[ posted by chissler
“ . . my opponent has a narrow approach . . his only point is to abolish the appeals process . . this would save a lot of time and money. But for
what? Would we be in a better position, if we were to wipe out the appeals? The individual is innocent until proven guilty. Capital punishment cases
cost millions . . My final point is that every man or woman [have] inherit rights at birth. My opponent has openly condoned the mistreatment of
prisoners and believes a death sentence should be a large caliber bullet [to the head]. Has Capital Punishment deterred crime whatsoever? No. Every
dollar spent on capital punishment, is a dollar wasted. [Edited by Don W]
I enjoyed following the debate, although I have found it hard to contain myself. As a 25+ years dues paying member of the ACLU, you can guess I am not
enthralled with the DP. But let me stay off the soap box which Chissler manned so well, and try to “stick to the facts.”
Until the JFK assassination there were very few - maybe none - capital offenses in the US Code. Abraham Lincoln’s accused assassins were tried by
Army Court Martial because the Union leaders feared a local W-DC jury would acquit the accused. The assassins of Garfield, McKinley and the attempt on
FDR and HST were all tried by local courts. But for Jack Ruby LHO would have been tried in Dallas by DA Mr Wade of Roe v. Wade fame.
The 6th Amendment says in part, “In all criminal prosecutions the accused shall enjoy . . the assistance of counsel for his defense.” Two other
amendments are especially pertinent to criminal cases. The 5th Amendment says in part, “No person shall . . be deprived of life, liberty or
property without due process of law . . “
The 14th Amendment is also germaine to criminal cases, saying in part, “All persons born or naturalized . . are citizens of the United States . . No
state shall make or enforce any law [abridging] the privileges or immunities of citizens . . nor shall any state deprive . . any person of life,
liberty or property . . without due process of law nor deny . . the equal protection of the laws.”
Search warrants are provided for in the 4th Amendment. The 5th Amendment also assures the right to a grand jury to hear the charges against a person
although that person does not have a right to testify. It provides no person may be compelled to give testimony against himself and bans double
jeopardy. .
The 6th Amendment also guarantees a speedy trial in pre-defined districts, by an impartial jury, and the right to face his accusers and bring in his
own witnesses. The 7th Amendment provides that juries are to be the sole trier of facts. The 8th Amendment guarantees reasonable bail and prohibits
cruel and unusual punishments.
Most states also have a Bill of Rights, often more extensive then these in the Federal Bill of Rights. As some smart aleck judge once remarked, "The
Constitution means what we [the judges] say it means." In a logic class, I learned this was called a truism.
I believe every state and the Federal government now have provisions for public defenders. Lawyers who represent the indigent, or poor. Across the
states, the quality of representation is not the same. Because of the fatal nature of the DP cases, the Federal courts and some state courts have
establish higher standards of qualification and performance for PDs in DP cases. Over the past 40 years many rules of evidence and procedures have
evolved that are much more stringent in DP cases. These circumstances are the major reason it costs so much more to hold a capital trial than any
other criminal trial.
With the adoption of the current Codes of Trial Practice, the element of surprise has been ruled out. In the interest of judicial economy and fair
trials each side has to divulge to the other side all the physical evidence including exculpatory evidence the prosecutor have or have access to. Each
side must exchange a witness list. Each side must identify any experts to be called and offer a short summary of what they expect the expert to
testify to. Remember, ordinary or lay witnesses may only testify to what they know, first hand. The hear-say rule. Expert witnesses OTOH, may draw
inferences from the evidence and may offer speculation on some factual matters.
There are two kinds of juries in English common law, the basic law in 49 of the 50 states, Louisiana excepted. The Grand Jury, “grand” being
French for large or big, usually 16 and up to 24 members. This jury hears the prosecutor. If they believe 1) a crime has been committed and 2) there
is good cause to believe the accused committed the crime, then the Grand Jury will issue an indictment. The accused may offer to testify but the GJ is
not required to hear anyone it does not want to hear nor is the accused entitled to even know the GJ is taking up his case.
The Petit Jury, “petit” being French for small or petty, is the trial jury and was traditionally made up of 12 members. Because of the difficulty
in getting citizens to serve as jurors, many states now utilize 6 member juries. In all cases, however, the jury is the “trier of fact.” Appeals
courts only hear the case on procedural issues and on the Constitutional rights aspect, never on whether the jury was right or wrong in making a
factual determination or in giving or denying credence to a witness. Those issues may not be retried or altered by the appeals courts. Unless a
mis-trial is declared, then it’s “start over time.”
There are three degrees of proof required in legal cases. The lowest is called ‘to a reasonable certainty.” This standard is usually found in
judge only cases and in lower courts. It’s sort of “more likely than not.” The next standard is employed in civil actions with a jury. It is
called, “by the perponderance of the evidence.” This requires 9 out of 12 vote in a 12 person jury, or 5 out of 6 in a 6 person jury. The highest
standard of proof is used in criminal cases and is called “beyond a reasonable doubt.” It requires12 votes out of 12 or in the case of a 6 person
jury, 6 out of 6. Unanimity. All jurors are equal. The foreman is only to count the votes - which ought to be by secret ballot - and to fill in the
jury instruction forms. He or she has no extra power or standing. To be foreman is to be a servant.
Most states and the Federal government provide every convicted person is entitled to at least one appeal. Frequently in state courts, when the
sentence is 20 years or longer, the appeal by-passes the intermediate appeals courts and goes straight to the supreme court from the trial court.
One may not appeal to a Federal court until he or she has exhausted all state court appeals. The only method of getting a criminals case before the
Federal court system is on the Writ of Habeas Corpus. One of the oldest writs in the English common law. Literally, it means “produce the body.”
Or, more practically, bring the person before the judge. Until 1997 the Federal courts had a rule the only allowed one issue to be brought to the
courts at a time. This is the reason for the lengthy appeals process. Of course, convicted persons facing the DP were not going to urge a change in
the rules to speed up the appeals process. In 1997, Pres. Clinton signed the Anti-Terrorist and Speedy Appeals Act into law. That law provides that
all grounds for appeal must be consolidated into one appeal.
That law will not apply however, to any crime committed before that law was enacted. This is based on the ancient theory embodied in our Constitution
that no “Ex Post Facto” law can be made in criminal cases. No “after the fact” changes are allowed. So whatever appeals were provided for in
1997, even if the accused is not brought to trial for many yeas, he or she is still under the law as it existed in 1997.
These are a few particulars about criminal law and the DP. Hope you enjoy.
[edit on 12/22/2006 by donwhite]
