Patterico's Pontifications

7/21/2007

JCG on Posturing by the Left and Right

Filed under: Court Decisions,General,Judiciary,Law — Patterico @ 1:03 pm



Jan Crawford Greenburg has a post that whacks the right and the left for their respective whining about the latest Supreme Court term. She starts by lecturing conservatives for understating the significance of the Court’s shift:

Let’s be clear here: There’s no question that the Court ended its term pointed in a more conservative direction with the addition of Justice Alito for O’Connor. Putting aside the overheated talk on the Left for a minute, it’s been outright baffling to listen to some conservatives try to argue the Court didn’t do all that much. Justice Scalia didn’t leave town depressed (like in years past) by end-of-term rulings, so why are conservatives downplaying what were significant rulings for them?

Personally, I don’t think I have downplayed the fact that conservatives won at the Supreme Court. I have just bemoaned the undeniable fact that the rulings could have (and should have) been more sweeping. As I said in this post:

The fact is that, while conservatives won a lot of decisions, they won them on narrow grounds.

Greenburg acknowledges this fact in the next paragraph:

Sure, the Court didn’t overturn Roe—but it upheld the first-ever ban on a specific abortion procedure and indicated a clear willingness to allow other regulations and restrictions down the line. Sure, it didn’t overturn McCain-Feingold, but it limited its scope with a decision that is certain to lead to more attacks down the road. And, no, the Court didn’t get five votes for a color-blind Constitution, but it so dramatically limited when schools can consider a student’s race for diversity purposes that most school officials—notoriously litigation adverse—are going to scrap those programs.

Just say it: The Court turned to the Right.

OK. The Court turned to the right. Just not as much as it could have — or should have.

If conservatives like me have spent time discussing the limited nature of our victories, it has been in reaction to the sweeping and dramatic language from people like drama queen David Savage:

In what may signal a generational shift in power, new Chief Justice John G. Roberts Jr. led a confident conservative majority at the Supreme Court this year and moved the law to the right on abortion, religion, campaign funding and racial diversity.

or his fellow Chicken Little Linda Greenhouse:

It was the Supreme Court that conservatives had long yearned for and that liberals feared.

And indeed, Greenburg acknowledges that the hand-wringing on the left is overwrought — and provides numerous examples, from Kathleen Sullivan to Geoff Stone to Adam Cohen, and many more.

It’s a good post, and you should read it all.

Perhaps the most interesting aspect of her post, however, is an offhand comment she made about Kathleen Sullivan. It’s a different enough topic that I’ll discuss it in a separate post.

66 Responses to “JCG on Posturing by the Left and Right”

  1. “OK. The Court turned to the right. Just not as much as it could have — or should have.”

    How far is far enough for you, Patterico?

    Could have been worse had they not been justly stung by criticisms of their ‘one time’ intervention into a National Election. Hegel’s Pendulum swings for them in spite of their “Papist” mood swings.

    Semanticleo (4741c2)

  2. The details are in my previous post. I’d like to see Roe, Casey, McConnell, Wickard, Miranda, Grutter, and a few other decisions overruled.

    Patterico (2a65a5)

  3. And here someone accused me the other day of moderating my views because I’m seeking a judicial position (which I’m not).

    I think my previous comment should make it clear that I’m doing nothing of the sort.

    Patterico (2a65a5)

  4. Patrick: Don’t forget Kelo.

    Steve Levy (9fe8ea)

  5. Oh, there’s many others. I just named a few.

    Patterico (2a65a5)

  6. Wow, I’m surprised that you want to see Miranda overruled. I’m curious what your reasoning is? What’s wrong with Miranda? And what process would you see in its place?

    Christoph (8741c8)

  7. I explained it in this post:

    I still think we would have to have a rule that involuntary confessions are inadmissible. But even without that rule, if the defendant can show a judge his confession was beaten out of him, he can probably show that to a jury as well, and the jury would rightly hold that against the police. Further, I would encourage the continued use of Miranda warnings with a rebuttable presumption that confessions are voluntary if Miranda warnings are given.

    What’s wrong with Miranda? It results in the banning of voluntary confessions. It distorts the truth-seeking process. It causes the guilty to go free, or have their charges or custody time reduced.

    Despite all this, it’s the law, and I apply the law even if I disagree with it.

    Patterico (2a65a5)

  8. Patterico, I think that most people do not understand that what Miranda did was introduce a silly and artificial set of rules to decide that confessions were not “voluntary” that had little to do with the actual question of coercion. Most people have the false impression that beating a defendant into confessing was constitutional before Miranda and falsely believe that if you urge reversal of Miranda that you are urging allowance of coerced confessions.

    Robin Roberts (6c18fd)

  9. The worst part of Miranda is that it punishes society as a whole for the real or imagined crimes of an individual.

    gahrie (de5a83)

  10. Greenberg ignores the serious arguments and picks the sloppy ones; going for the low hanging fruit, as you do. She’s a “political” moderate. She’s not even interested in the law. She thinks Roberts is serious because he’s polite.

    Miranda: What can I say? I guess you think cops can’t be trusted to read a couple of sentences off a cue card.
    “Reid-led all-night session” Man I’m gonna stick with that one for a while.
    And that last thing you asked about, the “license to harass.”
    Why wouldn’t anyone defend that?
    As a prosecutor it’s your job to be biased. You live your life that way. You leave reason to others.

    AF (4a3fa6)

  11. AF,

    As a prosecutor it’s my job to seek justice.

    As a liberal commenter it’s your job to be biased.

    The problems with Miranda go far beyond reading a few lines off a cue card, but as a prosecutor I know that. As a liberal commenter you have no idea what you’re talking about.

    Patterico (2a65a5)

  12. “As a prosecutor it’s my job to seek justice”

    No. As a prosecutor it’s your job to represent the state, as it’s the defense attorney’s job to repesent the accused.
    You have a romantic notion of your job but that’s not how the system is designed,
    Ask your old professors from law school they’ll remind you.

    You’ve spent too much time in Hollywood.

    AF (4a3fa6)

  13. AF,

    I’ll say this as politely as I know how.

    You don’t know what you’re talking about. Not even slightly. You’re out of your depth here.

    To anyone who knows the system, you’re exposing yourself as utterly fucking clueless.

    Yes, that’s the polite version.

    Patterico (cae82a)

  14. Again, ask your professors. Or don’t. You’re putting on a show for your fan-base, and maybe for yourself, I can’t tell.
    When you want to start a serious conversation I’ll listen.

    AF (4a3fa6)

  15. You live your life that way. You leave reason to others.

    AF, you’re the third guy I’ve seen in a week that is a master of projection.

    A few more and Patrick can start showing movies!

    Paul (0544fc)

  16. Again, ask your professors. Or don’t. You’re putting on a show for your fan-base, and maybe for yourself, I can’t tell.
    When you want to start a serious conversation I’ll listen.

    AF,

    You need to get over this idea that, just because you don’t know what you’re talking about, therefore someone else isn’t being serious.

    You are the one being unserious here. You can ask anyone who knows what they’re talking about — anyone! — and they will agree with me, and say that you are ignorant and misguided.

    I’ll bypass my professors and go straight to the Supreme Court:

    The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

    Berger v. United States, 295 U.S. 78, 88 (1935)

    If your defense ends up being that a D.A. is different than a U.S. Attorney, then 1) you’re pathetic, and 2) let me give you this quote:

    The duty of the prosecutor is to seek justice, not merely to convict.

    That’s from Standard 3-1.1, American Bar Association Standards Relating to the Administration of Justice, quoted in a California ethics opinion.

    Sound familiar? It should. It’s almost verbatim what I said. Let’s roll tape on what I just said:

    As a prosecutor it’s my job to seek justice.

    Now, AF . . . you were saying?

    Patterico (2a65a5)

  17. Here’s my suggestion: the next time you want to smugly explain to someone their job function — especially if it’s a job they’ve been doing for ten years — try a little research before opening your pie-hole.

    Patterico (2a65a5)

  18. AF, you’ve been pwned.

    Paul (0544fc)

  19. “As a prosecutor it’s my job to seek justice.
    As a liberal commenter it’s your job to be biased.”

    That was the quote. The implication was that you were not biased and that I was.
    As I said, that’s not how the system works. If that were the case there would be no need for defense attorneys, and defendants would appear before prosecuting magistrates. Instead, in our system both prosecuting and defense attorneys are servants of the court and the law, and not one or the other but BOTH seek justice and BOTH are obligated to play by the rules. The quote refers to the prosecutor’s obligations to the law itself and to the system and the state, rather than to the victim of a crime.
    That’s a moral and ethical responsibility, not a pedestal.

    “As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.”

    “Why do you want to get a lawyer involved? You can trust me”
    But we see why you don’t like Miranda.
    Speaking on behalf of all the lawyers I grew up around -from baby-sitters on up, inside the family and out- your description was based a bit too much on faith.

    AF (4a3fa6)

  20. “As a prosecutor it’s my job to seek justice.
    As a liberal commenter it’s your job to be biased.”

    That was the quote. The implication was that you were not biased and that I was.

    Oh AF, aren’t you forgetting something?

    As a prosecutor it’s your job to be biased. You live your life that way. You leave reason to others.

    Patrick’s quote was in response to that line of BS.

    Paul (0544fc)

  21. AF,

    You can try to misrepresent or recast the quotes all you like, but they’re still right up there for anyone to read. Let’s roll the tape on your comment above:

    [AF quoting me] “As a prosecutor it’s my job to seek justice”

    [AF responding] No. As a prosecutor it’s your job to represent the state, as it’s the defense attorney’s job to repesent the accused.

    This is a test of character, AF. You denied that my job is to seek justice. I provided proof that it is.

    Time to admit you were WRONG, my friend. Without reservation. Are you capable of doing that?

    It’s a nice little story that your babysitters and family members had a particular view of a prosecutor’s role. The Supreme Court and ABA have a different view, and it’s the view I expressed, with quotes and links. That’s how we do it here on the blogs. Quotes and links.

    Instead, in our system both prosecuting and defense attorneys are servants of the court and the law, and not one or the other but BOTH seek justice and BOTH are obligated to play by the rules.

    Wrong again. It is not a defense attorney’s job to seek justice, at least in the sense that most people think of justice. Saying that is not a disparagement of defense work, it’s just a fact.

    Here is are two hypotheticals to illustrate the point:

    #1: Prosecutor believes defendant is innocent. He must a) prosecute anyway, because it’s his job to represent the state; or b) dismiss the case, because it’s his job to seek justice.

    #2: Defense attorney believes defendant is guilty. He must a) plead his defendant guilty, regardless of the punishment offered, because it’s his job to seek justice, and justice demands that the guilty be convicted and punished; or b) defend his client to the best of his ability, getting either the best possible plea or seeking an acquittal at trial, because his job is to represent his client, not to seek justice (in the sense most people think of justice).

    Hint: the correct answer in each case is b. Because prosecutors and defense attorneys have different roles.

    But back to the main point: you were wrong, and need to own up to it. I want to see if you’re capable of it.

    Patterico (2a65a5)

  22. As a prosecutor it’s your job to represent the state…

    And does the state have an interest in wrongful convictions, AF? No, the state has an interest in justice prevailing.

    You’re really flashing your ass here, and you ought to admit it.

    Pablo (99243e)

  23. Would a defense attorney be more inclined to suborn client perjury than a prosecutor to withhold exculpatory evidence?

    How much should DA’s inject themselves into police investigations? Was Nifong trailblazing?

    Does the “fail-proof” line-up exist outside TV scripts?

    It is not a prosecutor’s job to be biased, nor is loss of the ideal always traceable.

    steve (1c66cc)

  24. Would a defense attorney be more inclined to suborn client perjury than a prosecutor to withhold exculpatory evidence?

    It depends on the attorney. There are plenty of defense attorneys I know who would never suborn perjury.

    There are some I know that may very well suggest things to clients: “I don’t know what your defense is, but a good defense would be . . .”

    How much should DA’s inject themselves into police investigations? Was Nifong trailblazing?

    To the extent necessary.

    Does the “fail-proof” line-up exist outside TV scripts?

    Fail-proof? Nothing in life is fail-proof. There are better ways to do them than others.

    Patterico (2a65a5)

  25. If a DA tells a ADA to prosecute, he prosecutes, regardless of what he himself thinks. He does his job. The state has the option not to prosecute, but the defense does not have an option unless it gives up. Still…

    [1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions.

    There ya go. The prosecutor has a dual role, and the defender does not. I described their roles are identical. and they aren’t.
    Of course this makes me more of a supporter of Miranda and other decisions like it than ever.
    “As a prosecutor it’s my job to seek justice. As a liberal commenter it’s your job to be biased.”
    Because it’s my job, as it is the job of the press, not to trust you. And that job’s important. Better the guilty go free than the innocent be wrongly convicted.
    Gracias por el recuerdo.

    AF (4a3fa6)

  26. If a DA tells a ADA to prosecute, he prosecutes, regardless of what he himself thinks. He does his job.

    That’s not the rule in our office. If a D.A. is asked to prosecute a case that a supervisor thinks is provable, but the D.A. thinks is not, he can ask that another D.A. do the case.

    Granted, a D.A. should take into account the opinion of a more experienced prosecutor. But if after all that he still believes it’s not there, he can ask to be taken off the case.

    Patterico (2a65a5)

  27. Because it’s my job, as it is the job of the press, not to trust you.

    I’m happy to have all commenters double-check my assertions.

    I’m not happy to have them smugly tell me I’m wrong when I’m not, without doing the research themselves. Especially on a point central to my profession.

    There’s a difference there, AF.

    Learn it and live it.

    Patterico (2a65a5)

  28. Again Pat, the implication was that you in seeking justice were unbiased. I understand the dual role -dual responsibility- of advocate and “judge” that a prosecutor is required to take on, but you made a claim to moral superiority on that basis and notwithstanding my previous error, that claim is still false. The laws put limits on the power of state agents. It’s rare that you show much respect for those limits.

    You make your political arguments as an advocate for the american right, sometimes on the fringes of that. You don’t come close having a critical distance from American politics and I would be surprised if you would claim to. That’s perfectly fair in advocacy, but as you say you’re both an advocate and a watchman and the question remains, who watches the watchmen?

    AF (4a3fa6)

  29. I understand the dual role -dual responsibility- of advocate and “judge” that a prosecutor is required to take on . . .

    You didn’t until I explained it.

    . . . but you made a claim to moral superiority on that basis

    WTF are you talking about?

    . . .and notwithstanding my previous error, that claim is still false. The laws put limits on the power of state agents.

    We are free to seek justice without constraint, my ignorant friend.

    It’s rare that you show much respect for those limits.

    You make your political arguments as an advocate for the american right, sometimes on the fringes of that. You don’t come close having a critical distance from American politics and I would be surprised if you would claim to.

    That’s perfectly fair in advocacy, but as you say you’re both an advocate and a watchman and the question remains, who watches the watchmen?

    Do you understand that my job as a prosecutor and my hobby as a blogger aren’t the same thing?

    Pick which one you’re talking about and be clear about it.

    Patterico (c37e17)

  30. WTF are you talking about?
    “As a prosecutor it’s my job to seek justice.
    As a liberal commenter it’s your job to be biased.”
    Tell me you’re not defining a relation of moral superiority of one to the other. Tell me you don’t sound like a schmuck.
    Tell me the reasons prosecutors so often fight against the retesting on old evidence with up-to-date DNA analysis: the principle that that the wrongly convicted got due process?
    Nifong was an extreme case. You think there aren’t others?
    I suppose I could dig of my mother’s old case files.

    You’re right: I referred to the relation of prosecutor to defense as adversarial only, and you responded that the prosecutor is designated a dual role. I argued that point and stand corrected. But that dual role is only a job description not a license for sainthood. It’s countered by all the other rules that give the defense advantages. Innocent until proven guilty. The guilty should go free before the innocent are unjustly imprisoned.

    Miranda had to do not with the right against self incrimination but the right to know your rights. We do not have prosecuting magistrates and judges are not kings. No one has that much power in our system. That’s why its referred to as one of checks and balances and the rule of law, not the rule of judges. And not the “rule” of a President. Balance defines an equilibrium, not dominance.

    I didn’t say there was no difference between your job and your hobby only that you have a philosophy of justice, a bias, and you argue from it. Everyone is biased, but you seem to think that’s a problem only others have to live with. You’re wrong.

    AF (4a3fa6)

  31. New Study Examines False Convictions
    “When an airplane crashes, investigators pore over the wreckage to discover what went wrong and to learn from the experience. The justice system has not done anything similar.”

    Why not?

    AF (4a3fa6)

  32. New Study Examines False Convictions
    “When an airplane crashes, investigators pore over the wreckage to discover what went wrong and to learn from the experience. The justice system has not done anything similar.”
    Why not?

    AF (4a3fa6)

  33. In April, Jerry Miller, an Illinois man who served 24 years for a rape he did not commit, became the 200th American prisoner cleared by DNA evidence. His case, like the 199 others, represented a catastrophic failure of the criminal justice system.

    When an airplane crashes, investigators pore over the wreckage to discover what went wrong and to learn from the experience. The justice system has not done anything similar.

    But a new study does. Brandon Garrett, a law professor at the University of Virginia, has, for the first time, systematically examined the 200 cases, in which innocent people served an average of 12 years in prison. In each case, of course, the evidence used to convict them turned out to be at least flawed and was often false – yet juries, trial judges and appellate courts failed to notice.

    “A few types of unreliable trial evidence predictably supported wrongful convictions,” Garrett concluded in his study, “Judging Innocence,” which will be published in the Columbia Law Review in January.”

    AF (4a3fa6)

  34. In April, Jerry Miller, an Illinois man who served 24 years for a rape he did not commit, became the 200th American prisoner cleared by DNA evidence. His case, like the 199 others, represented a catastrophic failure of the criminal justice system.

    When an airplane crashes, investigators pore over the wreckage to discover what went wrong and to learn from the experience. The justice system has not done anything similar.

    But a new study does. Brandon Garrett, a law professor at the University of Virginia, has, for the first time, systematically examined the 200 cases, in which innocent people served an average of 12 years in prison. In each case, of course, the evidence used to convict them turned out to be at least flawed and was often false – yet juries, trial judges and appellate courts failed to notice.”

    AF (4a3fa6)

  35. AF: if I might venture into this debate, it seems to me that by asserting that Patterico’s understanding of his job is wrong, you are effectively asserting that he is bad at his job; it is, I think, only natural that Patterico would be offended thereby.

    It’s one thing to say that everyone approaches life with biases, and that those biases consciously or unconsciously affect their behavior and their thinking; it would be reasonable to claim that, whether he will or no, Patterico carries his biases with him into his job, and to suggest that if he is not on guard against it, they will influence his decision making. It’s something else entirely to claim, as you did in #10, that his job requires him to be biased and to then persist, as you have, in claiming that you understand his job better than he does.

    I do not know what a prosecutor’s job requires of him; that is not my job, and I have no academic training which would hint at it. But I suspect that a prosecutor has a better idea of what those requirements are than someone who does not; and while that suspicion is rebuttable, you have provided no evidence to rebut it.

    aphrael (e0cdc9)

  36. We are free to seek justice without constraint, my ignorant friend.

    Patterico: granted that I know not whereof I speak, but I find this unlikely: surely there are some things which you are not, by law, allowed to do.

    aphrael (e0cdc9)

  37. No Aphrael, I’m not saying Pat is a bad DA I’m saying he has the bias of a DA, and he does not like to hear it described that way. That’s what offended me in his first statement, and I responded by saying that he was only an advocate, and I was wrong. But he describes his added responsibilities not as an added burden, which is what they are, but as an added pedestal.
    There are plenty of defense attorneys I know who would never suborn perjury.
    If I had said the same thing about DA’s Pat would’ve hit the roof
    “There are plenty of districts attorneys I know who would never suborn perjury.” There’s condescension in that. “Plenty” is not “the vast majority” and that’s the phrase that would apply.
    A DA has a dual loyalty as an advocate and a seeker of justice.
    Fine. But then so does the Attorney General. But that’s for a different thread.

    AF (4a3fa6)

  38. Your comment, AF, was this:

    As a prosecutor it’s your job to be biased. You live your life that way. You leave reason to others.

    That got the ball rolling. You started with a stupid and wrong definition of my job and then extrapolated it to my whole life. Meanwhile unwarranted condescension drips off your comments every day; you constantly assert that nobody here cares about reason, nobody cares about facts — in short, nobody as AS GOOD AS THE SAINTED AF . . . just because we goddamn disagree with you.

    So now you want to accuse *me* of condescension. Fine. You know, if I’d been as embarrassed as you have been in this thread, I’d probably look for some way to lash back — but you know what, pal? You started it, not me.

    aphrael,

    I meant I am not constrained in the way that AF appeared to imply when he said:

    Again Pat, the implication was that you in seeking justice were unbiased. I understand the dual role -dual responsibility- of advocate and “judge” that a prosecutor is required to take on, but you made a claim to moral superiority on that basis and notwithstanding my previous error, that claim is still false. The laws put limits on the power of state agents. It’s rare that you show much respect for those limits.

    I read that passage in the context of AF’s false claim:

    If a DA tells a ADA to prosecute, he prosecutes, regardless of what he himself thinks. He does his job.

    That is not true, and that is the non-existent “constraint” that I was explaining does not apply.

    Sorry for any confusion.

    AF, I don’t claim to be an unbiased blogger. My comment about you being biased was in response to YOU commenting about my job and generalizing it to my life.

    Now get off the goddamn topic. I have really only one rule here: don’t disparage my ability to do my profession. You’re too close to the line; get away from it pronto.

    Patterico (2a65a5)

  39. “I have really only one rule here: don’t disparage my ability to do my profession.”:
    I didn’r do that. You began by elevating the role of the prosecutor. Now you’re going back to our original argument as if it’s still ongoing, but it’s not.
    I’ll quote you again, for the 5th[?] time:
    “As a prosecutor it’s my job to seek justice.
    As a liberal commenter it’s your job to be biased.”
    That’s where it began. You privilege the role of prosecutor, granting yourself a moral superiority over the defense. You do your job, and I’m sure you do it well, but in your spare time you trash-talk the opposition. And that is where the bullshit starts. You want to have some fun? The attorney general is not a factotum of th president. He has other obligations, and I’m not so sure you give a shit.

    “There are plenty of districts attorneys I know who would never suborn perjury.”

    I haven’t said that yet, but if you keep pushing I will, and then we’ll be arguing at the same level of bullshit.

    AF (4a3fa6)

  40. New study examines false convictions

    In April, Jerry Miller, an Illinois man who served 24 years for a rape he did not commit, became the 200th American prisoner cleared by DNA evidence. His case, like the 199 others, represented a catastrophic failure of the criminal justice system.
    When an airplane crashes, investigators pore over the wreckage to discover what went wrong and to learn from the experience. The justice system has not done anything similar.

    Why not Pat? It’s the responsibility of prosecutors not just to be advocates but to seek justice. Right? If you want the rewards of moral seriousness, you need to accept the weight moral responsibility. They’re not the same thing.
    Talk the talk? Walk the walk.

    AF (4a3fa6)

  41. http://www.iht.com/articles/2007/07/22/news/bar23.php

    New study examines false convictions

    In April, Jerry Miller, an Illinois man who served 24 years for a rape he did not commit, became the 200th American prisoner cleared by DNA evidence. His case, like the 199 others, represented a catastrophic failure of the criminal justice system.
    When an airplane crashes, investigators pore over the wreckage to discover what went wrong and to learn from the experience. The justice system has not done anything similar.

    Why not Pat? It’s the responsibility of prosecutors not just to be advocates but to seek justice. Right? If you want the rewards of moral seriousness, you need to accept the weight moral responsibility. They’re not the same thing.
    Talk the talk? Walk the walk.

    AF (4a3fa6)

  42. http://www.iht.com/articles/2007/07/22/news/bar23.php

    New study examines false convictions
    “In April, Jerry Miller, an Illinois man who served 24 years for a rape he did not commit, became the 200th American prisoner cleared by DNA evidence. His case, like the 199 others, represented a catastrophic failure of the criminal justice system.
    When an airplane crashes, investigators pore over the wreckage to discover what went wrong and to learn from the experience. The justice system has not done anything similar.

    Why not Pat? It’s the responsibility of prosecutors not just to be advocates but to seek justice. Right? If you want the rewards of moral seriousness, you need to accept the weight moral responsibility. They’re not the same thing.
    Talk the talk? Walk the walk.

    AF (4a3fa6)

  43. I’ve been trying to post this one all day. It’s getting annoying, especially now.

    New study examines false convictions
    “In April, Jerry Miller, an Illinois man who served 24 years for a rape he did not commit, became the 200th American prisoner cleared by DNA evidence. His case, like the 199 others, represented a catastrophic failure of the criminal justice system.
    When an airplane crashes, investigators pore over the wreckage to discover what went wrong and to learn from the experience. The justice system has not done anything similar.

    Why not Pat? It’s the responsibility of prosecutors not just to be advocates but to seek justice. Right? If you want the rewards of moral seriousness, you need to accept the weight moral responsibility. They’re not the same thing.
    Talk the talk? Walk the walk.

    AF (4a3fa6)

  44. I’ve been trying to post this one all day. It’s getting annoying, especially now.

    http://www.iht.com/articles/2007/07/22/news/bar23.php

    New study examines false convictions

    “In April, Jerry Miller, an Illinois man who served 24 years for a rape he did not commit, became the 200th American prisoner cleared by DNA evidence. His case, like the 199 others, represented a catastrophic failure of the criminal justice system.
    When an airplane crashes, investigators pore over the wreckage to discover what went wrong and to learn from the experience. The justice system has not done anything similar.

    Why not Pat? It’s the responsibility of prosecutors not just to be advocates but to seek justice. Right? If you want the rewards of moral seriousness, you need to accept the weight moral responsibility. They’re not the same thing.
    Talk the talk? Walk the walk.

    AF (4a3fa6)

  45. This is the post I’ve been trying to make all day, but it never shows up

    http://www.iht.com/articles/2007/07/22/news/bar23.php

    In April, Jerry Miller, an Illinois man who served 24 years for a rape he did not commit, became the 200th American prisoner cleared by DNA evidence. His case, like the 199 others, represented a catastrophic failure of the criminal justice system.

    When an airplane crashes, investigators pore over the wreckage to discover what went wrong and to learn from the experience. The justice system has not done anything similar. [cough…]

    But a new study does. Brandon Garrett, a law professor at the University of Virginia, has, for the first time, systematically examined the 200 cases, in which innocent people served an average of 12 years in prison. In each case, of course, the evidence used to convict them turned out to be at least flawed and was often false – yet juries, trial judges and appellate courts failed to notice.

    “A few types of unreliable trial evidence predictably supported wrongful convictions,” Garrett concluded in his study, “Judging Innocence,” which will be published in the Columbia Law Review in January.

    The leading cause of the wrongful convictions was erroneous identification by eyewitnesses, which occurred 79 percent of the time. In a quarter of the cases, such testimony was the only direct evidence against the defendant.

    Moral superiority?
    Talk the talk Walk the walk.

    AF (4a3fa6)

  46. I’ll quote you again, for the 5th[?] time:
    “As a prosecutor it’s my job to seek justice.
    As a liberal commenter it’s your job to be biased.”
    That’s where it began.

    That’s where it began?

    Quiz for you, logic-boy:

    Did this little comment of yours come before the place where you claim “it began”?

    As a prosecutor it’s your job to be biased. You live your life that way. You leave reason to others.

    That’s the fuck-you I was responding to, and that’s where it began.

    You know how you can tell that’s where it began? Because your little stupid comment was in comment 10. Mine was in comment 11.

    Which comes first, AF? 10 or 11?

    I’ll quote you again:

    As a prosecutor it’s your job to be biased. You live your life that way. You leave reason to others.

    I’ll quote you again:

    As a prosecutor it’s your job to be biased. You live your life that way. You leave reason to others.

    I’ll quote you again:

    As a prosecutor it’s your job to be biased. You live your life that way. You leave reason to others.

    Sorry, I’ve been hanging out with Bobby “Three Times” Byrd too much.

    Since that’s not an insult, I’ll just say it to you: AF, you leave reason to others. You leave figuring out whether 10 comes before 11 to others. You leave context to others.

    If you’re too stupid to see that I was responding to you, that’s your problem and not mine.

    Patterico (2a65a5)

  47. For the last time, I don’t claim to be an unbiased blogger. If you continue to cite my statement — a response to your fuck-you — as evidence to the contrary, you’re just making yourself look stupider and stupider, as I repeat the fact that you started it with

    As a prosecutor it’s your job to be biased. You live your life that way. You leave reason to others.

    again and again and again and again and again.

    Patterico (2a65a5)

  48. “Miranda had to do not with the right against self incrimination but the right to know your rights.”

    “In April, Jerry Miller, an Illinois man who served 24 years for a rape he did not commit, became the 200th American prisoner cleared by DNA evidence. His case, like the 199 others, represented a catastrophic failure of the criminal justice system.
    When an airplane crashes, investigators pore over the wreckage to discover what went wrong and to learn from the experience. The justice system has not done anything similar.
    Why not Pat? I thought prosecutors were more than simple advocates.
    I’m done.
    But yes, I’ll say fuck you to anyone who opposes Miranda.

    AF (4a3fa6)

  49. “In April, Jerry Miller, an Illinois man who served 24 years for a rape he did not commit, became the 200th American prisoner cleared by DNA evidence. His case, like the 199 others, represented a catastrophic failure of the criminal justice system.
    When an airplane crashes, investigators pore over the wreckage to discover what went wrong and to learn from the experience. The justice system has not done anything similar.”

    I wonder why?

    I’ll say fuck you to anyone who argues against Miranda.

    AF (4a3fa6)

  50. Patterico – You have exhibited far more patience than some people deserve.

    JD (26b504)

  51. Patterico – Notice how AF simply ignored the discussion, and just went onto the next off topic rant of his?

    JD (26b504)

  52. Miranda is a rule that suppresses truth, not one that exposes it. To invoke it in the context of an innocent prisoner is the height of ignorance.

    Being against Miranda is not the same as being against Miranda warnings. I am against the suppression of voluntary confessions. I would encourage police officers to read Miranda warnings, and weigh such warnings heavily in the balance in determining whether a confession is voluntary. I have already said all of this. It is not the type of opinion that merits saying “fuck you.”

    AF, if you really can’t resist telling me “fuck you” then you’re just going to have to take a hike. Perhaps that’s what you’re trying to do: get yourself banned. Perhaps you’re tired of being shown up, and being banned is the only way you feel like you can go out with your head held up high (in your own mind).

    But really, there’s no pride in being banned because you have the commenting equivalent of Tourette’s. I won’t ban you for contrary viewpoints; I welcome them. But I require a minimal degree of civility. Occasional lapses are forgiven, but you’re pushing the envelope when you justify saying “fuck you” to me.

    Hint: I wouldn’t have slapped you down so hard in this thread if you hadn’t come at me with such unwarranted arrogance. Try a little more humility, can the “fuck yous,” and say whatever liberal things come into your head. I welcome it. But I don’t welcome being told to fuck myself.

    Patterico (2a65a5)

  53. Patterico:
    aphrael,

    I meant I am not constrained in the way that AF appeared to imply when he said:

    fair enough. My apologies for my misunderstanding, and thank you for the clarification.

    aphrael (9e8ccd)

  54. JD at 39, I second that comment.

    aphrael (9e8ccd)

  55. “and weigh such warnings heavily in the balance in determining whether a confession is voluntary.”

    That’s the rule of judges not the rule of law. But don’t worry, a lot of liberals don’t get that either.

    AF (4a3fa6)

  56. The ability to just ignore that which would generally provoke an “I’m sorry”, or “I will do better” is apparently lacking.

    aphrael – I have to tell you that when you say that you agree with something I typed, that makes me proud. You are a voice that I routinely look for, as it tends to be a well founded position, a respected opinion. Thanks.

    Patterico – You have the patience of Job.

    JD (26b504)

  57. That’s the rule of judges not the rule of law. But don’t worry, a lot of liberals don’t get that either.

    I sure don’t get . . . whatever you’re trying to say.

    Patterico (2a65a5)

  58. All that matters is that AF understands it. Do you?

    JD (26b504)

  59. We have a system of formal rules. If someone breaks a rule, whatever the reasons, you face the consequences. In the justice sysrtem that’s why people get off on technicalities; it keeps things simple, and fair more or less. Otherwise one side or the other could make “a mistake” and a friendly judge could say “well, since you didn’t mean to…” And there’s a history of that as you know. It’s called “special pleading”
    Liberals have hate crime legislation. The same mistake. The same bad arguments.
    “Miranda is a rule that suppresses truth.”
    Then cops should be warned to follow the rules. It’s not that hard.

    AF (4a3fa6)

  60. Hooray for getting off on technicalities!

    You must love the story about the (alleged) child rapist who got off for lack of an interpreter in his obscure language.

    Patterico (2a65a5)

  61. I’ve tried to post this 5 or 6 times already, but it won’t get through the filter. Time to try again:

    In April, Jerry Miller, an Illinois man who served 24 years for a rape he did not commit, became the 200th American prisoner cleared by DNA evidence. His case, like the 199 others, represented a catastrophic failure of the criminal justice system.

    When an airplane crashes, investigators pore over the wreckage to discover what went wrong and to learn from the experience. The justice system has not done anything similar. [why not?]

    But a new study does. Brandon Garrett, a law professor at the University of Virginia, has, for the first time, systematically examined the 200 cases, in which innocent people served an average of 12 years in prison. In each case, of course, the evidence used to convict them turned out to be at least flawed and was often false – yet juries, trial judges and appellate courts failed to notice.

    “A few types of unreliable trial evidence predictably supported wrongful convictions,” Garrett concluded in his study, “Judging Innocence,” which will be published in the Columbia Law Review in January.

    The leading cause of the wrongful convictions was erroneous identification by eyewitnesses, which occurred 79 percent of the time. In a quarter of the cases, such testimony was the only direct evidence against the defendant.

    Faulty forensic evidence was next, present in 55 percent of the cases. In some of those cases, courts put undue weight on evidence with limited value, as when a defendant’s blood type matched evidence from the crime scene. In others, prosecution experts exaggerated, made honest mistakes or committed outright fraud.

    Most of the forensic evidence involved problems with the analysis of blood or semen. Forty-two cases featured expert testimony about hair, an area that is, Professor Garrett wrote, “notoriously unreliable.”

    Informants testified against the defendants in 18 percent of the cases. (In three cases, it turned out they had an unusually powerful motive for their false testimony, as DNA evidence later proved that the informants were in fact guilty of the crime they had pinned on the defendant.)

    There were false confessions in 16 percent of the cases, with two-thirds of those involving defendants who were juveniles, mentally retarded or both.

    There’s more. Follow the link.

    AF (4a3fa6)

  62. “The leading cause of the wrongful convictions was erroneous identification by eyewitnesses, which occurred 79 percent of the time. In a quarter of the cases, such testimony was the only direct evidence against the defendant.

    Faulty forensic evidence was next, present in 55 percent of the cases. In some of those cases, courts put undue weight on evidence with limited value, as when a defendant’s blood type matched evidence from the crime scene. In others, prosecution experts exaggerated, made honest mistakes or committed outright fraud.

    Most of the forensic evidence involved problems with the analysis of blood or semen. Forty-two cases featured expert testimony about hair, an area that is, Professor Garrett wrote, “notoriously unreliable.”

    Informants testified against the defendants in 18 percent of the cases. (In three cases, it turned out they had an unusually powerful motive for their false testimony, as DNA evidence later proved that the informants were in fact guilty of the crime they had pinned on the defendant.)

    There were false confessions in 16 percent of the cases, with two-thirds of those involving defendants who were juveniles, mentally retarded or both.”

    New study examines false convictions. The NY Times and the IHT. I’ve tried to put up the link 7-8 times- but it won’t go through.

    AF (4a3fa6)

  63. “Hooray for getting off on technicalities!”
    Hooray for principle and the rule of law.

    AF (4a3fa6)

  64. DNA evidence later proved that the informants were in fact guilty of the crime they had pinned on the defendant

    Yet another reason why the voters of California were misguided when they voted against a bond measure to fund more DNA labs.

    aphrael (e0cdc9)


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