Apology
I want to start by apologizing to everyone. Even when I started this topic, I probably shouldn't have, but I couldn't quite have known how things would go. As it is my posts were less clear than they should have been (even I was seeing something was wrong) and definitely more emotion laden than they should have been.
It may be true that some helped things along with their own bad habits, but recently I have been trying to avoid that completely, and failed miserably, most notably yesterday.
I am also going to apologize in advance as this will be my last post for at least a week, perhaps two. I suppose if things go really bad, some more.
ExplanationI don't want to get into specifics, and really never wanted to get into this at all, but I suppose I should, since it has effected (and will effect) my posting here for a bit. Wel I still won't get into the specifics.
I had been suffering from a condition which I mistook as something else, less harmful and temporary. Just recently it was diagnosed as something harmful and not temporary. No its not terminal, but it is not good and can have some serious "quality of life" repercussions. It certainly was cutting into the quality of my life already.
Yesterday, I was in the hospital and it was determined that it is likely one of the more complicated forms of the condition and I will be having to have surgery next week. And then they discovered perhaps another problem.
And before anyone starts trying to guess, neithert have anything to do with diseases or anything that can be transferred. This is functional problem that just happens sometimes, and is made more likely by a chronic functional problem I have had since young... lucky me.
I have no idea what possessed me to write any posts after receiving pretty bad news at the hospital. Let me recommend against others doing this in the future. It is quite certain that this was not helping me write as lucidly as I should have been, and its more than likely my frustration at not making my point, or other simply not getting my point, got fueled by my frustration at not understanding what is happening to me physically. Thus I lashed out over more than just what I was reading.
As it was I was going to have to be out for some days next week, due to the surgery. But I have decided that it is probably best that I stop posting at EvC until I have recovered. The stress of debating does not help me gain the positive place I need to be in during this period, and nor will it will I am trying to recover.
Not to mention I have to cut out caffeine beforehand which will make me really cranky, and afterward I will be on painkillers.
So hopefully you'll see me back next Friday or the Friday after that. No one has to post kind words or anything, though I thank those who already have. Just channel positive thoughts or whatever you feel might help.
ExampleThat said I am not going to leave people empty handed regarding something from me on the topic of plausible systems. If I wanted to get into what I thought we ought to have as a justice system, that would take a whole other thread (essentially a small essay). I believe the current adversarial approach we have is not the best, and conducive to bias and mistakes not necessarily available to other court systems found in the world.
And even assuming we stick with sort of the same system we have now, I think there need to be reforms, which could also be a topic in an of itself.
So keep in mind I want a greater reform than simple evidentiary expectation changes. But that is what I will stick to here...
(oh yeah, and for brevity's sake I'll skip moving through thought experiments and just mention what certain requirements are meant to exclude. Though they were generated through the method I was trying to start with in this thread.)
+ Cases based solely on forensic evidence, or witness testimony, no matter how credible, are available for the death penalty. As has been pointed out we must keep our minds open for possible future counterevidence. With only one form of evidence there are still other sources of future evidence which could be contrary.
+ Cases available for the death penalty would be required to have ALL of the following evidence:
1) Undisputed forensic evidence positively linking the defendent with the crime. By undisputed I mean the defendent does not dispute the authenticity of the evidence whether by mishandling or intentional alteration. By positive, I mean that it shows a reasonable link to the defendant through something unique to the defendant. An example of something not being a reasonable link is simple blood type match as that is not personally unique (even if the blood type is rare). Challenges do have to be serious, and not having a person on stand simply say "well it's not".
2) Layered forensic evidence. There must be more than one source of evidence linking the defendent to the crime. Thus sets of fingerprints would not be enough, nor a sample of DNA at the scene. The number of layers can be selected in an arbitrary fashion according to desire of the community, but I would argue for at least two separate forensic connections (that would realistically be enough). By separate I mean not a part of the same object, nor toward one aspect of the case.
3) Undisputed evidence including that beyond forensics, placing the defendant at the crime scene, or at the very least with the dead or dying body of the victim. This could include eye witness testimony, photographic evidence (though technically I suppose this would be forensic), or testimony of the victim (before death).
4) Although eye witness testimony can come from police officers, it must also include witnesses not connected to law enforcement (or at the very least not connected to the force handling the investigation). Neither can it include testimony from someone with a motive against the defendant (of course this goes back to the undisputed part). Eye witness testimony must also include reasonable proximity, time, and contact with the defendant relating to point 3 such that the likelihood of error is not plausible. Thus there is a difference between someone identifying a fleeing figure, and one who grabbed the defendant at the scene, immediately before the arrest.
5) An undisputed psychological examination of the defendant, indicating a personality disorder prone to more acts of violence. Or in the case of a dispute, a history of violent acts capable of killing another will suffice. Thus a guy getting in simple fist fights, or robbing banks, is different than a person charged with multiple armed assaults and rapes.
6) I do not believe a confession is necessary given most of the above points. However I am amenable to putting that in as it does provide additional positive evidence, which is not likely to have alternative sources to refute it.
NOTE: Some people have brought up forced confessions (ala Powers), or lately the Ingram case. Both are a bit of a strawman as the first does not deal with the system I am talking about, and the latter (and not to a little degree the former) have none of the other points my suggested system includes. Evidence would be in dispute despite the confession. The requirement is to have ALL and one does not negate the need for the rest. Interestingly enough the Ingram case, if one reads about it, will find his confession did not stand past the sentence and he appealed. In the system I am suggesting any appeal, even if denied for finding guilt, which contains a refutation of confession or reasonable dispute of evidence woul remove the possibility of the DP and force a conversion to life.
In any case the confessions would also have to have rules around them. While police may gain confessions and use them to build cases. The confession must be supported by the defendent outside of police custody, by which I mean interrogation and direct control, in order to allow the DP to come into play. It could even be made mandatory, that an independent analyst come in to determine for the court (not connected to defense or prosecution) if the defendent is confident with the confession.
7) DP cases should have one automatic appeal placed which forces it into a review situation by another court, whether the defendant requests it or not. The defendant may always place another appeal after the first one, to a higher court of review. And may initiate a new appeals process based on any new dispute or reversal of position on confession. This last part is more or less an avenue for the defendant to remove the possibility of the DP, creating a conversion. Will smart killers that don't want to die use it... my guess is yes.
Frankly I'd be happy enough without the automatic conversion on a new appeal, whether it gets them found innocent or not. But I realize that is a pretty good catchall for any potential "extreme conspiracy" setups.
Now remember, I am for some other changes in how courts work, and tagless has already been mentioning different types of panels of judges. This is definitely a good move (to start thinking about how to create better reviews). I'm not sure if its necessary to get into that here, but I suppose it does fit in the manner Tagless was working it (his method making it difficult for conspiracy within reviews by judges).
With the above, I am happy to entertain any hypothetical challenges to it. Create one that will push an innocent person into a chair and we can then see if there are any rules to be made to avoid it. Frankly I don't see how one is going to come up with a real life scenario which does that.
AbE: Just remember I will likely not be back for at least a week or two. Take your time and craft one reply to my post, if you have some counter hypothetical, not several. I don't want to come back to multiple posts from single posters.
This message has been edited by holmes, 04-15-2005 08:41 AM
holmes
"...what a fool believes he sees, no wise man has the power to reason away.."(D. Bros)
™ Version 4.2