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November 27, 2010

"Presumed Guilty: Prosecutions without evidence"

The title of this post is the headline of this details special report that was recently published in the Cleveland Plain Dealer.  Here is how the report is previewed:

In the past decade, Cuyahoga County judges have dismissed 364 cases mid-trial because they said prosecutors failed to provide the most basic evidence to sustain a conviction.

The Plain Dealer examined those cases.  The judges' rulings indicate that county Prosecutor Bill Mason's office has pushed hundreds of marginal criminal cases to trial in the past decade.

The special report includes these articles, among others:

November 27, 2010 at 10:31 PM | Permalink


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Weak cases are legal malpractice. All costs and damages to the defendant should be assessed to the individual prosecutor. Appellate courts should be allowed to investigate the facts, and to dismiss cases on factual weakness. Then the costs should be assessed both to the prosecutor and to the judge of the trial.

The model of the criminal cult enterprise is the Inquisition, and it is on the witch hunt of the productive male. Torts are a substitute for violence. Prosecutors and judges have been granted absolute immunity from torts by the Supreme Court. That immunity is good moral and intellectualk justification for violent self-help by the innocent victims of prosecutorial and judge malpractice. While torts are a substitute, they are a weak substitute. This is especially weak if the payment comes from insurance. An ass kicking in street justice is best. To deter.

The Inquisition business lasted 600 years. It was quite robust. It ended when French Revolutionaries beheaded or expelled 10,000 church officials. Only mass physical retaliation can overcome the profits to the Inquisitors.

The defense bar owes its job not to the client, a fungible commodity, but to the prosecutor. The defense lawyer should be on the street justice list, too.

Posted by: Supremacy Claus | Nov 27, 2010 10:43:06 PM

This prosecutor practice generated massive lawyer employment based on bad faith, and the defense bar and judges said and did nothing. They collected their pay checks, just as the prosecutor did. That county, isn't it a Commie county? It should be sued along with all parties involved in a Constitutional tort aggregate claim. It will lose, because of Supreme Court enablement of this scam. But the parties should all lose their licenses. The state legislature should make whole the victims. All payment should be deducted from state subsidies to localities. Let the voters who elected these lawyers contemplate their costs the next time they are standing in the voting booth. .

Posted by: Supremacy Claus | Nov 27, 2010 10:55:21 PM

I am fortunate to practice in a jurisdiction where prosecutors are far more conscientious about which cases to bring to trial (law enforcement, not so much). Everyone makes mistakes, but by and large, they have no desire to indict someone simply because they can. However, many of my clients have prior cases from other jurisdictions that clearly were based on little more than a bare allegation. But many times they have pleaded guilty because, ironically, a guilty plea is a ticket to get out of jail immediately. So they take the deal, not realizing that the stupid, trumped-up case will later be grounds for an enhancement in their new, federal case. Unfortunately, judges, prosecutors, and probation officers are utterly deaf and blind to even the most compelling evidence that a defendant had pleaded guilty to a crime he didn't commit.

Posted by: anonymous | Nov 28, 2010 3:50:50 AM

"Unfortunately, judges, prosecutors, and probation officers are utterly deaf and blind to even the most compelling evidence that a defendant had pleaded guilty to a crime he didn't commit."

Of course you're right, anonymous, but how, it must be asked, could such a grim reality have emerged here in the "truth, justice and the American way" sloganeering capital of the world?

Posted by: John K | Nov 28, 2010 12:38:47 PM

There is some possibility this defect is not an anomaly, but endemic, and part of the nature of the trial process. The model is that of the Inquisition. It comes from a church, and is lawless in our secular nation. "You blasphemed by eating meat on Friday. You will be going to the stake. You may save yourself by donating your estate to the Church." Meanwhile, the sole real reason that eating meat on Friday is blasphemous is that the fishing industry paid off the church to adopt this doctrine.

The entire process from start to finish is a rent seeking scheme established in bad faith, for profit and power, not in any way to further the moral purposes of the church. We look down in amazement on both the charges and the truth finding methods of the Medieval period. Small problem, we are just as bad, incompetent, and self-deluding about the adequacy of what we do.

Posted by: Supremacy Claus | Nov 28, 2010 3:25:58 PM

I would like Prof. Berman to think about this situation, a bit more deeply. Then, it would be nice to hear his justification for excluding the prosecutor and judge from tort liability.

The sole product of the law is punishment. It fully qualifies for strict liability for its inherent dangerousness in ordinary use. However, liability should be softened to professional standard of due care.

Tort is a substitute for vendetta, street justice, and violence. It should motivate the provider to improve the product. And it is just fair. When the welder company harms someone, it is liable. There is no justification to immunize the prosecutor or judge. The welder's work is far more valuable to society, and it should be protected ahead of that of the lawyer. For example, the welder has to produce the product promised every time, before getting paid. The prosecutor addresses only 1 in 10 major crimes. Then the rate of innocence is unconscionable, as reviewed above. The prosecutor would be arrested if he were anything else, as a threat to public safety. Imagine a doctor who failed to help 9 of 10 patients, then operated on people who did not need it 20% of the time, the same with anyone else charging money for a service or product.

Posted by: Supremacy Claus | Nov 28, 2010 9:44:08 PM

Anonymous alluded to the question that first popped into my mind on seeing this post -- does the article address how many people likely plead guilty in cases with evidence as weak, or weaker, than the evidence in the dismissed cases? That seems like the underwater part of the iceberg here.

Posted by: Observer | Nov 28, 2010 11:15:03 PM

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