The adverserial "Justice" System
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15-10-2011, 10:42 AM
RE: The adverserial "Justice" System
(15-10-2011 07:45 AM)BnW Wrote:  BC - sorry about your troubles, but are you suggesting the PD should be provided, at tax payer expense, to people who can afford to pay a lawyer on their own?

There were about 12 public defenders standing by at my last court date. They're abundant already, so why limit the defendant's range of "innocence" by making them defend themselves?

I'm convinced that law students are required to get public defender experience. Which is fine with me. It's not so much what they say, just the procedure they provide that appeases the judge.

And failing to qualify for a public defender doesn't mean that should be able to afford a lawyer. The types of questions they ask you are "do you have a cell phone" and "do you have car insurance?" I had both these things and I still only make about 1,000 a month, nowhere near what I would need for a lawyer's fee.

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15-10-2011, 10:52 AM
RE: The adverserial "Justice" System
It's not a question of bad appledom as of resource allocation. The forensic scientists in crime labs are doing their best possible work, honestly, impartially and competently.

But, in a money-fuelled system, anything that's public - and supposedly impartial - is overburdened, underfunded, behind schedule and subject to arbitrary firings on the basis of whether the team leader takes off his scientist hat and puts on his manager hat at the demand of whatever political hack controls the purse-strings....
...while the private lab has unlimited time, talent and resources to put in the service of a rich enough defendant or litigant.

Again, it's not the spirit of advocacy, nor the spirit of legal dispute, but the spirit of economic inequality that causes huge miscarriages of justice.

Zatamon: it's an interesting idea, but you haven't said how the spirit of scientific inquiry is applied to justice. How is the panel convened? In what form? By whom? How funded? What procedure? What number of investigators to how many population?

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15-10-2011, 11:04 AM
 
RE: The adverserial "Justice" System
(15-10-2011 10:52 AM)Peterkin Wrote:  Zatamon: it's an interesting idea, but you haven't said how the spirit of scientific inquiry is applied to justice. How is the panel convened? In what form? By whom? How funded? What procedure? What number of investigators to how many population?

Very good questions, Peterkin.

The answer is simple: abolish the money system, just as I suggested in the "Proposal for a new social contract" thread.

Short of drastic changes in our approach, no drastic changes in the results are possible.

Am I holding my breath?

You know the answer to that, too. Sad

But I still hate the adversarial system because I find it one of the most demonstrative symptoms of human insanity.

When it is not only permissible, but actually demanded of the defense and prosecution to argue in BAD FAITH, regardless of their personal opinion of the TRUTH, it is a sign of insanity, no matter what justification we use.


It is, in extreme cases (like the O.J.Simpson trial), high entertainment, like in ancient Rome, where the crowd breathlessly waited to see which direction the emperor's thumb turned. Have you noticed, how in movies they always have a dramatic pause before the word: innocent/guilty is announced by the jury's foreman? I don't know if they do it in real life (my courtroom experience, luckily, is limited) but the SPIRIT is symbolized by that pause: like in all game shows and beauty contests, we all want to know who is the WINNER?
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15-10-2011, 11:12 AM
RE: The adverserial "Justice" System
Well then, if the underlying problem is human nature, why bother devising - or thinking about - any more systems in which to demonstrate insanity?

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15-10-2011, 11:18 AM
 
RE: The adverserial "Justice" System
(15-10-2011 11:12 AM)Peterkin Wrote:  Well then, if the underlying problem is human nature, why bother devising - or thinking about - any more systems in which to demonstrate insanity?

The underlining problem IS human nature, as encoded in our DNA at our evolutionary stage.

We have conflicting impulses and it is possible to create an environment that is favoring the good impulses as opposed to the bad ones.

Ultimately, every system is corruptible and, eventually, shit always rises to the top, as I suggested in another thread on the subject.

However, during the intermission (before the inevitable corruption), we may create very agreeable bubbles that can be very pleasant to live in, just like in post-war Canada, till the eighties' slide into accelerating corruption started.

Those of us who lived in that bubble, and still live in the remnants of it, have been very lucky.
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16-10-2011, 10:32 AM
RE: The adverserial "Justice" System
Zatoman

I don't see how any of what you are saying has anything to do with criminal justice. You basically have 3 options:
1. the state decides who is innocent or guilty , which is what we had for centuries;
2. an adversarial system where the state has to prove it's case and the accused gets to fight them; and
3. no criminal justice system which means no consequences.

There is no way this is not adversarial. You have one side who is accusing a person or persons of a crime and seeks to punish them. You have another side that seeks not to be punished. There is no friendly symposium that gets around that inherent conflict. The very idea of crime prevention is adversarial to those accused of crimes. There is no way around that. That does not mean the system is perfect and that changes could not be made to improve it and make it more even handed, less biased, etc. But, to claim we can do away with it and have law enforcement seems, to me at least, impossible.

Comparing a criminal accusation with an argument with your wife is nonsense. There is no down side to there being no winner to that argument. But, when you're dealing with real crimes with real victims, that is often not the case.

Buddy - I agree that getting a PD should be based on your income and not if you have a cell phone, which is pretty cheap, or car insurance, which is required by law in most states. I don't know where you live, but there is no denying that some states are not interested in providing a defense for people and safeguarding their rights. As a veteran, you may be able to get some help from one of the various veterans groups. I'd reach out to them and see if anyone can help you out with legal aid. Try to see if there are legal aid groups as well.

As for your comment about law students, when I was in law school I spent the summer between my 1st and 2nd year volunteering to help out at the local PD. I spent most of my time writing Motions to Suppress Evidence (and actually won one, which is rare). Based on that experience, I learned 3 things:
1. I wanted nothing to do with criminal law
2. The PDs office is usually not filled with people who finished at the top of their class. That does not mean they were not dedicated, but it's a low paying job where you have insufficient funds and resources to really provide an adequate defense in most cases. The people I saw back then were all very frustrated. Some of them (not all in my view) where good lawyers but the deck was really stacked against them.
3. 99% of the people they defended were, without a doubt, guilty as sin and it must have been tough to muster up the strength to defend their rights day after day.

As for your situation, I have no idea what you were caught dealing or what the circumstances are. With or without a lawyer, my guess is you have 2 options:
1. get the evidence suppressed so there is not even a trial. This is probably impossible without a lawyer and improbable even if you do have one; and
2. Try to make a plea where you don't do jail time and can get your record expunged.

If this is a first offense and if you were caught dealing something like pot or even pills, the state most likely does not want you in jail. It's costly for them and doesn't help anyone. Add to that your a combat veteran who fell on hard times. You may be able to talk your self into some kind of probation where you record gets wiped clean after a period of time if you meet certain circumstances. Again, I don't know the details, but if it's a first offense, there was no weapon involved, you were not selling to high school students, you weren't smuggling stuff in, etc., you may be able to plea out something favorable.

But, call different veterans and legal aid groups before you give up on a lawyer.

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16-10-2011, 11:28 AM
 
RE: The adverserial "Justice" System
(15-10-2011 11:04 AM)Zatamon Wrote:  When it is not only permissible, but actually demanded of the defense and prosecution to argue in BAD FAITH, regardless of their personal opinion of the TRUTH, it is a sign of insanity, no matter what justification we use.

I underlined it, I highlighted it, I repeated it and will repeat it until the cows come home:

You can not discover truth by arguing in bad faith.


If you try to do it, you are certifiable in my own, humble opinion.
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16-10-2011, 11:38 AM
RE: The adverserial "Justice" System
I'm not sure what you are referring to with your comments on "arguing in bad faith". There is a lot of stuff that goes on on made-for-tv legal dramas but that's not real life.

As a secondary matter, you've still not answered my original question to you. You think the adversarial system is a bad system. Ok, fair enough. So, propose some alternative.

Shackle their minds when they're bent on the cross
When ignorance reigns, life is lost
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16-10-2011, 11:42 AM
 
RE: The adverserial "Justice" System
(16-10-2011 11:38 AM)BnW Wrote:  I'm not sure what you are referring to with your comments on "arguing in bad faith". There is a lot of stuff that goes on on made-for-tv legal dramas but that's not real life.

I spent several posts trying to explain it. I have nothing more to add.
(One hint though: an attorney is legally bound to represent the client's best interest, as opposed to representing the truth and society's best interest.)

Quote:As a secondary matter, you've still not answered my original question to you. You think the adversarial system is a bad system. Ok, fair enough. So, propose some alternative.

I will when I get around to it.

Till then...Smile
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16-10-2011, 06:36 PM (This post was last modified: 16-10-2011 06:39 PM by BnW.)
RE: The adverserial "Justice" System
(16-10-2011 11:42 AM)Zatamon Wrote:  (One hint though: an attorney is legally bound to represent the client's best interest, as opposed to representing the truth and society's best interest.)

Here is the problem I have with this comment: I'm an educated man. In addition to my college degree and my law degree, I also have a second Masters degree. All told I have almost a decade of higher education. I am also, of my own volition, a student of history and read as much of it as I can. I also read, on my own, the works of Shakespeare, I read philosophy, I read on science and am reasonably well versed in physics and biology.

And, with all my education and all my experience and all the knowledge I've gained as a lawyer, as a businessman, as a husband, a father, a son, a brother, a friend, and a member of a community, there is nothing so special about me or some sagacity that has been inferred upon me where I am in any way qualified to determine, all by myself, what is in society's best interest. I certainly have my own opinions as to what is in society's best interest but my opinions are no more or less valid than the opinions of anyone else. So, when you tell me that somehow my responsibility should be not to my client but to society as a whole, I'm not even sure how to respond to that. Oh, for the record, I don't have those types of clients. I'm not a litigator and never have been so I've no inherent conflict in this argument. I just wanted to make that clear. This is not about me preserving my place in the status quo.

Anyway, my own take is that societies best interests are promoted when individuals are able to push back on the state and require governments to prove their assertions and allegations, when individuals are in a position to challenge monolithic governments who can muster all types of forces against them, and when the rights of individuals are held out as sacrosanct, even when large numbers of a society may wish otherwise. Lawyers may cross the line at times, and the system does not always work. Sometimes the guilty go free but, to paraphrase an old sentiment, I'd rather have a system that allows guilty men go free if it prevents the innocent from being deprived of life or liberty. And, of course, sometimes innocent men are convicted and are deprived of liberty, and even life, when there was no good cause for it. It undoubtedly has happened; the system is not perfect.

There are changes and improvements that can be made to the criminal justice system to make it fairer, to take away the discrepancies between how the rich and the poor are treated, to eliminate some of the prejudices and to bring the rules of evidence and procedures inline with the 21st century. Things can absolutely be improved. That is a failure of men to make changes, for various reasons. The idea that those issues will go away is we move from an adversarial system into a system that considers the best interests of society and is not interested in "winning" the argument, that we will have greater justice if people representing defendants now have to consider "the greater good" is, in my mind, a fantasy.

I'm willing to be convinced, though, and am looking forward to reading about your alternative system.

Shackle their minds when they're bent on the cross
When ignorance reigns, life is lost
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