater, so ignore me as usual. :)

  118. Josh M. says:

    @CSPS: Point well taken. The State gets its one shot, and if they screw up, well, better that a guilty man go free than an innocent man be jailed (and, as you say, a guilty man will almost assuredly give the State more opportunities to try him, if he truly is a bad person).

  119. bacchys says:

    @ different Jess:

    The Law of War is a set of conventions between nations that govern conduct during times of war. A good reference can be found at the Avalon Project: http://avalon.law.yale.edu/subject_menus/lawwar.asp

    @ Anonymous:

    Not quite. Being an unlawful combatant isn't necessarily the same thing as being a war criminal. It's a status, not a crime. As far as I know, no detainees from Iraq were ever sent to GTMO. We weren't at war with Afghanistan, especially after we ousted the Taliban and installed a more friendly government, but we were still at war in Afghanistan and we still are. As the hostilities continue, we have the legal authority under the Law of War to continue to detain enemy combatants. Prisoner of war status is reserved to lawful combatants: Geneva III (Geneva Convention (III) Relative to the Treatment of Prisoners of War; August 12, 1949) is quite explicit about the definition of prisoners of war and lawful combatants. Those who don't meet the definition of lawful combatant are unlawful combatants and aren't afforded the right to prisoner of war status. That doesn't mean an enemy combatant can't be detained until the end of hostilities simply because he wasn't a lawful combatant. An unlawful combatant does not have more rights under the Law of War than a lawful one.

    The Convention also lays out the process by which disputes over such status are to be resolved. It's far from a perfect or fair process, imo, but it is what the Powers of our world have agreed to. In a nutshell, the belligerent parties can either negotiate the issue or request a neutral Power to arbitrate the dispute. For those detainees not from Afghanistan, their home nations can negotiate with the U.S. on their status or for their release, and that is what happened in the cases of hundreds of GTMO detainees.

  120. Mairead says:

    I've not read all the comments, so I might be echoing someone else, but there are plenty people who describe themselves as "progressive" or similar for broadly the same reason hideous dictators label the countries they oppress as "Democratic Socialist Republic" or similar: they want the cachet.

    "Democratic" and "socialist", like "progressive", have long been recognised as very good qualities for a country or person to have, so is it really surprising that totalitarians and the hard-of-thinking would claim the label even tho their actual behavior is exactly opposite?

  121. Max Kennerly says:

    You write, "progressives are not reliably supportive of due process," thereby implying (at least as I read it) that conservatives are reliable defenders of due process. They are not.

  122. Ken says:

    @Max: No. It means the opposite. The stereotype is that progressives are more likely to be pro-defense and support due process. It's not true. The context makes it quite clear, I think, given the language about what conservatives have said.

  123. James Pollock says:

    "Double jeopardy applies because the guy was charged with a crime, the State made the best case it could, and the guy was found not guilty."

    Um, not so fast. A literal reading of this sentence suggests that once you've been charged with a crime, YOU CAN NEVER BE CHARGED WITH ANOTHER CRIME. I don't think that's what you meant to say.

    Here's the analogy (I like analogies). Suppose Joe Defendant, angered for reasons of his own, shoots at my house. For the sake of simplicity, let's assume that there are no evidentiary issues; several highly credible witnesses not only observe the action but several also record the action with cell-phone cameras. Now the overworked and underpaid prosecutor misreads the case file, notes that a FIREarm was used on a HOUSE, and charges arson. For some reason, the judge allows the trial to proceed AND THE JURY CONVICTS. Upon appeal, everyone is surprised to learn that using a FIREarm on a house is not covered by the state's arson statute, and thus the conviction is overturned. Nobody, I think, has a problem with this part of the equation… he's not guilty of arson because he's not guilty of arson.

    Our current interpretation of what double jeopardy means, however, is that because he's not guilty of arson, he's not guilty of anything else, either, and thus cannot be tried for the offense he actually committed. This, I think, is what people find objectionable. (And, although rule of law means that sometimes the unpopular side wins, it's when cases come out in ways that FEEL wrong to the public that support for law, and lawyers, wanes.) I suggest that this is such a case.

    Here, we're not talking about a case where the prosecutor tries for attempted murder, loses, then files charges for assault, loses, then tries for unlawful discharge of a firearm within city limits, loses, and then tries for littering for the shell casing on the street. It's not a case of vexatious prosecution; the prosecutor (apparently) acted in good faith but made an error that also escaped notice of the judge and (perhaps) the defense (because it was an issue of law that hadn't been decided yet).

  124. aczarnowski says:

    At 123 comments you've probably already heard this but:

    Thanks for writing another great post Ken.

  125. GT says:

    This is a great post, but the "This is how I feel" approach to legal issues is actually much more problematic – the political machinery is more than prepared to exploit 'victim as expert' tabloid-journalist approach to matters of the rights of the accused, the conduct of courts, and the statutory basis upon which everything depends. And all based on a logical framework that is about as sensible as the witch trial in "Monty Python and the Holy Grail".

    So in Australia (specifically, Victoria) we have
    * the removal of the right to silence and the common law privilege against self-incrimination: 500 years of progress away from the Star Chamber, reversed. Of course it only applies to "organised crime offences" (under the Major Crime (Investigative Powers) Act 2004 (Vic), these are ridiculously broadly-defined – any crime with more than two perps, really)… and of course there's no way that these powers, once normalised by application to 'the worst of the worst', won't be extended to the rest of the herd; and

    * the abolition of the defence of 'provocation' (as a mitigating circumstance to, e.g., homicide): again, a defence with a 500-year history is dispensed with because someone somewhere feels that some defendant didn't get the sentence they deserved. And of course that won't ramify, either.

    Here's the thing: the justice system is bad enough – typical of monopoly-provided products and services, especially those furnished by government. It is bad enough that the best barristers don't become judges (who wants a 70% pay cut to sit on the Bench?); but what should by now be dawning on people is that the worst human beings in existence become legislators. So we should expect hard-won rights that raised us from feudal serfdom will b progressively undermined – always in response to one of Mecken's "endless series of hobgoblins, most of them imaginary".

  126. AlphaCentauri says:

    I'm not going to jump to conclusions about the statute the prosecutor chose without knowing what the defense strategy was. He didn't plead guilty. No one seems to question whether he had sex with her. So what was his explanation of why he shouldn't be charged with rape?

    Did she kick and bite and scream during the attack? If he claimed that the kicking and biting was his idea of enthusiastic participation in consensual sex, the prosecutor may have felt it was most appropriate to try to prove that no matter whether she did, he should have known she wasn't capable of giving consent. Maybe she kicks and bites when people feed her or do other things she could be assumed to be consenting to? Maybe she engages in self-abusive behavior, like biting herself and banging her head? It may be the prosecutor believed that no matter whether she kicked and bit or not, one could not reliably interpret those movements as giving or withholding consent, that one could conclude she was physically unable to give consent because she is physically unable to express herself through words or motor activities, that the defendant should have been able to conclude that as well, but that he's too much of a sociopath to plead guilty.

    In that case, the supreme court is ruling on the events rather than the law by second guessing whether the jury's interpretation of her kicking and biting behavior was meaningful communication.

  127. GT says:

    @James Pollock – I think you've made a rookie error with respect to the test for double jeopardy. As I understand it, the State may not bring two (criminal) proceedings for the same fact situation.

    So if the facts are as you outline, and the State decides to hang its hat on the arson statute (and wins, and is overturned on appeal) it cannot then try Joe Defendant again for something else based on the same events.

    It's not clear to me why people think that the State – with its vast resources relative to the overwhelming bulk of potential defendants – needs any further help by permitting it to get away with procedural incompetence. The 'equality of arms' doctrine is a silly myth in procedures involving the State: the State has the police investigatory powers; the access to forensic analysis budgets that dwarf most citizens'; forensic analysts that see themselves as part of the prosecution team à la CSI; and the all-too-common public perception that defenders are 'dodgy' simply because they hang around criminals a lot.

    In the US you already have almost-unqualified prosecutorial immunity (whereas I believe that the exact opposite should be the case: if a prosecutor proceeds – using public money – and loses, he ought to be forced to cover the costs out of his own funds); judges that obtain and retain their seats by prurient appeal to the mob (the UK/Oz/NZ system is no better – those who pander to the political class get to the Bench); a system that is exorbitantly costly and which depends critically on bludgeoning defendants into plea-bargains by holding out the prospect of charging under alternatives that invoke life in a Supermax… and if you are drawn into the maw, you are fucked.

    Frankly, I am absolutely stunned that a court somewhere found for an appellant in a situation such as the one outlined in the main post: not because it's a bad decision (because it's not) but because judges are generally not very bright (they're certainly never the best legal minds or the most accomplished advocates).

  128. Grifter says:

    @James Pollock:

    Your Joe Defendant should not be charged again. He shouldn't have to spend the rest of his life defending himself…"Oh, we shouldn't have done arson, we should have done firearm discharge…wait, that wasn't enough? Let's try explosives this time…okay, how about projectiles…let's do noise ordinance…"

    The point is the state has infinite resources, they get their one shot and if they fail they don't get to keep going.

  129. GT says:

    Oh, and one more thing (which is germane to both "This is how I feel" legalising AND double jeopardy)… in Australia (specifically Victoria and South Australia), double jeopardy has been undermined by statute since 2008 for … wait for it… "serious offences" (those involving sentences of more than 20 years).

    The State may re-try those ofund not guilty if there is …wait for it … "new and compelling evidence of guilt" or if the acuittal was "tainted" (by perjury, for example).

    This all happened as a knee-jerk, politically-expedient reaction to R v Carroll (among other cases) – the defendant was convicted, acquitted on appeal, was later charged with perjury related to his alibi. (The prosecution case also hinged on now-known-as-laughable "bite mark" evidence).

    And lo, another common law protection goes away – all in the name of making sure that 'the worst of the worst' don't go unpunished.

    Meanwhile – thinking of the 'new and compelling evidence' test that the State must satisfy to overturn double jeopardy… what is the test if you're the accused and you want a re-trial based on 'new and compelling evidence'?

    Simple: you get told to fuck off unless you can couch your appeal in a matter of law or procedure: matters of fact are not causes in action for criminal appeal.

  130. GT says:

    Dammit – wish I could edit my comments… I should also point out that R v Carroll was emotive because it involved a strangled baby girl.

    So… man accused of strangling baby (and biting her repeatedly, post-mortem, on the thighs); probably lies in his alibi evidence; is convicted; has conviction overturned on appeal… and the State is then prevented from proceeding against him for perjury in his alibi evidence.

    All very shocking stuff – and if you're legislating from the point of view of a 50 year old subscriber to women's magazines, you want to bring back the strappado, get a confession, and burn the motherfucker at the stake.

    And guess what? We're part way back to the fucking strappado:

    * double jeopardy: gone.
    * right to silence: gone (5 years penalty for refusal to answer any question).
    * defence of provocation: gone.

    Of course, these are only 'gone' for the "worst of the worst"… until they're broadened. Likewise, warrantless wiretaps were always about kiddie-fiddlers and terrorists… until they were for everyone.

    And of course if you've done nothing wrong (ever) you have nothing to fear… until something you did when it was legal is made retroactively illegal.

    But that could never happen right?

  131. GT says:

    Gah… the facts of R v Carroll are outlined in the appellate judgement – R v Carroll [2001] QCA 394 (21 September 2001); AustLII does not have the original judgement (from 1985).

  132. GT says:

    @AlphaCentauri – the defence strategy is not particularly relevant. In most jurisdictions one cannot consent "by action", so whether a rape victim 'resists' is not relevant to determining consent: in particular, when it comes to determination of consent, the law contains specific protections for children and the mentally handicapped (are we even allowed to use that word any more? Perhaps nowadays I am supposed to say "Otherwise-totally-fabulously-capable-and-worthy-of-a-Nobel-Prize-in-Something"… TL;DR – retards get more protection than us norms).

    It was entirely open to the prosecutor to run with a case based on a statute that hinged solely on the manifest lack of competence of the victim to give consent, viz. s53(a)(1)C – as was mentioned by Gideon in the post cited by Ken. That ought to have been a slam-dunk given the (limited) evidence adduced regarding the mental age of the victim. That they didn't is evidence of incompetence.

    When someone drops the ball to that extent, their career should be fucking OVER. They ran the wrong trial.

    If you were a defence barrister in my home State and you did the equivalent fuckup (e.g., tried to run a defence for assault when your client was charged with murder) you would stand a good chance of having your licence pulled (or at least suspended).

    Instead, this prosecutor seems to have got off scot-free, and as a diversion we have a bitchfest in the 'progressive' circle-jerk-o-sphere about how judges are letting off rapists on 'technicalities'.

    The whole thing about the massively-asymmetric power-relations that are involved in "R v" (or "State v") cases, is that the Crown (or the State) gets one shot to get it right. It's some TINY way to ensure that the State cannot simply hammer an individual to mush. As it is, accused knows that the State is better resourced than he is, and that's why about 90-odd percent of cases result in pleas: not because they're guilty – as Judge Judy might claim – but because they make a benefit-cost analysis of whether to take on .gov, knowing that the prosecutor's promised to try to send them to a windowless room in perpetuity. (And I'm not talking about Alford pleas here).

  133. GT says:

    Oops – sloppy writing. The victim's resistance or otherwise is not probitive of lack of consent, but if they are shown to have resisted the rape charge will be aggravated.

  134. GT says:

    Dammit… 53a-71(a)(2). Stupid citator copypasta error. I should be fired.

  135. James Pollock says:

    "@James Pollock – I think you've made a rookie error with respect to the test for double jeopardy."
    GT, I think you've made a rookie error with respect to reading comprehension. You've confused my statements of what is (the current understanding of what double jeopardy is) and what might be (some other understandings of what double jeopardy could be).

    "So if the facts are as you outline, and the State decides to hang its hat on the arson statute (and wins, and is overturned on appeal) it cannot then try Joe Defendant again for something else based on the same events."
    Yes, which is why that's what I said, specifically, I said:
    "Our current interpretation of what double jeopardy means, however, is that because he's not guilty of arson, he's not guilty of anything else, either, and thus cannot be tried for the offense he actually committed."

    Grifter, this part is also for you:
    Double jeopardy exists to serve two purposes: First, it prevents the prosecutor's office from engaging is vexatious prosecution; second, it exists for judicial economy (in general, ANYONE using the courts to resolve legal issues is expected to bring all the claims they have to be adjudicated at once; failing to bring all your complaints acts as a waiver of the ones not raised, and there's no reason to excuse the prosecutor from this general rule.)
    The prosecutor filed charges based on an understanding of the law at the time (an understanding that was shared by the trial court judge, or the case would have been dismissed before jury selection, which is when jeopardy attaches) and didn't learn that that particular statute doesn't apply to that particular set of facts until the state supreme court decided that it doesn't… after the trial. Assuming that other protections against vexatious prosecution are in place (such as, say, the state picking up the tab for the defendant's expenses in defending the wrong charge and the appeal), what logical reason is there to not let the people have a stab at convicting him of the correct charge (assuming there is a statute that applies)?

  136. James Pollock says:

    "Meanwhile – thinking of the 'new and compelling evidence' test that the State must satisfy to overturn double jeopardy… what is the test if you're the accused and you want a re-trial based on 'new and compelling evidence'?

    Simple: you get told to fuck off unless you can couch your appeal in a matter of law or procedure: matters of fact are not causes in action for criminal appeal."

    This is generally true in American law, as well… the facts of the case are established by the trial court and are not re-litigated on appeal. If substantial evidence showing actual innocence shows up after trial, the proper response is not to petition the courts for a new trial, but rather, to petition the executive for clemency. One the one hand, the executive is a political branch, and therefore the action on your clemency petition are subject to the whims of political expediency. On the other hand, the executive may act immediately in a way the courts simply cannot. Best to avoid being wrongly convicted in the first place, I guess, although I've no advice for achieving this goal other than clean and virtuous living.

  137. Barbara says:

    James, you said this: "The prosecutor filed charges based on an understanding of the law at the time (an understanding that was shared by the trial court judge, or the case would have been dismissed before jury selection, which is when jeopardy attaches) "

    Now, I'm not a lawyer, but my understanding is that the judge has no say in what charges the prosecutors choose to try under, and has no right to say "Hey, are you sure you want to charge him under statue? I think you've got the wrong one." Besides that, the judge cannot be presumed to know beforehand the things that will be testified to during the trial; in this case, whether or not the girl was capable of communicating lack of consent.

  138. Ken says:

    The prosecutor filed charges based on an understanding of the law at the time (an understanding that was shared by the trial court judge, or the case would have been dismissed before jury selection, which is when jeopardy attaches) and didn't learn that that particular statute doesn't apply to that particular set of facts until the state supreme court decided that it doesn't… after the trial.

    No. The judge does not evaluate the weight of the evidence before jury selection. The judge can only evaluate the weight and sufficiency of the evidence after the state puts on its case. Here, after the state put on its case, the defense moved for a directed verdict based on the same theory the Court of Appeal and Supreme Court agreed on; the trial court denied it.

    Check out footnote 20:

    Indeed, as the Appellate Court suggested; see State v. Fourtin, supra,
    118 Conn. App. 49; this appears to be a case in which the state ultimately
    proceeded against the defendant under the wrong statute. Originally, the
    state also had charged the defendant with sexual assault in the second
    degree in violation of § 53a-71 (a) (2), attempt to commit sexual assault in
    the second degree in violation of §§ 53a-71 (a) (2) and 53a-49 (a) (2), and
    sexual assault in the second degree in violation of General Statutes (Rev.
    to 2005) § 53a-73a (a) (1) (B), all of which require that the victim be unable
    to consent to sexual intercourse because the victim is ‘‘mentally defective
    . . . .’’ Because the evidence established that the victim’s cognitive abilities
    are significantly limited, the state could well have prosecuted the defendant
    under those provisions. The record does not indicate why the state decided
    not to do so and opted instead to pursue charges requiring proof that the
    victim was physically helpless. By electing to prove that the victim was
    physically helpless rather than mentally defective, the state removed from
    the case all issues pertaining to the victim’s mental capacity to consent to sex.

  139. David Schwartz says:

    James Pollock: This gives the Prosecution two bites at precisely the same apple, which is exactly what the rule against double jeopardy was supposed to prevent. Once jeopardy has attached, the bar against a second prosecution applies. Had the Prosecution won on this legal argument, the guy would have gone to jail. Now the Prosecution wants to make a second attempt at criminal penalties for precisely the very same conduct. The only difference is that the Prosecution now wants to try a different argument since their first one lost.

  140. Grifter says:

    @James Pollock:

    I already addressed your point in my response. That the State did a bad job is not a reason that they should be able to prosecute again.

    What's the philosophical difference between doing it because they used the wrong statute vs. using the wrong evidence or witnesses, or theory of motive? "We said in trial that he did it for money, and the defense conclusively proved that he didn't do it, and that there was no money anyway. Let's charge him again, but this time, let's say he did it out of jealousy!"

  141. JJB says:

    I have been the object of Antonius' wrath for asking questions which have put Antonius in a bad position as well as for simply disagreeing. I have been amazed at the vitriol directed an me and others. I have been a bog Cory Doctorow fan and eagerly read everything he wrote and bought his books. I am aghast that he allows this to go on without comment or protest especially when I am commenting on something he posts. The internet is a big place and my visits to boingboing are becoming less and less. I guess when you reach a certain size you can be rude, inconsistent, and dismissive of long-time "customers" and not feel any consequences.

  142. James Pollock says:

    "What's the philosophical difference between doing it because they used the wrong statute vs. using the wrong evidence or witnesses, or theory of motive? "We said in trial that he did it for money, and the defense conclusively proved that he didn't do it, and that there was no money anyway. Let's charge him again, but this time, let's say he did it out of jealousy!"

    What's the difference? You find out that you used the wrong evidence or witnesses or theory of the crime AT THE TRIAL. This is different from learning that the statute that you thought applied, doesn't apply as a matter of law, long after the trial is over, that's fundamentally different. It's a fairly narrow category and doesn't seem likely to be abused (I say this not because of an idealistic premise that prosecutors never abuse their power, I say this because if a predisposition to abuse exists, there are far easier ways to go about it.)
    As it stands now, the courts have produced an inaccurate result. It is unfortunate truth that no system can produce 100% accuracy, but it stings to see a person walk free not because they are innocent of any crime, but because the prosecution proceeded on the wrong theory of the crime. (yes, yes, better a guilty man walks free than an innocent one is jailed, etc. Still stings.)

  143. different Jess says:

    @bacchys

    Congratulations, you've answered the rhetorical question and ignored the two literal ones. Here I'll help you: Of course, the conventions collectively referred to by some as "the" law of war do not override the Constitution, and they also do not require the barbarities of Guantanamo Bay and other assorted dungeons maintained by our rulers around the world, so this law of war crap is doubly a red herring. Since such facilities and practices are forbidden by the Constitution, this lawlessness is clearly just an excuse for the military-industrial complex to waste billions more taxpayer dollars.

  144. Grifter says:

    @James Pollock:

    Your rebuttal is not true for, say, the example I listed regarding motive.

    In that case, the prosecution should know money isn't a motive, but doesn't. Just like if they're going to try to put someone in jail, they should be doing it under the right law, but didn't.

  145. Reuven says:

    People believe what they want to believe, and some crimes are considered so "distasteful" that it's difficult to get a fair trial. (Did you take a good look at the evidence against Sandusky? They even used "recovered memory" testimony. But god help you if you don't take the party line on that case.)

    Combine that with armchair attorneys giving "legal advice" and you have a mess.

  146. htom says:

    BoingBoing banned me a long time ago, I don't remember why. I'll live.

    This case … what bothers me most is that the prosecutor seems to be getting off with being really stupid. Why wasn't the rapist charged with both rape and the special rape? And I have to admit I wonder if this "charging error" was not intentional on the part of the prosecution.

  147. James Pollock says:

    Grifter, you're missing the point. When the charges were filed, they were valid and applicable. They didn't become invalid and inapplicable until the authoritative court says so.
    Your "money is/isn't the motive" analogue isn't a good match, because it didn't change.
    When the charge was made, it was applicable (not, apparently, the best match, but that's said with hindsight.)

    Try this. Suppose you fire off a shotgun into the air to celebrate new year's day arriving. Nobody gets hurt but the neighbor complains about the noise, the cops show up, and when asked if you discharged a firearm, you are forthright and honest and immediately admit it. You get arrested, and the prosecutor decides to charge you with discharging a firearm within the city limits.
    Here's where we branch.
    In branch #1, your careful and thorough lawyer produces evidence that only part of your property is actually within the city limits, and you were standing on the part outside the city. You get acquitted.
    In branch #2, it turns out that you are within the city limits, but the statute that criminalizes discharging a firearm within city limits has separate branches for handguns, long guns, and a catchall that includes "any device that propels a solid object by explosive force" (no more potato cannons, although trebuchets are allowed). The prosecutor charges you under the "long gun" branch, and you get convicted. Under appeal, however, the appeals court notes that shotguns are not "long guns" under the statute because in the statute, the definition of "long gun" includes a rifled barrel. Categorically you have NOT discharged a long gun within city limits, conviction overturned.
    Branch #3: Same as branch #2, EXCEPT that the definition of "long gun" requiring a rifled barrel does not exist in the statute. The appeals court announces a rule in your case that the definition of "long gun" implies a rifled barrel, and overturns your conviction. Again, you walk.

    OK, branch #1 is a mistake of fact. In that one, you get to walk because you actually haven't broken the law. Branches #2 and #3 are mistakes of law. Note how #2 and #3 are different… in #2, the definition was there all along, and the prosecutor missed it and the jury didn't think it mattered, but it does. In this case, the prosecutor's error costs the people their chance to punish a fiendish lawbreaker. Assuming it was an ADA who made the mistake, this is going to show up in the annual performance review (and if it was the DA who made this mistake, it may come up when the DA stands for re-election). In #3, the definition didn't exist at the time of charging, or of the trial. A little bit tougher to blame the prosecutor for that, IMO, except with hindsight.

  148. Grifter says:

    @James:

    I disagree. This was just add much a mistake of law. The high court didn't set a new precedent, after all, they merely reaffirmed previous precedent in a way they hadn't specifically before. Besides, even in MY unschooled reading of it, I know the prosecutor was wildly wrong. And I don't know any one else who had made a serious effort to defend the prosecutor as having no idea what the right statute was, but rather clearly MAKING A MISTAKE.

  149. James Pollock says:

    "The high court didn't set a new precedent, after all, they merely reaffirmed previous precedent in a way they hadn't specifically before. "

    Huh?

  150. Grifter says:

    @James Pollock:

    I was unclear. I was saying that there were no real new precedents here, even if this specific application to the letter hasn't been done before.

    Have you read any of the case documents?

    Your argument has been that the state "couldn't have known" that the argument they were using was wrong. They were overturned immediately on first appeal, and fought it up to the supreme court, where they lost again, so they knew as soon as it was appealed. Even sooner, in fact. The fact the prosecution had done nothing to establish their burden was brought up midtrial, but the trial was allowed to continue to deliberations.

    To quote the decision:

    "The prosecutor expressly told the
    jury during closing argument that the victim, ‘‘according
    to all accounts, was very vocal, very active, and, if in
    fact she felt that . . . [people were not understanding]
    what she was saying, I believe [that] everybody [who
    has] testified here [has indicated that] she would throw
    up her arms and say ‘stop.’ ’’ During closing argument,
    the prosecutor also noted that the victim was ‘‘very
    limited in terms of . . . what type of information she
    can pass on to you,’’ and that she had ‘‘some difficulty
    expressing herself . . . .’’ At no time, however, did the
    state even raise the notion that the victim was unable
    to communicate an unwillingness to an act."

    In response to a statute that quite obviously required inability, the prosecutor said in his closing arguments that there was ability. That's just incompetent, and it's quite obvious the jury found him guilty because they couldn't countenance letting a rapist go free. I don't blame them, frankly. But our justice system requires more than that.

    "During deliberations, the jury sent a note to the trial
    court in which it requested a transcript of the victim’s
    testimony and clarification of the legal definition of
    ‘‘physically helpless.’’ In response to the latter request,
    the trial court simply reiterated the statutory definition
    that it had provided during its original charge."

    I am saying that they did not set any new precedents. "You have to actually be guilty of what you're charged" has been the rule for quite some time, and the prosecution's ostensible legal theory was ridiculous.

    "With respect to whether the victim was
    physically helpless at the time of the alleged assault,
    the prosecutor argued that the jurors could find that
    she was because, like an infant, ‘‘[s]he is totally depen-
    dent on others.’The prosecutor’s contention that the
    victim was like an infant in terms of her physical depen-
    dency was the only argument that he made at trial
    with respect to the physically helpless prong of the
    charged offenses."

    To the appeal, their response was
    "even though there
    was testimony ‘‘that [the victim] would screech, bite,
    or kick to indicate displeasure, fear, resistance, or some
    other negative emotion, it was undisputed that [the
    victim] was nonverbal.’’

    She can't talk, so therefore of course she's physically helpless.

    Now I may be just be a simple country Hyper-Chicken, but come on, even I can see that's not a competent legal theory.

    There are arguments the prosecutor could have presented to try to establish that required element of the crime, but he didn't do so at all. The appeals court quite rightly held that if it is patently obvious that the prosecution did not present any evidence that supports the required elements of the case (and, in fact, introduced evidence to the contrary), the conviction cannot stand.

  151. James Pollock says:

    "Have you read any of the case documents?"

    No. I said so. I'm arguing a general case, from the point of view of a layman (which is why "jeopardy attaches, and so that's the end of it" doesn't answer the question.) Why does jeopardy attach if the prosecutor is charging a crime that cannot possibly result in conviction? Yes, defendant is inconvenienced and encumbered with defense costs, but… making him immune from other charges doesn't fix either of those things.
    Take to a ridiculous extreme: If the prosecutor charges me with arson for parking in a handicapped parking space, (s)he'll be punished by having the charge dismissed, but I will have had to hire a defense attorney to get it dismissed. Further, if the charge isn't dismissed in opening motions, and jury is seated, the prosecutor will also no longer be able to prosecute me for illegal parking, either, because of the current interpretation of double jeopardy, even though I was in no danger of losing.
    This seems like a mismatched remedy to me. I'm not suggesting that prohibition of double jeopardy isn't an important element of American jurisprudence (and American freedom), I'm suggesting that in limited cases where the prosecutor mischarges due to not understanding the law because it hasn't been articulated clearly enough in existing statute and precedent, "double jeopardy" might be seen to not apply.
    As I noted, nobody is complaining that the guy didn't get convicted under the wrong statute. They're complaining that being found not to have violated the one statute means that he's considered not to have violated any statute, which is (apparently and very likely but not proven) wrong. We say it's a matter of double jeopardy because of an artifact; of a bright-line rule not matching up to reality. Legal jeopardy attaches when the jury is seated, period (except for the exceptions, of course). But, if there is no actual danger of a conviction, then in reality there was no jeopardy (again, there WAS expense and inconvenience, which can be addressed via other remedies… at present, if you are mistakenly prosecuted where you were not guilty of any infraction there is no remedy at all).

  152. Grifter says:

    @James Pollock:

    I wasn't trying to be snarky. I hadn't actually read the case itself myself before I posted that last.

    But onto the point.

    The state has infinite resources. If they cannot get a conviction on a set of circumstances after their one try, they are done. Period. "I'm an incompetent prosecutor" is no excuse to keep trying a person over and over. And prosecutors are expected to know. If they don't know what a law means, they need to find out before they start ruining lives over it. There are almost always precedents. In this case, for example, the prosecutor was very clearly not "not seeing" existing statute and precedent because it wasn't "clear", he was ignoring it to get his conviction.

    And what's to stop them from doing that on purpose? If they get a conviction on their "mistake", and it's not challenged, win! If they don't get a conviction, then they already know what works and what doesn't, and get a second run on the "right" charge.

    Double Jeopardy is what prevents the state, with its infinite resources, from ruining a person's life without ever actually convicting them. There are times when a guilty person goes free because of it, but it's no different than when the police ignore the Fourth Amendment and find incriminating evidence; that person is also guilty, but the evidence (and often the case) gets lost. Are you against that as well? "Oh, well, if the police thought they were right, then the evidence shouldn't be thrown out"?

  153. James Pollock says:

    "The state has infinite resources. If they cannot get a conviction on a set of circumstances after their one try, they are done. Period."

    Off on two counts. First, the state does NOT have infinite resources, as anyone who's worked in a state office can tell you. Second, there ARE exceptions to double jeopardy, and the decision about whether or not jeopardy attaches is occasionally a slippery one. (an example: The prosecutor presents a case to the grand jury, which returns a "no bill". The prosecutor, however, fails to notice this seemingly important fact and continues, the defense ALSO fails to note the failed indictment and advises her client to take the offered plea bargain. Defendant does, in fact, take the plea bargain and serves the time. When the defendant is released one of the grand jurors reads about it in the paper, and wonders why the guy was in jail when they didn't indict. Hilarity ensues (including the prosecutor desperately looking for a charge that fits in the hopes that the guy can be charged, convicted, and sentenced to time served, thereby saving the county a settlement expense they hadn't budgeted for.

    "And prosecutors are expected to know. If they don't know what a law means, they need to find out before they start ruining lives over it."
    One more time… I'm talking about cases where this is SIMPLY NOT POSSIBLE, because the law has not yet been authoritatively established. Here's an example: There's a circuit split. Circuit A says that acts similar to what the defendant did are covered by the statute. Circuit B says that they aren't. Circuit C, where the events happened and the prosecutor works, has yet to have any ruling on the statute at all. Appeals Court Z has nothing currently docketed that might clarify. So… charge, or don't charge?

    "And what's to stop them from doing that on purpose?"
    How many times have I suggested that some other remedy needs to be in place for this (I know I've suggested money damages at least three times). Take those money damages out of the "infinite" budget of the prosecutor's office, and see how often (s)he charges incorrectly on purpose.

    "If they don't get a conviction, then they already know what works and what doesn't, and get a second run on the "right" charge."
    Of course, if the original case went through to final judgment, there's issue preclusion.

    "it's no different than when the police ignore the Fourth Amendment and find incriminating evidence; that person is also guilty, but the evidence (and often the case) gets lost."
    Shall we list off the exceptions that allow evidence tainted by a bad search to be admitted anyway? Or note that the CORRECT remedy to having your civil rights violated is a federal section 1983 suit?
    Or are you referring to the specific subset of "illegal searches" that were done according to a procedure that is not declared violative of the fourth amendment until after it has been performed? (Using thermal imaging to detect indoor grow operations was 100% legal… right up until it wasn't. Placing a radiotransmitter in a barrel of chemicals to track its movements is legal, but placing a radiotransmitter on suspect's car to track its movements is not… even though visually tracking the movements of suspect's car by surveillance and shadowing is also fine.)

  154. James Pollock says:

    " "Oh, well, if the police thought they were right, then the evidence shouldn't be thrown out"?"

    United States v. Leon (468 U.S. 902) and Massachusetts v. Sheppard (468 U.S. 981). (says Wikipedia).

  155. Grifter says:

    @James Pollock:

    Let's simplify and clarify things:

    Your position is that the state should have more bites at the apple. My position is that they should not. To begin with: the courts agree with me. You are the one behind the 8-ball, with having to justify why your position is the better one.

    Your reasoning for that is that prosecutors might be charging on something they are not 100% certain is correct, whether that's because it's unclear or because they're incompetent (as in this case). With the State's power (which, as you noted, is not truly unlimited; that was a rhetorical flourish), the State has a responsibility to be right. What the courts are saying is that the State was wrong. The remedy for that is to release the person who was wrongly convicted, and not allow the state to try again.

  156. Grifter says:

    Those cases are not at all correlative, but arguing them would get us farther and farther derailed. Let's stay on topic and leave that point for now.

  157. Grifter says:

    (Okay, I have a hard time letting things drop: For the record, in those cases the error was not on the police or prosecutors, but rather on the judge. Not correlative.)

  158. James Pollock says:

    "To begin with: the courts agree with me. You are the one behind the 8-ball, with having to justify why your position is the better one."
    Oh. Sorry, let me spell it out for you. My position is the better one because it would improve the accuracy of the result by a very tiny, but non-zero, fraction of a percent.

    We ask our courts to be many things: Fast, efficient, fair, accurate. Sometimes these things work at opposition (speedy trial vs. due process), and sometimes together (fair trials are much more likely to be accurate trials than are unfair trials).

    "Your position is that the state should have more bites at the apple."
    Um, no, it isn't. My position is that the state should have one bite at the apple. My contention is that if an appeals court retroactively changes the law that applies, the state didn't really get a bite. They went through the motions, and wasted the defendant's (and the public's) time and money, yes, but they didn't actually put defendant at risk of a conviction.

    You keep suggesting that I'm advocating for unlimited do-overs, for some reason, which frankly I don't understand.

  159. James Pollock says:

    "(Okay, I have a hard time letting things drop: For the record, in those cases the error was not on the police or prosecutors, but rather on the judge. Not correlative.)"

    Oh. Ok. The "good faith exception" isn't a good faith exception, as far as you're concerned. We'll leave that out of any future discussion, then.

  160. Grifter says:

    @James pollock:

    You don't get to play the "unintended consequences" game on the other thread and ignore it here. You FEEL it would give a benefit, but you haven't established that, particularly in light of the fact it wouldn't even apply in this case, which was a clear case of incompetence.

    And it is quite clearly another bite of the apple. To pretend that the defendant was in no real danger is a laughably, insultingly foolish argument, and I would hope you'd know that.

  161. Grifter says:

    And the good faith exception only applies when relying on lawful warrants. The police, again, made no mistake when they relied on those warrants, the judiciary did. Your attempt at insult falls flat due to sheer stupidity, but thanks for playing!

  162. James Pollock says:

    "You don't get to play the "unintended consequences" game on the other thread and ignore it here."

    Um, OK. I'll bring my argument here in line with my argument there. There are some people who wouldn't want to make the change I suggest because it might produce unintended consequences. I believe that you, in fact, are one such person. Thank you for demonstrating my thesis and conceding the other thread.

    "You FEEL it would give a benefit, but you haven't established that, particularly in light of the fact it wouldn't even apply in this case, which was a clear case of incompetence."

    I thought I was on pretty safe ground in assuming that actually having a trial to decide if someone is guilty or not is better (and more accurate) than not having a trial and making the decision arbitrarily. If you favor arbitrariness over having a trial to determine facts, I'm not sure what we have to discuss. Are you sure that's the position you want to stake out, though?

    "And it is quite clearly another bite of the apple. To pretend that the defendant was in no real danger is a laughably, insultingly foolish argument, and I would hope you'd know that."
    Hmm. I suppose it IS foolish to assume that (at least) three levels of appeal would be enough to guarantee that if a prosecutor charged incorrectly, the mistake would be corrected. How many levels of appeals do we need?
    Let's review. If an appeals court rules that the statute you were charged under does not apply (and orders your conviction be overturned), what is the risk that you will be convicted under that statute for those actions? After the appeals court rules in your favor, if someone else does the exact same actions in the exact same jurisdiction and is charged with the exact same crime, what is the likelihood that THEY will be convicted. I put it conservatively at 0.000% for both cases, but you say that's foolish. Please correct my math.

  163. James Pollock says:

    "And the good faith exception only applies when relying on lawful warrants."

    Is this a good time to point out that if you have lawful warrants, you don't NEED an exception, good-faith or otherwise?

  164. Grifter says:

    @James Pollock:

    Sigh. Pointing out that you are being hypocritical does not mean I concede your point. You are the one who asserts that "unintended consequences" alone is enough to prevent a change, regardless of whether any unintended consequences can actually be presented. Based on that, you cannot here ignore the unintended consequences argument.

    Now, to be honest, the unintended consequences argument doesn't even matter to me, per se. Even if you washed it away (which I think would be very difficult to do), you would be left with the philosophical gap between us, which is that I do not feel the state should be able to try again after getting it wrong the first time.

    Oh, and it would be a good time to point that out, if it was true!

    From Wikipedia:

    "Based on this surveillance and information from a second informant, a detective wrote an affidavit and a judge issued a search warrant. The police conducted the search, but the search warrant was later found to be invalid because the police lacked the probable cause for a warrant to be issued in the first place. The evidence obtained in the search was upheld anyway, because the police performed the search in reliance on the warrant, meaning they acted in good faith. "

    In other words, they relied on a warrant issued by a judge. That was the end of their responsibility. The fact that the judge shouldn't have issued the warrant wasn't their problem, and shouldn't be because, again, it was the judiciary, not hte police or the prosecution, who erred.

  165. James Pollock says:

    "Sigh. Pointing out that you are being hypocritical does not mean I concede your point. You are the one who asserts that "unintended consequences" alone is enough to prevent a change, regardless of whether any unintended consequences can actually be presented. Based on that, you cannot here ignore the unintended consequences argument."

    So, I'm going to go with the fact that since I never made the claim that ""unintended consequences" alone is enough to prevent a change", you're demonstrating poor reading comprehension. um, again.

    "Now, to be honest, the unintended consequences argument doesn't even matter to me, per se."
    Then why did you introduce it, and keep harping on it?

    "In other words, they relied on a warrant issued by a judge. That was the end of their responsibility. The fact that the judge shouldn't have issued the warrant wasn't their problem, and shouldn't be because, again, it was the judiciary, not hte police or the prosecution, who erred."

    In OTHER other words, they executed a search without a lawful warrant. If they'd HAD a lawful warrant, they wouldn't need an exception to the warrant requirement.
    By your own logic, they had their chance to get a valid warrant, but they made a mistake, so the state blew its one chance and should lose as a result.

    (I'm not sure why you're insisting that the police made no error… they made a warrant application that lacked probable cause, and they executed a warrant that had no probable cause. Those are errors on the part of the police, who are supposed to know what "probable cause" means. The fact that a warrant issued that should not have isn't their mistake, but they're not blameless, either.)

    "Is this a good time to point out that if you have lawful warrants, you don't NEED an exception, good-faith or otherwise?"
    "it would be a good time to point that out, if it was true!"
    Then it WAS a good time to point it out. Good. The police under discussion had a warrant signed by a judge, but that's not the same thing as a lawful warrant. This isn't a finding that the defendant's fourth amendment right wasn't violated… it's a finding that the exclusionary rule is not the proper remedy for the violation.

  166. Grifter says:

    @James Pollock:

    I keep harping on it because you keep bringing up how effective your idea would be at getting guilty people put in jail…I feel that it necessary to point out that you haven't put in sufficient protections to prevent the innocent from being harassed. So stop saying how effective it would be, and I'll stop arguing the point. The unintended consequences comment from me was in response to you attempting to disregard the consequences of your idea.

    So let us both leave that be; the relative effectiveness is immaterial here to the debate.

    As regards to the case you referenced:

    The police made no error in that they believed they had probable cause, just as they might charge a person with murder because they think they have sufficient evidence to convict.

    In the case of a warrant, it is the judge's responsibility ti adjudicate whether the standard is met.

    In the case you referenced, the judge said it was.

    Then, based on the warrant they had (which had been lawfully issued by the judge), they searched. Later, the judge was determined to have erred in whether the standard was met. As the judge is not part of the prosecution or police, the error was not sufficient to invalidate the search, because it is the State (as represented by the prosecution and police) that is assumed to have a vested interest in a conviction; the judge is assumed to be impartial, the referee between the sides.

    Also, warrants are not a "one-shot" deal; had they tried, been found not to have probable cause, they might have waited until they had more evidence and presented again, as is their right; the judge prevented them from doing this.

  167. James Pollock says:

    "I keep harping on it because you keep bringing up how effective your idea would be at getting guilty people put in jail"

    Not once. In fact, I've repeatedly stated that this would effect very few cases at all. I believe I claimed it would make a very, very tiny (but non-zero) fraction of a percent of improvement in accuracy. You're the one who assumes that it will suddenly change the behavior of every prosecutor in handling every case… a claim I keep (futilely) denying.

    "I feel that it necessary to point out that you haven't put in sufficient protections to prevent the innocent from being harassed."
    Um, except to say that I've assumed that other mechanisms will be necessary to protect against vexatious prosecution? I've floated the idea of requiring the prosecution to pay the defendant's costs at least four times now. If you don't think pulling money out of a prosecutor's budget gets the prosecutor's attention, well, feel free to substitute your own method. While you're at it, what's your suggested mechanism to prevent the innocent from being harrassed (if your answer's double jeopardy, I'm afraid that's been demonstrated to not work. A prosecutor who chooses to harrass the innocent gets to make as many different charges as (s)he wants to (until the disciplinary board convenes or the boss complains about the number of acquittals, anyway) Since my suggestion would only come into play when a conviction is overturned by an appeals court that changes the law, I just don't see it as ripe for abuse. It's true that my suggestion MIGHT not work, but it hasn't been demonstrated not to work.)

    "So stop saying how effective it would be, and I'll stop arguing the point. The unintended consequences comment from me was in response to you attempting to disregard the consequences of your idea."
    I'm sorry. Where and how did I disregard the consequences of my idea? (Besides the fact that I've taken no effort to actually implement my idea, which means the consequences are… one frustrated guy with philosophical differences.)

    Proceeding to your misunderstanding of the good faith exception to the fourth amendment:
    "The police made no error in that they believed they had probable cause"
    They did not have probable cause when they filed their application for a warrant. This was error. One that is far clearer in hindsight, obviously, but if they didn't have probable cause, then they never had probable cause. The fact that they thought they had probable cause (or that they had fully articulated their probable cause in the application for a warrant) is error. A good faith error, but error.

    "In the case of a warrant, it is the judge's responsibility ti adjudicate whether the standard is met."
    Yes. "no Warrants shall issue, but upon probable cause". I read that somewhere.

    "In the case you referenced, the judge said it was."
    Yes. He was wrong. Again, that hindsight thing.

    "Then, based on the warrant they had (which had been lawfully issued by the judge), they searched."
    Nope. No probable cause = no lawful warrant, no matter what the judge signed.

    "Also, warrants are not a "one-shot" deal; had they tried, been found not to have probable cause, they might have waited until they had more evidence and presented again, as is their right; the judge prevented them from doing this."
    Coulda, woulda, shoulda, didna. They didn't have probable cause when they executed the search. The fact that after that probable cause might have been discovered is moot; you have to have a valid warrant when you search. (where "valid" equals either a lawful warrant OR a warrant that the cops executing have a good faith belief is lawfully issued (or one of the other exceptions, not in play here, has to apply. The warrant requirement is rather full of holes.)

  168. bacchys says:

    @ differentJess

    "Congratulations, you've answered the rhetorical question and ignored the two literal ones. Here I'll help you: Of course, the conventions collectively referred to by some as "the" law of war do not override the Constitution, and they also do not require the barbarities of Guantanamo Bay and other assorted dungeons maintained by our rulers around the world, so this law of war crap is doubly a red herring. Since such facilities and practices are forbidden by the Constitution, this lawlessness is clearly just an excuse for the military-industrial complex to waste billions more taxpayer dollars."

    The Conventions don't override the Constitution. The Constitution does not forbid detaining enemy combatants without a trial. We don't have to put people who aren't suspected of committing a crime on trial. We don't have to put every detained enemy combatant before a court or tribunal. The Constitution no more requires that than it does the President to visit the moon after his Inauguration.

    There is no part of the Constitution that prohibits GTMO. There is no part of the Constitution that prohibits the government from having facilities and practices that detain captured enemy combatants.

  169. Grifter says:

    @James Pollock:

    The cases. Are not. Analogous. You tried to equate a circumstance in which the JUDICIARY made a mistake, with one in which the PROSECUTOR does. That is not a "misunderstanding" on my part.

    That does not correlate. Let's stop arguing over a corrolary that is invalid. Thanks.

    "Since my suggestion would only come into play when a conviction is overturned by an appeals court that changes the law…" This original case was not one where that was true. And I don't believe that the appeals court "changes the law" in any meangingful way, as a general rule, that the person still has another charge to be filed against them. You're arguing a hypothetical that doesn't happen pretty much ever, and you want to get rid of double jeopardy as a concept to do it. And while you say "well, my exemption would be very narrow", the only way try to maintain that narrowness would be with a Constitutional amendment changing double jeopardy in a specific manner; you do see that, correct? Because it wouldn't, and shouldn't, work under the wording of the current constitution, and if it was shoehorned in there without an amendment, then that would certainly open the door for lots more "exceptions" to the double jeopardy rule, considering you've moved the relatively bright line of when a person cannot be tried again (once jury or first witness (if no jury) is sworn) into a fuzzy "unless there's some good reason do so!" where, in this case, you are the arbiter of what the "good reason" is, but in another, it would be someone else.

  170. James Pollock says:

    "You tried to equate a circumstance in which the JUDICIARY made a mistake, with one in which the PROSECUTOR does. That is not a "misunderstanding" on my part."
    Again, you've invented something for me that I didn't do. I brought up the existence of the good-faith exception to the fourth-amendment'w warrant requirement in response to your inquiry as to whether I thought there should be a good-faith exception to the fourth-amendment's warrant requirement. (I do believe that the good faith exception should be available (and that the defendant whose 4th amendment rights are violated should have a remedy, which they do. Why do you take offense at that? Dunno. How does this "equate" to anything? Dunno. Are you raving for sake of raving? Dunno.)

    Then there's this one:
    "you want to get rid of double jeopardy as a concept to do it."
    I'm going to stick to only those arguments that I ACTUALLY MADE, but feel free to argue with your strawman to your heart's content.

  171. Grifter says:

    @James Pollock:

    The "good faith" that we were talking about was when a cop violates the law but "thinks" he's right, which does not exist. The cops didn't violate the law here; they presented evidence to the judge, who gave a warrant, that they served. The police did nothing wrong. That is, in fact, the BASIS of the good faith exception you keep quoting, that they have to have done nothing wrong.

    So it was irrelevant to the discussion, because it was not a case of the POLICE being wrong on the law but doing something anyway, it was a case where later it was found that the JUDGE erred as matter of law. Thus, the exception you were looking to find does not actually exist; there are no exceptions for cops whose actions are acting contrary to the law.

    Further, among the arguments that you've "actually made" are that a defendant who has to appeal because he was convicted of a crime he did not commit was never in danger. That is a ridiculous argument that you've used to attempt to show how this idea of yours wouldn't "really" be against the constitution. And you have now, of course, been reduced to snark rather than response, because that is ridiculous.

    Of course, the best part is when you asked earlier ". If an appeals court rules that the statute you were charged under does not apply (and orders your conviction be overturned), what is the risk that you will be convicted under that statute for those actions?" as though that had any relevance to the discussion (it didn't).

    In order for you to have a good point you have to establish:

    How it doesn't violate the constitution in the first place (or say you want an amendment),

    Whether it's a good idea philosophically,

    and

    Whether it will be effective.

    You have established none of these things. Let's get on topic, shall we?

    So far (and I will try to not be snarky here, these are my attempts legitimate summarization):

    You feel it doesn't violate the constitution because the defendent was never "really" in danger.

    I feel that's a ridiculous argument. If that is your argument, that is my response, and I can elaborate as necessary.

    As regards to philosophically, you believe it is good because you believe the justice system should do everything it can to punish the guilty.

    I believe that the State already has such an advantage in any criminal case, that if they fail in their duty, by failing to prove their case, (whether that's because they failed completely or because they merely failed to charge correctly), that they should not get a second chance; I further posit that if you say they should get a second chance, I believe you would have to explain why they wouldn't get a third, or fourth, and why if they fail to prove (say) murder(let's say because they haven't fully established that the person is even dead), they can't just recharge with attempted murder. Preventing that was the philosophy behind the double jeopardy rules in the first place.

    The effectiveness argument from you seems to be as follows:
    You feel it will be effective.

    I feel that, as described by you, it will not be effective, because though you have given hypotheticals, you haven't even shown a case where this has happened. The case we were initially talking about, it is to be remembered, is a case where the rule was perfectly clear, and the prosecutor bungled it, then doubled down on the bungling mid-trial, tried tripling down on it in appeals … and had his face smacked by the judges, but kept going, where it was reaffirmed that the prosecutor had bungled the case.

  172. James Pollock says:

    Please stop demonstrating that you don't understand the good faith exception, I get that you don't, and I doubt anyone else is still reading. The police DID err; they searched without a warrant. They didn't KNOW that they searched without a warrant until well after the trial. (The good-faith exception is not applicable to defendant's section 1983 civil rights claim.)

    "If an appeals court rules that the statute you were charged under does not apply (and orders your conviction be overturned), what is the risk that you will be convicted under that statute for those actions?" as though that had any relevance to the discussion (it didn't)."
    Jeopardy = risk of conviction, by definition. If the risk of conviction is properly 0%, then defendant has not been in jeopardy. By definition. If defendant has not been in jeopardy, then proceeding to hold a trial in which there IS a risk of conviction, is single jeopardy. By defintion. (The law substitutes the bright-line rule that jeopardy attaches when a jury is seated, whether or not there is actually a real risk of conviction, because it is much easier to tell if a jury has been seated than it is to tell if there is really any risk of conviction. That bright-line rule is not actually required by the Constitution, it's an artifact of the judiciary which has been kept because A) it works well enough for the vast majority of cases, B) it's easy to administrate, and C) it provides all the protection the Constitution demands plus a little bit more.
    The actual requirement of the Constitution ("nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb") says nothing about seating the jury, and in fact provides no guidance at all as to when jeopardy attaches. Thus, current law about double-jeopardy is driven by the Constitutional requirement but is all judicial construct; if the judges created a new construct that ALSO meets the requirement of the Constitutional text, you can get different law without requiring amendment to the Constitution. Now, as I have specifically NOT suggested that a change to the fifth amendment is necessary or proper, would you PLEASE stop repeating the canard that I've suggested doing away with "double jeopardy"?

    So that's the first prong.

    Whether it's a good idea philosophically. Again, you choose to ignore it when I spell it out for you. Improving the accuracy of the court's results, even by a tiny, tiny margin, is a good thing, philosophically. I'd assumed that this was self-evidently true, but you keep stumbling on it.

    Third, whether it will be effective. Again, actually having a trial to determine someone's guilt or innocence seems to me to be more "effective" (that is, is more likely to produce an accurate result on the question of whether or not suspect/defendant has violated a statute) than deciding arbitrarily without a trial. I guess that IS just a feeling on my part.

    "I further posit that if you say they should get a second chance, I believe you would have to explain why they wouldn't get a third, or fourth"
    IF I'd posited that they should get a second chance to ACTUALLY put the person in danger of conviction, you'd be right to ask about thirds and additionals. But I didn't.
    I suppose if you had a case where the prosecutor charged under a statute, convicted, and the appeals court announced a new rule holding that the statute didn't apply, and overturned the conviction, but a different statute did, so (under my jeopardy rule) the prosecutor charged a second statute, convicted, and the appeals court announced a new rule holding that that statute doesn't apply either, and overturned the conviction, but yet another different statute applies, so the prosecutor goes for it again, there is a possibility of an endless loop here. So, what's to stop the prosecutor? A) prosecutors don't like losing, and if you get overturned a lot it shows up on your annual performance reviews. B) I posited that while my suggested jeopardy rule addresses the risk of conviction, it doesn't address time, money, and convenience, so some kind of protection (probably money damages) would need to be erected in tandem (Note: this part, not explored in depth, also probably comes into play when the prosecutor proceeds against you, even if they decide not to file new charges… a feature that double jeopardy doesn't address. If the prosecutor charges you even though you've violated no statute, and you incur legal expenses getting the charges dismissed, you have no remedy.)

    "you haven't even shown a case where this has happened."
    It happens in every appeals court case where the appeals court announces a new rule and proceeds to overturn a conviction. The fact that I haven't gone to the trouble of driving to the law library, picking up a reporter volume, and scanning it until I find a case where the appeals court announced a new rule and overturned a conviction is indicative of the cost of gas (and/or WestLaw) and not the fact that I couldn't do it.
    But wait, I did refer to a case where it happened, though not by name. Once upon a time, it was considered "not a search" to look at a residential building with thermal imaging gear (the results of which can suggest an indoor grow operation). It was considered "not a search" because the police remained at all times in a place they were lawfully permitted to be, and things the police can see from a place they are lawfully allowed to be are "in plain sight". Then a guy was convicted for running an indoor grow operation, and his lawyer in the appeal successfully argued that looking at a house from outside with thermal imaging gear IS a search, and therefore requires a warrant (and probable cause, of course.) This is the type of case I'm talking about… a rule that originates in an appeals court, that applies retroactively to a particular case, causing an inaccurate result. Because of the way our appeals court system works, this is inevitable.

    Finally, I pulled this out for special handling:
    "As regards to philosophically, you believe it is good because you believe the justice system should do everything it can to punish the guilty."
    No. I believe the courts should do everything they can to accurately determine the guilt or innocence of the defendant (while, of course, balancing against the other goals of the courts, including speed and fairness, most notably.) That is to say, the guilty should be found guilty and the innocent should be found not guilty as frequently as possible. The innocent should not be found guilty and the guilty should not be acquitted. I don't recall ever addressing the rest of the justice system (briefly: punishment should be balanced to address the deterrence of other crimes, the protection of the public, and the rehabilitation of the criminal into a law-abiding citizen, where possible.)

  173. David Schwartz says:

    "I'm suggesting that in limited cases where the prosecutor mischarges due to not understanding the law because it hasn't been articulated clearly enough in existing statute and precedent, "double jeopardy" might be seen to not apply."

    Just so long as we agree that this bears no relationship to this particular case. In this case, it was quite clear that the statute he was charged under required a victim to be physically helpless and unable to indicate a lack of consent, and in this case it was very clear that the victim was not physically helpless and was not unable to indicate a lack of consent.

    In this case, it was simply the case that the factual circumstances didn't meet the clear statutory requirements and the Defendant was found not guilty.

    That said, the problem with your rule is that if the statute is unclear, the Defendant is supposed to win. If a prosecutor charges under a statute that's unclear, how can he expect the Defendant to have figured out the statute to comply with it? For any case that unclearly meets this rule, the Defendant was in real jeopardy and double jeopardy should apply. For any case that clearly meets this rule, the Prosecutor has clearly charged someone he should not have charged to be a legal experiment and I don't see any penalty short of a retrial bar as being sufficient to prevent this.

    This rule could only apply if the Prosecutor is malicious or incompetent.

  174. James Pollock says:

    I'm bored, and I'm sure this has gone well beyond boring for nearly everyone, but just for fun, let's go back to the original post that brought out the discussion of the good faith exception.

    Here it is:
    "Double Jeopardy is what prevents the state, with its infinite resources, from ruining a person's life without ever actually convicting them. There are times when a guilty person goes free because of it, but it's no different than when the police ignore the Fourth Amendment and find incriminating evidence; that person is also guilty, but the evidence (and often the case) gets lost. Are you against that as well? "Oh, well, if the police thought they were right, then the evidence shouldn't be thrown out"?"

    Let me build a hypothetical that fits inside what you asked (and includes some of the missing steps)

    The police fill out an application that mistakenly does not include sufficient probably cause for search. The magistrate judge who approves the warrant application. The police receive an illegal warrant, but nobody involved in the process KNOWS it is an illegal warrant. The police search and seize evidence.
    Scorecard so far: the suspect has grounds to file a civil rights lawsuit against the police, for executing an illegal search and making an illegal seizure. He does NOT have grounds to file a civil rights lawsuit against the magistrate judge, because of qualified immunity.
    Based on the evidence seized, the prosecutor files charges. The prosecutor attempts to enter the seized evidence, the defense objects that it is fruit of an illegal search, because the warrant application lacked probable cause, and should be excluded because of the exclusionary rule; the trial court judge allows the evidence to be introduced and the jury sees it.
    Scorecard so far: The prosecutor and the trial judge, like the magistrate judge, have qualified immunity and thus cannot be sued for violating defendant's fourth amendment rights. However, defense has properly raised the issue (probable cause lacking on the warrant application), preserving the issue for appeal.
    The jury, considering the evidence presented, convicts the defendant.
    Scorecard update: The defendant has been convicted even though the evidence against him was seized illegally.

    Defendant appeals. Examining the warrant application, the appeals court finds that, as a matter of law, the application is flawed and the warrant that issued was illegal and thus void. The evidence seized was seized in violation of defendant's fourth amendment rights. Prosecutor says ""Oh, well, if the police thought they were right, then the evidence shouldn't be thrown out"?"

    Prosecutor wins the appeal. The evidence is not thrown out (humorously, what the defense would have actually been asking for their appeal is a second trial, this time with the tainted evidence excluded.) Defendant stays convicted even though the evidence against him was seized illegally.

    Not only is this the legal outcome, it is the outcome I'd favor. (Note that this does not imply that the fourth amendment is toothless and weak, nor does it imply that I think it should be done away with or weakened. Rather, it shows that in a narrow set of circumstances the exclusionary rule is not the proper remedy for a fourth amendment violation, and that is all. Applying the exclusionary rule in this circumstance would A) create an incorrect outcome (if the conviction is overturned outright, or if a new trial is granted but the prosecution is unable to produce enough untainted evidence and dismisses rather than proceed) or significantly increases the possibility of an inaccurate outcome (if the defendant is granted a new trial and the jury is deprived of competent evidence). B) create the expense, for both the state and defendant, of holding a second trial, C) not serve the purpose of the exclusionary rule, which is to deter law enforcement officials from intentionally violating Constitutional rights.

    Thus, under circumstances where the police did not intend to violate someone's rights, but do so unintentially (i.e., in good faith or "they thought they were right") an exception to the warrant requirement applies.

  175. James Pollock says:

    David, I'm somewhat amazed there is a third reader still following the thread.

    You said:
    "In this case, it was simply the case that the factual circumstances didn't meet the clear statutory requirements and the Defendant was found not guilty."
    Nobody objects to him being found not guilty to violating a section of the code he didn't violate. The objection, if any, is that being found not guilty of one thing means that he is not guilty of any thing. Recognizing that there is a good reason for this does not change the fact that public perception of "criminals getting away with it because of a technicality" harms public respect of the law (and of lawyers).

    Your note that a statute may be void for vagueness is true, but not dispositive of the specific cases I am suggesting could be handled in a slightly different way. Striking a law for being vague is not quite the same thing as finding that the defendant didn't violate it, but that difference is not significant. A statute can be less than 100% clear in all fact patterns without being void for vagueness; That the exact meaning of the statutory language may need clarification is part of the point of case law, and appeals courts deal with that on a regular basis.
    For example (one of the first examples I saw as a 1L) you might have two statutes. One describes the crime of breaking into a car; it'll have a definition of "car" and "unauthorized" and "entry", and state that unauthorized entry of a car is an offense. Another statute describes the crime of burglary, as the entry of a person's dwelling with the intent to commit a crime (and assorted definitions). OK, so, which one applies when a person enters a car with the intent to steal, and somebody is living in that car? Suppose the prosecutor charges burglary (because it has a stiffer sentence), the jury convicts, but then the appeals court says "OK, it doesn't say so in the statute, but we think that in order to have intent to enter a dwelling to commit a crime therein, defendant has to know it IS a dwelling, so we announce the rule that a "dwelling" has to be a structure of the type usually associated with dwelling places. Conviction overturned." Jeopardy was attached, so no, having just learned that one of the statutes doesn't actually apply because the appeals court just changed the legal definition of "dwelling", you can't try them for the offense that they did commit, the one that doesn't involve a "dwelling".

  176. Grifter says:

    @James Pollock:

    The police DID have a warrant, as even you yourself note in a later post.

    It was later ruled to be a warrant that was issued in error. But it existed, and to pretend otherwise is to be disingenuous.

    It was a warrant issued by a judge. The law does not put the burden of verifying the validity of the warrant on the police, it puts it on the judge.

    The judge erred, and gave them a warrant. Later, it was ruled the warrant should not have been issued in the first place. The police literally could not have done anything different to prevent this from happening, since they are not the ones who erred. There is, legally, no mechanism for the police to further verify the validity of a warrant, since the judge is the one who issues it. Again, the judge erred, the police did not. That is the basis of the good faith exemption.

    "Based on this surveillance and information from a second informant, a detective wrote an affidavit and a judge issued a search warrant. The police conducted the search, but the search warrant was later found to be invalid because the police lacked the probable cause for a warrant to be issued in the first place. The evidence obtained in the search was upheld anyway, because the police performed the search in reliance on the warrant, meaning they acted in good faith. This became known as the good faith exception to the exclusionary rule."

    This was not a case of, say, the police thinking they had a warrant, but not having one, or thinking "I don't have to get one because he's clearly guilty" and searching without one. The good faith exemption applies when the police have been given perfectly clear guidance from the judiciary, and they act on it.

    If you were saying that in a case where the judiciary completely reverses itself, that perhaps before dwellings could be cars, but now the judiciary says they can't, perhaps jeopardy should not apply, since the prosecutor relied in good faith on precedent, the good faith exemption might relate to that argument.

    But you didn't. You tried to use the good faith exemption when talking specifically about prosecutorial incompetence, but making a general point about "unclear laws or precedent". Lack of clarity goes against the person who made the rules (the state), and the good faith exemption had nothing to do with lack of clarity from the police.

    To keep pretending otherwise is to be disingenuous. It is not that I do not understand the good faith exemption, it's that I won't let you play the type of rhetorical games where you pretend they didn't have a warrant (they did), that it wasn't valid (it was as far as the police were responsible for), or that it relates to a prosecutor making an error and not wanting to deal with the consequences of it.

    In the case of your hypothetical prosecutor, they are the ones who decide to charge. If they do not understand the law completely themselves, they shouldn't be charging people with it, don't you think? "I think you're guilty of something…just let me figure out what" is not a reasonable way for a prosecutor to behave.

    Your argument that a prosecutor who charges under the wrong statute specifically because they aren't sure of the outcome should get a second try to convict seems ridiculous to me. They brought the person into jeopardy of life or limb, and lost. To say "well, it was ruled that law was not the correct one, so you weren't in jeopardy!" is no different than saying "Well, you were found not guilty, so therefore you weren't in jeopardy!"

  177. Grifter says:

    Also:
    "Improving the accuracy of the court's results, even by a tiny, tiny margin, is a good thing, philosophically. I'd assumed that this was self-evidently true, but you keep stumbling on it."

    But ignoring the other philosophical implications of it is stupid, which I would assume to be self-evident, but you keep stumbling on it. Ignoring the 4th and 5th amendment completely and allowing the state to charge as often as they want to, while searching whenever they want to, would improve the "accuracy of the court's results", too, if by "accuracy" you mean "conviction". You might say that you don't mean that, but then, there is never a guarantee of any accuracy out of the courts. There is nothing inherent to having more trials that will make things more "accurate". All that trials determine is convictions or not. And when someone's "obviously guilty", they might still be innocent. We presume they are until they have been proven to be guilty, and we do not allow the state to have a second try if they fail the first time, whether it's because of the wrong statute or because of the wrong evidence. You propose we allow the state a second try because the person was never "really" in jeopardy to begin with.

  178. James Pollock says:

    I'm sorry, but your inadequate comprehension precludes further discussion. I've tried to explain too many times how the good-faith exception is a direct answer to your question asking if there should be a good-faith exception to the exclusionary rule, and from that I see that you've now decided I'm ignoring the fourth AND fifth amendments. Odd, considering that your position (the cops did nothing wrong when they searched without a lawful warrant) is far more egregious to the fourth amendment.

    Now that I see your logical reasoning (Well, we can't have complete accuracy, so there's no point in trying to improve accuracy) I have to wonder what interest you have.

    "To say "well, it was ruled that law was not the correct one, so you weren't in jeopardy!" is no different than saying "Well, you were found not guilty, so therefore you weren't in jeopardy!"
    Um, if you think these two things are the not different, then READING comprehension isn't your only deficit.

    Say, Grifter… are the judges who allow a retrial after a mistrial ALSO ignoring the fifth amendment completely? After all, they're giving the prosecution another attempt at convicting the defendant after the jury has been seated. Sometimes right up until the jury has begun deliberations. What's to stop the prosecutor from filing a third time after a second mistrial? From filing a fourth time after a third mistrial?
    Aren't they saying "well, you didn't convince THIS jury, maybe you'll have better luck with THAT jury"? That's a pretty obvious violation of the Grifter fifth-amendment policy, isn't it?

  179. Grifter says:

    @James Pollock:

    I wasn't saying that was your position. I was saying that it naturally followed from your premise that "Improving the accuracy of the court's results, even by a tiny, tiny margin, is a good thing, philosophically."

    The logic of that philosophy would be perfectly applicable to a scenario where a prosecutor has charged someone with first degree murder, but can only prove second degree murder. By that logic, you feel it would be philosophically okay to charge the person again after their acquittal on first degree charges, because it would serve the purposes of accuracy.

    Further, if the police could search whoever and whenever they want, they would find more crimes and be more accurate, which is "a good thing", according to your philosophical argument.

    That is why I said your "philosophical" prong was lacking, because I don't believe that letting the police search whenever and whoever they want without any kind of protection is "a good thing", and I don't believe that a prosecutor should get another try to convict someone on a lesser charge because they failed on the harsher charge (your dwelling/car argument being a hilarious example. The prosecutor could have gone for the easy and obvious win, but wanted more punishment, and wound up losing completely. As far as I'm concerned, that's exactly as it should be).

    As regards to the inherent increase in accuracy of allowing another trial:

    "…a second prosecution may be grossly unfair. It…may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial." Arizona v. Washington

    I am continually puzzled by your constant refrain that I "don't understand" the good-faith exemption.

    For the purposes of our government, the judiciary is considered to be impartial. The prosecution is not. The "good faith" exemption applies only in circumstances where the prosecution/police are 100% relying on the express ruling of the judiciary, The argument being even if the judiciary is later found to be wrong, the prosecution should not be punished for the error.

    As I said before, if the court were directly overturning precedent, then you'd have a much stronger argument. If they'd ruled dozens of times that cars COULD be dwellings, then decided that "no, they're not". I might even agree with you for cases like that.

    However, you aren't using cases where precedent was overturned, but rather where it was unclear. The real parallel to that would be if you phone in for a warrant, and the line breaks before the judge issues it, but you proceed anyway under the assumption you're right; the good faith exemption would not apply there, correct? That is why I have continued to say that the good faith exemption does not apply to this discussion, because your examples are not cases where the prosecution was directly relying on the court's explicit ruling.

    Here's one where I would agree with you:

    Bad jury instructions.

    To the best of my knowledge, bad jury instructions that result in acquittal would still preclude another trial based on jeopardy attaching. However, I would agree with you that if the error is on the part of the judiciary, instead of on the part of the prosecution, then there may be a legitimate interest in allowing retrial.

    The problem I have is where you believe that a perceived lack of clarity is enough to allow a retrial, and I do not think so. To the defendant there is no lack of clarity: they think that it means X, and the appellate court agrees.

  180. Grifter says:

    The mistrial point you make is an interesting one.

    As a general rule, if the mistrial was due to prosecutorial misconduct or error, it is not allowed. (cf. Downum v. United States, 372 U.S. 734)

    And if it is due to defense misconduct or error, it IS allowed. (Trying to search for that was harder, so if this is not correct, please correct me here)

    And if it is due to judicial misconduct or error…precedents are mixed depending on various factors. (I can find some if you'd like to question this point, but I'd think we can agree.)

    So that is, as far as I know, in keeping with my point: that the prosecution/police occupy one side of the table, and jeopardy is attached when that side is the one erring, because that side of the table only gets one shot.

  181. James Pollock says:

    "The logic of that philosophy would be perfectly applicable to a scenario where a prosecutor has charged someone with first degree murder, but can only prove second degree murder. By that logic, you feel it would be philosophically okay to charge the person again after their acquittal on first degree charges, because it would serve the purposes of accuracy."
    Except that I didn't suggest that this be allowed. I suggested might be allowed if A) some kind of compensation is made to the defense for the added time and expense of running a second trial, B) they were convicted in the first trial and successfully appealed the conviction, and C) the reason the first degree charge is inapplicable is because the appeals court announced a new rule making it inapplicable in the appeal.

    "Further, if the police could search whoever and whenever they want, they would find more crimes and be more accurate, which is "a good thing", according to your philosophical argument."
    Yes, I suppose it would be. Of course, there's a substantial difference between suggesting that something is "a good thing" and something is "the best thing". Which one did I do?

    "That is why I said your "philosophical" prong was lacking, because I don't believe that letting the police search whenever and whoever they want without any kind of protection is "a good thing", "
    Oops. You've confused cause with effect. An increase in trial accuracy is "a good thing". Harassment by police and decimation of privacy is not "a good thing".
    Example, I might believe it would be "a good thing" if I could drive a more fuel-efficient car. My neighbor has a more fuel-efficient car, and if I shot him to death in the driveway as he was getting out of it, I could take the keys and drive a more fuel-efficient car. Therefore I believe that shooting my neighbor to death in the driveway is "a good thing". See how that doesn't hold up?
    Similarly, I think that a speedy trial is also a desirable goal for the court system. We can help achieve a speedy trial by making needlessly repetitive or cumulative evidence inadmissible, and this is, in fact, what we do. Of course, we could make the trial even speedier by dispensing with the introduction of ANY evidence. Therefore, anyone who favors a speedy trial favors holding trials without evidence.

    "and I don't believe that a prosecutor should get another try to convict someone on a lesser charge because they failed on the harsher charge "
    But they do. Proseuctors CAN have juries offered the option of convicting only on the lesser included offense, and that's what they do if they know, at the time of the charging, that the greater offense charge may not stick. But they don't LIKE to do this, because a jury that contains people who think he was guilty of the greater offense and people who think he wasn't guilty of ANY offense may settle on the lesser offense as a compromise so they can go home. (This, it should be noted, is NOT an increase in accuracy of result).

    "For the purposes of our government, the judiciary is considered to be impartial. The prosecution is not. The "good faith" exemption applies only in circumstances where the prosecution/police are 100% relying on the express ruling of the judiciary, The argument being even if the judiciary is later found to be wrong, the prosecution should not be punished for the error."
    And this is still incorrect, as the police (not the prosecution) SHOULD be punished for the error, but the appropriate punishment is NOT application of the exclusionary rule. The police DID infringe the defendant's civil rights in searching without a valid warrant. Yes, it's kind of a bummer for them that they didn't know they were violating his rights when they did it… doesn't mean they didn't do it.

    "As I said before, if the court were directly overturning precedent, then you'd have a much stronger argument. If they'd ruled dozens of times that cars COULD be dwellings, then decided that "no, they're not". I might even agree with you for cases like that."
    How about if there's been dozens of cases of people prosecuted for breaking into a car that someone was living in as burglary, but none of THOSE defense attorneys thought to challenge the applicability of the statute because their client didn't INTEND to enter a "dwelling", he intended to enter a car. How about if there have been no cases at all applying the statute to an occupied car, but there was one allowing the statute to apply to breaking into an occupied motor home parked on the street?
    EVERY time an appeals court announces a new rule, it is doing so because a trial court judge has applied the statute "incorrectly", whether they're deciding that they themselves issued the "incorrect" rule or whether it was one or more trial court judges who've applied the statute "incorrectly".

    "The real parallel to that would be if you phone in for a warrant, and the line breaks before the judge issues it, but you proceed anyway under the assumption you're right; the good faith exemption would not apply there, correct?"
    It might apply. Consider two variations: First, during the phone call the judge makes verbal statements that clearly indicate that approval is forthcoming. The police, assured by the judge that this is a good warrant application, believe in good faith that the warrant application has been approved. The judge does actually issue the warrant, and it is a good warrant, with adequate probable cause. Unfortunately, the judge was delayed in actually issuing the warrant, and it is not signed until after the police, believing in good faith that their warrant application was approved, began conducting the search. That one probably gets a good-faith exemption.
    Now, the second. The phone cuts off before the judge can issue the warrant. Police, believing that the warrant will imminently be approved, wait for a bout 5 minutes for the judge to call back, then they conduct the search. Here, the good-faith is strained, because the police didn't do all they could do to secure the warrant before proceeding.
    And the third: while they are on the phone with the judge making the warrant application, informant barges out of the hideout and tells the cops "defendant knows you're out here! He's in there flushing the drugs down the toilet!" The judge has not yet issued the warrant, but probably would if the cops stayed on the line, but instead, they rush into the hideout to seize the evidence. Here, the good-faith exception would not apply (but exigent circumstances would.)

    "I would agree with you that if the error is on the part of the judiciary, instead of on the part of the prosecution, then there may be a legitimate interest in allowing retrial."
    The USSC will be exploring this issue this term. They took on a case where the trial court dismissed charges because the trial judge misunderstood the required elements of the charged crime, after jeopardy had attached.

    "To the defendant there is no lack of clarity: they think that it means X, and the appellate court agrees."
    Substitute "defense attorney" for "defendant". The defense has to raise it to preserve the issue for appeal, but the actual defendant may well believe that he is guilty of the charged crime right up until the appeals court tells him he is not.

  182. Grifter says:

    @James Pollock:

    You are correct; I was rhetorically sloppy. But so is your response. If you say "X is good because of Y, and that's all that's required to satisfy the philosophical argument", and I say "But Z will also happen because of X, and Z is a much worse bad than Y is a good", that is a valid objection to your philosophical argument, and unless you refute or address it, you have not adequately established your point that X is "good enough". Further, when the bad follows so closely from the premise, it makes it hard to believe that you truly didn't see it until I pointed it out. You made a flat statement that having some good come from your idea was enough to satisfy the philosophical reasoning; that is not enough in my book unless you've also addressed whether there is any bad.

    As regards to this:

    "Except that I didn't suggest that this be allowed."

    I was extending your argument, and saying that your arguments could just as easily be applied to those circumstances. I thought that was clear when I said that

    "I wasn't saying that was your position. I was saying that it naturally followed from your premise that "Improving the accuracy of the court's results, even by a tiny, tiny margin, is a good thing, philosophically."

    You weren't defending improving accuracy, you were defending your idea about retrials by saying it improves accuracy, in a flippant manner as though to say "well it does THIS, and silly me, I thought we could all agree that THIS is a good thing."

    We can all agree that more accuracy is a good thing in a trial. However, I still question whether your idea actually does that (in keeping with the quote I posted earlier), and further think there are other problems with it that wash out that even if it is true, in a similar fashion to how ignoring the 5th amendment would likely result in "more accuracy", but would have a whole host of other problems that more than wash it out.

    As regards to your expansion of my hypothetical scenario: Do you have case law to back your contentions up? Because the original case was one where it was clearly an error on the part of the issuing judge. The one you said would "probably" get a good-faith exemption is not. So I am curious whether it would actually get a good-faith exemption. If there is a case like that, then depending on how the ruling was phrased I would concede your frequently-asserted contention that I do not understand the good-faith exemption.

  183. James Pollock says:

    "If you say "X is good because of Y, and that's all that's required to satisfy the philosophical argument", and I say "But Z will also happen because of X, and Z is a much worse bad than Y is a good", that is a valid objection to your philosophical argument"
    Um, OK, I guess; this is phrased a little bit confusingly.
    If Z is pulled entirely from your own imagination, does it actually apply?
    I mean, yes, abandoning the fourth and fifth amendments (Z) would be much worse than Y(achieving a slight improvement in trial accuracy) is good, but… (Z) is not at all related to my original suggestion (X). While we're at it (Z) destroying the United States in a nuclear conflagration would also be much worse than (Y). So would (Z) shooting every third prisoner to reduce prison overcrowding. And (Z) abolishing jury trials. And (Z) setting fire to boxes of puppies.
    Indulging in strawman arguments (you didn't actually say this, but I'm going to proceed as if you did…) establishes nothing about the original premise.

    A conviction that is overturned by an appeals court's changing the rule to be applied is functionally the same thing as the jury reaching its verdict based on incorrect jury instructions (they were told that the rule to be applied is A; the appeals court now says that the rule to be applied is B. The jury's instructions were wrong). You've already said incorrect jury instructions would be the kind of mistrial you might admit could justify a retrial. It's a mistake by the judiciary, which in the good-faith exception environment you say should not be held against the prosecution. So… what's your objection, REALLY?

  184. James Pollock says:

    "Do you have case law to back your contentions up?"
    No, because I lack the inclination to drive to the "local" law library and do not have an unlimited free WestLaw account.

    I will maintain that you misunderstand the "good-faith" exception for as long as you maintain that the police did nothing wrong, in a case where the police CLEARLY (but not egregiously) did something wrong. Searching and seizing without a lawful warrant is wrong.
    The good-faith exception is NOT about whether or not the police did anything wrong. It is about whether or not the exclusionary rule is proper remedy for the the wrong the police did.

    Distinguish (there was no way for the police to tell that the purported warrant they searched under was invalid until the appeals court told them so) from (there was no way for the prosecutor and the trial judge to know that the appeals court would change a rule central to this case after the guilty verdict). You seem to think these should come out differently (one in the defendant's favor and one against).

  185. Grifter says:

    Okay, first off, you straw man my "Z", and so I ask you to go back and reread, since my expansion of your point is not the only flaw I found in your argument.

    As regards to the "good faith" point, I respectfully refuse your request for distinguising. Your comment in the other post (where you believe a case that is clearly a fourteenth amendment case is not) makes me not believe you as to your statements about the good faith exemption. "Put up or shut up" as they say; I have a legitimate reason to believe that it is you who does not understand the exemption.

    And further, I'm tired of your "they didn't have a lawful warrant" argument. They had a lawful warrant, in that it was issued by a judge which makes it lawful until it is challenged. It should have never been issued, which is another matter entirely. The majority opinion even noted that if there had been misconduct on the part of the police, then the good faith exemption would not apply.

    And it is not the trial judge's job necessarily to find out whether the prosecutor is using the wrong statute, since the trial judge doesn't know the evidence until presented; again, I question your grasp of the relative responsibility of each role.

  186. James Pollock says:

    "And further, I'm tired of your "they didn't have a lawful warrant" argument."
    Reality is persistent. You can't handwave that one away.

    Put up or shut up:
    A conviction that is overturned by an appeals court's changing the rule to be applied is functionally the same thing as the jury reaching its verdict based on incorrect jury instructions (they were told that the rule to be applied is A; the appeals court now says that the rule to be applied is B. The jury's instructions were wrong). You've already said incorrect jury instructions would be the kind of mistrial you might admit could justify a retrial. It's a mistake by the judiciary, which in the good-faith exception environment you say should not be held against the prosecution. So… what's your objection, REALLY?

  187. Grifter says:

    @James Pollock:

    No.

    You stated an example that the "good faith" exemption would apply, as part of how you felt it related to your argument. I said it would not apply in that scenario, and asked you to justify it. You have not done so. I will not bother responding further to points that you want me to accept based on nothing. Until we agree about the good faith exemption, we cannot distinguish between it and your hypothetical.

    If you are correct, and that it applies even when the police are the one who are in error (as per your example where the police move forward without a warrant but assuming one would be issued), then I may accept your equivalency. If you are just plucking that out of thin air, then I do not. Until that is settled, to ask me to distinguish is stupid. There are places besides Westlaw to find cases. Justicia and Wikipedia spring immediately to mind. Find just one that justifies your belief in your position before you start demanding I differentiate between two things, one of which has not been clearly defined (or rather, has been defined by you, with nothing to back it up). I will repeat that it is my understanding that the good faith exemption only applies when the fault lies entirely with the judiciary; find a case where that was not held, and (barring weird justification in the ruling) I will concede your point.

    To refuse to back yourself up on claimed facts, but then to attempt to use the point anyway, is to debate dishonestly, and I have enough respect for you to say that I do not believe you want to be dishonest.

  188. Grifter says:

    To qualify, when I say "weird justification in the ruling", I mean where they use some other thing to justify it, like how the Supreme recently avoided expanding the commerce clause, but allowed the issue at hand to stand as a tax; that would not be a good example of an expansion of the commerce clause. Which should be obvious, but I am trying to cover rhetorical bases.

  189. James Pollock says:

    "If you are correct, and that it applies even when the police are the one who are in error (as per your example where the police move forward without a warrant but assuming one would be issued), then I may accept your equivalency. If you are just plucking that out of thin air, then I do not. Until that is settled, to ask me to distinguish is stupid."

    Another -1 for reading comprehension. You've decided you don't like my explanation of how the good-faith exception works, and don't believe me. Fine, that's your right.
    SO I SWITCHED TO USING YOURS.
    That wasn't good enough. This time I'll leave it out entirely, as it's a total red herring, anyway.

    A conviction that is overturned by an appeals court's changing the rule to be applied is functionally the same thing as the jury reaching its verdict based on incorrect jury instructions (they were told that the rule to be applied is A; the appeals court now says that the rule to be applied is B. The jury's instructions were wrong). You've already said incorrect jury instructions would be the kind of mistrial you might admit could justify a retrial.

    So, to summarize, the specific type of cases I suggested handling differently are similar to the type of mistrial you conceded were the kind of mistrial where you think the prosecution may proceed against the defendant again. So, having already conceded that my position doesn't actually offend your opinion on double jeopardy without realizing it, and having been asked twice about it, your response was to ignore the fact that you conceded my point already and bring up other, irrelevant things. Stay on topic.

    PS – "Good faith exception" to exclusionary rule can apply to warrantless searches, too. You know, the kind where the cops don't apply for a warrant, and no error by the judiciary exists. Illinois v. Krull, 480 U.S. 340 (1987) (statute relied on by police ruled unconstitutional), United States v. DeLeon-Reyna, 930 F.2d 396 (1991) (negligent data entry by cop causes him to stop vehicle absent reasonable suspicion). It can also apply when the police make an error of fact, not law (Such as the person giving consent to search doesn't actually have the authority to do so, but the police search anyway because they believe consent was validly obtained). Illinois v. Rodriguez, 497 U.S. 177 (1990).
    Also, some states do not have a good-faith exception, because their state constitutions or state statutes don't permit one.

  190. Grifter says:

    @James Pollock:

    You're right. When you refused to back yourself up, I did not closely read your response, because frankly at a certain point, I'm not going to.

    In Illinois v. Krull, they ruled that good faith applied but that the law was unconstitutional, and excluded the evidence. (Here the legislative committed the error, not the judiciary, and part of their ruling was to say that it wasn't the police's fault, but that it was nonetheless excluded because the law was so bad).

    "[T]he exclusionary rule was adopted to deter unlawful searches by police, not to punish the errors of magistrates and judges."
    Id. at 990, 104 S.Ct. at 3429 (quoting Illinois v. Gates,462 U.S. 213, 265, 103 S.Ct. 2317, 2346, 76 L.Ed.2d 527 (1983) (White, J., concurring))."

    But you're right, it's a red herring. (which is funny, since I tried to say something very similar, but you keep bringing up the topic. But that's fine; we agree it's a red herring. Move on to stay on point).

    You originally stated that you wanted this to apply in cases where the precedent was unclear. That is different than completely overturning previous precedent. I, in fact, agreed with you on that already:

    "As I said before, if the court were directly overturning precedent, then you'd have a much stronger argument. If they'd ruled dozens of times that cars COULD be dwellings, then decided that "no, they're not". I might even agree with you for cases like that.

    I went on to say you weren't using cases like that.

    Granted, I said "might". I said that because I didn't and don't feel you were making that point. Shall we now say that you are talking only about cases where existing precedent was clear, but then gets overturned?

  191. Grifter says:

    I will say I question, even in that narrower circumstance of clear judicial overturn, whether it will lead to vexatious prosecution. I know you said that in your scenario the state would be responsible for the cost of defense, but what about the cost of life disruption (job, family)? For an example (and I freely confess that my understanding of the actual case here is not fantastic, but bear with me conceptually):

    Roe v. Wade took something like 4 years to be decided. That case overturned some previous precedent, and so theoretically meets your standard (assuming you're agreeing with my previous post at the end).

    Now, it also wasn't a criminal case, but let's say for argument that she had obtained an abortion, and the state was trying to charge her under abortion law. They lose in the supreme court, who rule that the abortion law is unconstitutional.

    What would stop them, and would you want them to be stopped, from charging her with "obtaining an unlicensed medical procedure", or even "murder"? Granted, the right to life argument was explicitly rejected by the court in the real case, but that related only to that law, and the state could reasonably argue that they have a right to try her for murder (even if, perhaps, they know it's a long row to hoe). Will it take another 4 years to decide that one? Is that legitimately furthering the aims you're seeking?

  192. Grifter says:

    (Three in a row? Sorry!)

    @James Pollock

    I also think that there's a difference between the fact that the exclusionary rule is a remedy to a breach of rights that has occurred and cannot be undone, and what you propose which is to violate the clause of "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .".

    The first is what hapens after the violation has already occurred, and the second is justifying a violation in the first place (Though, I understand your argument that the defendant was not "really" in jeopardy, but I find it unlikely that a court would find that a persuasive argument, however, I also acknowledge that there are several exemptions to that "absolute").

  193. James Pollock says:

    "I did not closely read your response, because frankly at a certain point, I'm not going to."
    Well, if not even you're reading these any more, I guess there's no point in bothering to write them.

    But… prohibition of double jeopardy is not a remedy OR a preventative measure for vexatious prosecution. It preserves the jury's central role as arbiter of fact. (If the state may try again and again for a conviction on the same charge for the same facts, the right to trial by jury is meaningless as the state can keep trying until they draw a compliant jury. Double jeopardy does nothing at all to prevent vexatious prosecution except require the corrupt proseuctor to invent new spurious charges each time. The ACTUAL remedies for vexatious prosecution include civil rights lawsuit, supervision of prosecutors by elected officials, disciplinary committee of the bar, and the availability of pretrial motion for dismissal with prejudice. (plus, of course, the limitations on bringing ANY charges against ANY defendant, which are supposed to prevent any spurious charges whether they're vexatious or not.)
    So no, I didn't address vexatious prosecution because I didn't suggest any changes to the mechanisms that already exist to prevent it.

    To wander over to your Roe hypothetical:
    (Always a danger mixing two different people's hypotheticals)
    So, defendant obtained an abortion, was convicted of obtaining an abortion, and the appeal caused a new rule to be announced. The conviction is overturned, and the prosecutor says "well, we've got to get her on SOMETHING!" and starts looking for some charge that will stick.
    I'm not quite sure what the elements of your "obtaining an unlicensed medical procedure" statute contains, but it's probably void as against the patient. I'm not going to explain this one but it's because the state has power to restrict unlicensed medical procedures to protect the public from the harmful effects of obtaining services from unlicensed providers, and the general rule is that if a class of persons is intended to protected by a law, they can't be charged with it (this is why the underaged girl can't be charged with being an accessory to statutory rape.)
    Where my prospective rule change would come into play is if the abortion provider were not licensed to practice medicine and state had proceeded against the abortion provider for performing the abortion, convicted him, and then lost the appeal because the state's abortion statute simply criminalizing abortion was overturned. Now, with the abortion statute out of the way, the state would be able to proceed against the abortion provider for providing a medical procedure without a license to do so. The elements that make this possible would be A) previous reversal of conviction because of new rule announced by the appeals court, B) charges are applicable under a non-invalidated statute, C) ordinary issue preclusion does not apply.

    I don't think you could get past opening motions on a murder charge, because not all of the elements of murder are present. There would almost certainly be SERIOUS evidentiary issues, as well. For an interesting look at pre-Roe abortion, I suggest Michael Crichton's "A Case of Need".

  194. Grifter says:

    @James Pollock:

    I hope you were just cracking wise, and I that I wasn't unclear, but to clarify: I was saying that since I felt you had ignored my request for you to justify the previous topic, I skimmed your resulting point which I thought was just you repeating yourself but which, in this case, meant that I missed that you had given me a "for the sake of argument"; if I'd realized you'd done that I obviously would have kept reading.

    It is my understanding that preventing vexatious prosecution is one of the justifications for the double jeopardy clause.

    "In my view, the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, [n7] to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, [p454] episode, or transaction. This "same transaction" test of "same offence" not only enforces the ancient prohibition against vexatious multiple prosecutions embodied in the Double Jeopardy Clause, but responds as well to the increasingly widespread recognition that the consolidation in one lawsuit of all issues arising out of a single transaction or occurrence best promotes justice, economy, and convenience. "

    —–Ashe v. Swenson 397 U.S. 436 (MR. JUSTICE BRENNAN, whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, concurring.)

    So I challenge your contention that you haven't touched the current system in place to prevent vexatious prosecution.

    I guess what I'm trying to point out is situations where the court is intending to smack the state down completely, and say that the original law was wrong in the first place, and the state moves forward with some ancillary attempted charge.

    On the subject of my hypothetical: You found a better one. Thanks. Lets work off the hypothetical abortion provider who is prosecuted first for providing an abortion in the first place, and let us presume that he was not initially also charged with performing an unlicensed medical procedure (let us further presume that there is a rule requiring a license for each type of procedure…yes, it's a lot of presumptions…also I was just plucking that concept out of air earlier, that's why it didn't make as much sense). Court finds that the law prohibiting abortion cannot stand. State decides to recharge on the other count (of performing an unlicensed procedure since, at the time, it was impossible to obtain a license to perform what had been a prohibited procedure). Do you consider that kosher by your standard?

    Also, in case you missed it above, I made the point that exclusion is a remedy to rights already breached, while the prevention of double jeopardy is a specifically enumerated right (with some very narrow exceptions).

  195. James Pollock says:

    "So I challenge your contention that you haven't touched the current system in place to prevent vexatious prosecution."
    You first. The primary part of the system in place to prevent vexatious prosecution (repeated baseless charges who purpose is to annoy the the defendant rather than the merits of the claim; subset of "vexatious litigation") is the requirement to obtain an indictment. (You know, the requirement to show that the charges against the defendant have any merit). Kindly show me where I've suggested altering those requirements IN ANY WAY. Indictments are still required. The 5th amendment is still present. The other protections against vexatious prosecution still exist. Demonstrate a scenario where the hazard of vexatious litigation exists, is increased under my rule change.
    You're still sitting on the strawman that I've somehow abolished the fifth amendment, and I haven't. Pointing out that abolishing the fifth amendment would lead to vexatious prosecution is not the same thing as establishing a case where my change to the rule creates an opportunity for vexatious prosecution. You tried to get around that by slippery slope; claiming that my change opens the door to further weakening of fifth amendment protections; then I pointed out that you concede that an equivalent alternate would not do so.

    "I guess what I'm trying to point out is situations where the court is intending to smack the state down completely, and say that the original law was wrong in the first place, and the state moves forward with some ancillary attempted charge."
    Sometimes, an appeals court strikes a statute down completely, finding that it is inherently unconstitutional. Sometimes, though, the problem is that the statute is only unconstitutional the way it was used against the defendant, and it has constitutional applications as well (this is an "as applied" challenge to the statute). If the appeals court strikes the entire statute as unconstitutional, there's no "attempt" statute to charge him under, and my suggested system precludes proceeding against defendant if there's no statute to charge him under the same way we handle that now. (See requirement B in comment above).
    If the appeals court thinks that defendant not only should not have been charged with the crime he was convicted of, but he should not have been charged with anything at all. If so, they will have a sound legal reason for this, and they will write the opinion explaining that legal reason for the guidance of lower courts and the prosecutors who work in them.

    "Lets work off the hypothetical abortion provider who is prosecuted first for providing an abortion in the first place"
    OK. If this very convoluted statutory scheme for controlling medical practice exists along with my interpretation of the double jeopardy rule, here's my projection of the outcome.
    First, he's charged with performing an abortion, a standalone crime. He's convicted, for the very good reason that he did, in fact, perform all of the elements of the crime. He appeals, and the court announces a rule declaring a right to an abortion; the abortion statute falls and the conviction is overturned.
    My system is in place, so prosecutor has an opportunity to look to see if some other statute applies. Aha! he says. Defendant didn't have a license to perform a D+C (the exact medical procedure performed). Prosecutor consults with his boss on the idea of pursuing that charge. "Don't be stupid." says the chief prosecutor. "Attempting to charge him under that statute would fail immediately to an "as applied" challenge. The state can't get around the invalidation of its abortion statute by requiring a license to perform an abortion and then not licensing anybody. Stop wasting time on this, and get back to work on cases that we can win." No charges are forthcoming. The legislature writes new legislature that carefully limits the granting of abortion procedure licenses. The existing system to prevent vexatious prosecution has worked as intended.

    Go back and look over my scenario again. There, the state had what it considered a legitimate interest in preventing an abortion, and assuming it had the authority to criminalize all abortions; the prosecutor worked under that assumption. The appeals court changed the rule, telling the state that it does not have a right to criminalize all abortions.
    However, the state does have in interest (that of protecting its citizens from quackery) in limiting the practice of medicine to those qualified, and that interest is not touched by the appeal. If the provider is not licensed to practice medicine, he perhaps lacks facilities or skill or both necessary to provide proper care for the patient. That offense still remains after you establish that the mother was entitled to seek an abortion.

    There are alternatives to my suggestion. Here's a few off the top of my head.
    1) prosecutor charges all offenses that apply every time, just in case an appeals court strikes one of them. No double jeopardy problems, but trials take longer and defending yourself is much more expensive. Also, you have either a significant increase in the cost to operate the justice system, or you get access to justice problems as the criminal docket expands at the expense of civil court.
    2) prosecutor charges on the most serious charges, appeals courts strike them, and double jeopardy prevents the prosecutors from pursuing the other charges that the defendant was guilty on. Downside: some crimes go uncharged even though police think they know whodunnit; the public perceives people "getting away with it on a technicality" and esteem for rule of law is diminished. In severe forms, vigilante justice may ensue. Additionally, innocent persons are deprived of the opportunity to actually establish their innocence and the police do not pursue the actual offender because as far as they're concerned, they got the right guy and the prosecutor botched it.

  196. Grifter says:

    @James Pollock:

    I provided a quote where three justices of the supreme court said that

    "This "same transaction" test of "same offence" not only enforces the ancient prohibition against vexatious multiple prosecutions embodied in the Double Jeopardy Clause"

    I really do not understand why I have to justify my point further? Are you arguing that the Supreme Court (or at least these justices) are wrong to say that protection from "vexatious multiple prosecutions" is embodied in the Double Jeopardy clause? Please help me understand (Bearing in mind that I recognize you're not advocating throwing it out completely; certainly, however, it would be considered an erosion of the existing protection as it stands now, yes?)

    As regards to your alternative solution (1), I am not sure I agree that prosecutors including lesser charges would inherently make trials take longer; in the case of murder trials, for example, if they charge the defendant for first and second degree murder, it shouldn't take any longer than if they charged on first-degree only. They generally don't do it now so as to not give the jury the opportunity to convict or compromise on the lesser charge, yes?

    In other scenarios where we're talking about different, rather than lesser, crimes, they often do charge those multiple offenses already as the system stands . Frankly, I feel that is the best solution. One trial that embodies everything that they want to charge you for for this one situation; is that not the intended outcome of the double jeopardy clause?

  197. James Pollock says:

    Another hypothetical to play with.
    Defendant is charged with second-degree murder. The facts established at trial: Defendant and victim were involved in road rage incident. Victim follows defendant to defendant's home. Defendant parks in his driveway, gets out of his car and makes it as far as his front porch before victim pulls up, parks in the driveway in such a way as to prevent defendant from moving his car, then gets out and advances towards defendant with a tire iron in his hand, verbally indicating an intention to use it to "beat defendant's head in". (All of this is witnessed by several credible, unbiased witnesses who testify fully and completely). Defendant pulls a concealed handgun and shoots victim in the driveway, and after securing the tire iron, defendant directs a witness to call 911 and begins lifesaving procedures which are not successful.
    Defendant affirmatively claimed self-defense because he was in fear of his life Prosecution counters that the law of the state is that use of deadly force is not authorized if the defendant had a reasonable opportunity to retreat safely. The issue presented to the jury is to decide whether or not defendant could have reasonably retreated to the safety of his house. The jury finds that he could have, and following their jury instructions, return a verdict of guilty.

    Defendant appeals. The appeals court announces that it is adopting the castle doctrine of authorization of deadly force; there is no duty to retreat before using deadly force when defendant is inside his own home. Further, they declare that "on the porch" equals "inside the home". The conviction is overturned.

    Now, this guy seems like a popular defendant but the jurisdiction has had a lot of gun violence lately and the prosecutor's office is trying to crack down, and my suggested rule applies so they look to see if any other charge rather than murder-2 applies.
    So: How about assault with a deadly weapon or just plain old assault? No good. Issue preclusion prevents the prosecution from charging either of these, because the question of "Is defendant's use of the gun in this situation" has already been answered, and the answer is "yes". If the guy was authorized to shoot and kill victim, then he was also authorized to shoot victim, and he was authorized to shoot at victim, and he was even authorized to display the firearm and make threats without firing off a shot. So "reckless endangerment" is out, "discharging a firearm within city limits" is out, and "brandishing a firearm" is out.

    But wait! If defendant lacks a carry permit, can he be charged with CCW? Under current double jeopardy, the answer is "maybe". Impose my rule, and the answer is "yes", and thanks to issue preclusion defendant will be almost certain to plead guilty.

    But wait! If defendant was a convicted felon at the time of the incident, may the prosecutor try for "felon in possession of a firearm"?
    Answer: yes, without invoking my rule (although it would be highly unlikely that the prosecutor didn't charge this initially as the prison time for felon in possession runs consecutively to other charges, not concurrently.)
    I just cut a big section here on how concurrent sentencing leads to prosecutors forgoing some charges in pursuit of judicial economy. Let me know if you need this clarification.

  198. James Pollock says:

    "I really do not understand why I have to justify my point further?"
    Because you haven't made one yet. You've made general objections to altering double jeopardy, but you haven't shown how the specific change I suggested leads to the outcome you object to.

    "Are you arguing that the Supreme Court (or at least these justices) are wrong to say that protection from "vexatious multiple prosecutions" is embodied in the Double Jeopardy clause?"
    No. I'm arguing that those parts of the double jeopardy rule that apply to vexatious prosecution are not changed by my change in interpretation of it.
    analogy: If I say that "the walls are what hold up my roof" and "there are windows in my walls", it doesn't follow that "if I open the window the roof will fall in".
    Or staying with the construction motif, if I point to a 4×4 and say this pillar is holding up the ceiling, but it's a little rough so I'm going to sand it a little bit smoother", and your response is "but that pillar is holding up the ceiling! If you sand it, the ceiling will fall in!" My response is "It's true that if I sand it TOO MUCH, the structural integrity will be impaired, but I'm not going to sand it that much." And you stick with "No, any sanding could make the ceiling fall!" (since it's us, repeat 50 or 60 variations of "if I only sand this part, right here, a little bit it won't cause the ceiling to fall but it will stop giving me splinters" vs. "if you start sanding, you might sand too much and drop the ceiling" plus a few "are you denying that this pillar is holding up the ceiling?"s.

    "As regards to your alternative solution (1), I am not sure I agree that prosecutors including lesser charges would inherently make trials take longer; in the case of murder trials, for example, if they charge the defendant for first and second degree murder, it shouldn't take any longer than if they charged on first-degree only. They generally don't do it now so as to not give the jury the opportunity to convict or compromise on the lesser charge, yes?"
    Yes. This is an example of "charging in the alternative"… prosecutor believes one or the other statute applies and charges both; the jury will decide which one applies based on the evidence (or of course, they may decide neither applies and acquit). Of course, in cases like that, the appeals court will overturn the conviction and order a new trial (because they can't prove that if the one charge was absent, the jury wouldn't have still convicted on the other. You can also get a new trial in several other ways; double jeopardy doesn't prevent the defendant from enduring a second trial, it prevents the prosecution from asking for one, which is not the same thing.

    "In other scenarios where we're talking about different, rather than lesser, crimes, they often do charge those multiple offenses already as the system stands . Frankly, I feel that is the best solution. One trial that embodies everything that they want to charge you for for this one situation; is that not the intended outcome of the double jeopardy clause?"
    I hit this a bit previously.
    If there are multiple independant charges that apply to defendant's actions. So that, say, attempted murder applies (for shooting at the intended victim), reckless endangerment applies (because there were a number of other people standing near the intended victim), discharging a firearm within citiy limits applies, possession of an unregistered firearm applies, and use of illegal ammunition (armor piercing rounds) applies.
    Prosecutor COULD file charges on all of those, and set about proving each charge. This means doing the trial prep for each of those charges, taking up the court's time proving each of those charges, and running up the defense's legal expenses to defend each of those charges.
    But wait. If the defendant is convicted on all those charges, the sentences are 12 years for the attempted murder, 2 years for the reckless endangerment, and 6 months each for the other charges, running concurrently. What's that mean? Defendant does 12 years, the same as he would get if he was convicted of the attempted murder charge alone.
    So prosecutor can get the same result (a 12-year sentence) by charging on the attempted murder charge alone. He gets less trial prep time, which frees up time to work on other cases, the trial is shorter (the judge and the jury both appreciate this) and the defense is shorter (and less costly to the defendant.)
    9999 times out of 10000, the result (saved time and expense of holding the trial) is worth what is lost (the chance to convict on additional charges) because even if the guy is convicted on those other charges, it won't change his sentence. If he's acquitted of the big charge because he's innocent, or the prosecution was poor, or whatever, he's probably going to be acquitted of the other charges, too.
    1 time out 10000, though, the defendant successfully appeals his conviction in away that would not have precluded conviction on at least some of the other charges. Now the lost opportunity to convict on those charges matters, because it WOULD affect the actual sentence served by defendant.
    So… should prosecutors charge every offense applicable against every defendant, just in case he wins an appeal that strikes some but not all of the convictions?

    So… is it better to have prosecutors charge all offenses for all defendants every time? If that IS your preference, then you will have to settle for less efficiency in the courts. The prosecutors will need more time to prep for trial, so you will need more of them. Ditto for judges, courtrooms, clerks and bailiffs because trials will get longer on average; The costs of putting on a defense will get bigger on average, as well.

    Thus, the humorous outcome. You complain about the cost to defendants (in money and in lost time) of my solution, while embracing a solution that would cost defendants far more (in money and in lost time) than mine.

  199. V says:

    @James Pollock
    Your examples and the subject of Ken's blog post seem to have something in common. The prosecutors make a mistake by not charging the defendant with all relevant crimes in the first place.

  200. James Pollock says:

    "The prosecutors make a mistake by not charging the defendant with all relevant crimes in the first place."
    I just pointed out why it's not a mistake when they make it, they have good reasons not to charge all offenses if the sentences would run concurrently. It's only a mistake in hindsight, because at the time of charging, the prosecutor doesn't know that, in the future, the appeals court is going to change the law in the defendant's favor.

  201. Grifter says:

    @James Pollock:

    I guess where we differ on that is that I consider it to be a generally held truth that multiple prosecutions are inherently considered vexatious ones.

    That is a presumption that I think the quote I posted holds, as well. The phrase "vexatious, multiple prosecutions" is a pretty common linguistic device in rulings about jeopardy.

  202. James Pollock says:

    "I consider it to be a generally held truth that multiple prosecutions are inherently considered vexatious ones."

    It's not. To be "vexatious", a charge (or other legal claim) must be without sufficient merit. If the prosecutor charges you with murdering him, that's a vexatious charge, even though there's just one of them. On the other hand, if he charges you with speeding and later with parking illegally (because you were pulled over for speeding, and later on a different cop saw you park in a handicapped space without displaying the proper permit), that's not vexatious.

    "That is a presumption that I think the quote I posted holds, as well. The phrase "vexatious, multiple prosecutions" is a pretty common linguistic device in rulings about jeopardy."
    If it is, it disproves your point. If vexatious means "multiple", then the correct legal phrase would be "vexatious prosecutions", not "vexatious, multiple prosecutions".

    So, now that you know what "vexatious" actually means, does that change your opinion that two different prosecutions that each have legal merit are "vexatious"?

    (I notice that you failed to refer in any way to the fact that your preferred solution is FAR more costly, both to taxpayers and to defendants, than is mine, while continuing to maintain that my solution is too costly.)

  203. Grifter says:

    @James Pollock:

    That is not linguistically true. I could say that someone I know exhibits "Douchey, money-thieving behavior", but I'm not saying that all douchey behavior is money-thieving. All zips are zaps does not mean that all zaps are zips, and so on.

    "(I notice that you failed to refer in any way to the fact that your preferred solution is FAR more costly, both to taxpayers and to defendants, than is mine, while continuing to maintain that my solution is too costly.)"

    First, you still haven't fully established that it will always be significantly more costly, or that your proprosed solution (with entirely separate trials, which require entirely different juries, and more time, instructions, and witnesses) would be cheaper. And second, I think it's unfair to sum up my argument as "too costly".

    But let's grant all that for the sake of argument. I want to ask a question for clarity's sake: Would the prosecution in your scenario still be obliged to pay all the costs of defense, whatever they are, if they do get a conviction on the second trial?

  204. James Pollock says:

    How's this compromise:
    Multiple prosecutions will always be "vexatious" where multiple prosecutions are considered inherently "vexatious". Meanwhile, in the real world, multiple prosecutions will be considered "vexatious" if and only if they actually ARE "vexatious".

    See http://dictionary.reference.com/browse/vexatious?s=t

  205. James Pollock says:

    "First, you still haven't fully established that it will always be significantly more costly"
    Not only did I not establish that, I didn't even CLAIM that. In fact, I claimed exactly the opposite, that some trials will be not different at all.
    What I did claim is that, on average, trials will become longer, because requiring prosecutors to charge every applicable charge increases the number of charges in SOME trials*. Since trials that don't have multiple applicable charges are unaffected by EITHER proposed solution, we can ignore them and focus on those that do have multiple applicable charges. In those, the prosecutor will now bring more charges. More charges take longer to prepare for before trial, and the trial itself will take longer because it's covering more charges. A trial that takes longer costs more. If you're disputing this, well, feel free to explain how.

    "or that your proprosed solution (with entirely separate trials, which require entirely different juries, and more time, instructions, and witnesses) would be cheaper."
    IF you extend every trial with multiple charges applicable by requiring the prosecutor to charge all of them, then every single trial is more costly than the kind we have today, where the prosecutor skips charging the ones that have sentences that run concurrently.
    If you use my system, then the prosecutor skips the charges that produce meaningless concurrent sentences. In those cases where the appeals court alters the law retroactively and makes one or more those foregone charges meaningful again, the prosecutor may go back and charge them… requiring the expense of a second trial.
    Both of these would be more expensive than the actual system we use, where prosecutors skip charging if conviction on that charge will produce only meaningless concurrent sentencing, and if the appeals court overturns, any foregone charges are permanently barred.
    But… which of the two is more expensive than the other? Depends on how common the occurrence of the triggering event (appeals court overturning the law).
    Let's illustrate with some numbers. If requiring all charges increases the cost of trial by 5%, while the appeals court trigger occurs in 1 in every 10000 trials, that works out algebraically to 1.05(100000) > (10000) + 1.
    If we instead assume that the appeals court overturns 1 in every 2 trials, you get 1.05(2) < 2+1.
    So my cost claim rests on my claim that an appeals court will alter the law more like 1:10000 than 1:2. Feel free to dispute this claim.

    "And second, I think it's unfair to sum up my argument as "too costly"."
    OK, I won't do that. ON THE SUBJECT OF COST ALONE, defendants will suffer more under your plan than mine. ON THE SUBJECT OF TIME TAKEN FROM THEIR LIVES DUE TO TRIAL, most defendants suffer more under your plan than mine, a very small number suffer more under my plan than yours. ON THE SUBJECT OF TRIAL ACCURACY both plans work equally well; a person charged with multiple counts at first charging who has one of the charges stricken by appeal still serves out the sentence for the other charges, ditto if the trial for the other charges waits until after the appeal.

    "But let's grant all that for the sake of argument. I want to ask a question for clarity's sake: Would the prosecution in your scenario still be obliged to pay all the costs of defense, whatever they are, if they do get a conviction on the second trial?"
    The exact form of compensation for being incorrectly charged isn't part of the change I suggested; I just assume that some companion limitation for incorrect prosecution might be desirable. At present, if defendant is charged incorrectly (vexatiously or not) the only compensation is acquittal. (In cases of vexatious prosecution (rather than good-faith but mistakenly prosecuted cases), defendant CAN get money damages… but it takes a separate trial, and one where the "suspect" carries burden of proof.)
    Many states have a statutory compensation for persons mistakenly convicted who serve actual prison time… but they are not actually required to do so. If you were held in jail because you couldn't raise bail, you get nothing for that, even if it costs you your job and your family. Those, however, are different issues, strictly speaking. Throwing that change in to get my suggested change in would be a political requirement, not a legal one.

  206. Grifter says:

    @Jame Pollock:

    Colorado Statutes

    Title 18. CRIMINAL CODE

    ….

    "The purpose of the joinder statute is to "prevent vexatious prosecution and harassment of a defendant by a district attorney who initiates successive prosecutions for crimes which stem from the same criminal episode"."

  207. James Pollock says:

    "That is not linguistically true."
    I'm referring specifically to the way legal professionals use language.

    "I could say that someone I know exhibits "Douchey, money-thieving behavior", but I'm not saying that all douchey behavior is money-thieving. All zips are zaps does not mean that all zaps are zips, and so on."

    If we start with ALL A are B, and NOT ALL B are A (which appears to be your original your claim… all multiple prosecution is (inherently) vexatious, but not all vexatious prosecutions are multiple.)
    Then, if I say something is A, then I ALSO said they are B, because all A are B. Conversely, if I say something is B, then I have not stated that it is also A… it may be, it may be not.
    Lawyers are taught in legal-writing classes that to be needlessly repetitive is incorrect.
    Thus, if all A are B, the preferred legal way to refer to things that are both A and B is to say "B", not "B, A". You only need "B, A" if NOT (ALL A ARE B) AND NOT (ALL B ARE A), and it doesn't matter if (SOME A ARE B) OR (SOME B ARE A).
    Therefore, if it is common to refer to "vexatious, multiple prosecution", and the person doing the referring is legally trained, it indicates that "vexatious prosecution" and "multiple prosecution" are different things.
    QED.

  208. Grifter says:

    @James Pollock:

    You are suggesting taking away from defendants a right they currently have: that if they prevail in appellate court, and their argument is accepted for why the law applied to them does not apply to them, they receive acquittal.

    One of the things you mentioned as being offered in exchange was compensation for the second trial (I thought). Was that not the case?

    And more: On a case-by-case basis, not a single defendant would want to give up this right they currently have.

    I, having committed no wrong for which I'm afraid of prosecution, am comforted knowing that the state, if they should choose to pursue me over a wrong have only one shot in which to do so, even though I recognize that some people will get off "on a technicality" because the prosecutor was too cheap and/or lazy to charge everything they could at once.

    Taken on a case-by-case basis, I do not believe any defendant would say "hmm, yes, only charge me on the things you think will stick the hardest, and we'll argue over those; in exchange if you lose because you should never have charged me with those in the first place, you may charge me again. I agree to this because it is cheaper for me to defend against."

    The scenario you seek is inherently vexatious because it's inherently a situation where the person is only being charged with the new charges because the prosecutor doesn't like the appellate court's ruling; they had the opportunity to use them initially, but didn't (for whatever reason) and, if the appellate court had ruled in their favor, jeopardy would have prevented them from using those charges. That seems as though it intends to harass to me, and your self-defense-gun example seems to codify that.

    I feel like your arguments are global, and lose sight of the particular. Each defendant must be guilty beyond a reasonable doubt, and must have a completely fair trial; we don't say "well, he was almost certainly guilty, so let's convict" or "most defendants will get a fair shake, so the ones that don't can suck it".

  209. Grifter says:

    @James Pollock:

    Are you contending that the Supreme Court never issues opinions with unnecessary rhetorical flourishes?

  210. James Pollock says:

    The fact that Colorado is willing to sacrifice those prosecutions which are multiple but not vexatious to ensure that multiple prosecutions which are vexatious are prevented does not support the premise that all multiple prosecutions are vexatious.

  211. James Pollock says:

    "You are suggesting taking away from defendants a right they currently have: that if they prevail in appellate court, and their argument is accepted for why the law applied to them does not apply to them, they receive acquittal. "
    No. If the appeals court overturns either the law or the application of law that caused the conviction of the defendant, they get acquitted and cannot be charged with that offense again for the same nexus of events.

    "One of the things you mentioned as being offered in exchange was compensation for the second trial (I thought). Was that not the case?"
    No, the only specific suggestion I made there is that it might be desirable to grant compensation of some kind to all people who are convicted but win their appeal and get their conviction(s) overturned. (This is, as I noted, an entirely separate matter… a companion change rather than a component)
    This might be politically necessary to get the change enacted, and it addresses the complaint that the defendant has to pay to defend charges he'd thought the prosecutor had foregone.

    "And more: On a case-by-case basis, not a single defendant would want to give up this right they currently have."
    Well, on a case-by-case basis, not a single defendant would want to be charged at all, either.

    "Taken on a case-by-case basis, I do not believe any defendant would say "hmm, yes, only charge me on the things you think will stick the hardest, and we'll argue over those; in exchange if you lose because you should never have charged me with those in the first place, you may charge me again. I agree to this because it is cheaper for me to defend against.""
    I disagree. The ones who aren't paying for their own defense and are ROR or on bail won't care how long or expensive the trial is. The ones in jail while waiting for the trial and during the trial will have a preference that the trial be sooner and shorter (so they can get out of jail sooner, whether on acquittal or after serving their sentence). People who are paying the costs of their defense would rather pay to defend one charge than pay to defend multiple charges.

    "The scenario you seek is inherently vexatious because it's inherently a situation where the person is only being charged with the new charges because the prosecutor doesn't like the appellate court's ruling"
    That's still not what "vexatious" means.

    "if the appellate court had ruled in their favor, jeopardy would have prevented them from using those charges."
    No, the fact that pursuing convictions on those charges doesn't keep the defendant in prison any longer "prevented" them from using those charges.

    "I feel like your arguments are global, and lose sight of the particular. Each defendant must be guilty beyond a reasonable doubt, and must have a completely fair trial; we don't say "well, he was almost certainly guilty, so let's convict" or "most defendants will get a fair shake, so the ones that don't can suck it".
    strawman.

  212. James Pollock says:

    "Are you contending that the Supreme Court never issues opinions with unnecessary rhetorical flourishes?"

    Are you contending that the Supreme Court provides needlessly compex language in its opinions, in violation of its duty to provide clear direction to lower courts?

  213. Grifter says:

    @James Pollock:

    Couple things.

    First off, that's exactly how other judges have used vexatious. I've given you some quotes, searching google for "multiple prosecutions vexatious" will yield more. To keep saying "that's not what it means" is not constructive when I can show that's how judges use it, and have quoted it for you. The reason you don't think of it as vexacious is because, barring very narrow exceptions, it's not allowed, so it doesn't really come up much.

    Second, I forgot the expansion "and cannot be charged". Apologies, thank you for the correction.

    Third:

    I disagree. The ones who aren't paying for their own defense and are ROR or on bail won't care how long or expensive the trial is. The ones in jail while waiting for the trial and during the trial will have a preference that the trial be sooner and shorter (so they can get out of jail sooner, whether on acquittal or after serving their sentence). People who are paying the costs of their defense would rather pay to defend one charge than pay to defend multiple charges.

    I call shenanigans. I don't think any defendant would ever be okay with giving the prosecution a way to charge them again for the same events.

    Fourth:

    I said that it felt that way to me. I didn't say "this is definitely so". It's not a strawman; I explained my feeling. It's not a strawman.

  214. Grifter says:

    @James Pollock:

    Hey, that's a cool way to not answer the question at all! Shall I presume your answer is "Yes"?

  215. James Pollock says:

    "First off, that's exactly how other judges have used vexatious. I've given you some quotes, searching google for "multiple prosecutions vexatious" will yield more. To keep saying "that's not what it means" is not constructive when I can show that's how judges use it, and have quoted it for you."
    I'm afraid you haven't yet provided a quotation that says "vexatious means multiple instead of 'without merit and intended to annoy'"
    I'll suggest that if you find a statute that defines it that way, that would override the dictionary definition of "vexatious".

    "I call shenanigans. I don't think any defendant would ever be okay with giving the prosecution a way to charge them again for the same events."
    Let me understand your logic. You say that if given the choice between "charge me with only one or two of the list of charges that apply, and as long as that one sticks, never charge me with the others" and "charge me with everything", a guy who's paying his lawyer an hourly billable rate is going to choose the second?
    True, criminal defendants are typically at the low end of the intelligence bell curve, but their lawyers aren't.

    "I said that it felt that way to me. I didn't say "this is definitely so". It's not a strawman; I explained my feeling. It's not a strawman."
    Oh.
    I feel you tend to draw in strawman arguments when your inability to marshal simple arguments or respond to logic interfere with your responses. Instead of responding to the logic, you ask weird rhetorical questions about the Supreme Court, declare that my argument throws away the fourth and fifth amendments, or just ignore due process requirements based on your "feelings".

    How some judges define "vexatious prosecution":
    "We hold that a determination that a prosecution was "vexatious" for the purposes of the Hyde Amendment requires both a showing that the criminal case was objectively deficient, in that it lacked either legal merit or factual foundation, and a showing that the government's conduct, when viewed objectively, manifests maliciousness or an intent to harass or annoy.
    256 F.3d 20 (1st Cir. 2001)

    It seems that Congress went ahead and defined "vexatious prosecution" for purposes of federal law.

    All it took was few minutes with Google searching for "vexatious prosecution definition, and skipping over the stories that deal with the UK's definition.

  216. Grifter says:

    @James Pollock:

    You're using a definition created legislatively in an area that already precludes double jeopardy, and using that as evidence that violations of double jeopardy would not be vexatious, while ignoring situations where the judges who interpret these things have been discussing the matter of multiple prosecutions for technically legitimate crimes and calling it vexatious.

    You are also misapplying the "strawman" concept, and being unnecessarily insulting while you do so. To spell it out, since you seem to not get it: I pointed out that I think you may have a problem of perspective. This assertion was based on my perception of your points, but didn't make any specific statements about them that could be called inaccurate. I followed it up with what I considered obviously invalid examples that I didn't attribute to you of looking at the global instead of the particulars. Strawmanning requires I misrepresent your position. I didn't do that. I suspect you thought I was attributing the last examples to you; I didn't think that you thought that until your next reply, I thought you were trying to say that my statement "I feel like your arguments are global, and lose sight of the particular" was the strawman, when it clearly is not such. While that doesn't seem unclear to me, I will apologize and clarify: I wasn't attributing the last to points to you. They were just, like I said, exaggerated examples of how we do not use global arguments in relationship to the rights of the accused, but rather treat each case individually.

    However, I'm fairly tired of your frequent insults. And of tactics such as your apparent steadfast refusal to answer a question that was in direct responses to something you said, while dismissing it as "weird". To clarify: you said that judges and lawyers don't use a type of speech, my response was to ask if you really think that the Supreme Court never uses that type of speech (which, granted, was semi-rhetorical since I think we both know they do), and you refuse to answer and call it a weird rhetorical question. I have respect for your posts in general, however, I have difficulty responding to comments like that because they seem disingenuous to me.

    But the vexatious prosecution thing is a tangent. So while I'm still annoyed at your response, it's not particularly necessary for us to sort that out for the topic at hand.

    So let's bring this back to the topic at hand.

    The fact remains that even if I agreed with you philosophically on your "mistake of the judiciary" argument of an appellate court overturning a precedent, there actually are no exemptions for that in the constitution. Again, for searches, the exclusion of evidence is the remedy to the breach of the right. That's why the exclusion is not absolute in cases of judicial error; because the current interpretation holds that exclusion is not the proper remedy in that circumstance.

    What you're advocating is different in that you're advocating a justification for a breach of the right as written itself. Granted, there already are exemptions to the double-jeopardy rule, but they have very specific precedent justifications. For my reference, can you give a similar example of another explicit right being breached (one that involves justifying the breach of the right, not the remedy for the breach of the right)? I'm assuming you aren't advocating a constitutional amendment, of course.

  217. James Pollock says:

    "You're using a definition created legislatively in an area that already precludes double jeopardy, and using that as evidence that violations of double jeopardy would not be vexatious,"
    No, a violation of double jeopardy would certainly have the possibility of being vexatious, if it were filed to annoy or harrass the defendant. This is no different from any other meritless charge the prosecutor decides to file to annoy or harrass the defendant. "Vexatious" means what it means, and I'm sorry you reject reality, but reality is persistent. It's just not going to change for you.

    "You are also misapplying the "strawman" concept, and being unnecessarily insulting while you do so. To spell it out, since you seem to not get it: I pointed out that I think you may have a problem of perspective."
    To spell it out for you, since you seem not to get it, you keep attributing things to me that I did not, do not, and will not advocate, because you cannot seem to address the actual points I make. So far this thread, you attributed to me abolition of both the fourth and fifth amendment, and those were just the most egregious. You make these arguments not in response to what I write, but because of how you "feel". That's a strawman argument. Textbook.

    "there actually are no exemptions for that in the constitution."
    Except that there are. The current interpretation of the Constitution DOES allow double jeopardy in some circumstances. Admittedly, it WOULD take a change in interpretation of the prohibition of double jeopardy to make the change I suggested, I said so from the beginning. It would NOT take a change to the Constitutional text. My change allows a prosecutor to file charges once, as long as the statute of limitations has not run out. It just gives them a chance to revisit the decision of whether or not to charge if certain things happen. Mapping jeopardy to whether charges have been filed on a specific charge instead of whether charges have ever been filed on any related charge still leaves the prosecutor with exactly one chance to convict per charge. Which does not offend "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb", because once is less than twice.

    "What you're advocating is different in that you're advocating a justification for a breach of the right as written itself."
    No, I'm not, because the right, as written, is not breached. Prosecution gets one chance to convict per charge. If multiple charges apply, but the state pursues them in two trials instead of one trial but none of the charges overlap, how is the defendant put twice in jeopardy of life and limb for the same offense? Each offense is tried ONCE. There are sound reasons for requiring joinder, largely revolving around judicial economy. That's why civil trials ALSO have mandatory joinder (See FRCP 19), even though there's nothing in the Constitution at all on the subject.

    "For my reference, can you give a similar example of another explicit right being breached.
    Sure. The first amendment says Congress shall make no law abridging freedom of the press. Print up some child porn and see if Congress made a law.
    The fifth amendment says "nor shall private property be taken for public use, without just compensation." Two words: civil forfeiture.

    The fourth amendment's warrant requirement is full of holes. This takes several weeks of Crim Pro class, but I'll pick just one. If the cops stop you, and have a dog sniff you and your car, this is NOT A SEARCH and thus no warrant is required.

    The sixth amendment guarantees the right to assistance of counsel. Once upon a time, that meant that IF you could AFFORD an attorney, that attorney could help your defense. To improve fairness to the indigent, this right was re-interpreted to mean that if you cannot afford an attorney, one will be appointed for you. However, there are still a good many types of proceedings where an attorney will NOT be appointed for you. Oh, and that attorney appointed for you? Proficiency not guaranteed. There are cases (CAPITAL cases) where the appointed defense attorney fails to make any objections of any kind throughout the trial. Cases where the defense attorney was observed sleeping in court. Cases where the defense attorney fails to mount any defense at all. What do these cases have in common? The appeals based on inadequate-assistance-of-counsel FAILED. (It's really, really hard to win an inadequate-assistance-of-counsel appeal.)

    Read the Slaughterhouse cases to see what happened to the "privileges and immunities" clause of the fourteenth amendment (this opinion is the reason 14th amendment law is a confusing mess… they attempted to read the 14th amendment way to narrowly, and later courts expanded it without overruling the Slaughterhouse Cases opinion, tucking things into the due process clause that don't belong there.

    How many ways has the 15th amendment been evaded?

    Here's one. During the Lockner Era, the court used the 13th amendment (sort of) and the prohibition on "impairments of contract" to knock down all sorts of labor laws (an unlimited right to enter into contracts for one's labor means that it's an impairment of contract for the state to limit the number of hours an employee may be required to work.) After about 35 years, the Lochner Era came to a close, and all the cases tossing labor laws to protect the "right to contract for one's labor" were overturned, and now we have a 40 hour workweek and mandatory overtime. Well, not for professional and technical workers, but for most workers, anyway.

    I also suggest you look into "harmless error". Sometimes when you appeal and argue that evidence was wrongfully admitted against you, the appeals court agrees with you and says "you're right, that evidence should not have been admitted. You stay convicted, though, thanks for playing!"

  218. James Pollock says:

    Let's run through the Constitutional requirement in more detail.

    Let's say that statutes 1, 2, and 3 apply to things that plaintiff did, and they are reasonably related to each other but each is a separate and complete charge (that is, it's charging in the alternative or lesser included offenses. Prosecutor could charge 1, 2, or 3 or any combination.
    We'll start with the easy ones. If prosecutor charges 1, 2, and 3, convicts on all three, then celebrates with a quick beer at the sports bar on the way home, there's no problems with double jeopardy.
    If prosecutor charges 1, 2, and 3, but the jury convicts on only 1 and 2, and prosecutor decides 2 out of 3 isn't bad, and stops by the sports bar on the way home, no problems with double jeopardy.
    If the prosecutor charges 1, 2, and 3 but the jury acquits on all charges, prosecutor decides to go drown his sorrows at the sports bar and then comes back to work the next day ready to get the next guy, no problems with double jeopardy.

    Let's pick it up a little.
    Prosecutor charges 1, 2, and 3, and the jury convicts on all three. Defendant appeals the convictions, asking for a new trial because evidence was presented against him that should have been excluded. The appeals court agrees and orders a new trial. Prosecutor proceeds again, this time leaving out the evidence that should have been excluded. The jury convicts anyway. No double jeopardy violation.

    There is no evidence to support charges of any kind against defendant. Prosecutor files charges 1, 2, and 3 to harrass and annoy defendant, who donated large amounts of money to prosecutor's opponent in last election. Judge dismisses charges with prejudice because they are clearly vexatious.

    And finally, to the case at point:
    Charges 1, 2, and 3 are applicable, but prosecutor charges only 1. Later, but before the statute of limitations runs out, prosecutor charges 2 and 3. This is a pretty clear violation of mandatory joinder of claims, but mandatory joinder of claims does not appear in the Constitution. There is no violation of "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb"… Defendant is put in jeopardy once for each offense, and only once.

    Prosecutor could charge 1, 2, and 3. Prosecutor talks to defense attorney and says "Look, I could charge 1, 2, and 3. If your client pleads guilty to 1, I'll drop 2 and 3. Of course, if your client changes his plea later, 2 and 3 are back on the table." According to Grifter, no defendant would EVER take such a deal throwing away their right not to be charged with 2 and 3 later as long as the conviction on 1 stands up. In the real world, 75-80% of defendants do, in fact, take plea bargains.

  219. Grifter says:

    @James Pollock:

    I'm only going to respond to the most bothersome points.

    "No, a violation of double jeopardy would certainly have the possibility of being vexatious, if it were filed to annoy or harrass the defendant."

    You don't think that charges which are filed solely because the State lost its case would be considered "harrassing"? I sincerely doubt that most judges would agree with you.

    "To spell it out for you, since you seem not to get it, you keep attributing things to me that I did not, do not, and will not advocate"

    Except I didn't. You accused me of X, I pointed out I didn't do X, your response is to say "you keep doing X!" I apologized because I was willing to give you the benefit of the doubt and assume that my phrasing was unclear. That willingness is now gone. You were wrong. You said I did strawmanned in a specific circumstance, wherein I did not strawman.

    "No, I'm not, because the right, as written, is not breached. Prosecution gets one chance to convict per charge. If multiple charges apply, but the state pursues them in two trials instead of one trial but none of the charges overlap, how is the defendant put twice in jeopardy of life and limb for the same offense?"

    You are wrong.

    Ashe v. Swenson would quite clearly show the precedent where you are considered to be wrong.

    In fact, go ahead and read the wikipedia article on Double Jeopardy/Same Offense.

    http://en.wikipedia.org/wiki/Double_Jeopardy_Clause#.22Same_offense.22

    In the case of the defendant in this story, if it had been originally something that fit your criteria, he would have very clearly been charged again for the exact same offense. To quote you: "I'm sorry you reject reality, but reality is persistent. It's just not going to change for you."

    Prosecutor could charge 1, 2, and 3. Prosecutor talks to defense attorney and says "Look, I could charge 1, 2, and 3. If your client pleads guilty to 1, I'll drop 2 and 3. Of course, if your client changes his plea later, 2 and 3 are back on the table." According to Grifter, no defendant would EVER take such a deal throwing away their right not to be charged with 2 and 3 later as long as the conviction on 1 stands up. In the real world, 75-80% of defendants do, in fact, take plea bargains."

    No.

    Now who's strawmanning? Those are completely different circumstances. As you noted before, the prosecution often doesn't add additional charges because of concurrency; they are getting the same result regardless of their not having the additional charges. No defendant would take a plea bargain that didn't have concrete benefit to himself; in consideration of his guilty plea he gets less sentence than going to trial. No such compensation or consideration is being offered in your alternative scenario, which is why I said no defendant would take it and, further, plea deals take place before jeopardy attaches, when the prosecution still has the option of charging for more or less offenses, and is approved before it is entered.

    James, while I have generally respected your arguments on this site, on this subject you have been frequently insulting and, it seems to me, disingenuous. I find it hard to believe that you did not see how invalid that last comparison was, just as I find it hard to believe you didn't see the difference between a remedy for a breach of right, and a justification for breach in the first place.

    I'm tired of quoting actual cases and your response being flat assertions with no justification (my favorite being when you claimed you couldn't possibly back yourself up and shouldn't have to, because you didn't have an infinitely free account on Westlaw…as though there's no other way to find cases).

    At this point, we're done. You have shown that you cannot be convinced by argument (as demonstrated by your inability to concede any but the smallest points), that you are going to be insulting for no good reason, and that you are being, to my view, disingenuous. After 9 days on the same subject, anyone can get frustrated. I'm sure, to you, my posts seem to be all the things I just accused you of. Rather than let this devolve into "you're the asshole, no, you're the asshole", I'm done.

    Rather than let this devolve and piss off our hosts, I am done. While on other threads I certainly am not going to ignore you, on this topic I am done. I won't engage further; I'm sure your response will be unkind, but I can't promise to read it, because I have a general policy of not replying once I've said I won't, which is tough when you have chronic SIWOTI.

    I guess what I'm trying to say is (and with apologies to Ken): I don't care how due process makes you feel any more. I leave the thread to you.

  220. James Pollock says:

    "No, a violation of double jeopardy would certainly have the possibility of being vexatious, if it were filed to annoy or harrass the defendant."

    "You don't think that charges which are filed solely because the State lost its case would be considered "harrassing"? I sincerely doubt that most judges would agree with you."

    If the prosecutor files charges, loses, and files those same charges again, it would be meritless and probably to harrass. That would be vexatious. The fifth amendment prohibits this both now and under my suggested change. If the prosecutor files charges, loses and then files different charges that apply under my change, if the second set of charges have merit, they aren't vexatious. They may well annoy and harrass the defendant, but only in the sense that being charged with any crime harrasses any citizen. Not vexatious.

    "Ashe v. Swenson would quite clearly show the precedent where you are considered to be wrong. "
    Nope. Ashe v. Swenson is an example of an "issue preclusion" case. I didn't suggest altering the rules of issue preclusion, and in fact went into some detail explaining how issue preclusion applies.

    "No defendant would take a plea bargain that didn't have concrete benefit to himself; in consideration of his guilty plea he gets less sentence than going to trial."
    That's ONE possible consideration, usually the only meaningful one for indigent defendants who aren't paying for their own defense. For the people who ARE paying for their own defense, avoiding trial saves a huge pile of money. Yes, lawyers are supposed to counsel their clients against their own interest if the client's interest differs.

    "I find it hard to believe you didn't see the difference between a remedy for a breach of right, and a justification for breach in the first place."
    This is howlworthy, in the sense that I had to explain to you what the difference was before you suddenly discovered how important it was to your argument.

    "I'm tired of quoting actual cases and your response being flat assertions with no justification"
    And I bet you're unhappy that all those flat assertions keep turning out to be right, too.

  221. Joseph says:

    This…really does not make me feel good about my position on the left of the political spectrum. Especially since I know a lot of people, many of them friends and people I respect, people who share most of my political views, who seem like they'd be happy to throw due process under the bus if it got more accused rapists convicted. This despite their ostensible support for the rights of the accused.

    I do think it's going a bit too far to equate whatever action people on HuffPo and Think Progress would like to see the government take with the Patriot Act and associated laws: while they're both clearly attacks on due process, it's hard for me to see even this as tantamount to a set of laws that allow for no-warrant wiretaps and unlimited detention of terror suspects without trial.

    Still, the overall point that both the right and left are far from universally in favor of due process is well made.

  222. Buzz says:

    Reading the explanation as how Justices could be so callous as to free a convicted rapist on a technicality and let's be honest that is what it was, one can see why people have such disdain for attorneys such as yourselves.

    In not ONE of the defenses of this rapists release do one of you give any indication that you give a flying fuck about that fact a human being was violated.

    What you all come across as is a bunch of pompous asses sitting around in some leather armchair puffing away on expensive (or cheap depending) with Brandy snifters acting as though you are talking about a chess move.

    Not the destruction of a woman's life

    And this is what pisses so many off. That the CTSC was so callous in their decision that they knew without any doubt that a woman with the mental capacity of a three year old knew exactly how to fend off a rapist and there for since they saw no evidence she did so, then the rape was consensual.

    And you wonder why people hate lawyers so much?

    While I understand the reasoning behind the line"first we kill all the lawyers" from Will's play and the context in which it was said, I can relate to it far too often reading these soulless types of reasoning.

    Like I said, you wonder why people hate you so much?

  223. Joe Pullen says:

    Reading the explanation as how Justices could be so callous as to free a convicted rapist on a technicality and let's be honest that is what it was, one can see why people have such disdain for attorneys such as yourselves.

    Now let’s be honest here Buzz, you didn’t actually read it. This is not about whether the Justice’s were callous in their decision, this is about the application of the law. It has been pointed out numerous times on this thread that the fault lies with the Prosecutor for choosing to charge him under the wrong statute. Just because people here are discussing the “legal” ramifications of this decision does not necessarily mean they lack any concern over the victim, but thanks for making that “ass”umption anyway.

    Pardon me while I go enjoy a sniffer of Camus Cuvee and a Habanos.

    Trolls they be hatin.

  224. James Pollock says:

    The troll bell curve is extremely lopsided on one side. This is why they have a right to counsel.

  225. twency says:

    Hmm, failed to close my tag. If BB would have banned me for coding incompetence, that would have been legit., but since I didn't use any HTML there I'm pretty sure that wasn't the case.

  226. darius404 says:

    Boingboing has the right to ban you for whatever reason they like. That does not, however, mean they banned you for a good reason. Honestly, looking at your posts, I don't see any good reason for banning you at all.

  227. twency says:

    "Boingboing has the right to ban you for whatever reason they like."

    Agreed, I'm not under any illusion to the contrary.

    "I don't see any good reason for banning you at all."

    Thanks, I'm glad to know I'm not the only one who thinks so. I sent one of the editors there an email asking what deal is.

  228. twency says:

    This is probably more detail than most people care about, but just to confirm that Antinous's credibility hasn't improved since this was posted I'll share the response I got to from Antinous after I tried to contact another BoingBoin staffer about my being blocked from posting:

    There's a whole internet out there where the 'abortion is murder' argument is raging continuously. People generally come to BB to get away from that level of discourse. I'd be happy to reinstate your account if you'd not do that.

    So Antinous's beef is that in a thread expressly on the subject of abortion, in which another commenter first inquired "If abortion is murder then why aren't these people against war or capital punishment?", that I tried to explain why I think abortion is murder and is different from war and capital punishment.

    To borrow a phrase, my days of not taking Antinous seriously are certainly coming to a middle.

  229. mojo says:

    Yeah, ol' Antony booted and banned me for daring to suggest that genetic modification is not the ultra-boogyman that was portrayed, and that, for instance, ALL corn is genetically modified, even if by a slow and unsure method.

    BOOT.

    Oh well.

  230. Willbfree says:

    BoingBoing's writers and mods have a very freshmen perspective when it comes to matters of race. The perspective could be summarized as the belief that everything is racist. They may privately be able to discern the difference between something intended to offend (like, the video you refer to) and something that is not (like, a Clint Eastwood spaghetti-Western). But publicly, they don't really want people to recognize and discuss this distinction, since it could lead to people not treating people in the idealized fashion which many of the BoingBoing mods and writers aspire to. They've got a vision of what the future could be like, and they don't want any dissent along the way.

    If you disagree with BoingBoing, be prepared to be disemvoweled – or, since the upgrade, just deleted.

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