Patterico's Pontifications

8/21/2014

New Republic: This Crazy Law In Missouri (Oh, and Almost Every Other State) Puts the Burden on the Prosecution!!!

Filed under: General — Patterico @ 5:57 pm

At The New Republic, Yishai Schwartz has an unintentionally hilarious article titled Convicting Darren Wilson Will Be Basically Impossible, with a deck headline reading: “You can thank Missouri law for that.” Stupid Missouri law! Let’s see what Missouri does special that is different from other states. Here I am going to quote from the original version of the piece, which I found at FreeRepublic — because, as you will soon see, they kinda sorta goofed up the central premise of the piece and ended up having to rewrite huge swaths of it to fix the mistake:

But these cultural biases are only part of the story of why a conviction will be near-impossible. The central reason is Missouri state law. Throughout history, claims of self-defense and compelling police activity have served as justifications for the use of deadly force. Most people intuitively understand that self-preservation is a basic right and that police must sometimes use violence to protect society and apprehend criminals. But generally, we expect situations of justified violence and legal killing to be the rare exception, and most people would probably imagine that policemen and citizens raising claims of justifiable homicide must meet a substantive burden of proof. But in Missouri, these justifications barely require any evidence at all.

In other states, claims of self-defense need to be proven as more likely than not, or in legal speak, to a “preponderance of the evidence.” It’s still the state’s obligation to prove “beyond a reasonable doubt” that the defendant actually killed the victim. But once that’s established, the prosecution doesn’t also have to prove “beyond a reasonable doubt” that the killing wasn’t justified. That’s because justifications—like self-defense—require the accused to make an active case, called an “affirmative defense,” that the circumstances were exceptional. The logic here is simple: As a rule, homicide is a crime and justification is reserved for extraordinary cases. Once the state has proven that a defendant did in fact kill someone, it should be the accused’s obligation to prove his or her actions were justified.

Not in Missouri. Instead, as long as there is a modicum of evidence and reasonable plausibility in support of a self-defense claim, a court must accept the claim and acquit the accused. The prosecution must not only prove beyond a reasonable doubt that the defendant committed the crime, but also disprove a defendant’s claim of self-defense to the same high standard. Under Missouri law, all a citizen claiming self-defense or a police officer claiming to have fired while pursuing a dangerous criminal need do is “inject the issue of justification.” In other words, he only needs to produce some evidence (his own testimony counts) supporting the claim. Once he does so, “any reasonable doubt on the issue requires a finding for the defendant.” In Missouri, the burden doesn’t budge an inch, even after we know that the defendant has killed the victim. It doesn’t matter that there is certainty that Darren Wilson shot Michael Brown. As long as there is still the slightest possibility that Wilson acted in his own defense, Missouri law favors Wilson.

Stupid Missouri with its stupid unique outlier of a rule putting the burden on the prosecution!

Note the link to “other states” having a different rule. It goes to the statute in Ohio, which has a different rule. Well, guess what? Ohio is the only state in the union that clearly applies a different rule. That’s right: the stupid Missouri rule that The New Republic says is going to free Darren Wilson is the law in at least 48, and arguably 49, states (and the District of Columbia). Eugene Volokh wrote about this back during the Zimmerman case:

Who should bear the burden of proving or disproving self-defense in criminal cases, and by what quantum (preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt), is an interesting question. But on this point, Florida law is precisely the same as in nearly all other states: In 49 of the 50 states [UPDATE: I would now say it's 48½], once the defense introduces any evidence of possible self-defense, the prosecution must disprove self-defense beyond a reasonable doubt.

This wasn’t always the rule. The English common law rule at the time of the Framing was that the defense must prove self-defense by a preponderance of the evidence, and Ohio still follows that rule; the Supreme Court has held (Martin v. Ohio (1987)) that placing this burden on the accused is constitutional. But to my knowledge, only Ohio still takes the view — all the other states do not. [See UPDATE below for one other state, Louisiana, in which some courts in some situations also take this view.]

. . . .

[I]f you’re focusing on what is the view in “most other states” on the burden and quantum of proof in self-defense cases, then you should note that Florida is entirely in line with that view.

UPDATE (July 30, 2013): It turns out that there’s one other state in which some courts follow the Ohio rule in some situations — Louisiana. The Louisiana Supreme Court made clear that it follows the majority rule in homicide cases, and some lower appellate courts do the same in non-homicide cases, but other appellate courts follow the Ohio rule in non-homicide cases, and the Louisiana Supreme Court has yet to resolve the conflict. See State v. Glover, 106 So. 3d 129, 137-38 (La. Ct. App. 2012) for more details.

The New Republic piece now bears this note at the bottom of the piece:

Correction and update: A previous version of this article implied that Missouri’s low burden for self-defense claims made it an outlier among U.S. states. Although historically, many states required defendants to actively prove a justification defense (and Ohio still does), in the last few decades most other states have moved away from Ohio’s approach and resemble Missouri’s. The legal situation is therefore perhaps even more troubling than originally implied. The language of the story has been updated to reflect this.

Indeed it has. The rewriting is extensive and amusing. The previous sentence “The central reason is Missouri state law” now reads “The central reason is a recent trend in many states’ criminal laws.” (Try “virtually all” instead of “many.”) The previous sentence “But in Missouri, these justifications barely require any evidence at all” now says “in states like Missouri” instead of just “Missouri.” The previous sentence “Not in Missouri” now becomes “Not in most states today, including Missouri.”

The piece still says it’s different in “other states” (plural) with only a link to Ohio — which is, again, the only state in the union that clearly and consistently puts the burden on the defendant.

The post closes by saying:

Within reason, legal protections for, and presumptions in favor of, policemen acting in the line of duty make sense. Society has chosen to give these men and women guns, after all. And if we expect these officers to put their lives on the line, we owe them some measure of trust and due deference. But trust cannot become a license to kill. We have a word for a situation where killing is the default, where violence is so expected that the burden is no longer on a killer to prove his actions are justified. That word is war. It has no place in suburban St. Louis.

No, the word for a situation where the burden is on the prosecution to disprove self-defense is “America.” With the exception of Ohio and possibly Louisiana in some cases, that is the norm, and it’s hardly a shocking one in American jurisprudence: the burden of proof is on the prosecution. CRAZY!!!!11!!11!ELEVENTY!!

I understand this rule bothers people who want to presume cops guilty when they kill someone. But that’s our system — and lefties like Yishai Schwartz generally like it, until it runs up against their preferred outcomes. Then, the system can go hang — and so, it seems, can basic research.

37 Responses to “New Republic: This Crazy Law In Missouri (Oh, and Almost Every Other State) Puts the Burden on the Prosecution!!!”

  1. Ah The New Republic: you know, it’s for intellectuals. I think somewhere Walter Lippmann is facepalming.

    JVW (638245)

  2. What a putz. How could he not know this after Zimmerman? That’s where I learned it’s similar everywhere, and that’s not even my job.

    BradnSA (5f3184)

  3. you gotsta make hay while the sun shines in Fergie Mo

    happyfeet (8ce051)

  4. Right.
    Because like otherwise, a woman would have to prove beyond a reasonable doubt that someone was trying to rape her before being justified in killing him in a bedroom with no other witnesses.
    We can’t have that!
    Without the threat of prison those women would pose a danger to journalists, media personalities, and politicians on the prowl everywhere.

    #ProglodyteWarOnWomen

    Sam (e8f1ad)

  5. What a putz. How could he not know this after Zimmerman? That’s where I learned it’s similar everywhere, and that’s not even my job.

    Well, a quick Google search of the author suggests he is a young kid, wet behind the ears, who just graduated from Yale this past spring. Zimmerman was like, you know, his junior year, and who can remember that far back?

    Seriously, it’s crazy that a magazine that was once as influential as TNR now figures that all of us are dying to hear the deep political musings of some 22-year-old. I mean, if he wants to tell me why Miley Cyrus isn’t really a bad influence or why Madden ’14 is a huge letdown from Madden ’13 then I’d be happy to hear what he thinks. But when he treats us to Ivy League groupthink that he picked up from the Yale Daily News and the New Haven chapter of the ACLU then I think I’m going to pass.

    JVW (638245)

  6. He’ll be spokesman for the State Dept. in no time at all with those lofty credentials and brainpower, JVW.

    And don’t forget we were warned. The New Republic took us through the unforgettable married couple Elspeth Reeve/Scott Beauchamp embarrassment not all that long ago.

    elissa (e9e9a1)

  7. Totally larfable…

    Colonel Haiku (2601c0)

  8. The officer may not be convicted by white jurors ;but the good citizens of ferguson will take the matter to the highest court there is THE SREET! (see rodney king riots)

    justin (7156f5)

  9. So, do images of mayhem, violence, fire, and street riots get you all excited and hot, “Justin”?

    elissa (e9e9a1)

  10. “Justin” got a tingle up his leg.

    JD (fc9d46)

  11. I hope Hugh Hewitt invites this writer, Yishai Schwartz, to be a guest on his show.

    http://www.hughhewitt.com/embarrass-journalists/

    “Why do you embarrass journalists the way you do?”

    I get some form of this question –or a more direct condemnation– after every interview like the one I conducted Monday with The Huffington Post’s “Senior Political Economy Reporter” Zach Carter.

    …First, you should know I’d never heard of Carter until he decided to misrepresent what Vice President Cheney said on my show last week.

    …Until colliding with Mr. Carter I had never thought to ask if a young journalist who presumed to comment on the war on terror if he or she had ever heard of A.Q. Kahn. I assumed…well, there’s the rub. I always assume that young journalists would not dare opine on the war without a basic knowledge of the existential threat at its core, and the origins of that threat.

    Perhaps a college newspaper editorialist would do so, but not a “senior political economy reporter” for a major political outlet like HuffPo.

    I was wrong.

    …I would not go through life ignorant of key facts, especially important facts. So many of the people writing under bylines are willing to do just the opposite today.

    Still, there’s so much ignorance out there, and only so much time. Hugh can’t possibly get to them all. So I’m glad to see that the New Republic is also in the business of embarrassing leftists by exposing how ignorant they are of the basic facts on which they self-importantly opine.

    If I were Hugh and couldn’t get young Mr. Schwartz to come on the show, I’d ask one of his layers and layers of editors who signed off on this nonsense, not having a clue it was utterly wrong.

    Unless, and this is even worse, his editors are so impressed with Yishai Schwartz’s subject matter expertise they don’t even edit his work for content. Just length.

    Steve57 (99bd31)

  12. The next 18 months are a test. I’m pretty certain the Entitlement class’ collective grade point will add up to one point sumthin.

    gary gulrud (46ca75)

  13. I wonder how recent this “recent trend” really is.

    Josh P (e16251)

  14. I wonder whether carlitos respects TNR? :)

    daleyrocks (bf33e9)

  15. fF course, you can always stack the deck in other ways, like getting rid of the cop-loving prosecutor in St Louis County. They say he doesn’t have the support of the [black] community, never mind he was just re-elected in a majority-black county against a black opponent.

    http://www.slate.com/articles/news_and_politics/politics/2014/08/protest_for_robert_mcculloch_s_recusal_the_st_louis_prosecutor_is_accused.html

    I listened to one of the indignant parties on Fox tonight — this is actually stupider than it sounds. Poor Megyn Kelly had a hard time with the interview as she clearly wanted to scream “What a steaming pile of bulls*it!!” at several points.

    Kevin M (b357ee)

  16. the “justice” these folks would have in store for the police officer is at the end of a rope, whether he’s guilty or not. They’re no better than a modern day KKK sans white sheets.

    Colonel Haiku (2601c0)

  17. wasserman-schultz-illegals-part-of-the-backbone-of-our-economy

    So were slaves, once.

    Kevin M (b357ee)

  18. Anectodal evidence on a general need for intervention:

    http://www.komonews.com/news/local/Naked-woman-climbs-downtown-Portland-flagpole-272195021.html

    gary gulrud (46ca75)

  19. she’s different breed
    this Debbie Poodleman Shultz
    ‘merican Standard

    Colonel Haiku (2601c0)

  20. What a maroon.

    Milhouse (9d71c3)

  21. Some people say that the writers at The New Republic are
    Wackos and ignorant nut jobs.

    Some.

    jakee308 (ba1e65)

  22. Let’s just say that if Yishai Schwartz went to law school, he skipped the criminal procedure class–or else was snoozing during most of it. Or maybe heckfire, he had a degree in Ethnic Studies and never went to law school at all.

    Skeptical Voter (12e67d)

  23. The officer may not be convicted by white jurors ;but the good citizens of ferguson will take the matter to the highest court there is THE SREET! (see rodney king riots)

    You got a bit confused, Justin. The good people of South Central LA didn’t take to THE SREET!, your fellow two-legged animals did that. The good people took to the roofs, with their AR-15s, and shot the animals dead. And if this goes on much longer in Ferguson, if the animals keep taking to THE SREET!, then the good citizens of Ferguson will do the same, and there will be a lot of dead animals. Maybe you.

    The good citizens of Ferguson remember just a few years ago when it was a good place to live, when they put their lives’ savings into their houses and businesses, and then the animals came and turned it into the sort of place where a pair of worthless punks like Mike Brown and Dorian Johnson can rob a store in broad daylight, and then strut down the middle of the street like they own it. Those good citizens want to take back their streets, and extended riots may be just the thing to finally provoke them into doing that.

    Milhouse (9d71c3)

  24. Or maybe heckfire, he had a degree in Ethnic Studies and never went to law school at all.

    Close. Philosophy and Religious Studies.

    Milhouse (9d71c3)

  25. Shorter Milhouse: Furguson is an example of how bad luck happens.

    Kevin M (b357ee)

  26. Kevin M — Sounds like a Heinlein reference. 8-)

    Bill M (906260)

  27. The officer may not be convicted by white jurors ;but the good citizens of ferguson will take the matter to the highest court there is THE SREET! (see rodney king riots)

    justin (7156f5) — 8/21/2014 @ 6:33 pm

    I’ve never thought about the saying “we get the government that we deserve” quite the way I did when reading this comment.

    Dustin (ac4d15)

  28. it’s crazy that a magazine that was once as influential as TNR now figures that all of us are dying to hear the deep political musings of some 22-year-old.

    He went to Yale, he’s obviously smrter (sp…in honor of the Simpsons marathon)

    Hawkins (1fc204)

  29. 2. BradnSA (5f3184) — 8/21/2014 @ 6:08 pm

    How could he not know this after Zimmerman?

    This is like the Zimmerman case, where they pretended Florida was special, and sided too much with the shooter, and needed to be changed.

    Same thing here.

    They have to say something like that – otherwise the protesters don’t make any sense or have any point.

    Sammy Finkelman (3ba0b7)

  30. carlito’s favorite local guide,* has some interesting bits, about the honor student,

    riverfront times,

    one recalls the attack on self defense laws was part of the Soros attack on ALEC, which inturn was a bankshot at Koch

    narciso (ee1f88)

  31. these lefty dolts have no interest in law or the constitution, they only ask Lenin’s question, “Kto, kogo?” [who, whom] if it serves the Party, it is true and holy. if it does not, it must be crushed.

    John Cunningham (9f3ba7)

  32. “My… how the reputation of TNR for honesty and fair-minded journalism has been tarnished.”

    - Stephen Glass

    Colonel Haiku (d96d7a)

  33. Consider some of the ways politics impacts the justice system when racial issues are involved:

    In the OJ case the trial was transferred from Santa Monica, the jurisdiction where the crime occurred, to downtown Los Angeles where the jury pool would be predominately minority Black/Hispanic/Asian. (Although the change of venue was blamed on DA Gil Garcetti, the decision was supposedly made by unnamed judges on the LA Superior Court.)

    After failing to appear at 11am as agreed and after an extended low speed chase that ended at Simpson’s Brentwood home at 8pm police found $8,000 in cash, a change of clothing, a loaded .357 Magnum, his passport, family pictures, a fake goatee and mustache in Simpson’s white Bronco. None of the items found in the Bronco was shown to the jury as evidence in Simpson’s murder trial.

    In the Trayvon Martin case the Sanford, Florida, Police Chief Bill Lee was forced to temporarily step down after his office concluded no arrest of George Zimmerman was justified by the evidence. The City Commission reacted against the illegitimate application of outside political pressure and refused to accept Chief Lee’s resignation: “Lee’s spotless record showed there needed to be further review to determine if he failed in his duties.” Undeterred by the facts, and responding to a tsunami of manufactured racial outrage fanned by unrelenting media duplicity, black Sanford City Manager Norton Bonaparte fired Chief Lee on his own authority in defiance of the City Commissioners.

    Florida Governor Rick Scott bowing to race hustlers and intense media pressure removed the Trayvon Martin case from the Seminole County prosecutor by appointing Angela Corey special prosecutor. Corey skipped the grand jury and immediately indicted Zimmerman for murder on her own authority. She was subsequently sued (for $5 million) by a former employee she fired for testifying her office withheld evidence of Trayvon Martin’s criminal misbehavior from Zimmerman’s defense attorneys. Florida law specifically protects whistleblowers from retaliation who testify under oath.

    The national media edited video tape to conceal evidence of Zimmerman’s injuries in a despicable (criminal) attempt to undermine his legitimate defense and his right to a fair trial by portraying him as a lying racist murderer. All the while showing pictures of an angelic Trayvon Martin taken years previously. The unvarnished truth was Martin was suspended from school at the time and had become a sneak thief, a drug dealer, and a violent brutal thug.

    In Ferguson Missouri, responsibility for “security” was abruptly taken from Chief Tom Jackson after he released the damning robbery video (and has since seemingly dropped off the face of the earth) and assigned to the State Highway Patrol’s Ron Johnson, a black official who reports to Missouri’s Democrat Governor. (Who has previously heard of the State Highway Patrol being put in charge of municipal security?)

    I could go on but the script for officially sanctioned racial injustice is clear: Find a white scapegoat, fan the flames of racial animosity, remove local officials and put reliable henchmen in charge, spin a false narrative, withhold exculpatory evidence, publicize the lies of false witnesses, manufacture false evidence, prejudice the jury pool, make sure the judge will play pattycake, hold a show trial, sacrifice an innocent victim on the alter of political correctness, and do it all in the name of racial equality. (Sammy’s response to Brad at #31 offers an example I neglected.)

    ropelight (c73b76)

  34. “The good citizens of Ferguson remember just a few years ago when it was a good place to live, when they put their lives’ savings into their houses and businesses, and then the animals came and turned it into the sort of place where a pair of worthless punks like Mike Brown and Dorian Johnson can rob a store in broad daylight, and then strut down the middle of the street like they own it.”

    Milhouse – You wouldn’t be suggesting that crime causes poverty or something? Why that’s borderline raaaaacist!

    daleyrocks (bf33e9)

  35. Ogabe is fanning the flames of race war to suspend the Constitution.

    http://www.zerohedge.com/news/2014-08-22/when-anti-government-violence-erupts-who-really-fault

    Not rocket science, brain surgery or even soup cooking.

    gary gulrud (46ca75)


Powered by WordPress.

Page loaded in: 0.1957 secs.