h a l f b a k e r yWhy not imagine it in a way that works?
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Examples of entitlement abound in our society.
Two lawyers and a judge decide if a police officer's executive decision to arrest is legal.
Two generations of a family join forces to hide a betrothed's infidelity from a star-crossed suitor.
Drug companies and other advertisers enable
consumers with economic leverage to twist away needless and expensive treatments from hapless providers.
Auto mechanics and service techs wrangle over the best way to overcome a client's defense mechanisms in order to get a signature for car tinkering.
Casual acquaintances discuss their views on how their doctors are too stupid to see what's wrong with them.
Where is the logic in allowing groups of people to share an intangible quality such as ‘better hindsight’ and putting the minority power subject to that type of authority? Does anyone think that a couple of lawyers is smarter than a cop? That one's relatives will make or break a true love? That less money and better sleep is a motivator? That to choose the slower eye is wise beyond the power of the faster hand to deceive?
What I propose is a little like the ‘Devil's Advocacy’, in that whenever a court convened to determine the guilt of an accused party is turned from its arguments to decide a matter of procedure (e.g. "will make it difficult for a defendant to get a fair trial") the court must reschedule the defendant or witness or representative that is called to question and a proxy must step in to decide in like mind what such a challenge really means.
That way, questions of law would be settled by what is reasonable and proper considering the presumed innocence of parties to the case. Cases would have to conclude with a decision of guilt or innocence, rather than to conclude with a dismissal and a citation to precedence.
Many objections can be raised:
How can the accuser be replaced?
A. Sometimes they have been before the trial; if not, why must they be required to endure the whole trial. After all, who did this crime anyway?
Isn't this to deny an accused competent representation?
A. No, that would be unconstitutional. There must be multiple witnesses to any open and acknowledged act of stupidity to meet the Constitution's guarantees.
Can this be manipulated to ruin any chance of getting a fair trial?
A. In premeditation, manipulation is assured. Codefendancy offers the court a chance to premeditate its decisions with a defendant temporarily sidelined. A lucky defendant may see a defending attorney screw the pooch royally by way of a lame defense and be spared the penalty incurred; thereby, allowed to resume the active trial after it's facetious conclusion.
What about the profligate waste of court resources?
A. Whose court? The trade off comes by having one incarcerated or bonded defendant, and a cheap pool of available proxies. Trial may be longer, but appeals to present motions claiming errors at trial would be resolved more quickly. Many of these appeals would simply evaporate in codefendency arguments in the original jurisdiction, with the defendant held for trial locally. Fewer jailed appellants trying to backpedal out of stiff prison terms would be cared for at state or federal expense.
In summary, courts are filled with delays due to the influence of a flawed notion that a majority of opinions outweigh the determination of a minority joined in the decision. Due process guarantees serve to reinforce this inequity by inflating the importance of the majority position, implying that innocents must have their rights defined by having their crimes defined. Courts are therefore designed to define what is a crime; substantially, what is law. Because the US constitutions vests the lawmaking power in its legislative branch of government, the exercise of lawmaking in court is unconstitutional.
The only equitable means to free the minority representative from being exploited in court proceedings is to allow for codefendancy; hence, to give any accused the ability to see what the outcome of a legal proceeding will be if one's legal options are exercised.
The Anglosphere
http://www.samuelgr...me%2012/v12app2.htm
[reensure, Jul 23 2002]
The Russian Legal System
http://www.uoregon....jbonine/r-home.html
[reensure, Jul 23 2002]
Troglodyte
http://www.winterne...mikelr/flame39.html
[reensure, Jul 24 2002]
William Beggs Timeline
http://news.bbc.co....cotland/1593493.stm
About as sanitised a description of what happened as I can find, from the body being found to conviction. [calum, Jul 25 2002]
[link]
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You swallowed a Vernon pill? |
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(Btw, as far as I can understand it, this sounds like the old Russian system, recently scrapped in favor of the American approach.) |
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1. How is this proxy selected?
2. How can the independence of this proxy be ensured?
3. What do you mean by "in like mind"? In like mind to whom?
4. Do the lawyers for either side still put forwards their arguments for and against an interpretation?
5. As far as I understand this, you propose that questions of law (rather than questions of fact) be decided by and independent individual with (hopefully) certain expertise in the given area. Will there be appeals against the decisions of these proxies?
6. Have I completely misinterpreted what you have written? If so, please restate so that an eejit can understand. |
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"...Courts are therefore designed to define what is a crime; substantially, what is law. Because the US constitutions vests the lawmaking power in its legislative branch of government, the exercise of lawmaking in court is unconstitutional." |
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This part isn't true. I don't understand the rest of it. Are you saying you want to simultaneously run the criminal trial and all possible appeal trials? |
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I don't understand most of this either. Such a shame, with so many words, and it appears I'm not alone. |
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I do know this. Courts are not designed to define what is a crime. Courts simply make the determination whether a crime has been committed. The crime will have already been defined by the legislative branch of government, as you say. |
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At first read, I also disagree with your statement that "a majority of opinions outweigh the determination of a minority joined in the decision" is a "flawed notion". But I can't say for sure since it's not exactly clear what you mean by this. |
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¯calum: Thanks for bearing with me. |
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1. Jury duty comes to mind. (…always a bridesmaid…)
2. The proxy is there in body only. Independence is implied. The words of the proxy are delivered by counsel after communication between attorneys and their represented parties.
3. Words, oy. You could read, "In like mind" as "after a fashion" or "as styled".
4. That's the idea. Does the average troglodyte know about, care about, or really benefit from hearing how the way justifies the means? Not if three hots and a cot is the ultimate goal.
5. Yes, the accused simply denounces the proxied outcome and chooses trial by whatever other legal recourse is available.
6. Du hope, du hope … May your supporters all be smarter than you. ;) |
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¯phoenix: I'm squirming a little. It may not be true, but I'm pressing on the irony of due process, trying to show how the logic of trial structure seems to me to have been corrupted. Simultaneous trials and appeals - nearly. Appeals could not be exhausted prior to sentencing, as defined by the present system; I think, rather, to offer the accused a ‘preview’ of the outcome of appeals with an opportunity to retract the motion leading to the appeal. |
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¯waugsqueke: Does my reply to ¯phoenix restate my postion clearly? I would offer the same analysis to you regarding the role of the court -- my observation is that procedural twists in the trial process flirt with the possibility of creating a "greater crime" than the one being tried and in doing so give the court a mistrial. Codefendency in place would allow the full trial to proceed with the mistrial voided and the subsequent verdict of no force unless acceded to by the accused at the delivery of the verdict. |
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May I add that I could not have wished for a better reception? |
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You're advocating streamlining the process of:
technicalities in
technicalities out
So as to avoid:
conclusion of a case followed by immediate appeal where attorney states exact reason to an entry/exit of media rather than a judge and the courtroom s/he presides over.
trumps are for chumps
Q: When an appeal is filed based on those facts disclosed to the media with such immediacy, should the "discovery" of such findings on behalf of the appeal be introduced into court as evidence in some form?
How many appeals would be allowed above and beyond the scope of the proposed modification to proceedings? |
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I'm still not understanding this. Can you give a concrete example of the problem you're trying to solve? |
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¯thumbwax: It seems to me a bit unfair that the media can be granted access to information and in turn may publish or revise the information it receives while the court of original jurisdiction must publish its opinion in secret and that opinion cannot become the foundation of the hearing in the court of appeal. I think it serves no one to put forth that errors were made at trial and unresolved going forward, after motion and good cause were (allegedly) established. If the media publish these assertions as fact, they've said, “The trial was flawed. The court ruled without hearing the motions brought at trial.” I see it as an indictiment by the public of its own judicial system, and an unfair characterization. The parties at issue haven't proven anything, but they should -- before they're allowed to leave. |
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¯bookworm: A woman in custody appears in court and remains in the holding area while a hearing to determine the dispostion of her assets is held in the closed court. The case is decided so that she is not happy with the orders her judge issues. Because no ‘friendly’ family could be present to make her wishes known, the court rules independently of her wishes under advisement of counsels for all parties and certain ‘unfriendly’ family members. |
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Some weeks later, and after considerable inquiry, the woman learns that she may make motion to the same court for to be heard. She files a writ alleging that her representative wanted for her what her opponents wanted, and the writ is denied on the basis that she is not materially worse off at present than on the hearing date. |
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This was a creative invocation of a proxy, and solved the problem of the woman who refused to see the empathy or altruism of others as being in her best interest. |
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Court of public opinion is manipulated by these types of attorneys and media. Rather than handle it in the here and now, these types of attorneys milk the $ystem for fame and fortune. Per media itself, instead of jumping on the bandwagon - they don't have the balls to say - "This chump attorney took advantage of the system for his/her own gain for all intents and porpoises - not much different than the scam we'll be telling you about in our consumer segment - next up, the weather."
<oversimplification>because they do everything they can to protect themselves when it comes to freedom of the press, by continually increasing the size of the crack they can fall through, all the while trying to increase their ratings > revenue - much the same as the attorney him/herself.</oversimplification>
In this scenario, these types of Attorneys and Media are codependent codefendants. Eliminate the media for a moment (Oh Gawd, if only a moment could be much, much longer) - The crux of what I'm driving at is this annotation which closed your comment //The parties at issue haven't proven anything, but they should -- before they're allowed to leave.//
Bingo - but they make the choice not to, so as to further the debt owed them and the debt society pays to incarcerate their clients. |
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OK, I think I have the general idea: to deal with technicalities (including matters of scope and definition of a law) as they arise, so that the trial can continue once the technicality is settled, thus reducing the need for lengthy appeals on, for example, procedural grounds. That much, I think I understand. But I have one more question, pertaining to how this works: |
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I'm still not sure on the role of the proxy. In your idea text you say that the proxy is called in to decide what the meaning of the law is but in answer to my Q2, you say that the proxy //is there in body only//. Does the proxy decide the issue at hand (like a one man jury deciding the guilt or innocence of a defender) or is the proxy merely a "place marker" for the //defendant or witness or representative//, allowing legal points to be settled by the judge without prejudice to the absent party? |
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[I'm not sure if I'm qualified to discuss the media-manipulation argument here as I live in a country where there is a very different relationship between the law and the media, so I'll steer clear of it.] |
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calum, in a nutshell - what is that law/media relationship like in Scotland? Might provide an unexpected tangent/insight to this discussion. My elf prefers terms point/counterpoint as opposed to argument, unless dealing with trolls. |
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The general relationship is one of mutual distrust. We don't allow TV cameras in our courtrooms (though there was a pilot experiment/show a couple of years ago where proceedings in the Sheriff Courts [criminal courts of first instance] were televised. It was not popular with the Law Society or the viewing public) and with few exceptions, lawyers are reluctant to engage with the press beyond issuing the usual dispassionate statements. |
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One recent illustrative example (see link): a man fled to Holland after a warrant for his arrest in connection with a very grisly murder was issued. The media acted as judge, jury and executioner and found him guilty before he returned to the UK. At his extradition hearing, the suspect argued that the media coverage would prevent him from getting a fair trial in Scotland. This was rejected out of hand and the trial proceeded as normal. The legal profession's attitude to the fourth estate oscillates between disdain and contempt. |
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¯calum: Yes. re: / ... "place marker" for the //defendant or witness or representative//, allowing legal points to be settled by the judge without prejudice to the absent party? ... / . |
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Aha. Now I see. To a certain extent, this already happens in the UK in relation to European Community and European Convention of Human Rights issues. If a question pertaining to interpretation of a Treaty/Convention right arises, the domestic court can make a request for a "preliminary ruling." This request (but not the whole case) goes to the Court of Justice/European Court of Human Rights who decide the interpretative issue (but not the case), this decision is passed back to the domestic court, who then continue the case with as normal, armed with this new definition. This can take a while but it means that the Treaty/Convention has consistent interpretation across the member states *and* that the affected parties have their case decided on the correct basis. |
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I know that in the above system is not as you describe -- the decisions are not taken by the court in which the issue arises -- but, with respect, I prefer it to your proposal because (a) it ensures consistent interpretation, (b) it eliminates appeals on points of interpretation as there is no higher court in the field of community law/human rights and (c) it is a good deal quicker than having the point of law decided by the domestic court and then subject to a lengthy and expensive series of appeals. |
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Would it be possible for such a mechanism to be put in place in the US legal system (of which I know nothing)? |
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¯calum: The US does allow rulings to be made before the trial court convenes. These are called "summary orders" and are an option to all parties that might otherwise face a longer schedule of temporary orders and the attendant discovery process. Parties may request a summary order from the bench on procedural questions and if agreed to then the judge sets the trial schedule. The judge may reserve the right to file an opinion; if the summary order is challenged, the judge's opinion becomes part of the trial record. |
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:-) I truly feel that questions about the conduct of parties before the court should be answered outside the court. If answers obtained outside the court have a material effect on the outcome of a case, then a proxy case is made and settled prior to citing any rule of law in the original case. Appeals are voided on that issue, and the affected party may choose to resort to the proxy definition or to withdraw the motion that led to the codefendency contest. |
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It seems from what you have written that your idea is less about delays over interpretation than it is about delays caused by extra-court actions of the parties and their representatives that may have an effect on the case at hand (i.e. contempt of court, plea in bar of trial like in the William Beggs case, confict of interest on part of the judge). As a means of avoiding retrials due to these procedural hiccups, your idea appears sound. A tentative croissant. |
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