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Do Prosecutors Cheat?

“Do prosecutors Cheat?” by John F Hays, a Seattle Private Investigator.

Do prosecutors cheat? The short answer is yes.

Sometimes prosecutors cheat. Sometimes police cheat. Sometimes judges cheat. Sometimes defense attorneys and defense investigators cheat. Sometimes jurors cheat. When any players in the game of criminal justice cheat, the whole system fails. It fails the defendant and society, as a whole.

This article in “The Atlantic”, by Andrew Cohen and dated March 4, 2014, tells the story of a prosecutor who admitted the prosecution’s failure in a specific case. This sort of cheating happens all the time; but how often do we see the prosecution or any other players in the process own up to their failures? Laura Duffy did the honorable thing. Kudos to her; and heads up to any criminal justice system players who might play fast and loose with the law.

 

Supreme Court Proves Incompetence Again

“Supreme Court Proves Incompetence Again” by John F Hays, a Seattle Private Investigator.

It’s really disturbing to me to see once again that the “constitutional experts” on the Supreme Court are so ignorant of the concept of human or natural rights. Their decision last summer in the case of Salinas vs Texas, docket number 12-246, shows that they think our rights are given to us by the government.

The Bill of Rights is a statement of HUMAN RIGHTS, not a statement of privileges that can be granted or taken away by a bunch of arrogant political hacks hiding behind their black robes. Are they really that ignorant or are they deliberately subverting the Constitution for the political agenda of their corporate owners?

A post on the blog, Political Irony, pretty much sums things up.

 

Prosecutor to be Jailed for Sending an Innocent Man to Jail?

“Prosecutor to be Jailed for Sending an Innocent Man to Jail?” by John F Hays, a Seattle Private Investigator

The Blog headline, “For the First Time Ever, a Prosecutor Will Go to Jail for Wrongfully Convicting an Innocent Man” by Mark Godsey, should astound the general public; but it shouldn’t cause the same reaction among people who work in the criminal justice field or those who have been harmed by prosecutorial and/or police misconduct.

This isn’t the first case where an innocent person has gone to jail under similar conditions. If this is the first prosecutor to be held accountable, it is potentially revolutionary. Prosecutors are now on notice. It’s way past due. I predict (and hope) that we’ll see more of these cases, now that the ice has been broken.

 

Mock Juries for Mock Trials

Mock Juries for Mock Trials by John F. Hays, a Seattle Private Investigator.

Serve on mock juries for mock trials; and no one has to go to jail.

Whether or not you have ever been on a jury, if you wish to have some experience and education on the matter, you might try what my wife and I have done and thoroughly enjoyed on a summer weekend for each of the last two years. We plan on doing it again next summer.

We act as jurors in mock civil and criminal trials argued by practicing lawyers in front of practicing judges.

The National Institute for Trial Advocacy (NITA) trains practicing lawyers to be more effective trial lawyers.

A bit about NITA from their website at http://www.nita.org/:

“NITA’s Mission Statement

“NITA, a 501(c)(3) charitable organization, is a dedicated team of professors, judges and practicing lawyers who believe that skilled and ethical advocacy is a critical component of legal professionalism and all systems of dispute resolution that seek justice.

“NITA’s mission is to:

* Promote justice through effective and ethical advocacy;
* Train and mentor lawyers to be competent and ethical advocates in pursuit of justice; and
* Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.

“NITA’s Mission Statement defines NITA and articulates its Mission. We will fulfill our Mission through NITA’s Goals and Objectives to be carried out through a Strategic Plan outlining NITA’s programs and publications.

“NITA Long-Range Goals and Objectives

“NITA’s Goals and Objectives are to:

* Enable and encourage lawyers to become effective, ethical and professional advocates.
* Create and promote the highest quality professional and ethical advocacy training and educational materials.
* Support and assist the Judicial System in providing the important, effective administration and resolution of disputes.
* Encourage, support and assist advocacy training for and dedication to public service.”

You can participate for both days or either day. If you do both days, you hear a civil case on one day and a criminal case on the other.

You sit in court, listen to the arguments, select a jury foreman, weigh the evidence and present your verdict to the court.

One thing that happens in these mock trials that doesn’t happen in real life is the post-trial discussion involving the judge, the attorneys and the jurors. The trial experience and the post-trial discussion provide an incredibly educational and entertaining way to spend a day or two.

They give you a small stipend and a box lunch each day. You meet and spend the day with some really nice people.

Go to the NITA website at http://www.nita.org/and explore.

Find out where the programs entitled “Building Trial Skills” are being held and contact them about your interest in participating as a juror in the mock trials. If they haven’t already filled the juror pool, volunteer. I believe you will find the experience (plus the stipend and the lunch) to be well worth your time.

 

Jury Saves Justice System

Jury Saves Justice System by John F. Hays, a Seattle Private Investigator.

The justice system didn’t have a case and they wasted my taxes, but the justice system ultimately worked.

My first and only experience on a jury was an eye-opener and, in fact, very disturbing. I had been called to jury duty a couple of times before but had never ended up serving. I was actually looking forward to the experience. I got more and less than I expected on the third call to duty when I survived the selection process and was actually chosen for the jury.

The defendant was charged with trading crack for cash. The SPD had been conducting a sting at the busy drug market on the SE corner of 2nd and Yesler in Seattle. SPD officers were everywhere in plainclothes and in uniform, in marked and unmarked cars and on bikes, on the street and on rooftops.

This should have been an easy bust but wasn’t as the seller spooked after taking the plainclothes  officer’s money and handing over the crack in a baggy. The seller made the trade while sitting in his idling car at the curb with the buyer standing on the sidewalk. Something about the situation caused the seller to panic and run.

He took off southbound on second and turned left to go east on Washington. He blew the 4-way stop at 3rd and the stop sign at 4th, a very busy, three lane northbound road. He headed uphill to 6th and turned north towards Yesler. He almost ran over two bicycle cops and evaded hot pursuit by an officer in a marked squad car when the officer stopped the pursuit for safety reasons.

The seller got away and was not arrested ‘til months later. He was arrested for the sell during the sting described above; the arrest was based on identification of the seller by the buying officer. The prosecutor decided there was enough evidence to support prosecution. This led to the trial where I got some education about how the system sometimes works.

The prosecution’s case consisted of: Officer X says the defendant was the person who sold him the crack. The prosecution had no other witnesses, no tie in to the seller’s vehicle, no marked money, nothing but the officer’s assertion.

The prosecution managed to mention that the defendant had a criminal record. The judge rightly ordered this struck from the record and told the jury to ignore the information.

The defense denied the accusation and said the officer was mistaken. It came down to one man’s testimony versus the other’s. Prosecution and defense had made their cases; it was time for the jury to decide.

I was a bit perplexed. My reaction to the trial up to this point was that the defendant was likely guilty, but the prosecution hadn’t proved it. Furthermore, it seemed to me that the prosecution must have counted on the jury to be ignorant and prejudiced. I was wondering why the prosecutor had wasted our taxes for such a weak case.

The defense attorney had failed to point out the weakness of the prosecution’s case.

The judge’s instructions to us were to decide if the defendant was guilty, beyond a reasonable doubt. If a reasonable doubt existed, we were to find the defendant not guilty.

We began deliberating and immediately deadlocked; six said guilty and six said not guilty. Guilty versus not guilty really boiled down to six saying the prosecution had proven the defendant’s guilt, beyond a reasonable doubt, and six saying there was reasonable doubt of the defendant’s guilt and, therefore, we should find the defendant not guilty.

Notice that I said that six said he was guilty and six said there was insufficient evidence to affirm guilt. Actual guilt could never be known by anyone but god and the defendant. The faction that said he was guilty actually said that the defendant must be guilty because the police officer said he was.

On top of my observations about the prosecution and the defense now I had to reconcile the idea that a jury of twelve is not such a reliable group to make decisions having such consequences for a defendant’s life.

The bad thing was that six of twelve were so ignorant of the concepts of  “innocent until proven guilty” and “reasonable doubt” and so willing to bow down to the power of the government in the form of law enforcement. The good thing was that the other six of us were able to block a railroad job by the same forces.

A justice system in which the police, as agents of the government, have the power to act as law enforcement, judge, jury and executioner is a police state. I still have concerns about the experience I had in that court. That experience still resonates in my experience as a private investigator. It is one reason that I have such a burn about the work.

It takes diligence on the part of each player in this process to make it work properly. It is critical for the health of our justice system that all citizens have an appreciation for how the law is supposed to work.

After all, whose interests are at stake in the court rooms of this country? If you don’t understand that it is the interests of us all that are at stake, we are in a whole lot of trouble.

You reactions? Your experiences?

 

Jury Nullification – Judges Trumped

Jury Nullification – Judges Trumped by John F. Hays, a Seattle Private Investigator.

In jury nullification, juries trump judges. And prosecutors. And legislators.

While I’m on the subject of jury duty, here’s a peculiar feature of the law that some prosecutors and judges and others in the legal field seem to be afraid might become general knowledge.

Jury nullification

General public knowledge of jury nullification might put greater power in the hands of juries than that held by judges, prosecutors and legislators (in a very limited but useful sense).

The concept of jury nullification challenges the idea that, in the courtroom, judges interpret the law and juries interpret the evidence and render verdicts under the instructions of the judge regarding the law and its application.

Jury nullification allows the jury to ignore the judge’s instructions and, in essence, nullify, or throw out, the law or its application in the specific case being tried. Jury nullification is the finding by the jury that either the law is a bad law or it is being applied improperly in a specific case.

The concept is centuries old and is based in Common Law, which is part of the foundation of our legal system. Its history in North America starts in 1734 when a printer named John Peter Zenger was acquitted of seditious libel, contrary to the instructions of the judge hearing the case.

Jury nullification challenges State power. As such, it is a dangerous, subversive and powerful tool for maintaining the peoples’ hold on power.

It has a potential dark side. Theoretically, it could be used by a jury of racists or homophobes to acquit a person guilty of a hate crime.

On the other hand, consider the medical marijuana controversy. What if juries in Federal courts refused to convict medical marijuana growers, distributors and users in States that have legalized such use? Could the Federal government continue to interfere with the medicinal use of a proven, beneficial and natural drug?

There are a lot of questions that come to mind as I study jury nullification; I’m just getting started. It’s not my purpose here to expound on a complicated and controversial subject. I would be happy if a few of my readers pursued the study, on their own.

Following is a list of web-based resources. Google for more.

Reactions?

http://www.fija.org/

http://en.wikipedia.org/wiki/Jury_nullification

http://www.levellers.org/jrp/

http://www.crfc.org/americanjury/nullification.html

http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html

 

Criminal Defense? Part 2

Criminal Defense? Part 2 by John F. Hays, a Seattle Private Investigator.

Criminal defense or, more correctly, defending the accused, is defending the criminal justice system. Lady Justice doesn’t find the accused guilty or innocent until the trial is over, and maybe not even then.

Has anyone ever been accused of a crime he or she did not commit? Unless you have been living in a cave somewhere, with no contact with the outside world, you know the answer to that question.

Even before the advent of DNA testing, it was not unusual to hear about a person tried and convicted of a crime who was later released after new evidence was presented or the original evidence was refuted.

I’ve often wondered how many innocent people have been executed or have been left to serve out their terms in prison because they didn’t have the resources or the good luck to prove their innocence.

Why are innocent people sometimes convicted?

Because of the fallibility of juries of what are usually well-meaning citizens

Because of bigoted, bad-intentioned juries

Because of the errors, intended or unintended, of police, prosecutors, defense attorneys and judges

Because no system of justice is perfect

Because… Because… Because…

While our system of justice isn’t perfect, it is arguably the best in the world, if…

…if all players in the process are competent and do their best to fulfill their roles.

I firmly believe that if I do my job as the defense investigator and the police, the prosecutor, the defense attorney, the judge and the jury do theirs to the best of their abilities and with the best intentions, then justice has the best chance to be served.

For me the presumption of innocence is the critical underlying principle setting the tone for the process.

Anybody can accuse you of a crime, but for you to be held accountable for the alleged crime your guilt must proven beyond a reasonable doubt in a public court of law. It is my duty to play my role as the defense investigator competently and to the best of my ability because justice requires it.

 

Criminal Defense? Part 1

Criminal Defense? Part 1 by John F. Hays, a Seattle Private Investigator.

“You help criminal defense attorneys?”

“You want to help set criminals free?”

I get asked these questions all the time when I tell people I’m a criminal defense investigator. “What if the person you are helping to defend is really guilty; and the defense attorney you work for on the case gets him acquitted so he walks free? How can you justify your part in his defense?”

I’ve been asked these and similar questions by some family and friends and by a few people whom I’ve just met. It usually happens just after they find out what I do for a living. These questions usually come from good and well-meaning people.

But the question shows that the person asking is woefully ignorant of our system of justice and its underlying principles. In my experience, it’s unusual to find a person who does understand, who isn’t in the business or wasn’t involved in a criminal or civil lawsuit.

I’m a private investigator who assists defense attorneys, not an attorney.

My job is to find, verify and document information, gathered from a variety of sources, which my attorney/clients need to properly defend accused persons from criminal charges. I am not judge, jury or prosecutor. It is not my role to judge the accused, even if the accused has a criminal record.

I’ve developed an answer that seems to work for me and for my questioners.

Consider an answer in two parts

I’ve come to the conclusion that the answer to this sort of question has two elements: 1) an examination of the language we use and 2) a review of the basic legal principles involved. I’ll give the first part of my answer in this blog and the second part in the next blog, in about a week.

Is language part of the problem?

Why is it called criminal defense rather than defense of the accused? If a person accused in our court system is presumed to be innocent until proven guilty, why do we use a term that labels the person “criminal” before the trial is conducted and concluded?

I’m a criminal defense investigator. I work for criminal defense lawyers. We work to defend accused persons, only some of whom are truly guilty, truly criminals. The trial is where the guilt or innocence of the accused is determined.

Why is it guilty versus not-guilty instead of proven versus not-proven? In criminal cases the jury must find the accused guilty “beyond a reasonable doubt” in order to convict. Doesn’t the use of “guilty” imply certainty? This term is subjective and less than absolutely certain.

A jury in a criminal case examines and evaluates the evidence and the arguments of opposing attorneys and then deliberates to come to a conclusion about guilt or innocence based on a judge’s instructions about the applicable law.

If a jury doesn’t deadlock, they come back to the courtroom after concluding their deliberations with a verdict of guilty (beyond a reasonable doubt) or not guilty (meaning that they have a reasonable doubt). Where is the certainty in this usage? Shouldn’t it be “proven” beyond a reasonable doubt or “not proven” beyond a reasonable doubt?

Words are powerful. They sometimes convey meaning beyond, or at odds with, the intent of the users. They consequently program those who hear the words to misunderstand and prejudge.

Maybe people would have a better understanding if we were more precise in the language we use to discuss our criminal justice system and the people charged with crimes in that system.

Maybe my first jury experience would have been different had the language used been different and more precise.

 
© 2012 HSI Investigations, A Seattle Private Investigator