Bill: If whatever the cops say is to be taken as gospel, then the burden of proof is rather light in practice.
jks: Unfortunately this is true. Jury research indicates that juries tend to believe cops, and don't really understand the "beyond a reasonable doubt" burden.
Bill: A trial is merely a formality, since the police have already demonstrated that they believe the person is guilty.
jks: And to some extent this is borne out in the very high conviction rates attained by prosecutors.
> It's just that real people won't accept your theory if you have nothing but the general supposition that the cops are creeps.
Bill: Yes, I can see that this would be inadequate. However that wasn't my supposition at all and in fact it bears no relationship to what I actually said. What I said was that cops were known to plant evidence and tell lies in court,
jks: Which I summed up by saying that you said the were creeps. Don't bes uch a literalist.
Bill . although it is not known how often it happens. I don't know myself how often it happens, it is probably more common in jurisdictions which deny it ever happens.
jks: It's hard to know. I think it's probably fairly rare. Mainly they don't have to cheat. An extern of mine when I was clerking for a judge on the federal district couty was a law student who had been a cop for ten years, smart guy, very decent, had served in Interal Affairs investigating bad cops. I asked him a related question, how many cops are corrupt. He said, depends on what you mean. If you mean, take free coffee and doughnuts? All of them. If you mean, take money to bury a parking ticket or worse, virtually none, at least today. Hid Dad was a Chicago cop, and in his day, 20-30 years ago, it was a lot worse.
Bill. Of course, just because cops lie, doesn't mean everything they say is a lie. But what it does mean, quite inescapably, is that their word doesn't count for anything on its own.
jks: Actually, no. Lots of trials involve witnesses who are known to be liars, noit merely to belong to categories of people who sometimes lie. One side or another will put a witness on who is an accomplice, or who has been convicted of fraud or a crime of deceit in another case. The lawyers bring this out in cross-examination, that is what cross examination is for. They poke holes in the testimony. Let me tell you that it NEVER works just to show that the witness is, in general, a liar. The jury wants to know whether the particular testimony offered is credible. Because liars sometimes tell the truth. That a wityness is a known liar doesn't mean his testimony counhts for nothing, just that it has less weight. That a witness belongs toa class of persons wome of whom are liars doesn't even tend to diminish its weight.
Bill: I'm sorry if you feel that accepting this logic would be inconvenient, would prevent the state from imprisoning the people you think should be imprisoned. But if that's what you think should happen, then why (apart from professional reasons) do you think there is any need for a trial at all? Why not just let the police lock up whoever they see fit and save the expense of show trials?
jks: Apparently you think that police testimony guarantees a conviction. It doesn't. Btw, I am defense lawyer, so professionally my interest is in not having people locked up. I don't mainly do criminal work, just some.
> In some communities, btw, that supposition may go further than others. A friend of mine who is a federal prosecutor in DC says that in his "state court" (Superioe Court) work, his conviction rate is way lower than the the usual 97-99% he gets in his federal court work.
Bill: My heart bleeds for him.
jks: Oh come on, I was reporting his statistics anecdotally,a s indeed was he, neither of us were saying that it was a bad thing. Incidentally, it's my sense from clerking in federal court in Chicago and talkking with federal and state prosecutors elsewhere that one reason for the higher convictioon rates in federal court is that federal prosecutors are very picky about the cases they bring. They don't like to prosecute at all unless they are very very confident they can convict. State prosecutors don't have that luxury for lots of reasons. They deal with more crimes, the crimes they deal with are worse (they catch almost all the murders and rapes), they work for elected official so there is pressure to prosecute, etc.
: >As I note, your view is that no one should ever be criminally prosecuted for anything. It's a view, one can say that much for it.
Bill: I plead not guilty. Prove it.
jks: Please, Bill, don't be a jerk. If you say the people charged with investigating and prosecuting crimes can never be trusted because some of them are liars and framers, how can anyone be prosecuted criminally?
jks: >As to your corroboration theory, independently corroborated by what? According to you, the cops and the scientisdts (that is, the prosecution's forensic experts) can't be trusted not to cheat. So how is this corroboration to proceed?
Bill: Independent scientists? Verifiable, peer review of the interpretation of results presented to the courts? Videotaped records of interview. Is it that hard to work out?
jks. Yes, it is. Videotaped interviews, that's easy and a lot of jurisdictioons require it already. But independent scientists? Paid by whom? If the state, they are not independent. Given the volume of prosecutions, you are talking about setting upa huge and expensive bureaucracy--of state employees or contractors. Same with "peer review." What are you gonna do, farm this stuff out to universities? Where will you get people who are willing to do the work? The scientists I know at universities are not trained in forensics, and are too busy doing their own work to run checks on the cops.
jks: >Maybe life is nicer in AZN, but I live in Chicago, which is full of really bad guys who rob and rape and kill people. I defend some of them.
Bill: Police are usually recruited from the same community as the criminal class you know. If the criminals are vicious ethic-free zones, a good percentage of the cops probably are too. In fact the worse the criminals, the worse the cops, since they tend to interact quite a bit. So your logic that bad crooks means you'll have good cops seems a bit far-fetched.
jks: I didn't said that bad crooks mean good cops. I said that bad crooks means we need cops. And the reasoning that cops come from the "same community" as criiminals, and soa re just as bad, is ridiculous. Cops are working class people, but as a socialist I reject the charge that the working class is morally degenerate. One might reason, moreover, that cops are peopple from that community who decided to devote their talents to upholding rather than breaking the law,a nd so are less likely than the average person to be thugs and liars. In fact I think that cops are mostly people whoi want secure civil service jobs and so are no more likely than the average civil servant to be a thug or liar, as a group. In any event, whether a particular person is a thug or a lioar has to shown in the individual instance. Your braod brush approach is jsut contemptible.
jks: > One of my clients is a gang murderer. I'll get him off if I can (though I doubt that I can), but between you and me, we're all safer if he's in jail,
Bill: I think he'd be better off defending himself, if you don't mind me saying so. I wouldn't want a lawyer acting for me who thought that we'd all be better off with me in jail. Can't help wondering if that attitude might, entirely unconsciously, affect your judgement.
jks: I do mind your saying so. I always do my best, no matter how dispicable my clients, whether they are scumbag tobacco companies, cops who commit civil rights violations, or gang murderers. It's a point of professional pride. And my best is pretty damn good, which is why a big law firm pays me ridiculous amounts of money. And _my client_ doesn't think he'd do better on his own. Having made several unsuccessful efforts to defend himself and having landed in prison for 30 years, he's more than happy to have me as a appointed counsel. There's no doubt, looking over the record, that I'm doing a better job than any of his other lawyers, but it's way too late, since we are at the federal habeas stage where it is practically impossible to win. I think that if his lawyer at the state appeallate stage had presented the arguments that I have offered to the federal court, he might be a free man today. Might--maybe a 20% chance.
Bill. 30 years is a long time. Even vicious gang murderers can change, though a few years in jail to reflect on the value of life doesn't always hurt.
jks. We agree there.
Bill: But lots of people don't get much of an education, that's feeble mitigation. Hope you aren't planning to use it in court?
jks: Of course not. Mitigation isn't an issue at this stage anyway.
jks
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