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Tuesday, August 10, 2010

S.I.: Posnanski: Why We Miss The Obvious (Mariners Edition)

Or…Let’s Run This Pennant Up the Flagpole and See if Anybody Salutes it.

It all seems so obvious now, doesn’t it? Bringing back Ken Griffey? Trading for Milton Bradley? Giving 32-year-old Chone Figgins (and his lifetime 99 OPS+) a big-money four-year deal based mostly on one good season (and them moving him to second base)? Signing 32-year-old Jack Wilson to a multi-year contract though he had not played a full-season in two years? Going into the season with Rob Johnson, and his 58 career OPS+, slotted as the regular catcher? Trading for light-hitting Casey Kotchman and inserting him as the Opening Day No. 3 hitter? Building up all sorts of hopes about Ian Snell as a No. 3 starter? Making the moves of a “contender” when the team finished dead last in the American League in runs scored in 2009 and were outscored by 52 runs? Trading a 25-year-old one-time phenom Brandon Morrow and his 98-mph fastball for an older hard-throwing reliever with the same first name (Brandon League)? Expecting another low ERA closer year from David Aardsma? Letting go of Russell Branyan who was one of only two good offensive players on the team in 2009 (he led the team in OPS+)?

Yes, it seems so obvious now that the Seattle Mariners were likely to have a terrible crash this season. And it probably should have seemed obvious in February too. And it probably WAS obvious then — Monday’s firing of manager Don Wakamatsu was etched in stone back before spring training.

But a whole lot of us missed it. Why?

I tend to think of it as the “12 Angry Men Syndrome…

Repoz Posted: August 10, 2010 at 03:01 AM | 211 comment(s) Login to Bookmark
  Tags: business, history, mariners, media, sabermetrics

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   101. Ray (RDP) Posted: August 10, 2010 at 07:30 PM (#3612972)
Billyshears, you're essentially saying that if I poke your eye out, you have no ability to recover from me for your damages. Yes, the state can put me on trial, but how does that help you, now that you're blind?
   102. wcw Posted: August 10, 2010 at 07:32 PM (#3612974)
I tried so hard to stay out, but..
Cops usually "testilie" to get around the 4th Amendment.. which is bad, but is completely different from just planting evidence on an innocent person.


The many DNA exonerations these last years have soured me on anything but physical evidence.
   103. billyshears Posted: August 10, 2010 at 07:48 PM (#3612990)
Billyshears, you're essentially saying that if I poke your eye out, you have no ability to recover from me for your damages. Yes, the state can put me on trial, but how does that help you, now that you're blind?


I don't think I'm saying that - I think the last paragraph of my last post addressed this point. My issue is a conceptual one at heart. I think if the state is punishing behavior that is criminal, whether by imprisonment in a criminal trial or by imposing a judgment in a civil trial, the burden of proof (beyond a reasonable doubt) that we typically associate with punishment of criminal behavior should be met and that a not guilty verdict in a criminal trial should function as a bar to a civil suit. Typically we permit a lower standard of proof in civil cases because the punishment is thought to be less severe, but in cases where a guilty verdict may effectually bankrupt the defendant for life, I don't think this is necessarily true. If the state has failed to meet their burden of proof in the criminal trial, I do think the defendant's rights are being prejudiced in a second trial where he has to defend himself from the same allegations.
   104. Johnny Sycophant-Laden Fora Posted: August 10, 2010 at 08:49 PM (#3613064)
The state is using the force of it's authority to impose punishment on the defendant in two separate trials that are attempting to prove the same thing.



There is so much that is just WRONG here that I don't know where to begin
The state is using the force of it's authority to impose punishment on the defendant in two separate trials that are attempting to prove the same thing.

I understand that one case is brought by the state/people and the other is brought by the victim, but I don't think that is relevant to the issue of whether the defendant's rights have been violated.


???? WTF????????
Let's say your stockbroker loses all your money because he doesn't do what you told him to do, and the State criminally prosecutes him for fraud- and loses because it's hard to prove fraud-
you don;'t think his clients should have the right to sue him after that?

IN a civil case the state is not acting as a prosecutor, it's acting as a referee.

In some ways, I find the lower burden of proof in a civil trial of this nature to be especially problematic - the state can impose a financially crippling penalty on a person that may be more severe than imprisonment based on a low burden of proof as punishment for criminal behavior.

So you want the stockbroker's customers to be forced to prove beyond a reasonable doubt that the Stock broker negligently lost their life savings?

[quoteI agree with the concept that a victim is entitled to redress from it's assailant, I do have a problem with the civil suit functioning as a second bite at the apple to punish an individual for criminal behavior that the state can't prove the defendant committed to the burden of proof that we typically deem necessary to punish criminal behavior.]

I see you are having a hard time with this, but let's say someone kills you wife- and gets acquitted because the jury buys his defense that it was an accident, he didn't mean to kill her- and lets' say its; true, it really was an accident- why can't he still be civilly liable to you?

Product liability- let's say the government criminally prosecutes a manufacturer for producing defective lathes- and loses, what bearing should that have on a civil suit by the guy who lost a couple fingers?

Civil suits are not designed to "punish" they are designed to make the "victim" whole
   105. Johnny Sycophant-Laden Fora Posted: August 10, 2010 at 08:52 PM (#3613070)
Typically we permit a lower standard of proof in civil cases because the punishment is thought to be less severe,


nope, that's not why the burden of proof is lower, it's "lower" because it's a contest between individuals, a criminal burden of proof would emphatically put the state on the side of civil defendants as opposed to civil plaintiffs.
   106. Francoeur Sans Gages (AlouGoodbye) Posted: August 10, 2010 at 09:08 PM (#3613091)
If the state has failed to meet their burden of proof in the criminal trial, I do think the defendant's rights are being prejudiced in a second trial where he has to defend himself from the same allegations.
The reason why we don't allow double jeopardy is because otherwise the state could just keep prosecuting someone until they got the result they wanted, or use continual proceedings to harass. Obviously, that doesn't apply to civil cases. So what rights are being prejudiced?

By your logic, it's fine to bring a civil suit before a criminal trial, but impermissible afterwards. How does that make sense?

And to repeat the point being made above, civil remedies are not supposed to punish (although the horrible concept of "punitive damages" has crept in). Which does raise an interesting point - perhaps it is double jeopardy for a defendant in a criminal trial to then be held liable for punitive damages in a civil suit.
   107. billyshears Posted: August 10, 2010 at 09:40 PM (#3613129)
Let's say your stockbroker loses all your money because he doesn't do what you told him to do, and the State criminally prosecutes him for fraud- and loses because it's hard to prove fraud-
you don;'t think his clients should have the right to sue him after that?

IN a civil case the state is not acting as a prosecutor, it's acting as a referee.


Let me put this a different way. Let's say you're a stockbroker. You have been acquitted on criminal charges of fraud. Twelve people came to the conclusion that the state could not prove you committed fraud beyond a reasonable doubt. Should you lose everything because 5 out of 6 people in a second jury think it's more likely than not that you did commit fraud?

So you want the stockbroker's customers to be forced to prove beyond a reasonable doubt that the Stock broker negligently lost their life savings?


Are you alleging criminal fraud or civil negligence? Negligence isn't a criminal charge and would not have been at issue in the criminal case. I have no issue with a second trial alleging a civil cause of action that is beyond the scope of the criminal trial because different behavior is at issue.

I see you are having a hard time with this, but let's say someone kills you wife- and gets acquitted because the jury buys his defense that it was an accident, he didn't mean to kill her- and lets' say its; true, it really was an accident- why can't he still be civilly liable to you?


I think I have expressed my opinion on the issue fairly reasonably - I would appreciate it if you wouldn't be an ass. If the criminal trial is trying to prove intent (whether true intent or that which can be imputed from extreme recklessness) and the civil cause of action only requires negligence, I have no issue with multiple trials. My issue is when both the civil and criminal trial are trying to prove the exact same thing - that OJ killed Nicole Simpson and Ron Goldman, for example.

Product liability- let's say the government criminally prosecutes a manufacturer for producing defective lathes- and loses, what bearing should that have on a civil suit by the guy who lost a couple fingers?


Again, the criminal charge is different from the civil charge. Different things have to be proven. I have no problem with multiple trials.

Civil suits are not designed to "punish" they are designed to make the "victim" whole


True, but they do punish. That can't be disregarded. There is obviously a large body of civil law in this country that functions, as you mention, to provide compensation to victims who have been wronged from the person who wronged them. The criminal law can state that it's illegal to manufacture products that you know to be unreasonably dangerous if used correctly and the civil law can impose monetary damages if one negligently manufactures products that are unreasonably dangerous if used correctly and I have no problems because it's functionally two separate things. The state is essentially saying that intentional misconduct is bad and negligence is also bad, but we're going to impose different remedies for the two behaviors. That's fine. My issue is with the part of that civil law that overlaps with criminal law by imposing penalties on the exact same acts as the criminal law, when the defendant has been acquitted in the criminal case. In such cases, I think the civil law functions as a shadow justice system that imposes penalties when the state can't meet the burden of proof in the criminal case.
   108. billyshears Posted: August 10, 2010 at 09:56 PM (#3613150)
By your logic, it's fine to bring a civil suit before a criminal trial, but impermissible afterwards. How does that make sense?


Do you know why a plaintiff never brings a civil charge before the criminal case? Because if a defendant is convicted of a criminal act in a criminal case, that finding is binding on the defendant in any subsequent civil case. The defendant literally can't argue that the criminal court got it wrong in the civil case. Sort of a "tails I win, heads you lose" situation.
   109. Fred Lynn Nolan Ryan Sweeney Agonistes Posted: August 10, 2010 at 09:56 PM (#3613151)
The many DNA exonerations these last years have soured me on anything but physical evidence.

Handwriting?
Fingerprints?
Microscopic hair analysis?
Comparative bullet-lead analysis?

The criminal-justice system had a lot of confidence in those things, too, until it didn't anymore.
   110. Johnny Sycophant-Laden Fora Posted: August 10, 2010 at 10:00 PM (#3613156)
I think Billy Shears' post 107 is on of the most masterful works of goal post shifting I have ever seen, and on BBTF that is saying something, I would applaud, but I too would appreciate it if you wouldn't be an ass.
   111. David Nieporent (now, with children) Posted: August 10, 2010 at 10:01 PM (#3613159)
Let me put this a different way. Let's say you're a stockbroker. You have been acquitted on criminal charges of fraud. Twelve people came to the conclusion that the state could not prove you committed fraud beyond a reasonable doubt. Should you lose everything because 5 out of 6 people in a second jury think it's more likely than not that you did commit fraud?
Yes, of course. I can't understand why not. You're being sued for different things by different people with different standards of proof; I don't know why one should act as a bar to the other.

Let's suppose that the prosecutors in the OJ case said to themselves, "You know what? There's a lot of evidence that OJ did it -- a whole lot -- but we're not sure we can get a conviction beyond a reasonable doubt, so we're not going to bring a case." Now the victims' families can sue, obviously, under your approach. But because prosecutors were arrogant/screwups, the families can't get compensation, even though the evidence is exactly the same, and there's more than enough to find liability by a preponderance?
   112. David Nieporent (now, with children) Posted: August 10, 2010 at 10:05 PM (#3613164)
Do you know why a plaintiff never brings a civil charge before the criminal case? Because if a defendant is convicted of a criminal act in a criminal case, that finding is binding on the defendant in any subsequent civil case. The defendant literally can't argue that the criminal court got it wrong in the civil case. Sort of a "tails I win, heads you lose" situation.
That's because the burden of proof is higher. If it's proved beyond a reasonable doubt that you did it, then by definition it's true by a preponderance of the evidence. But the reverse is not the case.

Also, a criminal defendant will almost always be able to get a stay of a civil suit.
   113. billyshears Posted: August 10, 2010 at 10:19 PM (#3613177)
I think Billy Shears' post 107 is on of the most masterful works of goal post shifting I have ever seen, and on BBTF that is saying something, I would applaud, but I too would appreciate it if you wouldn't be an ass.


How did what I said in 107 differ from what I said in any other post on the issue? How have I been an ass other than to take offense to your claim that I "was having a hard time with this"?
   114. billyshears Posted: August 10, 2010 at 10:30 PM (#3613185)
Yes, of course. I can't understand why not. You're being sued for different things by different people with different standards of proof; I don't know why one should act as a bar to the other.


My issue is when one is being sued for the same thing as in the criminal case. If the elements of criminal fraud and civil fraud are the same and require the exact same findings of fact, I don't think a defendant should have to mount a defense to the charges in two separate cases before two separate juries.

Let's suppose that the prosecutors in the OJ case said to themselves, "You know what? There's a lot of evidence that OJ did it -- a whole lot -- but we're not sure we can get a conviction beyond a reasonable doubt, so we're not going to bring a case." Now the victims' families can sue, obviously, under your approach. But because prosecutors were arrogant/screwups, the families can't get compensation, even though the evidence is exactly the same, and there's more than enough to find liability by a preponderance?


Prosecutiorial incompetence that prejudices the victims is certainly a problem. I think it is a lesser problem though than a system that says if the state can prove you killed Ron Goldman beyond a reasonable doubt, you're going to jail forever and will pay Ron Goldman's family lots of money, but if the state can't, Ron Goldman's family can sue you in a separate case and if they can prove by a preponderance of the evidence the exact same thing that the state couldn't prove beyond a reasonable doubt (as determined by a jury), you will still have to pay his family lots of money. I know the courts aren't with me on this.
   115. billyshears Posted: August 10, 2010 at 10:32 PM (#3613187)
That's because the burden of proof is higher. If it's proved beyond a reasonable doubt that you did it, then by definition it's true by a preponderance of the evidence. But the reverse is not the case.


I know, but it also forces the defendant to run the table, so to speak, whereas the victim just has to go 1 for 2.
   116. Johnny Sycophant-Laden Fora Posted: August 10, 2010 at 10:33 PM (#3613189)
How have I been an ass other than to take offense to your claim that I "was having a hard time with this"?


I merely cut and pasted from your quote
   117. snapper (history's 42nd greatest monster) Posted: August 10, 2010 at 10:33 PM (#3613190)
My issue is when one is being sued for the same thing as in the criminal case. If the elements of criminal fraud and civil fraud are the same and require the exact same findings of fact, I don't think a defendant should have to mount a defense to the charges in two separate cases before two separate juries.

But the burden of proof is different.

The criminal jury probably thought you were guilty, but had some reasonable doubt. That doesn't get you off in civil court.
   118. Francoeur Sans Gages (AlouGoodbye) Posted: August 10, 2010 at 10:49 PM (#3613200)
If the elements of criminal fraud and civil fraud are the same and require the exact same findings of fact, I don't think a defendant should have to mount a defense to the charges in two separate cases before two separate juries.
Yes, you've said this a thousand times. But you haven't articulated a good reason why not.
   119. billyshears Posted: August 10, 2010 at 10:53 PM (#3613201)
Yes, you've said this a thousand times. But you haven't articulated a good reason why not.


For all the same reasons double jeopardy is bad if it's two state trials, I think it's bad if it's 1 state and 1 civil trial for the exact same offense.
   120. billyshears Posted: August 10, 2010 at 10:58 PM (#3613203)
But the burden of proof is different.

The criminal jury probably thought you were guilty, but had some reasonable doubt. That doesn't get you off in civil court.


We don't know what the criminal jury thought other than their verdict. I understand that the burden of proof is different and that a not guilty verdict in criminal court does not mean a jury in civil would not find you guilty by a preponderance of the evidence. I just don't think it is the place of the civil justice system to punish the exact same acts that the criminal justice system intends to punish but with a lower burden of proof.
   121. Francoeur Sans Gages (AlouGoodbye) Posted: August 10, 2010 at 11:05 PM (#3613209)
For all the same reasons double jeopardy is bad if it's two state trials, I think it's bad if it's 1 state and 1 civil trial for the exact same offense.
But. The. Same. Reasons. Do. Not. Apply.

To quote from above:

"The reason why we don't allow double jeopardy is because otherwise the state could just keep prosecuting someone until they got the result they wanted, or use continual proceedings to harass."
I just don't think it is the place of the civil justice system to punish the exact same acts that the criminal justice system intends to punish but with a lower burden of proof.
But, for the n-th time, the civil system is not supposed to punish. You may claim above that it does, but (aside from the rare instance of punitive damages) it doesn't.

Compensation is not punishment.
   122. Fred Lynn Nolan Ryan Sweeney Agonistes Posted: August 10, 2010 at 11:21 PM (#3613226)
We have an array of constitutional protections that kick in when the government seeks to deprive us of life, liberty, or property via criminal prosecution. One of those protections is against double jeopardy.

We also have a constitutional right to sue
each other
civilly.

Two different things.
   123. billyshears Posted: August 10, 2010 at 11:38 PM (#3613238)
The reason why we don't allow double jeopardy is because otherwise the state could just keep prosecuting someone until they got the result they wanted, or use continual proceedings to harass


The prohibition on double jeopardy also exists because we don't want to require an individual to continually defend himself for the same acts thereby subjecting him to unreasonable expense and ordeal and to enhance the possibility that an innocent man may be found guilty. These concerns exist whether the second trial is civil or criminal.

But, for the n-th time, the civil system is not supposed to punish. You may claim above that it does, but (aside from the rare instance of punitive damages) it doesn't.

Compensation is not punishment.


The court determining that a specific person is the one who has to provide the compensation is the punishment.
   124. Fred Lynn Nolan Ryan Sweeney Agonistes Posted: August 10, 2010 at 11:38 PM (#3613239)
Supposed to be bold-face.
Ah, well.
   125. billyshears Posted: August 10, 2010 at 11:45 PM (#3613243)
We have an array of constitutional protections that kick in when the government seeks to deprive us of life, liberty, or property via criminal prosecution. One of those protections is against double jeopardy.

We also have a constitutional right to sue civilly.

Two different things.


Civil causes of action are state sanctioned and enforced. Just as the first amendment is implicated in civil libel cases, the fifth amendment could be implicated in civil suits that seek to prove the same acts that were the subject of a criminal case. I know the Supreme Court does not find my position compelling, but it isn't because the Bill of Rights has no application to civil suits.
   126. Infinite Joost (Voxter) Posted: August 10, 2010 at 11:49 PM (#3613247)
Prosecutor: Were you sitting outside the Gas 'n' Sip on the night of June 3, 1988, at 10 PM?
Witness: I was.
P: Were you sitting on the curb to the left of the entrance?
Witness: Yes.
P: From your position, could you see the street?
W: Yes.
P: And on that street, did you see a green 1979 Chevy Malibu at that time?
W: Yes.
P: And did that Malibu enter the parking lot of the gas station?
W: It did.
P: Did that Malibu park?
W: Yes.
P: Did a person disembark the Malibu at that time?
W: Yes.
P: Can you identify positively the person who disembarked the Malibu?
W: I can.
P: Is he in this courtroom?
W: He is.
P: Can you indicate him for the jury?
W: [points]
P: Will the record show that the witness has indicated the defendant, Lloyd Dobler?
Judge: It will.
P: Now. Did the defendant say anything to you upon his disembarkation from the Malibu?
W: He did.
P: And what did he say, to the best of your memory?
W: He said, "I got a question. If you guys know so much about women, how come you're here at, like, the Gas 'n' Sip on a Saturday night, completely alone, drinking beers, no women anywhere?"
P: And did you respond?
W: We did.
P: What did you say?
W: We said, "By choice, man!"
   127. BWV 1129 Posted: August 11, 2010 at 12:09 AM (#3613274)
Here's something on Seattle ...

... I went through and took each position regular's (per BB-Ref) batting runs per PA for their career coming into this season, and prorated that for how many PA they have this year. Then we get the actual BR (again, per BB-Ref) for the season.

Pos  Player      Proj    Act   Diff
C    Johnson    
-11.4  -12.7  1.3
1B   Kotchman   
1.8  -11.0  9.2
2B   Figgins    
+-0.0  7.8  7.8
3B   Lopez      
7.2  -21.0  -13.8
SS   Wilson     
6.9  9.1  2.2
LF   Saunders     N
/A  1.1    N/A
CF   Gutierrez  
3.9  6.2  2.3
RF   Ichiro
!    +11.8  5.6  6.2
DH   Bradley    
6.2  8.0  -14.2
     TOTAL      
-13.2  -71.3  -57.0 


Two obvious things stand out:

1. This was never likely to be an above-average lineup, and

2. this lineup has substantially performed lower than its career averages.

How many of these declines were forseeable? Ichiro!'s getting older, Bradley was terrible last year, Wilson and Figgins are getting older, Kotchman has become an enigma ... still, the steepness of some of these failures seems out of whack. That's six wins sitting out there, just from guys underperforming with the bat. Now, they're a hell of a lot more than six games out of this thing, they'd still only be 49-64 if they had those wins back. But it ain't nothin'.
   128. Infinite Joost (Voxter) Posted: August 11, 2010 at 12:13 AM (#3613284)
It's nothing. In a season like this.
   129. RobertMachemer Posted: August 11, 2010 at 02:36 AM (#3613472)
Isn't it about time we had a death penalty thread? Randall Dale Adams thinks so. (David Ray Harris isn't quite so sure).
   130. CrosbyBird Posted: August 11, 2010 at 05:11 AM (#3613591)
Anyway, the police sometimes plant evidence, as you say, but (in 1994 Los Angeles) almost never for the purpose of framing an innocent person for a crime. Cops usually "testilie" to get around the 4th Amendment ("I saw a bulge in his pocket, so I searched him and found the drugs; I saw him drop the drugs when I was chasing him."), which is bad, but is completely different from just planting evidence on an innocent person.

I don't think all people make that sort of distinction. A police officer is either honest or dishonest, and therefore either trustworthy or untrustworthy. Either he's willing to shade the truth to get a guy he's convinced is guilty, or he's not.

I'm pretty reasonably convinced that OJ was guilty, mind you. I just root for the prosecution to fail for the good of the system when it is grossly incompetent. I don't really care about justice for one case so much as I do punishing the government when it fails in a spectacular manner. If they could screw up a case this high-profile, what sort of loose standards do they have in lesser cases, where the defendants don't have high-priced lawyers to properly defend them?

The black eye for the prosecution hopefully served as a slap in the face for what will be tolerated by a jury. Every single member of that team needs to look in the mirror and say "if I didn't do such a terrible job, a murderer would have been in prison where he belongs." That does more good in the long run than one murderer being free does harm, especially a "passionate" murderer like OJ.

But as you know, it's not about "rewarding the prosecution;" it's about seeing justice done. If the jury thinks the prosecution, despite its incompetence, has proven the case BARD, the jury should convict.

I think if the prosecution reaches a certain level of incompetence, every statement it makes and every piece of evidence it presents is suspect. It should be a brutally difficult standard to overcome, because I'll take 100 guilty going free as a fine price for one innocent going to prison.
   131. CrosbyBird Posted: August 11, 2010 at 05:14 AM (#3613592)
Anyway, the police sometimes plant evidence, as you say, but (in 1994 Los Angeles) almost never for the purpose of framing an innocent person for a crime. Cops usually "testilie" to get around the 4th Amendment ("I saw a bulge in his pocket, so I searched him and found the drugs; I saw him drop the drugs when I was chasing him."), which is bad, but is completely different from just planting evidence on an innocent person.

I don't think all people make that sort of distinction. A police officer is either honest or dishonest, and therefore either trustworthy or untrustworthy. Either he's willing to shade the truth to get a guy he's convinced is guilty, or he's not.

I'm pretty reasonably convinced that OJ was guilty, mind you. I just root for the prosecution to fail for the good of the system when it is grossly incompetent. I don't really care about justice for one case so much as I do punishing the government when it fails in a spectacular manner. If they could screw up a case this high-profile, what sort of loose standards do they have in lesser cases, where the defendants don't have high-priced lawyers to properly defend them?

The black eye for the prosecution hopefully served as a slap in the face for what will be tolerated by a jury. Every single member of that team needs to look in the mirror and say "if I didn't do such a terrible job, a murderer would have been in prison where he belongs." That does more good in the long run than one murderer being free does harm, especially a "passionate" murderer like OJ.

But as you know, it's not about "rewarding the prosecution;" it's about seeing justice done. If the jury thinks the prosecution, despite its incompetence, has proven the case BARD, the jury should convict.

I think if the prosecution reaches a certain level of incompetence, every statement it makes and every piece of evidence it presents is suspect. It should be a brutally difficult standard to overcome, because I'll take 100 guilty going free as a fine price for one innocent going to prison.
   132. CrosbyBird Posted: August 11, 2010 at 05:26 AM (#3613598)
I don't agree. The positions weren't "speculative". The woman claimed she saw him do it. The old man claimed he saw him fleeing the scene right when the murder took place.

You're right; speculative is not the right word. They were too believing, too uncritical.

Fonda did what the defense attorney should have done -- he poked holes in the case by showing that there was a question about whether they could have seen what they claimed to have seen.

Certainly, and that was a huge part of the point of the movie. A reasonably competent defense attorney would have raised those issues.

EDIT -- Oh, and that business where Fonda walked around and found an identical knife? Mistrial, baby.

If anyone ever found out, definitely.
   133. Fred Lynn Nolan Ryan Sweeney Agonistes Posted: August 11, 2010 at 06:03 AM (#3613610)
If they could screw up a case this high-profile, what sort of loose standards do they have in lesser cases, where the defendants don't have high-priced lawyers to properly defend them?

You would not believe.
   134. CrosbyBird Posted: August 11, 2010 at 06:50 AM (#3613622)
Let me put this a different way. Let's say you're a stockbroker. You have been acquitted on criminal charges of fraud. Twelve people came to the conclusion that the state could not prove you committed fraud beyond a reasonable doubt. Should you lose everything because 5 out of 6 people in a second jury think it's more likely than not that you did commit fraud?

Civil fraud usually isn't satisfied by preponderance, but "clear and convincing" proof, but it's probably not a distinction of importance for your position. Fraud is a weird case because it is a "quasi-criminal" civil issue.

A better example, perhaps, of "same act, different trial" might be the case of taking my profit-generating widget from my house. (We need it to be something where my being deprived damages me in a way that can't be resolved simply by giving it back.)

The criminal case would be theft, which you might be able to defeat simply by demonstrating that you mistakenly took it, thinking it was your own. The criminal case is about your violation of society's rules, but if you didn't have a bad intent, you haven't "harmed" society. Still, I have been damaged by you, and I need to be made whole. I sue you civilly for conversion, which doesn't care about intent, but about whether your action caused me harm, and fixing that harm if it exists.

If the criminal trial is trying to prove intent (whether true intent or that which can be imputed from extreme recklessness) and the civil cause of action only requires negligence, I have no issue with multiple trials. My issue is when both the civil and criminal trial are trying to prove the exact same thing - that OJ killed Nicole Simpson and Ron Goldman, for example.

How else would you suggest making the system work at accomplishing two dramatically different goals? We want to make damaged people whole when it's more likely than not that they were damaged by a defendant, and we want to imprison/fine defendants when it is beyond a reasonable doubt that they violated the laws of our society. In addition, we want to preserve a criminal defendant's right to a speedy trial, which makes holding the civil trial first a serious problem.
   135. JoeHova Posted: August 11, 2010 at 08:42 AM (#3613628)
Anyway, the police sometimes plant evidence, as you say, but (in 1994 Los Angeles) almost never for the purpose of framing an innocent person for a crime.

Umm... LAPD in the 90s was notorious for framing people for various reasons and that was well known at the time.

Also, the idea that trying to strengthen weak evidence is somehow less bad than a full frame up is ludicrous. It's exactly the same thing.
   136. cercopithecus aethiops Posted: August 11, 2010 at 11:37 AM (#3613646)
We want to make damaged people whole when it's more likely than not that they were damaged by a defendant

OTOH, the idea that the family of a murder victim can be made whole by receiving a cash award is somewhat absurd IMO, as is the idea that the Goldmans sued only because they wanted to be financially compensated for their loss. (Which is not to say that I don't understand the point of wrongful death suits in general.)
   137. snapper (history's 42nd greatest monster) Posted: August 11, 2010 at 12:18 PM (#3613651)
Also, the idea that trying to strengthen weak evidence is somehow less bad than a full frame up is ludicrous. It's exactly the same thing.

Not really.

We generally recognize that doing a bad act in pursuit of a good end is less wrong than doing a bad act in pursuit of a bad end. e.g., someone who steals to feed their family isn't as bad as someone who steals to feed their smack habit. Or, the parent of a child kills the man who sexually abused them, but gets off at trial vs. a burglar who kills a homeowner.

Bad act/good motive is still wrong, but to a lesser degree than bad act/bad motive.
   138. David Nieporent (now, with children) Posted: August 11, 2010 at 12:44 PM (#3613661)
That's because the burden of proof is higher. If it's proved beyond a reasonable doubt that you did it, then by definition it's true by a preponderance of the evidence. But the reverse is not the case.

I know, but it also forces the defendant to run the table, so to speak, whereas the victim just has to go 1 for 2.
Yes, but so what? What if Ron Goldman's family sued OJ, and the case went to trial, and then Nicole Brown's family sued OJ after that? (Yes, it's unrealistic that the first trial could end before the statute of limitations expired on the second, but that's irrelevant to my point.) OJ would still need to "run the table" to avoid liability. So?

Hell, try this scenario: OJ is prosecuted criminally. The jury announces, "We're pretty sure he did it; if the standard were the preponderance of the evidence, we'd convict, but we can't say that he's guilty BARD." In other words, it has already been proven by a preponderance of the evidence that he killed them -- but the family can't recover because it's somehow unfair to OJ because it was proven in the wrong forum?
   139. snapper (history's 42nd greatest monster) Posted: August 11, 2010 at 12:57 PM (#3613672)
OTOH, the idea that the family of a murder victim can be made whole by receiving a cash award is somewhat absurd IMO, as is the idea that the Goldmans sued only because they wanted to be financially compensated for their loss. (Which is not to say that I don't understand the point of wrongful death suits in general.)

What's their alternative? I guess they could kill him in a favorable venue and go for jury nullification.

I know that if Goldman's sister put three bullets in OJ's head, in the middle of main street, in front of 20 video cameras, and I was on the jury, I'd vote to acquit her.
   140. David Nieporent (now, with children) Posted: August 11, 2010 at 01:26 PM (#3613697)
The prohibition on double jeopardy also exists because we don't want to require an individual to continually defend himself for the same acts thereby subjecting him to unreasonable expense and ordeal and to enhance the possibility that an innocent man may be found guilty. These concerns exist whether the second trial is civil or criminal.
Except they don't, because a civil trial can't find you guilty.

The court determining that a specific person is the one who has to provide the compensation is the punishment.
No. If you borrow $1,000 from me, ordering you to pay it back is not "punishment." If you steal $1,000 from me, ordering you to pay it back is not "punishment." (Now, if you're ordered to pay $20,000 to me, that would be punitive.)
   141. Ray (RDP) Posted: August 11, 2010 at 02:14 PM (#3613742)
Also, the idea that trying to strengthen weak evidence is somehow less bad than a full frame up is ludicrous. It's exactly the same thing.


I don't follow this at all.

Under your reasoning, testifying that you saw the suspect drop the drugs in order to justify an illegal search where you found drugs on the suspect is exactly the same thing as planting the drugs on some random person who you didn't find them on.
   142. Ray (RDP) Posted: August 11, 2010 at 02:20 PM (#3613753)
I know that if Goldman's sister put three bullets in OJ's head, in the middle of main street, in front of 20 video cameras, and I was on the jury, I'd vote to acquit her.


I wouldn't, but if I felt that way I'd announce ahead of time during jury questioning that they might as well let me go home since I would never vote for conviction even if I had no doubt she was guilty.
   143. CrosbyBird Posted: August 11, 2010 at 03:42 PM (#3613843)
OTOH, the idea that the family of a murder victim can be made whole by receiving a cash award is somewhat absurd IMO, as is the idea that the Goldmans sued only because they wanted to be financially compensated for their loss. (Which is not to say that I don't understand the point of wrongful death suits in general.)

No dollar amount can replace a loved one, but what other option do we have? It's not like we should just say "your damage doesn't translate well into dollars and cents, so you get nothing."

Also, at least a portion of wrongful death rewards is based on potential future earnings. The recipients of some of the wrongful death award are Nicole Brown Simpson's children. The family hasn't just lost the emotional support of their mother, but also all of her potential future earnings. That's actual, tangible damage.
   144. Infinite Joost (Voxter) Posted: August 11, 2010 at 03:48 PM (#3613853)
I can testify from personal experience that nothing -- no dollar amount, no kind of punishment, nothing at all -- is going to make a family whole again. But a total dearth of either makes relatives of the victim feel isolated in their grief. It's kind of hard to explain. It's almost like negative theology or something . . . too complicated for the English language, I guess.
   145. Slivers of Maranville descends into chaos (SdeB) Posted: August 11, 2010 at 03:55 PM (#3613860)

Under your reasoning, testifying that you saw the suspect drop the drugs in order to justify an illegal search where you found drugs on the suspect is exactly the same thing as planting the drugs on some random person who you didn't find them on.


Yes, but I think the issue is the presumption of guilt. If you found drugs on the suspect, then that's not exactly "weak evidence" of his guilt.

But what if you saw the suspect drop a baggie with something in it, and kick it into the sewer? And then decide to grab some cocaine from the evidence room and say that's what he dropped?

Or what if you saw a group of three guys, one drops something, but you don't know who -- so you attribute the drop to the guy who has a previous record?
   146. CrosbyBird Posted: August 11, 2010 at 03:59 PM (#3613863)
We generally recognize that doing a bad act in pursuit of a good end is less wrong than doing a bad act in pursuit of a bad end. e.g., someone who steals to feed their family isn't as bad as someone who steals to feed their smack habit. Or, the parent of a child kills the man who sexually abused them, but gets off at trial vs. a burglar who kills a homeowner.

The police officer can very well be planting evidence/lying to pursuit what he believes to be a good end. "It's really hard to convict a rich defendant, and I'm certain that this one is guilty, so I'll help the court a little bit." It's really no different in terms of the "desired good end," but simply a stronger "bad act."

The idea isn't that police officers "testilie" or plant evidence because they're malicious people that want an innocent to suffer. The overwhelming majority simply believe that they're just assisting the system in getting the "fair" result, because that system is unfairly biased toward defendants (in their opinion).

I wouldn't, but if I felt that way I'd announce ahead of time during jury questioning that they might as well let me go home since I would never vote for conviction even if I had no doubt she was guilty.

Are you entirely against the idea of jury nullification?

Basically, if I feel so strongly about something that I would never vote guilty, it's something so important that I'd feel morally obligated to try for, rather than to pass on that duty to someone else who may not share my convictions. This is an exceptionally rare situation, mind you. (I would vote to convict in the described scenario, but I can imagine some very extreme situations where I'd nullify, especially where the law offered an outrageous penalty for a minor crime. Genarlow Wilson comes to mind.)
   147. Ray (RDP) Posted: August 11, 2010 at 03:59 PM (#3613864)
But what if you saw the suspect drop a baggie with something in it, and kick it into the sewer? And then decide to grab some cocaine from the evidence room and say that's what he dropped?

Or what if you saw a group of three guys, one drops something, but you don't know who -- so you attribute the drop to the guy who has a previous record?


These examples bear no relation to any real world (modern day) examples, from what I understand.
   148. cercopithecus aethiops Posted: August 11, 2010 at 04:10 PM (#3613872)

What's their alternative?


No dollar amount can replace a loved one, but what other option do we have?


Also, at least a portion of wrongful death rewards is based on potential future earnings.


Yeah, I get all that and I don't have an alternative. Like I said, I understand the point of wrongful death suits. It's just the "made whole" legalize that sticks in the craw a little.
   149. Slivers of Maranville descends into chaos (SdeB) Posted: August 11, 2010 at 04:12 PM (#3613875)
These examples bear no relation to any real world (modern day) examples, from what I understand.


Sorry. I should have known legal discussions eschew the hypothetical. IANAL.
   150. Fred Lynn Nolan Ryan Sweeney Agonistes Posted: August 11, 2010 at 04:40 PM (#3613906)
(I would vote to convict in the described scenario, but I can imagine some very extreme situations where I'd nullify, especially where the law offered an outrageous penalty for a minor crime. Genarlow Wilson comes to mind.)

Which is why defense lawyers are not allowed to tell jurors about penalties.
Or the concept of nullification itself, for that matter.
   151. Lassus Posted: August 11, 2010 at 04:57 PM (#3613923)
Is Dave Cameron somehow responsible for where this thread ended up?
   152. Ray (RDP) Posted: August 11, 2010 at 05:07 PM (#3613933)
These examples bear no relation to any real world (modern day) examples, from what I understand.

Sorry. I should have known legal discussions eschew the hypothetical. IANAL.


But my entire point was to separate reality from fiction, which is why I classified your hypotheticals as things that virtually never occur in the present day, to my knowledge.

Just to refresh, because I think it's helpful here, this line of discussion started when I pointed out that the argument made by OJ's legal team, that an innocent man was "framed" for murder, bore little resemblence to reality in 1994 LA. Obviously, anything under the sun can and has happened, but what typically happens is not that cops frame innocent people but that cops lie to justify an illegal search. While the latter is bad, it is quite different from a frame-up of an innocent man.

And so my point was to distinguish between reality and fiction -- what typically happens and what virtually never happens. That's why I responded to your hypotheticals by saying that they didn't relate to the real world in the present day. From everything I have read on this topic, cops don't "grab some cocaine from the evidence room" and plant it on a suspect whose baggie containing some unknown substance was kicked into the sewer.

I realize every Hollywood movie made about dirty cops has the cops framing people, but that is simply not what typically occurs in real life in present day. To the extent it occurs - because one can never say never - it is incredibly rare.
   153. bunyon Posted: August 11, 2010 at 05:25 PM (#3613949)
From what I know (i.e. what I've heard and read), it isn't surprising at all that an LA jury in the mid 90s would buy a story in which the LA cops framed an innocent man. The bit that always struck me as odd is that they would buy that the cops framed OJ SIMPSON. If anything, I'd have thought they'd go out on a limb to get him off, had I been on that jury. I think Sherrod had it right: it isn't strictly about black and white, but about rich and poor, powerful and not. And by 1995, OJ was most definitely on the rich and powerful side of the equation.

But I'm pretty far removed from being a possible jury selection there.
   154. CrosbyBird Posted: August 11, 2010 at 05:32 PM (#3613954)
Which is why defense lawyers are not allowed to tell jurors about penalties.
Or the concept of nullification itself, for that matter.


It's definitely one of the things about our legal system that I'm not completely comfortable with. I understand that the penalties don't factor into the decision of guilt vs innocence, and that the jury's role isn't to determine whether or not the person is "bad enough" to deserve a particular punishment. Then again, I'm in favor of government transparency, and part of me wants jurors to know that they might well be sending a petty criminal to jail for his entire life without the possibility of parole because he happened to be smoking a joint in the wrong state.

Obviously, anything under the sun can and has happened, but what typically happens is not that cops frame innocent people but that cops lie to justify an illegal search. While the latter is bad, it is quite different from a frame-up of an innocent man.

It is absolutely different, but it should lead to the same result. If the prosecution can't prove guilt or innocence beyond a reasonable doubt without breaking the rules, the defendant gets to walk.

The frequency with which police misconduct hits a wrongdoer as opposed to an innocent is irrelevant. We hold our "watchmen" to an exceptionally high standard, and if they violate that standard, we can't trust the results, even if most of the time we'll like what happens.
   155. snapper (history's 42nd greatest monster) Posted: August 11, 2010 at 05:54 PM (#3613983)
Basically, if I feel so strongly about something that I would never vote guilty, it's something so important that I'd feel morally obligated to try for, rather than to pass on that duty to someone else who may not share my convictions. This is an exceptionally rare situation, mind you. (I would vote to convict in the described scenario, but I can imagine some very extreme situations where I'd nullify, especially where the law offered an outrageous penalty for a minor crime. Genarlow Wilson comes to mind.)

Concur completely.

I can imagine some cases. If someone kills an intruder in their home, and some wacky jurisdiction (like in the UK) decides to try him for murder, I'm nullifying, no matter what the law says. Basically any law that violates one's innate rights as a human being should be nullified.
   156. snapper (history's 42nd greatest monster) Posted: August 11, 2010 at 05:56 PM (#3613988)
It is absolutely different, but it should lead to the same result. If the prosecution can't prove guilt or innocence beyond a reasonable doubt without breaking the rules, the defendant gets to walk.

The frequency with which police misconduct hits a wrongdoer as opposed to an innocent is irrelevant. We hold our "watchmen" to an exceptionally high standard, and if they violate that standard, we can't trust the results, even if most of the time we'll like what happens.


I'd prefer a variant of the British system where the police are punished, harshly, for illegal searches, but the exclsuinary rule does not apply, particularly for things like murder, kidnapping, and rape.

Fire the cop and take away his pension, but don't let an obviously guilty person go free.
   157. CrosbyBird Posted: August 11, 2010 at 06:31 PM (#3614021)
I'd prefer a variant of the British system where the police are punished, harshly, for illegal searches, but the exclsuinary rule does not apply, particularly for things like murder, kidnapping, and rape.


Does the British system distinguish between a search that is questionable and one that was obviously impermissible without the benefit of hindsight? The former seems like one that isn't really deserving of punishment, while the latter seems like one that requires serious censure.

Fire the cop and take away his pension, but don't let an obviously guilty person go free.

There are two issues with illegal searches:

1) Is the search suspect, by nature of being an illegal search? (It doesn't have to be clearly, or even regularly providing a result contrary to truth, but the mere possibility is significant. The more serious the crime, the higher the stakes.)

2) Is the cost to society of illegal searches, as a matter of individual rights, greater than the cost of having a guilty party escape sentencing?

I think you need to disagree with both in order to reject exclusion. My justification for complete rejection of illegal searches lies mostly with #2, although not entirely.
   158. Ray (RDP) Posted: August 11, 2010 at 06:59 PM (#3614041)
Concur completely.

I can imagine some cases. If someone kills an intruder in their home, and some wacky jurisdiction (like in the UK) decides to try him for murder, I'm nullifying, no matter what the law says. Basically any law that violates one's innate rights as a human being should be nullified.


Okay, but what are you saying during voir dire? Are you announcing that you're going to engage in nullification?
   159. snapper (history's 42nd greatest monster) Posted: August 11, 2010 at 07:02 PM (#3614044)
Does the British system distinguish between a search that is questionable and one that was obviously impermissible without the benefit of hindsight? The former seems like one that isn't really deserving of punishment, while the latter seems like one that requires serious censure.

I'm no expert. I just know they don't autmoatically exclude "fruit of the poisonous tree". There is a process.

There are two issues with illegal searches:

1) Is the search suspect, by nature of being an illegal search? (It doesn't have to be clearly, or even regularly providing a result contrary to truth, but the mere possibility is significant. The more serious the crime, the higher the stakes.)

2) Is the cost to society of illegal searches, as a matter of individual rights, greater than the cost of having a guilty party escape sentencing?

I think you need to disagree with both in order to reject exclusion. My justification for complete rejection of illegal searches lies mostly with #2, although not entirely.


My stance is that I think you can answer #2 through other means than the exclusionary rule. Severe punishment of anyone complicit in an illegal search should be able to deter them sufficiently to spare society the cost.

If cops and DAs faced loss of job, loss of license and loss of pension, they will tread carefully.

I'd also only suspend the exclusionary rule for "capital" type cases. Murder, kidnapping, rape, treason.
   160. snapper (history's 42nd greatest monster) Posted: August 11, 2010 at 07:06 PM (#3614049)
Okay, but what are you saying during voir dire? Are you announcing that you're going to engage in nullification?

If I feel strongly that the prosecution violates a fundamental right? No.

You don't have to announce your reasoning in a deliberation, just say I don't think the prosecution met their burden of proof.
   161. JoeHova Posted: August 11, 2010 at 07:08 PM (#3614051)
We generally recognize that doing a bad act in pursuit of a good end is less wrong than doing a bad act in pursuit of a bad end.

Well, I guess my issue is that I don't consider getting people convicted a good end. It's ####### serious to lock people up and someone should only have their liberty taken away if a jury of their peers decides that there is legitimate proof that they committed the crime. Police augmenting evidence is a perversion of the entire system and usually far worse for society than whatever crime they are trying to pin on someone.

Also, Ray, you haven't addressed the fact that the LAPD in the mid-90's was found to have framed multiple people for crimes they did not commit. Now perhaps the people who were framed were mostly not totally upstanding citizens but that doesn't change the fact that they were charged with things that the cops admitted they had not actually done.
   162. Ray (RDP) Posted: August 11, 2010 at 07:21 PM (#3614067)
You don't have to announce your reasoning in a deliberation, just say I don't think the prosecution met their burden of proof.


"And the video that shows Ron Goldman's sister gunning down OJ on the courthouse steps? What more are you looking for?"
   163. mex4173 Posted: August 11, 2010 at 07:38 PM (#3614088)

"And the video that shows Ron Goldman's sister gunning down OJ on the courthouse steps? What more are you looking for?"


Does the shooter have a goatee? It may have been an evil twin.
   164. cercopithecus aethiops Posted: August 11, 2010 at 08:01 PM (#3614103)
If I feel strongly that the prosecution violates a fundamental right? No.

I think you may have just committed a crime.

You don't have to announce your reasoning in a deliberation, just say I don't think the prosecution met their burden of proof.

I think you may have done it again.
   165. Ray (RDP) Posted: August 11, 2010 at 08:09 PM (#3614110)
Does the shooter have a goatee? It may have been an evil twin.


Yes, I remember this happened in this Knight Rider episode, which saw David Hasselhoff playing both Michael Knight and his evil twin (yes, with a goatee) Garthe Knight.

I also recall the character Grant Putnam on General Hospital, circa 1987 <you may make fun of me starting... now> had an evil twin, and the way you could tell them apart was that the evil twin used gel in his hair.
   166. snapper (history's 42nd greatest monster) Posted: August 11, 2010 at 08:24 PM (#3614122)
Well, I guess my issue is that I don't consider getting people convicted a good end. It's ####### serious to lock people up and someone should only have their liberty taken away if a jury of their peers decides that there is legitimate proof that they committed the crime. Police augmenting evidence is a perversion of the entire system and usually far worse for society than whatever crime they are trying to pin on someone.

Well, we're assuming the person is guilty. Locking up guilty people is a good thing.

"And the video that shows Ron Goldman's sister gunning down OJ on the courthouse steps? What more are you looking for?"

She snapped, temporary insanity.
   167. Lassus Posted: August 11, 2010 at 08:30 PM (#3614124)
I also recall the character Grant Putnam on General Hospital, circa 1987 <you may make fun of me starting... now> had an evil twin, and the way you could tell them apart was that the evil twin used gel in his hair.

In a bizarre meeting of the minds, Ray, I know exactly who that lunatic Grant Putnam was. He kidnapped Anna!

My mom watched. I was, um, just hanging out when she did.
   168. Johnny Sycophant-Laden Fora Posted: August 11, 2010 at 08:32 PM (#3614125)
I can imagine some cases. If someone kills an intruder in their home, and some wacky jurisdiction (like in the UK) decides to try him for murder, I'm nullifying, no matter what the law says. Basically any law that violates one's innate rights as a human being should be nullified.


1: Let's say the homeowner shot the intruder in the back as he was leaving through a window

2: Let's say the homeowner has the intruder at gunpoint, says "hand up", and the intruder actually drops whatever he has, and puts his hands up, "I surrender"- and then the homeowner shoots him

3: Let's say the homeowner has a clear path to escape and call the police, but chooses instead top confront the intruder and shoots him

Do you see prosecution of the homeowner justified in any of the three scenarios above? Do you see any difference in the three scenarios?
   169. Francoeur Sans Gages (AlouGoodbye) Posted: August 11, 2010 at 08:41 PM (#3614132)
1: Let's say the homeowner shot the intruder in the back as he was leaving through a window
With an illegally-held weapon, don't forget.
   170. snapper (history's 42nd greatest monster) Posted: August 11, 2010 at 08:42 PM (#3614134)
1: Let's say the homeowner shot the intruder in the back as he was leaving through a window

2: Let's say the homeowner has the intruder at gunpoint, says "hand up", and the intruder actually drops whatever he has, and puts his hands up, "I surrender"- and then the homeowner shoots him

3: Let's say the homeowner has a clear path to escape and call the police, but chooses instead top confront the intruder and shoots him

Do you see prosecution of the homeowner justified in any of the three scenarios above? Do you see any difference in the three scenarios?


Clearly not every situation calls for nullification.

In #2, the homeowner is clearly wrong, the homeowner should be prosecuted (unless there was extreme stress, i.e. the intruder had just raped his wife or killed his child, and then decided to surrender when he saw the gun), but I don't know how you'd ever prove it.

In #1 he is also wrong. Prosecution would depend on the situation, i.e. visibility (did he know he was exiting not enetering), stress of the situation (had the intruder resently been beating the homeowner or raping his wife), etc.

In #3 the homeowner is in the clear. There is no duty moral or legal to retreat in your own home.
   171. JoeHova Posted: August 11, 2010 at 08:55 PM (#3614145)
Dave Cameron with a response to this article.
   172. Johnny Sycophant-Laden Fora Posted: August 11, 2010 at 08:59 PM (#3614148)
In #3 the homeowner is in the clear. There is no duty moral or legal to retreat in your own home.


I don't know the current state of the law, but believe it or not, some states have held you have a legal duty to retreat- even in your own home... Some States enacted "true man" laws to head off such squishiness- "the true man has no duty to retreat"- ANYWHERE.

I'm just throwing these things out there.

Remember when Dukakis was asked
"Governor, if Kitty Dukakis were raped and murdered, would you favor an irrevocable death penalty for the killer?"


and he answered,
And Dukakis answered instantly and smoothly. "No, I don't, Bernard," he said. "And I think you know that I've opposed the death penalty during all of my life."


Of course the "right" answer would have been for Dukakis to immediately yell at the questioner, "What the hell kind of question is that!" and not otherwise answer, except maybe to say that you can't deal with complex issues by lobbing out an unfair personal questions, of course when someone loses a loved one they are angry and will want vengeance- that's why you don't put family members of the victim in the jury box.

remember when running for VP Gore got away with refusing to answer a question regarding how he could opposing vouchers while sending his kids to private school? And that was a hell of a lot less offensive than the hypothetical thrown at Dukakis.
   173. Francoeur Sans Gages (AlouGoodbye) Posted: August 11, 2010 at 09:04 PM (#3614153)
#1 is not a hypothetical, snapper, it's an actual case - the one I (and JSLF) assume you refer to when you write above:
I can imagine some cases. If someone kills an intruder in their home, and some wacky jurisdiction (like in the UK) decides to try him for murder, I'm nullifying, no matter what the law says. Basically any law that violates one's innate rights as a human being should be nullified.
   174. Johnny Sycophant-Laden Fora Posted: August 11, 2010 at 09:06 PM (#3614157)
Dave Cameron with a response to this article.


I was browsing through the responses, and boy what a bunch of fawning sycophants Dave has as readers
   175. snapper (history's 42nd greatest monster) Posted: August 11, 2010 at 09:09 PM (#3614158)
#1 is not a hypothetical, snapper, it's an actual case - the one I (and JSLF) assume you refer to when you write above:

No, shooting someone in the back while they're leaving is a criminal act, unless they just did something horrible to you or your family, in which case "temporary insanity would apply.

I have heard of case where people in the UK were tried for defending themselves against burglars, even non-lethally (with a cricket bat).

I've never heard of this other case.
   176. Ray (RDP) Posted: August 11, 2010 at 09:09 PM (#3614160)
I make huge allowances for someone who has an intruder break into his home. The homeowner cannot be sure that the intruder isn't going to turn the tables on him at the first opportunity and try to attack him. I have little sympathy for the intruder in any of the three cases you describe, actually. The intruder quite plainly has created a terrible situation for the homeowner, and can't really expect to be insulated from danger if the homeowner reacts in an over-aggressive manner.

Not that this is a homeowner situation but I just watched an interview on the Biography channel that William Shatner did with Bernie Goetz. (Shatner is involved in a ton of programming on the Biography channel, a lot of it interesting.) During the hour long interview Shatner continually tried to get Goetz to express some form of remorse for shooting the four teenaged assailants (one of them who was paralyzed). Goetz, for his part, continually insisted that he had no sympathy for them since they brought the situation onto themselves. The closest Goetz came to an expression of sympathy was to say that "if you flip a coin and it's heads and so the guy doesn't have to be paralyzed, fine, but at the end of the day they brought the situation on to themselves."

I think Goetz probably could have waited until the situation escalated a bit more to actually start shooting, but (though I do agree Goetz seems to be something of a crackpot) it's hard to blame him for feeling threatened after four guys corner him on the subway and say "Give me five dollars." Suppose he doesn't show the gun, and they mug him? Suppose he does show the gun, and they take it away from him and shoot him? They created a situation where he (reasonably, IMO) feared that there was a good chance he was about to be mugged. I'm not in the Shatner camp that they deserve all that much sympathy.
   177. Johnny Sycophant-Laden Fora Posted: August 11, 2010 at 09:11 PM (#3614161)
#1 is not a hypothetical, snapper, it's an actual case - the one I (and JSLF) assume you refer to when you write above:
I can imagine some cases. If someone kills an intruder in their home, and some wacky jurisdiction (like in the UK) decides to try him for murder, I'm nullifying, no matter what the law says. Basically any law that violates one's innate rights as a human being should be nullified.


actually if you look you can find cases matching all 3 of my hypotheticals, but I assumed Snapper was talking about shooting a guy whose just broke down your door with a tire iron and is heading towards the bedrooms looking for drug money.

Seriously though, most burglars avoid occupied houses, they want money and easily transportable goods, not a physical confrontation
someone who breaks into an occupied house likely really has bad intentions, rape, murder, mayhem...
   178. Francoeur Sans Gages (AlouGoodbye) Posted: August 11, 2010 at 09:17 PM (#3614164)
I have heard of case where people in the UK were tried for defending themselves against burglars, even non-lethally (with a cricket bat).
I really don't think you have.

You have heard of a case where burglars were running away from someone's house, and the burglary victims chased after the burglars down the street and beat them with a cricket bat and a metal pole. Beat them so badly that one of them suffered severe brain damage. The burglary victims were quite rightly convicted of GBH with intent. They had their sentences reduced on appeal because of the circumstances, etc.

Google "Munir Hussain"
   179. Paul D(uda) Posted: August 11, 2010 at 09:19 PM (#3614166)

Well, we're assuming the person is guilty. Locking up guilty people is a good thing.


Not if you have to frame them to do it.
   180. CrosbyBird Posted: August 11, 2010 at 09:24 PM (#3614171)
I think Goetz probably could have waited until the situation escalated a bit more to actually start shooting, but (though I do agree Goetz seems to be something of a crackpot) it's hard to blame him for feeling threatened after four guys corner him on the subway and say "Give me five dollars."

Goetz also had been mugged more than once in the past (that's why he had the gun in the first place).

Frankly, I'm with you on this Ray. If four punks come up to me and demand money, I'm not waiting to see if they're bluffing.

I am comfortable using the word "punks" to describe teenagers that used screwdrivers to pop open arcade games to steal quarters and threatened a middle-aged man on the subway.

someone who breaks into an occupied house likely really has bad intentions, rape, murder, mayhem...

Or was hoping that the residents would be asleep and unaware, or thought the house was unoccupied. Not that the owner should be expected to know the difference. If you're in my house and don't belong, I'm also not waiting to see if you're one of the "benign" thieves.
   181. snapper (history's 42nd greatest monster) Posted: August 11, 2010 at 09:28 PM (#3614174)
Well, we're assuming the person is guilty. Locking up guilty people is a good thing.


Not if you have to frame them to do it.


Sure it is, it's a good outcome but a bad process. Not saying it's right, but a good is still achieved.

If OJ did kill his wife, and the cops did add to the evidence, I want a system that tries to achieve 2 goods: 1) punish OJ b/c he did it 2) punish the cops for their bad behavior, severely, to deter future "framing".

Believe me, seeing three of their buddies getting fired and losing their pension will deter cops a lot more than a mere acquittal.
   182. Johnny Sycophant-Laden Fora Posted: August 11, 2010 at 09:30 PM (#3614178)
You have heard of a case where burglars were running away from someone's house, and the burglary victims chased after the burglars down the street


Actually, he wasn't chased down the street, it was the neighbor's yard, and it wasn't actually a "burglary" the "burglar" had apparently been paid to break in and assault the homeowner's family in front of the homeowner- and the "burglar" had 57 (57!) prior criminal convictions
and he's been arrested for an additional 5 offenses since he was allegedly disabled by the homeowner's beating of him.
   183. Johnny Sycophant-Laden Fora Posted: August 11, 2010 at 09:34 PM (#3614181)
I am comfortable using the word "punks" to describe teenagers that used screwdrivers to pop open arcade games to steal quarters and threatened a middle-aged man on the subway.


I recall seeing two of the Goetz victims interviewed on TV, based upon that I'm quite comfortable with calling them punks. But, from what I've read the only one of the four who seemed capable of being a decent human being was the one who was paralyzed- and Goetz allegedly shot him a second time while he was down (and the others had run off).
   184. snapper (history's 42nd greatest monster) Posted: August 11, 2010 at 09:34 PM (#3614182)
I really don't think you have.

You have heard of a case where burglars were running away from someone's house, and the burglary victims chased after the burglars down the street and beat them with a cricket bat and a metal pole. Beat them so badly that one of them suffered severe brain damage. The burglary victims were quite rightly convicted of GBH with intent. They had their sentences reduced on appeal because of the circumstances, etc.

Google "Munir Hussain"


You mean this?

http://www.dailymail.co.uk/news/article-1238970/DPP-rejects-plea-changes-self-defence-law-wake-Munir-Hussain-case.html

Clearly homeowners don't have the clear right to self-defense, only to use "reasonable force", otherwise they wouldn't be trying to change the law.

Also the gang members in this case tied his family up, threatened them with knives, and beat him. Not mere burglars.

He should have gotten a medal not an indictment. Once you threaten somebodies life, they have pretty wide latitude to render you no longer a threat.
   185. Paul D(uda) Posted: August 11, 2010 at 09:38 PM (#3614187)
Sure it is, it's a good outcome but a bad process. Not saying it's right, but a good is still achieved.

A good is not achieved when you frame someone. You hurt society more than you help the victim.
   186. Ray (RDP) Posted: August 11, 2010 at 09:45 PM (#3614196)
But, from what I've read the only one of the four who seemed capable of being a decent human being was the one who was paralyzed- and Goetz allegedly shot him a second time while he was down (and the others had run off).


No, this can't be. All of the shots were fired within a second or two, so there was no time for any of them to "run off." Essentially, Goetz fired all five shots in rapid succession, four of them hitting their targets. One missed Cabey, but one hit him and paralyzed him. Goetz did return to him and fired to try to hit him again, but by that time the gun was empty, though Goetz did not realize it.

Cabey was never shot twice; he was shot once (though he was shot _at_ three times). (EDIT: Or, more accurately, as far as Goetz was concerned he tried three times to shoot Cabey.)
   187. Ray (RDP) Posted: August 11, 2010 at 09:50 PM (#3614201)
   188. Ray (RDP) Posted: August 11, 2010 at 09:51 PM (#3614203)
Cabey was never shot twice; he was shot once


And note this correction from the Times. They were still getting it wrong eleven years after the incident:

Correction
Published: April 26, 1996

An April 24 editorial, "The Goetz Verdict," erred when it said that Darrell Cabey was sitting bleeding when Bernhard Goetz fired a second bullet into his spine. Mr. Cabey had not been previously wounded.
   189. Francoeur Sans Gages (AlouGoodbye) Posted: August 11, 2010 at 09:59 PM (#3614208)
Actually, he wasn't chased down the street, it was the neighbor's yard, and it wasn't actually a "burglary" the "burglar" had apparently been paid to break in and assault the homeowner's family in front of the homeowner- and the "burglar" had 57 (57!) prior criminal convictions
and he's been arrested for an additional 5 offenses since he was allegedly disabled by the homeowner's beating of him.
Breaking into someone's house with intent to wound someone is burglary. But regardless, I think it's pretty clear that (1) the criminals were nasty pieces of work (2) someone running away is no longer a threat, and attacking them is no longer self-defence, it's revenge. I have sympathy with Mr. Hussain, because God knows I'd probably have been motivated by revenge too. But private individuals can't take the law into their own hands.
Clearly homeowners don't have the clear right to self-defense, only to use "reasonable force", otherwise they wouldn't be trying to change the law.
Homeowners do have the right to self defence. But self-defence has a built-in reasonability threshold. The classic statement of the principle in English law is that an individual is "entitled to use reasonable force to protect himself, others for whom he is responsible and his property." And it is the same principle in US law.

That's what self-defence means - only reasonable force. Self defence does not mean, and never has meant, that if you perceive someone else as a threat, you can do whatever you like to neutralise that perceived threat.
Once you threaten somebodies life, they have pretty wide latitude to render you no longer a threat.
What threat does someone pose when they are running away from you?
   190. Johnny Sycophant-Laden Fora Posted: August 11, 2010 at 10:02 PM (#3614210)
No, this can't be.


That's one version
there were multiple witnesses, no two had the same version (which is pretty much how all eyewitness testimony works)

this is the version the NY Court of Appeals found the most likely:
It appears from the evidence before the Grand Jury that Canty approached Goetz, possibly with Allen beside him, and stated "Give me five dollars". Neither Canty nor any of the other youths displayed a weapon. Goetz responded by standing up, pulling out his handgun and firing four shots in rapid succession. The first shot hit Canty in the chest; the second struck Allen in the back; the third went through Ramseur's arm and into his left side; the fourth was fired at Cabey, who apparently was then standing in the corner of the car, but missed, deflecting instead off of a wall of the conductor's cab. After Goetz briefly surveyed the scene around him, he fired another shot at Cabey, who then was sitting on the end bench of the car. The bullet entered the rear of Cabey's side and severed his spinal cord.[19]

Goetz did return to him and fired to try to hit him again, but by that time the gun was empty, though Goetz did not realize it.

That's not true. Goetz came up with that version for the first time at trial, it contradicted his earlier statements and no witnesses' testimony backed it.

Actually the most damning (to Goetz) version is the one Goetz told the police right after it happened...
   191. Ray (RDP) Posted: August 11, 2010 at 10:05 PM (#3614211)
What threat does someone pose when they are running away from you?


The threat that they could come back and harm you.
   192. Fred Lynn Nolan Ryan Sweeney Agonistes Posted: August 11, 2010 at 10:08 PM (#3614213)
Not that this is a homeowner situation but I just watched an interview on the Biography channel that William Shatner did with Bernie Goetz. (Shatner is involved in a ton of programming on the Biography channel, a lot of it interesting.

My GF had Shatner's little chat show thing on awhile back, and I was kind of startled at how much I enjoyed the conversation he had with whoever-it-was: no gags to a sidekick or bandleader, nothing to promote, just kind of talking about stuff.
   193. Ray (RDP) Posted: August 11, 2010 at 10:10 PM (#3614214)
That's one version
there were multiple witnesses, no two had the same version (which is pretty much how all eyewitness testimony works)


But Goetz could not have "shot him a second time while he was down" if he only was shot once.

Goetz did *try* to shoot him multiple times, yes.
   194. Ray (RDP) Posted: August 11, 2010 at 10:13 PM (#3614216)
My GF had Shatner's little chat show thing on awhile back, and I was kind of startled at how much I enjoyed the conversation he had with whoever-it-was: no gags to a sidekick or bandleader, nothing to promote, just kind of talking about stuff.


Yeah, it's great. He had Scott Baio on and I was not planning on watching it but somehow got sucked in. Also Angelina Jolie's father... what's his face... and Shatner's reactions and voice inflections are hammy as usual.

He kept trying to ask Jolie's father (I'm blanking on the name) about his first divorce, and her father didn't want to answer, and finally had to say, look, I don't want to talk about it.

He had a Rush Limbaugh interview also that was interesting and that focused on Limbaugh's childhood and drug addiction and deafness rather than pure politics. From Shatner's questions to Limbaugh and what's his face, it seems he's fairly liberal, though not overly so.
   195. Francoeur Sans Gages (AlouGoodbye) Posted: August 11, 2010 at 10:16 PM (#3614219)
What threat does someone pose when they are running away from you?

The threat that they could come back and harm you.
I assume you were being facetious, but just in case:

1) It is only permissible to use force against immediate threats, not remote, hypothetical ones.
2) Unless you kill someone, they could always come back and harm you. Your doctrine seems to allow me to kill anyone who's ever threatened me.
   196. snapper (history's 42nd greatest monster) Posted: August 11, 2010 at 10:16 PM (#3614220)
(191) Exactly! These were paid assailants lying in wait. He had every reason to suspect they'd be back. They only fled because they had lost the advantage. They had knives, he had a bat. They picked a fight and lost. The fact the the fight spilled out of the original venue is irrelevent IMHO.
   197. Kurt Posted: August 11, 2010 at 10:16 PM (#3614221)
Breaking into someone's house with intent to wound someone is burglary.

No, that's robbery.
   198. Johnny Sycophant-Laden Fora Posted: August 11, 2010 at 10:27 PM (#3614227)
But Goetz could not have "shot him a second time while he was down" if he only was shot once.


He was sitting down
he was the one of the four who was furthest away and he was sitting down while shot

Goetz first version- he shot all 4, paused shot Cabey a 2nd time because he didn't look too badly hurt

BTW: Eye/ear witnesses- none heard any pause between the 1st and last shots

Then Goetz and his Atty discovered that Cabey had only been shot 1 time (and that shot severed his spinal cord- it was instantly disabling), so Goetz version was changed- he hit Cabey with his first shot- that shot knocked Cabey down into the seat - then Goetz second shot at Cabey missed.

2 problems was that two witnesses said they saw Goetz shot Cabey, while Cabey was seated from 2 feet away - and the missed shot couldn't have come from that vantage point

- so Goetz- likely on the fly- testified that what the witnesses saw was an attempted 6th shot (but Goetz was out of ammo)

my best guess is that Goetz really did fire all 5 shots in rapid succession, and he shot at Cabey "twice" because he realized- perhaps subconsciously, that the 1st shot missed. By the time he gave his statement to the police his memory had actually been influenced by the false media reports that Cabey had been shot twice- so he was trying to remember why he had shot Cabey twice... Then when he found out Cabey had already been shot 1 time, he tried to accomodate his story to that "reality"...
   199. Johnny Sycophant-Laden Fora Posted: August 11, 2010 at 10:28 PM (#3614228)
Also Angelina Jolie's father... what's his face...


ex-pretty boy John Voight
   200. Home Run Teal & Black Black Black Gone! Posted: August 11, 2010 at 10:54 PM (#3614236)
Jesus christ, someone who wouldn't stalk and kill infiltrators who had tied up their wife and kids and threatened them with knives is not a man. Damn the law on the books, there's a greater law at stake there.
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