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A Skeptical View of the Judicial System - West Memphis Three
Posted: 04 June 2007 09:24 PM   [ Ignore ]   [ # 16 ]
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Yeah, I cringed at the length of my post, too.  grin

Brennen, after a few dismissals I realized that the less educated, less bright, and less certain one seems, the higher the probability of being chosen. 

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Posted: 05 June 2007 08:24 AM   [ Ignore ]   [ # 17 ]
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I think it may depend on the case, and the strategies that the prosecution and defense intend to use during the trial. If they want to bamboozle with rhetoric, they’ll pick stupid people. (Or sheep). If the case is sufficiently complex and they feel they can persuade by careful presentation of evidence, they might not. I do know that college professors are chosen from time to time ...

But the question once again is how to effectively restructure the system so it’s better.

FWIW, I was very impressed when going through the jury duty process how careful the lawyers were to exclude potential jurors with conflicts of interest. Yes, I know that the same process can also be used to exclude potential jurors for less justifiable reasons ...

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Posted: 05 June 2007 11:52 AM   [ Ignore ]   [ # 18 ]
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I still think the first step in restructuring the system requires restructuring the public’s mindset about “justice” and “retribution.” As long as we imagine that some vague moral scale is balanced by punishment, rather than looking at the actual costs and benefits to society and the actual outcomes of incarceration, we have no reason to change a system which we all admit locks up a lot of people, convicts people incorrectly (as the new DNA evidence-based Innocence Project keeps demonstrating), disproportionately impacts the poor and uneducated, and generally seems to treat sympotms rather than causes for crime. Specific suggestions and changes need to be based on sound theories and then subject to empirical validation, but I’m a little worried by the lack of any strong sense among many in society generally, and here on this forum, that things really are not working that well and should be changed. I suspect if we had a lot of poor people of color contributing to this discussion, the perspective they have on the justice system and its failings would be informatively different from that of many of us, who feel relatively well-served by it.

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Posted: 05 June 2007 03:26 PM   [ Ignore ]   [ # 19 ]
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{Brennen}. . . I’m a little worried by the lack of any strong sense among many in society generally, and here on this forum, that things really are not working that well and should be changed.

{Occam} I suggest that prospective jurors be given tests to verify decent intelligence, decent reasoning skills, objectivity, that no one can get out of jury duty (but pay them an adequate compensation and have comfortable, functional facilities for them), that they are chosen by lot rather than by the lawyers. 

Institute very severe penalties for any court or police personnel who are found to have lied, withheld evidence, or did an inadequate investigation.

I’m not sure what you’re looking for, Brennen, but I’d guess that my suggestions would be a good start.

Occam

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Posted: 05 June 2007 03:53 PM   [ Ignore ]   [ # 20 ]
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“Chosen by lot” sounds good, except that you run the risk that the people randomly selected for any given case would have deep conflicts of interest. And then what happens?

Again, one thing that I appreciated from my short contact with the justice system is that the lawyers actively selected against people with conflicts of interest.

And how would you measure intelligence and reasoning skills, much less objectivity? Remember that whatever system you suggest would have to be implemented over hundreds of thousands of people, in tens of thousands of cases. You wouldn’t have time to get to sit down with each one for a few hours and get to know them. (The lawyers might, but that’s a separate issue).

I believe there already are severe penalties for lying and withholding evidence. Harder to prove an ‘inadequate investigation’ ... what would be the standards for adequacy?

I am not claiming that (in Brennen’s words) things are “working well” in the justice system. But it’s one thing to complain about problems (there are always problems in any human institution) and quite another to try to come up with reasonable, feasible alternatives that would actually correct those problems without introducing new and worse problems in their wake.

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Posted: 05 June 2007 06:06 PM   [ Ignore ]   [ # 21 ]
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I certainly agree that complaining is easier than proposing and testing solutions, but we do a lot of complaining around here! :grin:  Seems to be good for psychological purposes, to find a group of people who share concerns, and to motivate people to the actual work of coming up with alternatives. Though I understand you are not suggesting there is no problem, I do want to re-emphasize that the possibility of a new approach making things worse is real but should not be in itself a reason not to try and remedy an inadequate situation. And, not being a specialist in the area, my suggestions may be naive and unworkable, but they’re a place to start. Again, less emphasis on hired experts and adversarial attorneys would be a possiblity. And I certainly think we need much stricter requirements for both voluntary and involuntary excuse from jury service. Not an absolutely random selection, which as you point out would be problematic, but less leeway for people to excuse themselves because they just don’t feel like it or because they cannot get adequate compensation to make it possible to serve, and less freedom for attorneys to cherry pick jurors.

Much harder, and more fundamental changes need to happen in the philosophical backdrop to the judicial system, as I suggested above, but apart from our efforts here to promote reason and scientific analysis as the basis for public policy and diminish the influence of religion, I’m not sure how to accomplish this.

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Posted: 05 June 2007 06:52 PM   [ Ignore ]   [ # 22 ]
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Interesting—why do you dislike the adversarial system? I must admit that it seems to me almost inconceivable to have a justice system without some basically adversarial debate at its heart. Indeed, the traditional alternative to adversarial justice is decision by fiat. One might well say that the point of having two sides is to protect the potentially innocent from arbitrary justice. How could that be managed without adversaries, and in particular without someone whose job it was to argue for the defendant?

And again, with hired experts ... what’s the problem? How could it be improved? We all agree that junk science has no place in a courtroom. It might even be feasible to set up some impartial panel of science experts who could sanction experts as actual experts ... however, even were such a method to be implemented, I have no illusions that it wouldn’t fail miserably in some cases. The panel would be accused of all sorts of nefariousness, just in the ordinary course of things. It would be accused of being a tool of the government, of business, of the ‘scientific establishment’, etc. It might even be prone to subornation.

Much as I hate to, I do agree that there should be stricter requirements on jury service. This has been tightened up considerably in NYC over the past decade or so.

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Posted: 05 June 2007 08:09 PM   [ Ignore ]   [ # 23 ]
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As I said above, I feel that the adversarial systemn is excessive in that the goal for the attorneys is to seek the benefit of one side or another with little or no reference to truth or fact. In other words, it is considered ethically incumbent on a defense attorney not only to argue for fair and legal treatment of the defendant but to struggle against anything counter to the defendant’s interests regardless of the issue of actual guilt or innocence. Lawyers argue that as long as both sides aggressively champion their own cause without concern for what actually happened or who was responsible, the balance between the two advocates, maintained by the supposedly impartial judge, will lead to the best outcome. I disagree. I think the aggressive defense against any and all punishment of a client who is clearly guilty of the crime they are charged with should be considered unethical. The defense attorney’s goal should be faior and approporiate treatment and exculpation if innocent certainly, but not exculpation at all costs regardless of guilt. With the current ethical perspective, I don’t think the system ultimately works out to the best advantage of society or individuals, with the exception of the wealthiest individuals. So while some representation of both sides is certainly necessary, I trhink the way in which our system has become more about winning than about truth and due process is a corruption of the basic idea that needs to be mitigated in some way.

Then there is the issue of the influence of money on the system. Both with advocates and with experts, the quality of the representation or expert opinion one can afford has an effect on the outcome of a proceeding unrelated to actual facts or responsibility, and I think this is wrong. So one possibility is to have a system in which the roles of the advocates are limited to ensuring due process and the presentation of evidence as appropriate, but a theoretically impartial judiciary is responsible for findings of fact and for evaluating the facts independantly, with the help of experts recopgnized as such, not in the employ or under some other influence of one side or the other in the case. Sure, such a judiciary would be accused of all sorts of things, but that doesn’t mean those things would necessarily be true or that the outcome couldn’t be better than it currently is. After all, corruption still exists in American government, but a combination of cultural variables, economic influences, and supervision makes it considerably less significant a problem than in some places, so I don’t see why the threat that people would accuse a stronger judiciary of partiality or corruption is a reason to think such would necessarily be the case or not to try and change the system is some way.

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Posted: 05 June 2007 10:18 PM   [ Ignore ]   [ # 24 ]
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Well, I certainly agree that theoretically it would be best if both sides of the debate were out for truth-and-justice rather than winning-at-all-costs. The question is how it would be possible to alter the present adversarial system such as to make this the case. I honestly don’t see how that could be done.

One might well argue that it is precisely this win-at-all-costs sort of adversarial system that best uncovers the truth in the largest number of cases over the long run. (With the obvious caveat that the wealthy will tend to be acquitted in disproportionate numbers).

You say:

[quote author = “mckenzievmd”] it is considered ethically incumbent on a defense attorney not only to argue for fair and legal treatment of the defendant but to struggle against anything counter to the defendant’s interests regardless of the issue of actual guilt or innocence.

... the problem in the breech is that it is the job of the defense attorney to assume that his client is innocent. If the defendant’s own attorney is not to suppose innocence in everything he does professionally, who will assume it? If both the defense and prosecution are expected to argue under the assumption of guilt, then how is the defendant assured of a fair trial?

I don’t want to belabor this point, but these are very complex issues, and I don’t believe there are ever likely to be perfect solutions to them.

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Posted: 06 June 2007 01:35 AM   [ Ignore ]   [ # 25 ]
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While it would be far better to just have each contestant state the situation honestly and objectively to a judge or jury and have them decide, it’s just not reality.  As long as people have personal biases at best, and lie at worst, the adversarial system seems the only remedy to this.  We hope that as each side presents the data as they see it, the judge or jury will be able to recognize the irrational parts, the statements that conflict and decide (alright, guess at) what the truth is.  One problem is that often the jury is stuck with only two choices.  It would be preferable if the jury could choose from a spectrum of choices dependent on their evaluation of the relative culpability of the people or organizations involved.

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Posted: 06 June 2007 04:33 AM   [ Ignore ]   [ # 26 ]
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The premise of my post was whether the judicial system has been getting too much of a free pass from the Reality Check Department.  I’ll take the number of views and replies in such a short period of time as a “yes”.

At least one poster said “yes” but wondered about alternatives, so let’s look at a few.

First, judicial reform could be vastly improved with a readily accessable online database of cases, so that if I’m thinking of suing you for stealing apples off my tree, I can search for “crop theft” and learn how similar cases have been decided.  The same would apply to criminal cases.  Did you know we spent $4,000,000 trying pedophile, murderer, son of a fundamentalist preacher, and born again Christian Jeffrey Dahmer?  Now somehow I just think that a database that says, “Hey, if you’ve got a one-of-a-kind photo collection of murder victims, some of their body parts in your freezer, and no plausible reasons for having them, you’re at least an accessory to murder,” could have saved us a whole lot of time and money.

Second, pre-try cases with the database. Judges need to decide more cases “up-front.”  It seems utterly silly to have to go through pre-trial discovery, depositions, lawyers and all the rigmarole required before litigation even reaches a judge to get a decision.  If the database says that pilfering a few apples off a tree is not a tort case, then don’t even let the accuser file.  If it says, “Anyone who has unexplained human body parts in his/her freezer is at minimum an accessory to murder,” then accept it.  We shouldn’t have to pay $4,000,000 to hear some lawyer explain why the defendant is an amateur anatomist who was just keeping body parts from Laotian kids to study while planning to bury them later.

Third, abolish amateur juries. The idea of 12 yabbos deciding cases is ludicrous.  If we use a jury system, we need professional, well-paid jurors, just as we need professional judges and attorneys.

Fourth, we need term limits for judges, especially Supreme Court judges.  Lifetime appointments have proven themselves asinine beyond redemption.  Dictators, Popes, royalty, politicians and judges are no exception.

Fifth, and most important, we need reason.  What is up with some correspondence school “expert” testifying that teenagers who listen to heavy metal are probable murderers, as happened with the West Memphis Three and, with variations, in countless other cases?  Standards, based on reason, must be set to stop pseudo-experts from further disgracing out courts.
 
Can you, interested readers of this post, think of any other opportunities for reforming the judicial system?

[ Edited: 06 June 2007 07:14 PM by JustAThought ]
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Posted: 06 June 2007 11:53 AM   [ Ignore ]   [ # 27 ]
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Well, I guess how much effort you go to in trying to reform a system is connected with how bad you think it is right now and how likely you think it is that it can be made better. Doug, you seem to feel it’s about as good as it can get and that anything different is likely to suffer from flaws just as severe as the current system. We’ll have to agree to disagree about that. I don’t see, though, how any program of reform in any endeavor could pass muster if your standards are, as they seem to be, that with complex systems nothing is ever perfect and that any change is likley to create as many problems as it solves. Ultimately, if something isn’t working as well as it could, some effort to improve it ought to be made, IMHO, and I see that as the case with our judicial system. As for the adversarial system being the best way to get a balanced look at the facts and ultimately find the truth, it reminds me of the argument that a free market is the best way to harness the natural greed and competitiveness of humans and achieve the most efficient use and distribution of resources, and y’all know I don’t buy that argument either.  :grin:

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Posted: 06 June 2007 12:06 PM   [ Ignore ]   [ # 28 ]
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JustAThought - 06 June 2007 04:33 AM

First, judicial reform could be vastly improved with a readily accessable online database of cases, so that if I’m thinking of suing you for stealing apples off my tree, I can search for “crop theft” and learn how similar cases have been decided.  The same would apply to criminal cases.  Did you know we spent $4,000,000 trying pedophile/murderer Jeffrey Dahmer?  Now somehow I just think that a database that says, “Hey, if you’ve got body parts in your freezer, and no plausible reason why they should be there, you’re at least an accessory to murder,” could have saved us a whole lot of time and money.

Second, pre-try cases with the database.  Judges need to decide more cases “up-front.”  It seems utterly silly to have to go through pre-trial discovery, depositions, lawyers and all the rigmarole required before litigation even reaches a judge to get a decision.  If the database says that pilfering a few apples off a tree is not a tort case, then don’t even let the accuser file.  If it says, “Anyone who has unexplained human body parts in his/her freezer is at minimum an accessory to murder,” then accept it.  We shouldn’t have to pay $4,000,000 to hear some lawyer explain why the defendant is an amateur anatomist who was just keeping body parts from Laotian kids to study while planning to bury them later.

I have no background in law at all, and I haven’t read the whole thread, but wouldn’t these suggested changes bypass due process?  You are right, to spend so much money prosecuting someone that is obviously guilty may be a waste, but any other way would infringe on someone else’s right to the vigorous scrutiny that the process insures.

Third, abolish amateur juries.  The idea of 12 yabbos deciding cases is ludicrous.  If we use a jury system, we need professional, well-paid jurors, just as we need professional judges and attorneys.

Fourth, we need term limits for judges, especially Supreme Court judges.  Lifetime appointments have sufficiently proven themselves asinine beyond redemption.  Dictators, Popes, royalty, politicians and judges are no exception.

These two seem like a contradiction.  You want professional jurors, who in effect would be working for life, but want limits for judges.  The inherent checks would just be reversed, wouldn’t it?  I’m sure it’s more complicated than that, but I see that as the gist of the concept.  Why would it work any better the way you suggest than it does now?

Fifth, and most important, we need reason.  What is up with some correspondence school “expert” testifying that teenagers who listen to heavy metal are probable murderers, as happened with the West Memphis Three and, with variations, in countless other cases?  Standards, based on reason, must be set to stop pseudo-experts from further disgracing out courts.

You got that one dead on.  It seems there is no reason.  Ensuring due process comes with loopholes, and the system would work much better if true justice were the only motivation for the people involved in seeing the process through.  And who decides which experts are psuedo and which aren’t?  You are talking about removing the human element, but it is the human element that makes the process necessary in the first place.  I don’t think it’s possible, because even if you could employ people capable of completely removing their emotions from the situation, can we be sure their decisions will be truly unbiased and just?

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Posted: 06 June 2007 12:16 PM   [ Ignore ]   [ # 29 ]
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mckenzievmd - 06 June 2007 11:53 AM

Doug, you seem to feel it’s about as good as it can get and that anything different is likely to suffer from flaws just as severe as the current system. We’ll have to agree to disagree about that.

Whoa nellie! I never said any such thing. What I said was that it’s one thing to criticize the current system, and quite another (and more difficult) thing to come up with better workable alternatives.

As to the claim “it’s about as good as it can get” ... I have no idea whatsoever about that. But I’d like to point out that just because something isn’t perfect, that doesn’t necessarily mean that there is a better, workable alternative to it.

mckenzievmd - 06 June 2007 11:53 AM

As for the adversarial system being the best way to get a balanced look at the facts and ultimately find the truth, it reminds me of the argument that a free market is the best way to harness the natural greed and competitiveness of humans and achieve the most efficient use and distribution of resources, and y’all know I don’t buy that argument either.  :grin:

Well, in both cases we’re arguing straw men if we’re claiming that they work best without any oversight and regulation. However, if the argument is that the adversarial system of justice needs better oversight or regulation, then the obvious question is: what sort of oversight or regulation, precisely?

In general, however, competition does bring out human creativity. I can’t think of a better way to do it, and historically in fact it has been virtually the only way it has been done, at least as regards technology ... Increases in global standards of living are due solely to improved efficiency in production. These increases began roughly with the enlightenment, through the advances of science, technology and competition.

But again, it is one thing to be for well-regulated competition, and quite another to be for laissez-faire capitalism ... Indeed, one central problem with laissez-faire capitalism is that it tends to inhibit competition by creating monopolies.

As for JAT’s suggestions, I do find them interesting. I would like to hear what more professional lawyers and judges thought of them. The notion of a professional jury is also intriguing ... although I wonder how it could be structured so as to avoid the same sorts of issues we already see with the “unprofessional” ones ...

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Posted: 06 June 2007 06:48 PM   [ Ignore ]   [ # 30 ]
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This isn’t going quite the way I expected. Perhaps I’m expecting too much, but my first post was a call for input, pro or con, on whether our judicial system is past due for some updates. My second post was to explore areas for improvement. I wasn’t expecting empty responses from people who admit to not having read the thread, or repeated posts that add nothing, foster interpersonal exchanges or are tangential to the topic.  Special thanks, Occam and McK, for the thought you’re putting into keeping this long-neglected topic interesting and informative.

Back on the topic, three more recommendations for reform would include:

Stronger measures against false accusers and perjurers. False rape (think Duke’s lacrosse team) and molestation accusations (“recovered” memories) come immediately to mind as needing disincentives. Yet let’s not forget entrapment fostered by police organizations ranging from the Podunk County Sheriff to the FBI, or zealous prosecutors who over-charge cases with violations that will never stand up in court. Entrapment and over-charging are hanky-panky, not justice. They are expensive and clog the system. Coming down harder on false accusers, perjurers, and hyperactive “badges” and “suits” would contribute toward clearing our courts for real justice.

Improve processes for removing incompetent and corrupt judges and attorneys. Judges and attorneys need be held more accountable for their mistakes and their crimes. As it is, most states make it very difficult to take a judge or attorney to civil court or to charge them with crimes. Any hearings into incompetence or malfeasance are likely to be held in secret by the state’s bar association for attorneys or by a judicial review board for judges instead of in open court. There’s a page at http://www.courts.state.mn.us/lprb/06bbarts/bb1206.html that gives statistics for disbarment in Minnesota that are typical of many states. Approximately 1200 complaints led to 7 disbarments in 2006. That’s a pitiful disbarment rate of .006%. If the “conviction” rate was 6 out of 1000 for any other crime you can think of, the public would be screaming, but bad attorneys and judges get a free ride.

Define “due process” and “right to a speedy trial.” I knew it wouldn’t be long before someone threw the canard of due process into this thread. Due process to most of us means something like an impartial hearing before getting the boot for something, but how does due process work, really? Charles Manson, perpetrator of the infamous Tate-LaBianca murder spree, went to trial on July 24, 1970, over nine months after he was arrested on October 12, 1969. He was sentenced on April 19, 1971, almost nine months later. 18 months from arrest to sentencing seems like one heck of a lot of “due process” for someone like Mr. Manson.

But if one really wants a lesson in due process, I would suggest a visit to traffic court where due process is a total sham. The last time I was in traffic court there were about 125 of us on the afternoon’s docket. The math works out to less than two minutes of hearing time per case. The “judge” was not a judge. He was an attorney who had been roped into being judge-for-a-day. Going before a real judge was not an option. A jury trial, representation by an attorney, or calling witnesses were out of the question. The first thing he told us was that we could plead guilty, pay a portion of our fines, spend a day in traffic school and get the tickets off our records, OR we could go to trial (and his eyes seemed to narrow as he went on explaining), take the much higher risk of being found guilty, possibly wind up paying three times the cost of copping a plea, still have to go to traffic school, get a black mark that would lead to higher insurance premiums and - my memory is unclear here but I seem to recall an additional penalty of having to display a scarlet letter embroidered on our bodices for some length of time. Innocent as snow, I copped the plea along with 110 other souls, no doubt as innocent as I, but who likewise knew a good deal when they heard one. I would have been happy to have had one milligram of the due process that Charlie Manson received.

This is about the end of the posts on this topic from me, though I’ll enjoy checking in to see how things are progressing.  Now that we’ve got some meat on this topic I think I’ll send a link to the editors at Skeptical Inquirer to suggest this as a topic for the magazine.  In closing, I’m reminded of an old Chinese saying, “Better off in the jaws of the tiger than in the hands of the courts.”

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