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Thursday, July 07, 2011

Double (triple?, quadruple?) Standard

To quote 'The Dude' (from 'The Big Lebowsky'), "Oh man... my thinking about this case has become very uptight!".

I'm not sure why I'm thinking about this now... but my guess would be all the online chatter about the Casey Anthony verdict.

So here's my thinking:

I'm guilty of fostering a terrible double standard when it comes to the criminal justice system... specifically regarding the trial portion of the system.

When it comes to terrorists and other similarly accused security offenders, I am in favor of a system whereby the perps are tried, judged and sentenced by a judge.  A judge (presumably) knows and understands the law better than a group of laymen ever could, and is (hopefully) less likely to be swayed by factors that are known to trouble juries (race, gender, religion, age, etc.)

On the other hand, if I were ever wrongfully accused of killing someone, I'm not sure I'd want my fate in the hands of just one person.  What if the judge does have a political, religious, gender or ageist axe to grind?  What if he/she is having a bad day... has a problem (or past history) with my defense attorney... is under review for being too lenient with defense objections and motions in a previous trial similar to mine?

The outcome of the Casey trial, like that of the OJ Simpson trial, severely shook my faith in the Jury system. 

But then again, returning to the supposition that everyone is innocent until proven guilty beyond a reasonable doubt, if I were on trial for my life, I'd want my defense team to enjoy the improved odds of planting that shred of doubt in one of twelve minds... not just in the mind of a single judge.

Of course, there is always the old axiom, "Do you really want to place your fate in the hands of twelve people who were too stupid to get themselves excused from Jury duty?"

How many times did I flip-flop in this post?  I've lost count.

Posted by David Bogner on July 7, 2011 | Permalink


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David- in a single judge system, your fate is not in the hands of one person....there are higher appellate courts and division benches (with more than one judge who have experince and the knowledge to dispense justice). Whereas in a jury trial, you are letting 12 people who have neither of the two to decide your fate.

Posted by: Sonal | Jul 7, 2011 11:35:19 AM

Sonal... What are you, a lawyer or something?! [kidding!] :-) Seriously, thanks... now I feel another flip coming on. Or is it a flop? [sigh]

Posted by: treppenwitz | Jul 7, 2011 11:42:01 AM

I got the JD, I was a lawyer, and I could be again. (Currently an expatriate so my license is not active.)

I associated with lawyers daily and with judges frequently. Neither association was always pleasant.

In an English (and by extension, American) jury system, the jury decide the facts of the case; the judge gives them the law to guide their decision. Under other legal systems (France), the judge(s) decides both fact and law.

Any appeal must be taken on a point of law. No appeal is allowed because one party disagreed with the decision of the jury. They are the final arbiters of the facts.

I have known of judges bought and -- worse -- judges stupid and -- worst -- judges prejudiced by their own hubris. A good judge is one who follows the law. (Full disclosure: My brother-in-law is a judge.)

I have more faith in the twelve sogenannted no-nothings in the jury box to rightly decide the facts of a case than I have in any judge or panel of judges.

PS In the murder trial, the OJ jury decided rightly. Note: This does not mean that OJ did not murder Ron Goldman.

Posted by: antares | Jul 7, 2011 11:59:21 AM

@ antares- "Any appeal must be taken on a point of law. No appeal is allowed because one party disagreed with the decision of the jury. They are the final arbiters of the facts." I am not familiar with the American system but restricting an appeal to a point of law and not allowing appeal on facts (where erroneous inferences can be drawn by people un-trained in trial, evidence and the law) does not appear sound jurisprudence to me.

"I have known of judges bought and -- worse -- judges stupid and -- worst -- judges prejudiced by their own hubris."- A jury could potentially have the same issues/problems, at least in systems where appeal can be taken on both points of law and fact, a stupid/corrupt/prejudiced judge's decision can still be called into question and appealed.

Posted by: Sonal | Jul 7, 2011 1:31:08 PM

David- this is an eternal 'flip flop' debate :-)

Posted by: Sonal | Jul 7, 2011 1:35:28 PM

Yikes, stand back while the lawyers slug it out! :-)

Posted by: treppenwitz | Jul 7, 2011 1:37:52 PM


Of course the American system would not seem to be sound jurisprudence to you. You come from a different system and a different culture. My culture says you are wrong. Which system do you think more closely approaches justice? Your system or mine? If both provide substantially the same degree of justice, then there is no reason to prefer one or the other.

I think the English legal tradition is the best, bar none. Because it is the one of my heritage? No. Because it is based on 1) the jury and 2) experience. I vehemently oppose the movement away from common law and toward civil law.

In my judgment, the Code Napoleon is based on arrogance and an amazing ignorance of human motives. The Code Napoleon is based on the unproved assertion that Humankind can be ruled by logic. I hold that notion in contempt. Those legal traditions that run back to Roman law are based on experience. I find them sometimes confusing, but I respect them.

Lawyers fancy themselves smarter than the average Joe. Judges fancy themselves gods. Neither gives a minute's consideration to the dislocation they cause in the lives of defendants. They assume that all who appear in court are guilty. I get so upset by their ways of thinking that I think it better to kill them all and start over than try to salvage the few good ones.

Listen, my friend, and heed my words: Smarts don't matter. Wisdom matters. Wisdom does not come from smarts. Wisdom comes from experience. The collective wisdom of twelve citizens is greater than that of any one or any three or any nine judges. It has always been so. It will always be so.

Are we here to condemn the guilty or to protect the innocent?

Posted by: antares | Jul 7, 2011 3:40:18 PM

The Casey trial wasn't an example of a broken system; the law requires guilt beyond any reasonable doubt and the prosecution failed to meet the standard. At least one of the jurors has come forward saying that she, at least, was certain that Casey was guilty - but the evidence wasn't there.

The US system is designed with the attitude, attributed to William Blackstone, "Better that ten guilty persons escape than that one innocent suffer." The prosecution overplayed its hand. It probably could have gotten a conviction on manslaughter, but lacked the physical evidence proving first degree murder.

Posted by: Russ Gold | Jul 7, 2011 3:59:15 PM

"The prosecution overplayed its hand. It probably could have gotten a conviction on manslaughter, but lacked the physical evidence proving first degree murder."

I did not follow this trial, but if the prosecutor did not include lesser counts such as manslaughter among the charges, then he is incompetent and should be fired. (I understand that the jury did convict on 4 misdemeanor charges. Each carries a penalty of up to a year in jail. Given that these are misdemeanors, the term has to be served in the county lock-up, vice the penitentiary. Maximum term in county is 1 year if Florida follows rules similar to my state. So the judge will have to run the sentences concurrently, vice consecutively.)

The same prosecutorial incompetence happened with the OJ murder trial. Marcia Clark made jumps of logic in the absence of evidence but could not persuade the jury to jump with her. She went over the cliff, but the jury did not. The OJ jury did not buy the broken vehicle Marcia Clark was selling. And the LA DA awarded her a bonus for losing the trial. Incompetents all in the LA DA office.

Posted by: antares | Jul 7, 2011 4:16:12 PM

In my experience the world is more like Antares.

I have had a local judge tell me that 1/3 of the judges know the law and want to do a good job. One third don't know the law and want to do a good job and 1/3 don't care. I think he was a little optimistic.

What I want to know is why conservatives think that juries are infallible in death penalty cases when they convict and a lottery on civil tort cases. Liberals of course believe the opposite.

Posted by: lrg | Jul 7, 2011 5:21:42 PM

Russ Gold has it exactly right.

Posted by: Drew | Jul 7, 2011 5:32:28 PM

I think *most* people feel Casey Anthony is guilty of something criminal -- and everyone seems to offer their own ideas, ranging from covering up an accidental death, to accidentally causing her death, to premeditated murder -- but the prosecution did not meet the burden of proof. The prosecutor, 53 year old Jeff Ashton, announced his retirement on July 5th.

Casey had been incarcerated since 2008 so, as we heard yesterday, she will go free soon as a result of her time served.

There appears to be no justice for little 2 year old Caylee Anthony and, ultimately, we hope Casey pays for her sins (whatever they may be) in the next life.

Interesting post, Trepp. Don't let it happen again! ;-)


Posted by: ProphetJoe | Jul 8, 2011 4:18:05 PM

I thought that this op-ed piece by Robert Shapiro was interesting:

Posted by: Jack@TheJackB | Jul 10, 2011 7:17:38 AM

Yeah, I think there was a Double Standard applied here.

Scott Peterson murdered his wife and unborn child, and was sent to death row on circumstantial evidence

Casey Anthony murdered her child (or at least manslaughtered her) and is getting ready to sign book and movie deals.

The evidence was circumstantial and very similar in the two cases, so what was the difference??

Peterson is a MALE.
Anthony is a FEMALE.

There's the Double Standard. It's all through the American Justice System from arrest to indictment to trial to verdict to sentencing. The A.J.S. is rampant with gender bias, in my opinion.

Posted by: NoDoubleStandards | Jul 10, 2011 10:43:34 AM

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