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A suggestion for legal reform

With the sheer, flagrant idiocy of the Moussawi sentencing fiasco last week, I was reminded once again of something I consider a serious flaw in our legal system: it only has a single remedy for error or malfeasance on the government's side, and that's to give benefit to the accused. Police officer fails to read a suspect his rights? Prosecutor doesn't turn over evidence? Stupid lawyer ignores court order and tells witnesses what other witnesses have said? In each case, it seems that the only solution is to dismiss or otherwise restrict the outcome against the accused.

I don't like this. I can understand the principle -- the state as a whole is prosecuting the accused, so the state as a whole should be sanctioned when one part acts wrongly. But it still bugs me. The accused (and in many cases, the guilty) gain benefits they should not.

I'd like to see the courts, instead of "striking a balance" by helping the defense, find some way of correcting the prosecution side. Sanction the individual or group that acted improperly. Compel them to learn from their errors. Order re-training or classes.

Just don't punish the public for the misdeeds of their servants.


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Comments (8)

And so what do you do to th... (Below threshold)

And so what do you do to the ones who knew what they were doing? I like this ruling because it is a stark reminder that the rules are still in effect. How about being dismissed from their state bar or if it is really egregious, getting summarily imprisoned for 6 months to a year? Training is not even a slap on the wrist, Jay.

Mike, that would be covered... (Below threshold)
Jay Tea:

Mike, that would be covered by the "sanction" I mentioned before. I got no problems with the TSA lawyer getting fired and disbarred if she actually did what folks are saying she did, and perhaps even jailed for contempt.


One of the reasons I never ... (Below threshold)

One of the reasons I never went into law was that I wouldn't last long as a judge (which is honestly what I would like to have been instead of a lawyer). Instead of throwing out evidence, my plan was to fine officers who broke the law in obtaining it. As long as the evidence itself was intact, it could stay in. I would also have kept a database on these evidentiary breaches, so I could keep track of repeat offenders and give them heavier fines and/or jail time for contempt of court. The problem is that all of these ruling would have been seen as grounds for a mistrial.

The issue to me is that a c... (Below threshold)
legal twit:

The issue to me is that a court is a crucible, to burn away the excess and find the truth. Yet the country has a adversary relationship of innocent vs guilty. or def vs pros. The idea is to prevent the state from having the power to punish capriciously without so called due process. As I recall my history, it was a form of defiance against the court of england and the so called power of the king. Returning it to the people.

Now 230 years later, the country has evolved, as has society, Communication is instant, knowledge is overloading and people still don't have more or less ability then our 230 year removed ancestors. What has changed is that people are now more aware of what they can get away with. We follow the laws that are imposed or we are punished, ( same as what our parents are supposed to teach us) I like to think of myself as a citizen who follows most of the rules ( I will be honest and admit I have bent and bruised a few) although details aren't to be forthcomming,

Yet is it my right to away with it by someone being commissioned with the duty to punish but must follow rules to do it. Where as I would not have any rules to follow to get out of it. Only that which would work. Getting off the hook is often achieved by the philosophy "The end justifies the means"

If I were the lawyer, I would have the common dream, I would want to prosecute the guilty and defend the innocent.

I would want the truth to come forth and the blame be assigned without emotion but simpley be the consequence that is fair for all.

Yes I live in a fantasy world

I always liked the idea of ... (Below threshold)

I always liked the idea of making malfeasance or perjury a lot more dangerous for the one who took part in it.

For example, if you perjure yourself at a trial, you become an accessory after the fact, so instead of a bit of jail time or a fine for lying at (for example) a murder trial, you could find yourself up next for the same crime.

I you perjure at a civil trial, you could be tried for attempted grand theft or embezzlement...

If a prosecutor fakes up evidence against someone, they should be charged with assault or even attempted murder, if it's a death penalty case.

I like the exclusionary rul... (Below threshold)

I like the exclusionary rule because it is the only effective way to prevent the State from illegally obtaining evidence against someone. No other sanctions are strong enough to prevent abuse.

However, liberals like Justice Ginsburg would probably have us throw it out if we consider the application of foreign laws.

More fundamentally, however, the basic premise of the Court's argument-that American law should conform to the laws of the rest of the world-ought to be rejected out of hand. In fact the Court itself does not believe it. In many significant respects the laws of most other countries differ from our law-including not only such explicit provisions of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself. The Court-pronounced exclusionary rule, for example, is distinctively American. When we adopted that rule in Mapp v. Ohio, 367 U.S. 643, 655 (1961), it was "unique to American Jurisprudence." Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 415 (1971) (Burger, C. J., dissenting). Since then a categorical exclusionary rule has been "universally rejected" by other countries, including those with rules prohibiting illegal searches and police misconduct, despite the fact that none of these countries "appears to have any alternative form of discipline for police that is effective in preventing search violations." Bradley, Mapp Goes Abroad, 52 Case W. Res. L. Rev. 375, 399--400 (2001). England, for example, rarely excludes evidence found during an illegal search or seizure and has only recently begun excluding evidence from illegally obtained confessions. See C. Slobogin, Criminal Procedure: Regulation of Police Investigation 550 (3d ed. 2002). Canada rarely excludes evidence and will only do so if admission will "bring the administration of justice into disrepute." Id., at 550--551 (internal quotation marks omitted). The European Court of Human Rights has held that introduction of illegally seized evidence does not violate the "fair trial" requirement in Article 6, §1, of the European Convention on Human Rights.

Justive Scalia, Roper v. Simons

Jay said:"I can un... (Below threshold)
Starboard Attitude:

Jay said:

"I can understand the principle -- the state as a whole is prosecuting the accused, so the state as a whole should be sanctioned when one part acts wrongly."

That's not the point. If the state taints the evidence or witnesses so their use would be unfair to the defendant, it is excluded. It's not about punishing the state, it's about protecting the defendant.

I'd like to see the cour... (Below threshold)

I'd like to see the courts, instead of "striking a balance" by helping the defense, find some way of correcting the prosecution side. Sanction the individual or group that acted improperly. Compel them to learn from their errors. Order re-training or classes.

While I agree that there really should be a better way to deal with "tainted" evidence, I believe that our present system is pretty good. I would much rather that our judges give the accused - who may well be on trial for his life - every possible consideration and advantage. Though we may grouse about infamous shyster defense lawyers and their outrageous tricks (such as in the O.J. Simpson trial), in the vast majority of cases the accused will be represented by an attorney of only average qualifications. He will almost certainly have no knowledge of the law himself, and it is often the case that he must try to plan his defense while in prison. Arrayed against him is the entire power of the State. Further, jurors are generally inclined to believe the arguments and evidence put forward by State officers such as the public prosecutor, police officers, and expert government witnesses.

I would like to offer this from the case Mapp v. Ohio (367 U.S. 643 (1961)), Mr. Justice Clark:

There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine "[t]he criminal is to go free because the constable has blundered."... In some cases this will undoubtedly be the result. But, as was said in Elkins, "there is another consideration - the imperative of judicial integrity." ... The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States...: "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."







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