Sunday, March 11, 2012

Mar. 11 - Mar. 17, 2012 Discussions

The main subject in my comment for Sunday, March 11, is the lunatic theories from the Lunatic Fringe which argue that inconclusive evidence should be considered conclusive toward proving Bruce Ivins to have been innocent.

If, seven years after the attack, Bruce Ivins didn't have the pen that was used to address the anthrax envelopes, the Truthers argue that should mean he was innocent.

Or, isn't that what they're claiming? They don't actually make claims. Instead they make statements: "Experts determined that there was not a single exemplar written by him in which the distinctive “fluid-like” ink used on the envelope was a match." So what!? They don't exactly say why they made such a statement, but they IMPLY that it means something.

It's probably too late to do anything in the Amerithrax case, but it seems like it might be a good idea to create a new law that would authorize the creation of a Special Inquest in situations of national importance where a jury trial cannot be held because the accused killer either died or in some other way became unable to stand trial. It could also be a jury trial in absentia, which occasionally take place when a person on trial escapes custody and thereby waves his constitutional right to face his accusers.

The Anthrax Truthers currently seem to be hoping the Government Accountability Office (GAO) will somehow overturn the DOJ's closing of the Amerithrax case. When that doesn't happen, they'll be claiming that the GAO is part of "the government's" coverup of what really happened.

Many others (including me) hope that some kind of Congressional Investigation of the Amerithrax case will take place. But that seems highly unlikely.

The Internet is giving the Lunatic Fringe a bigger voice in public matters than they ever had in the past. No one wants to cut off their freedom of speech, but many people seem to have the bizarre, almost INSANE belief that dead people should always be presumed innocent because they cannot stand trial. And Anthrax Truthers constantly make up new rules of evidence to suit themselves.

So, it seems that -- in crimes of great national interest -- it might be worthwhile to hold trials or inquests in absentia to allow a jury to decide if the evidence really says beyond a reasonable doubt that a dead person did commit the crimes for which he's accused.

If nothing else, such a trial would stop all the endless arguments about what a jury would or would not have done.

19 comments:

  1. Since there's a lot of good stuff in the above discussions section, let me concentrate on that:
    YES, I too think that some sort of inquest by a congressional committee would be useful. And a sort of mock trial would be useful too.

    However, I balk at the claim that "such a trial would stop all the endless arguments about what a jury would or would not have done." You wouldn't be able to stop ALL the arguments, but at least the remaining ones would have something solid to react against. A solid footing for further discussions.

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  2. Richard Rowley wrote: "However, I balk at the claim that "such a trial would stop all the endless arguments about what a jury would or would not have done.""

    If a jury hears the evidence and renders a verdict, how can there be any argument over what a jury would have done? The jury heard the evidence and rendered a verdict. There would be no "what would a jury do?" questions left to argue about.

    I think you're trying to say that, even if a jury renders its verdict, there may be people who disagree with the verdict.

    I agree. But, at least we wouldn't have people saying the guy was innocent just because he's dead.

    Ed

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  3. If a jury hears the evidence and renders a verdict, how can there be any argument over what a jury would have done?
    ---------------------------------------------------------------
    Because you can never reproduce EXACTLY what a true trial would have produced. Including (but not limited to) the verdict.

    Think of it:

    1)the OJ Simpson criminal trial is one of the areas where I'm pretty sure that Mister Lake's views and mine (in criminal matters) coincide.

    2)but the jury found Simpson NOT GUILTY despite the (true) mountain of physical evidence (blood everywhere: his socks, his car door handle, inside his vehicle, including the blood of the VICTIMS).

    3)did that true (not substitute) trial 'end all the arguments'?

    No, the trial pointed out some of the difficulties in getting even the most obviously (in the real world outside a courtroom)guilty parties convicted if the party has clever lawyers and the police made errors, had a reputation for racism etc.

    A mock trial of Ivins would be educational, but no one could know for sure to what extent it would imitate life. Too many variables.

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  4. Richard Rowley wrote: "A mock trial of Ivins would be educational, but no one could know for sure to what extent it would imitate life."

    As I wrote previously, "even if a jury renders its verdict, there may be people who disagree with the verdict."

    You're just saying the same thing I said, only in a more convoluted and verbose way.

    Ed

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  5. Partial post by Mister Lake:
    ------
    As I wrote previously, "even if a jury renders its verdict, there may be people who disagree with the verdict."

    You're just saying the same thing I said, only in a more convoluted and verbose way.
    ===========================================================
    No, I'm saying QUITE a bit more than that.

    Observe: each and every TRUE trial depends on 1)the nature of the charges made 2) the evidence COLLECTED AND PRESENTED ON SAME 3)an array of decisions made by the judge (as to admissibilty, prejudicial testimony etc) 4)the outcome the voir dire (ie the composition of the jury) 5)the skills of the attorneys on both sides, as applied to both the substance of the evidence and to an assortment of odd mental tropes of the jurors ("If the gloves don't fit, you must acquit!"
    Etc.

    These things bear DIRECTLY on the outcome of the trial (ie not just on whether SOME people will/won't accept the results of such a trial). Call them 'vagaries', call them 'variables', it doesn't matter.

    This is quite a bit more than "even if a jury renders its verdict, there may be people who disagree with the verdict."

    Speaking of which, Mister Lake, if YOU PERSONALLY were asked by a (very young) person to explain why you didn't 'accept' the outcome of the OJ Simpson criminal trial, how would you explain it to them?

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  6. Richard Rowley wrote: "This is quite a bit more than "even if a jury renders its verdict, there may be people who disagree with the verdict."

    It may be "more" words but it's not saying anything additional.

    We're both saying that, because of the "variables," there may be people who disagree with a verdict.

    "if YOU PERSONALLY were asked by a (very young) person to explain why you didn't 'accept' the outcome of the OJ Simpson criminal trial, how would you explain it to them?"

    What makes you think I don't "accept" the outcome of the OJ Simpson trial?

    I think OJ Simpson committed the murders, but I accept the finding of the jury that there wasn't enough evidence in their opinions to convict. In my opinion, there was. But, I wasn't on the jury.

    I have no problems with others seeing things from a different point of view than I. That's one of things that makes life so interesting.

    If a child asked me about the case, I'd say that the jury seemed to like the defense attorney and didn't like the prosecutor, so they found reason to have a reasonable doubt about OJ's guilt, and they came back with a verdict of "not guilty due to a lack of sufficient evidence." And I'd explain very carefully that "not guilty due to a lack of sufficient evidence" is TOTALLY different from being innocent.

    And then I'd add that people aren't perfect. Everyone makes mistakes. I personally think the jury made a mistake in the OJ Simpson case, but they also saw more of the evidence than I did, so I could be the one who is wrong.

    Ed

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  7. Partial post by Mister Lake:
    --------------
    Richard Rowley wrote: "This is quite a bit more than "even if a jury renders its verdict, there may be people who disagree with the verdict."

    It may be "more" words but it's not saying anything additional.

    We're both saying that, because of the "variables," there may be people who disagree with a verdict.
    ===========================================================
    NO. That's NOT what I'm saying in my "verbosity". I'm saying that there's no way to RELIABLY* simulate even a single significant element of a true trial: not the state's case, not the defense's case, not the intermediary role played by the court (ie the judge), and certainly not the deliberative process that the true jury would have engaged in(in secret). This is over and above whether "Joe Schmoe" or "Jan Doe" agrees with the outcome (verdict) of such an attempted simulation. This later thing is probably largely determined by opinion(s) formed well before the simulation. I see such a simulation as changing few minds.

    (*and by "reliably" simulate, I mean simulate with confidence that this is how the trial would have proceeded even roughly)

    And since the simulation (not just of a trial of Bruce Ivins but of any defendant) would be so unlikely to anticipate the course of a true trial, it is a poor measure of 1)how such a trial would have gone (ie the verdict) and 2)the satisfaction that outside observers would have had in such a verdict (ie whether they thought it a true reflection of the innocence of the defendant).

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  8. By contrast Mister Lake's pithy statement, " "even if a jury renders its verdict, there may be people who disagree with the verdict." is, in effect, ALWAYS true: in a nation of over a quarter billion people there will ALWAYS be some who don't accept the verdict of a jury in any case of national importance.

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  9. Partial post by Mister Lake:
    -----------------
    If a child asked me about the case, I'd say that the jury seemed to like the defense attorney and didn't like the prosecutor, so they found reason to have a reasonable doubt about OJ's guilt, and they came back with a verdict of "not guilty due to a lack of sufficient evidence." And I'd explain very carefully that "not guilty due to a lack of sufficient evidence" is TOTALLY different from being innocent.
    =========================================================
    So, am I correct in guessing that if a mock trial of Bruce Ivins took place and produced a not guilty verdict for Bruce Ivins, you would continue to think that Bruce Ivins did the Amerithrax mailings? And would attribute the acquittal strictly to "lack of sufficient evidence"?

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  10. Richard Rowley wrote: "I'm saying that there's no way to RELIABLY* simulate even a single significant element of a true trial: not the state's case, not the defense's case, ..."

    SO WHAT??!! You are just being argumentative.

    Everyone understands that if you have an in absentia jury trial after the defendant committed suicide in order to allow a jury to view and decide upon the evidence, it cannot be exactly the same as a trial would have been if the defendant had been alive.

    But, what alternatives are there? Currently, we just sit around and endlessly argue over whether circumstantial evidence would have been allowed to be presented or not, and what a jury might have done.

    I suggested an alternative of having a jury trial in absentia in matters of great national importance where the defendant is dead or otherwise incapable of confronting his accusers in court.

    It would be better than endlessly sitting around arguing. People would not be able to argue that circumstantial evidence wouldn't be admissible. The same rules of evidence would be in effect. People wouldn't be able to argue the preposterous idea that the jurors wouldn't follow the judge's instructions and would decide each item of evidence individually instead of first viewing all the evidence and then rendering a verdict.

    People might still have things to argue about, but they wouldn't be arguing about rules of evidence and court procedures, they'd have to find something else to argue about. They'd have to explain why the in absentia trial didn't produce the same verdict an actual trial would have produced.

    Ed

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  11. Richard Rowley wrote: "So, am I correct in guessing that if a mock trial of Bruce Ivins took place and produced a not guilty verdict for Bruce Ivins, you would continue to think that Bruce Ivins did the Amerithrax mailings? And would attribute the acquittal strictly to "lack of sufficient evidence"?"

    I'd have to wait to see how the trial actually went to be certain, but knowing what is known today, YES, I'd say that Ivins was guilty and the jury just wasn't convinced beyond a reasonable doubt.

    The facts are clear, and Ivins had no real defense. He could only hope that his lawyer would be able to create reasonable doubt.

    Ed

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  12. A nitpick: this wouldn't be an "in absentia" trial. It would be a mock trial. "In absentia" doesn't mean the (in this case would-be*)defendant is dead, it means he has fled.

    *In the Ivins case even more so: he was never even charged with a crime. Meaning he never even reached defendant status.

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  13. Richard Rowley wrote: "I'm saying that there's no way to RELIABLY* simulate even a single significant element of a true trial: not the state's case, not the defense's case, ..."

    SO WHAT??!! You are just being argumentative.
    =================================================J
    How is making an intellectual distinction "being argumentative"?!?!?1

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  14. Richard Rowley wrote: "It would be a mock trial."

    No, it wouldn't. I proposed a NEW KIND OF TRIAL, similar to an in absentia trial, which would be a REAL trial to take place in national security situations where the defendant is dead or otherwise cannot be normally tried in court. It would allow a jury to give an official verdict based upon the evidence. It would, in theory, put an end to the endless debates we've seen in situations like the JFK assassination and the Amerithrax case.

    I realize that some people would still be arguing, but they'd have to find mostly different arguments, since the rules of evidence would be the same as in a normal trial.

    Comprendo?

    Ed

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  15. Richard Rowley wrote: "How is making an intellectual distinction "being argumentative"?!?!?"

    It's being argumentative if it assumes that the totally obvious isn't totally obvious to the person you're arguing with.

    Obviously, a trial where the defendant is dead isn't going to be EXACTLY the same as a trial where the defendant is alive, but it can be very very similar to a trial where the defendant doesn't take the stand.

    Ed

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  16. Mister Lake, assuming you are BOTH sincere and serious about this "real trial" business:

    1)what legal obstacles do you see to it?

    2)don't you think that substantial segments of the population would object on grounds of cost?

    3)would the government pay for the DEFENSE attorneys too?

    4) if the answer to 3) is no, wouldn't that be expecting too much of the survivors of someone like Bruce Ivins to pay an estimated 2 to 3 million dollars to defend not Bruce Ivins, the living person (whose life, liberty and property were to be in jeopardy), but merely his posthumous name/reputation?

    5)what person or organization would make the determination which cases warranted such a 'real trial' of (a) dead person(s)?

    6) who would have standing to make such a request of that person/organization?

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  17. Richard Rowley asked,

    "1)what legal obstacles do you see to it?"

    I don't know. It's just an idea. I proposed it to the GAO, suggesting that they include it as a recommendation in their review of the Amerithrax investigation. I'm not sure exactly what law would need to be changed, or if Congress could just enact a new law. I don't expect the GAO to make the recommendation, but that doesn't mean it isn't a good idea.

    It seems to be a problem for which there IS a solution. It just needs Congress to recognize that it IS a problem.

    "2)don't you think that substantial segments of the population would object on grounds of cost?"

    No. It's not something that would be done every day. As I've repeatedly stated, it's just something that would be done on cases of national security interest where the suspect is dead - like the JFK assassination and the Amerithrax case. I don't see two cases in 60 years as being too costly.

    "3)would the government pay for the DEFENSE attorneys too?"

    You're obviously unaware of it, but if Ivins had gone to trial, the government would have paid Paul Kemp's fee. It had already been arranged. Laws allow for payment of the defense attorney's fees in situations where a defendant cannot pay for himself.

    So, there would be nothing different if the government paid to have Paul Kemp and his team defend Ivins in absentia. (There might be some conspiracy theorists who would think it makes Kemp a "government stooge," but they would think that even if Ivins had been tried normally.)

    The above also answers #4.

    "5)what person or organization would make the determination which cases warranted such a 'real trial' of (a) dead person(s)?"

    Hopefully, the law would be written to define the circumstances. It could state that the law would apply to (1) cases involving national security, (2) cases where the Department of Justice believes they could get a guilty verdict, just like with regular trials, and (3) cases where there is a defense attorney and/or other interested parties willing to argue for the dead person.

    #6 gets the same answer as #5. The law would define the rules.

    Ed

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  18. The biggest obstacle:
    http://www.slate.com/articles/news_and_politics/explainer/2003/06/when_can_a_defendant_be_tried_in_absentia.html

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  19. It's already been stated that there would probably have to be a new law authorizing a trial of a dead person. And, it would only be done in rare instances involving national security.

    I merely suggested it as a possible way out of the dilemma of having no way to present both sides of a case and get a jury verdict when the suspect is dead.

    Ed

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