[Mulderator]

Originally Posted by wacor

If there is no mathematical formula then how can you not say it is anything but subjective?

For example some murders go to trial in just a few months while others after a year or two.

Explain please

Most states have a statute the spells out the time--with exceptions of course. Also, Defendants can waive their right which is why a trial may much longer for a particular defendant as oppossed to another that did not waive.

[Mulderator]

Originally Posted by buffoon

Does that mean the system is due for reform (re-inforcement)? In other words why is this a problem in the US and doesn't seem to be elsewhere?

Why do you say its a problem in the US and nowhere else? I can't imagine a criminal justice system being able to function without pervasive use of plea bargaining--it is simply a mathematical necessity to have plea bargains--if you didn't have them the system--any system anywhere would collapse simply because you could never hire enough lawyers and judges and build enough prisons to prosecute every case. Its like trying to have enough law enforcement personnel to prevent every crime--its impossible (pratically).

And while there is a risk that an innocent person pleads guilty, it is far more common that a guily person pleads to a lesser offense than what he/she would be prosecuted for. And this talk of innocent people being convicted or pleading guilty is VERY RARE in serious offenses. That is very very very few people innocent of a charge of murder for example are going to plead guilty to it for a reduced sentence because they'll still end up serving a very long prison sentence. Further, its would be very very very rare that an innoncent person would be prosecuted for a serious crime. Problem is too many people watch too many Hollywood movies and don't understand the reality of the criminal justice system.

Its not perfect--it can't be--nothing can be. The best you can do is provide a system of orderly administration of justice providing as much protection as reasonably possible to prevent the innocent from being prosecuted and/or convicted. In the system now, a lot of guilty people aqre never prosecuted or plead guilty to and get less time than they should serve for the crime committed--and that is as it should be. Far far far less innocent people are accused or convicted then the other way around.

[buffoon]

Originally Posted by Mulderator

Why do you say its a problem in the US and nowhere else?

OK, I'll rephrase to most nowhere else (excuse the grammar). From what I know of UK, Spain, France and Germany a confession will more often than not get you a slightly lighter sentence for felonies that are short of murder. It's seen as an insight into personal guilt and willingness to cooperate with judiciary authorities although in reality it is of course a deal.

This doesn't apply to murder. You get life, which isn't life, of course and may differ from country to country.

I can't imagine a criminal justice system being able to function without pervasive use of plea bargaining--it is simply a mathematical necessity to have plea bargains--if you didn't have them the system--any system anywhere would collapse simply because you could never hire enough lawyers and judges and build enough prisons to prosecute every case.

Sorry but that's not the case here. You commit a crime you get tried. Whatever it costs is whatever it takes, both in time and money makes no diff. You confess, fine. You don't confess, too bad. But you get it.

Its like trying to have enough law enforcement personnel to prevent every crime--its impossible (pratically).

The two are different matters

And while there is a risk that an innocent person pleads guilty, it is far more common that a guily person pleads to a lesser offense than what he/she would be prosecuted for.

This brings us back to DP. I'm sure that if we had it then plea bargaining would work as well, the "incentive" being higher. But as we don't it's a moot point. The system just has to trudge along and actually does it quite well.

And this talk of innocent people being convicted or pleading guilty is VERY RARE in serious offenses. That is very very very few people innocent of a charge of murder for example are going to plead guilty to it for a reduced sentence because they'll still end up serving a very long prison sentence. Further, its would be very very very rare that an innoncent person would be prosecuted for a serious crime.

Can't comment on that for lack of knowledge wrt the US. You know the system better and have more case history experiences.

Problem is too many people watch too many Hollywood movies and don't understand the reality of the criminal justice system.

Yeah, that seems very likely. Not just wrt the criminal justice system.

Its not perfect--it can't be--nothing can be. The best you can do is provide a system of orderly administration of justice providing as much protection as reasonably possible to prevent the innocent from being prosecuted and/or convicted.

Agreed for sure

In the system now, a lot of guilty people aqre never prosecuted

Over here they are

or plead guilty to and get less time than they should serve for the crime committed--

taking us back to cooperation thru confession/insight into guilt here. But pleading guilty dosn't automatically give a shorter sentence. It's in the discretion of the court/judge (as I believe it is in the States). There is no "bargaining" over here.

and that is as it should be. Far far far less innocent people are accused or convicted then the other way around.

No innocent should be convicted. Accused of course, but it's the job of the court to ascertain guilt. If that can't be done there isn't a case.
Often the case is closed for lack of evidence (as in the US, I believe). We call it a verdict of 2nd order freedom. Innocence is not expressly stated but the accused is set free.
Many accused work for a retrial because they want that "blemish" removed as well.

[Mulderator]

Originally Posted by buffoon

OK, I'll rephrase to most nowhere else (excuse the grammar). From what I know of UK, Spain, France and Germany a confession will more often than not get you a slightly lighter sentence for felonies that are short of murder. It's seen as an insight into personal guilt and willingness to cooperate with judiciary authorities although in reality it is of course a deal.

Sorry---but if something walks like a duck and quacks like a duck its a duck--you may not call it plea bargaining but that's exactly what it is--someone agrees to a "confession" to get a reduced sentence. In fact, it would be utter stupidity not to have some system of avoiding a trial in exchange for a "confession" as you call it. Do you REALLY think that doesn't happen by negotiation? It is simply the prosecutor and the defense attorney agreeing to a "confession" and in exchange the accused gets something (a lesser sentence). That's exactly what happens in plea bargaining.

You also fail to understand basic human psychology and actions if you are naive enough to believe the rest of the world has no plea bargaining and made it "against the law". You can no more do that then you can make it against the law for politicians to "negotiate" deals with other politicians. By human nature there are always variables--there is always judgment to be exercised and there is always negotiation in the majority of situations. If you don't understand that then I have a bridge to sell you here in the United States.

Originally Posted by buffoon

This brings us back to DP. I'm sure that if we had it then plea bargaining would work as well

You DO have it--you simply don't call it plea bargaining.

But pleading guilty dosn't automatically give a shorter sentence. It's in the discretion of the court/judge (as I believe it is in the States). There is no "bargaining" over here.

Yes--there is. Go to talk to a prosecutor or criminal defense attorney and tell them there is no bargaining and they'll snicker after you walk out the door.

The problem is you view a "crime" in the context of a single charge when in reality crimes often have numerous charges and numerous degress. I will give you an example. If I kill Stoner in a bar fight, I may claim I was doing it in self defense. I may have a "shaky" claim in that regard--that is maybe I did, maybe I didn't--maybe I didn't need to use excessive force, maybe I did--those are judgment issues--different witnesses may have different recollections of what happened--maybe one heard Stoner threaten to kill me and maybe another heard his say something different. Here in the United States, a prosecutor may negotiate with the criminal defense attorney "deal" where instead of pleading guilty murder (which I could be charged with) I plead guilty to manslaughter with an 8 year sentence because if I went to trial and won, I would be free--if I lost, I would do maybe 20 years.

The point is I can't imagine that the prosecutors in Spain do not have discretion as to which charges they would bring--that would be assinine because in my scenario there may be some reasonable dispute as to which crime I am guilty of--it would be absurd to force the prosecutor to try me on the most severe crime (i.e., murder) when I may not be guilty of it (or there is very resonable dispute as to what I am guilty of). What I am positive would happen is a "deal" would occur where the prosecutor agrees to only charge manslaughter (or something less than murder whatever you call it over there) in exchange for my "confession" that I am guilty of that crime.

Again--this is "semantics" as to the term "plea bargain" but make no mistake about it, many crimes are far to complex in terms of the degree of evidence to have a completely rigid system whereby the prosecutor is forced to try on the most serious charge rather than accept a "confession" to some other charge.


Kripes--Gbrumb--what the hell are you doing---educate these natives for me when I am not around!!!!

[Mulderator]

Originally Posted by buffoon

No innocent should be convicted. Accused of course, but it's the job of the court to ascertain guilt. If that can't be done there isn't a case.

That's not true at all--merely because guilt isn't proven, doesn't mean there isn't (or wasn't a case). Reasonable minds can differ on evidence. You also again entirely miss the issue in terms of degree--often the dispute is not whether there has been a crime committed but what degree crime was commited!!! For example, was a murder a crime of passion, premeditated, self defense, imperfect self defense, etc., etc. In fact, these are strategic decisions a prosecutor will make--should he/she go for the lesser offense or go for both? That can be an issue because a prosecutor may lose credibility with a jury (or a judge if there is no jury) if he/she appears to be over-reaching on a particular crime. Also--the prosecutor may not want to give the jury the option of a lesser-included offense--deciding that a particular accused deserves the maximum charge.

You really need to understand how the legal system works from the inside to understand this stuff--if you did, you would never try to make the argument that the rest of the world has no plea bargaining--they may not call it that because the term itself is repugnant to many people who see it as a system where criminals "get off easier" but they most certainly have some form of it.

[buffoon]

Originally Posted by Mulderator

Sorry---but if something walks like a duck and quacks like a duck its a duck--you may not call it plea bargaining but that's exactly what it is--someone agrees to a "confession" to get a reduced sentence. In fact, it would be utter stupidity not to have some system of avoiding a trial in exchange for a "confession" as you call it. Do you REALLY think that doesn't happen by negotiation? It is simply the prosecutor and the defense attorney agreeing to a "confession" and in exchange the accused gets something (a lesser sentence). That's exactly what happens in plea bargaining.

You also fail to understand basic human psychology and actions if you are naive enough to believe the rest of the world has no plea bargaining and made it "against the law". You can no more do that then you can make it against the law for politicians to "negotiate" deals with other politicians. By human nature there are always variables--there is always judgment to be exercised and there is always negotiation in the majority of situations. If you don't understand that then I have a bridge to sell you here in the United States.



You DO have it--you simply don't call it plea bargaining.



Yes--there is. Go to talk to a prosecutor or criminal defense attorney and tell them there is no bargaining and they'll snicker after you walk out the door.

The problem is you view a "crime" in the context of a single charge when in reality crimes often have numerous charges and numerous degress. I will give you an example. If I kill Stoner in a bar fight, I may claim I was doing it in self defense. I may have a "shaky" claim in that regard--that is maybe I did, maybe I didn't--maybe I didn't need to use excessive force, maybe I did--those are judgment issues--different witnesses may have different recollections of what happened--maybe one heard Stoner threaten to kill me and maybe another heard his say something different. Here in the United States, a prosecutor may negotiate with the criminal defense attorney "deal" where instead of pleading guilty murder (which I could be charged with) I plead guilty to manslaughter with an 8 year sentence because if I went to trial and won, I would be free--if I lost, I would do maybe 20 years.

The point is I can't imagine that the prosecutors in Spain do not have discretion as to which charges they would bring--that would be assinine because in my scenario there may be some reasonable dispute as to which crime I am guilty of--it would be absurd to force the prosecutor to try me on the most severe crime (i.e., murder) when I may not be guilty of it (or there is very resonable dispute as to what I am guilty of). What I am positive would happen is a "deal" would occur where the prosecutor agrees to only charge manslaughter (or something less than murder whatever you call it over there) in exchange for my "confession" that I am guilty of that crime.

Again--this is "semantics" as to the term "plea bargain" but make no mistake about it, many crimes are far to complex in terms of the degree of evidence to have a completely rigid system whereby the prosecutor is forced to try on the most serious charge rather than accept a "confession" to some other charge.


Kripes--Gbrumb--what the hell are you doing---educate these natives for me when I am not around!!!!

To cut the whole thing short how about I don't tell you what the US court system is about and you don't tell me what the systems I know over here are about.

You appear to have a propensity for covering a reply with a barrage of semantics that pertain to nothing I said and by default try to insinuate that I did.

One example:

You DO have it--you simply don't call it plea bargaining.

in reply to my

This brings us back to DP. I'm sure that if we had it then plea bargaining would work as well

My "had it" applies to DP, your reply to plea bargaining.

Another one:

From what I know of UK, Spain, France and Germany....

is replied to by you with

you would never try to make the argument that the rest of the world has no plea bargaining

Kripes--Gbrumb--what the hell are you doing---educate these natives for me when I am not around!!!!

And give to those that direly need it such comprehensive reading skills as to pervade above the sound of their own voice.

So that there may be hope for them to become the great educators they desire to be and until then so grossly fail at.

Hope your brother is bearing up well.

[Bastiat]

Originally Posted by buffoon

OK, I'll rephrase to most nowhere else (excuse the grammar). From what I know of UK, Spain, France and Germany a confession will more often than not get you a slightly lighter sentence for felonies that are short of murder. It's seen as an insight into personal guilt and willingness to cooperate with judiciary authorities although in reality it is of course a deal.

This doesn't apply to murder. You get life, which isn't life, of course and may differ from country to country. Sorry but that's not the case here. You commit a crime you get tried. Whatever it costs is whatever it takes, both in time and money makes no diff. You confess, fine. You don't confess, too bad. But you get it. The two are different matters

Having been in court in England (just a year ago, as an observer) and having dealt on a professional level with both French and German attorneys as well as prosecutors the English/French/German legal systems have a "plea bargain" mechanism. Can't speak as to Spain. However, I have read some transcripts from proceedings in Spanish Courts that caused me to scratch my head and think "What the fudge?"

In case you would like to read: http://en.wikipedia.org/wiki/Plea_bargain

[buffoon]

Originally Posted by Bastiat

Having been in court in England (just a year ago, as an observer) and having dealt on a professional level with both French and German attorneys as well as prosecutors the English/French/German legal systems have a "plea bargain" mechanism. Can't speak as to Spain. However, I have read some transcripts from proceedings in Spanish Courts that caused me to scratch my head and think "What the fudge?"

In case you would like to read: http://en.wikipedia.org/wiki/Plea_bargain

Thanks for the link. As to Spanish law and courts, congratulations. If you encountered it and are still sane there's something wrong with you.

I mentioned the "confession" rebate in UK, Germany and France. It's called "discount" by the Brits although they still prefer not to bring themselves to admitting to its existence officially.

Germany has meanwhile regulated the "Absprachen" by law. But despite any "cooperation" by defendants (especially pertinent in financial crimes wrt finding where the money went and who else can be held accountable) there is no reduction of the charge, whereas the sentence may be more lenient. The court may offer a sentence to which prosecution and defense may agree but the court is not bound by it. Should the court in the course of the trial find that the sentence would be too mild it can sink the deal. Any confession given in its course becomes unusable.

But in all cases none of this applies to murder. There is for instance no possibility of copping a man slaughter charge for murder by way of a deal.

[buffoon]

Originally Posted by buffoon

....But in all cases none of this applies to murder. There is for instance no possibility of copping a man slaughter charge for murder by way of a deal.

Let me rephrase that. There is no possibility of a deal that results in being charged with manslaughter when police evidence points to murder. But during the trial manslaughter may be established if evidence provided within that trial is successfully provided towards that end.

As an aside defense attorneys are paid by day so they have no particular financial interest in shortening the trial (if one would wish to imply that). God knows if any get a premium from their client for sentence reduction but they'd better not get caught.

Lastly Germany does not have a jury but two lay judges accompanying the judge. This is presumed to put some additional restraint on excessive bargaining although I would presume that in practice it would be minimal.

In Spain a sentence may be some hundred years. But everybody knows there'll be a pardon before that, often in conjunction with the annual fiesta of a local patron saint. Although his name is invoked I reckon even God continuously scratches his head at that one, thinking "what the fudge"

[thingamajig]

Originally Posted by Bastiat

In case you would like to read: http://en.wikipedia.org/wiki/Plea_bargain

Have you read it yourself? It's odd that you post a link as reference that disagrees with your assertion. I like this part in the controversy section and may have to pick up the book:

Plea bargaining is also criticized, particularly outside the United States, on the grounds that its close relationship with rewards, threats and coercion potentially endangers the correct legal outcome.[4] Coercive plea bargaining has been criticized on the grounds that it infringes an individual's rights under Article 8 of the European Convention on Human Rights, incorporated in the UK's Human Rights Act 1998.[5]

In the 1991 book Presumed Guilty: When Innocent People Are Wrongly Convicted, author Martin Yant discusses the use of coercion in plea bargaining. (p. 172)

Even when the charges are more serious, prosecutors often can still bluff defense attorneys and their clients into pleading guilty to a lesser offense. As a result, people who might have been acquitted because of lack of evidence, but also who are in fact truly innocent, will often plead guilty to the charge. Why? In a word, fear. And the more numerous and serious the charges, studies have shown, the greater the fear. That explains why prosecutors sometimes seem to file every charge imaginable against defendants.

My main complaints aren't really about the case of capital murder or a serious crime where the sentence is going to be effectively life. It is primarily about the unavoidable use of trumped up charges to frighten a defendant into pleading on the crime the prosecutor actually feels appropriate.

As an example of bartering, imagine a bar fight where a participant dies. The witnesses are split and unreliable. The defense claims it's self-defense and the prosecution wants the charge of manslaughter (or whatever a state would call it). This should go to trial to see if the crime is a legitimate use of force for self-defense or not.

But this doesn't happen. Instead, the prosecutor starts with the charge of murder. The defendant will have to go to trial with a legitimate fear that the outcome will be a murder conviction. The safe bet is to plead to manslaughter even if they feel it's self-defense especially since a deal will be offered.

Only a celebrity such as Winona Ryder gets the benefit of an appropriate sentence where the same that was offered in the beginning is the same offered after a guilty verdict. Your John Doe working man will get slammed - essentially being punished for exercising their right to a trial.

It's not possible to trump up charges for capital murder. But the accepted use of plea-bargaining may yield an undesired outcome here also - a lesser charge.

Originally Posted by buffoon

To cut the whole thing short how about I don't tell you what the US court system is about and you don't tell me what the systems I know over here are about.

Originally Posted by Drabdr

My angle is that I became a supporter of the Death Penalty because of DNA testing. It gave us much stronger ability to determine that we are not putting an innocent person to death.

What about capital murder cases without DNA evidence? I don't believe one should base an opinion under the assumption that a specific type of evidence will always be available. Shooting someone in a back alley from 20 yards won't have DNA but it can dang sure have witnesses that pick the wrong guy out of a lineup.

Also consider the man whose execution for arson is under dispute because of a new look at the scientific evidence. An arson that kills leaves no DNA either.

In a domestic murder with the home where the victim and perpetrator live is another example where DNA is useless.

DNA from recent consensual sex could pin a murder on the boyfriend for a rape and murder. I could go on. DNA is not a silver bullet.

Originally Posted by Bastiat

I hate to bring reality to the discussion but if you reduced or eliminated plea bargains then more criminals will go free because of the violation of their right to a speedy trial. Without plea bargains the system would shutdown rapidly.

They aren't a criminal until due process produces a finding of guilt. Your statement here represents a presumption of guilt - that anyone arrested and charged must be guilty so reforming our system would allow criminals to go free.

[LANMaster]

Mulder, I do not know if you addressed this aspect .... apologies if you did, and I missed it in this thread .....

... but was there a motive for the crime?

[Bastiat]

Originally Posted by thingamajig

Have you read it yourself? It's odd that you post a link as reference that disagrees with your assertion. I like this part in the controversy section and may have to pick up the book:

Wow, now I know why Stoner makes fun of you. The assertion by buffoon was that there is no plea bargaining in England, France, Germany and Spain. I disagreed based upon personal experience and posted a link to a site that discussed the types of plea bargains in the very countries I just cited (even as limited as they may be).

Reading comprehension and the ability to follow a thread are wonderful things. Hopefully someday you'll know the joy.

[Bastiat]

Originally Posted by thingamajig

They aren't a criminal until due process produces a finding of guilt. Your statement here represents a presumption of guilt - that anyone arrested and charged must be guilty so reforming our system would allow criminals to go free.

Oh Boy! Let's play the semantics game!

Your post assumes that they haven't been convicted of a crime before. As such they would be criminals facing a second (or more) charge.

See how semantics work?

Another point, are you speaking to procedural due process or substantive due process? Can you explain the difference without google? Finally, due process doesn't produce a finding of guilt or innocence.

[Drabdr]

Originally Posted by thingamajig

What about capital murder cases without DNA evidence? I don't believe one should base an opinion under the assumption that a specific type of evidence will always be available. Shooting someone in a back alley from 20 yards won't have DNA but it can dang sure have witnesses that pick the wrong guy out of a lineup.

Also consider the man whose execution for arson is under dispute because of a new look at the scientific evidence. An arson that kills leaves no DNA either.

In a domestic murder with the home where the victim and perpetrator live is another example where DNA is useless.

DNA from recent consensual sex could pin a murder on the boyfriend for a rape and murder. I could go on. DNA is not a silver bullet.

That's true; DNA isn't. The basis of our legal system is that people hear the evidence and determine if there is sufficient evidence for a guilty plea. That system must work.

As we move forward, DNA testing will be one of the components of the trial, instead of a retrospective examination as it is now.

We may have definitive proof that someone is not guilty. It's brought to light, and the person is set free. That is the system; the system works. But we don't have any evidence that one truly innocent person in the past 30 or so years has been put to death. I limit the 30 years due to racial murders, and some of the swift, but maybe misguided, punishment that transcended in the Old West in the early 1900's.

[wacor]

Thought there was a Texas guy that it was determined was likely innocent?