News From Across the Pond

With cause, Gideon likes to quote this passage from Justice White's* opinion for a unanimous court in Coffin v. United States.

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, "a passionate man," seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, "Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?" to which Julian replied, "If it suffices to accuse, what will become of the innocent?" Rerum Gestarum, L. XVIII, c. 1.

White relates that story as he's tracing the genesis and history of the presumption of innocence.  He goes on to cite Fortescue.

Indeed, one would much rather that twenty guilty persons should escape the punishment of death than that one innocent person should be condemned and suffer capitally." De Laudibus Legum Angliæ, Amos' translation, Cambridge, 1825.

And then, of course.

Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem.

These are bedrock principles of Anglo-American jurisprudence. Their heritage predates the republic, predates Blackstone, predates even the Emperor Julian.**

Except, well, bedrock legal principles designed to protect the innocent have a way of turning into quicksand.  Oh, sure, our institutions pay verbal obeisance to the idea that it is more important that innocence be protected than that guilt be punished.  But for all you'll hear about reconciliation and forgiveness, and for all I imagine he'd deny it, in practice our system reflects the attitudes of Bill (hang-'em-high) Otis a whole lot more than it does the attitudes of Helen Prejean.  Consider that in poll after poll, some 60% or more of the population believes that some number of factually innocent people have been executed and that others will be but that some 60% or more of the population thinks we should have the death penalty anyway.

Another of those supposedly bedoock principles is explicitly mentioned in the Constitution (as amended).

No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.

That's the Double Jeopardy Clause of the Fifth Amendment.   It embodies, the Supreme Court tells us, three protections.

• A person can't be tried again for an offense after being found not guilty.
• A person can't be tried again for an offense after being found guilty.
• A person can't be punished for the same offense more than once.

All that seems clear enough.  Alas, it bears little relation to what happens day to day in our courts.  Hell, the same Supreme Court that regularly identifies those protections routinely tells us that this or that one doesn't apply because, well, it doesn't.

The simplest example is what they call the We Can Do Whatever We Want Dual Sovereignty Doctrine which says that the feds (or another state) can try and convict and punish you for a crime regardless of whether you were tried and acquitted or convicted and punished for the crime in state court.  But really there are a whole bunch of other circumstances in which a person can be tried more than once for the same crime.  Just ask Curtis Flowers who's on death row in Mississippi now following his sixth trial for the same offense (an offense, I should add, that he insists and has always insisted he did not commit).

Anyway, the point is that we have this institutional idea about how a system should work and about the importance of innocence that says the government only gets one try and really does have to provide proof beyond a reasonable doubt because the risk of some guilty person walking free is worth it to ensure that innocent people will not be convicted.  Of course, it doesn't work all that well as we know (if we're honest about it) that a hell of a lot of factually innocent people are convicted of crimes.*** And, sadly, we don't actually want it to work all that well.

I mean, really, stop people on the street and ask if they'd be OK with some child molester going free if it meant that a few innocent but accused child molesters would also go free.  (Of course, you'd have to get past the initial reaction that nobody who's accused is in fact innocent.)  Check with Nancy Grace.

Despite that, despite what they've done to Curtis Flowers, despite all the folks who actually did get tried twice or thrice or whatever even though the state didn't manage to prove them guilty and who did get punished multiple times for the same crime and who . . . .  Despite all that, we've got the limited but real protections of the Double Jeopardy Clause.  The key, the most solid protection of which, is that first one above, that if a person is found not guilty, he can't be tried again.  At least not of the same charges in the same jurisdiction.  The accused can appeal a guilty verdict.  The state can't appeal a not guilty.  

And there's more.  The state can't (this is theory more than practice, but still) introduce evidence that the accused is a bad person in order to convince the jury that he must have done whatever.  Prior bad acts (which is what they're called in the legal biz) are admissible for many purposes, but not to show that if she did it before, she's surely likely to have done it this time.

And if we didn't have those protections (however limited they really are), can you just imagine?

Harbinder Khatkar

Actually, you don't have to imagine.  Just look across the pond.  That's where you'll find Harbinder Khatkar who's doing life (or at least 14 years - don't ask me, I don't practice law over there).  From The Guardian.

A violent rapist has been jailed for life after a landmark legal ruling in which his original acquittal for the offence was quashed by the court of appeal.

Harbinder Khatkar, from Derby, has been ordered to serve at least 14 years after being convicted of offences committed in December 2011 and February 2013.

The 37-year-old attacked six women on 2 February this year - less than six weeks after a jury acquitted him of an earlier rape in which he forced his way into the victim's home.

Following Khatkar's arrest for the later offences, the CPS successfully sought permission from judges to retry him by arguing that his subsequent crimes were so similar they amounted to new and compelling evidence of guilt.

If it's so, Khatkar is a legitimately bad dude who's done a shitload of terrible things and continued to do them after he was acquitted.  But rather than try him for the new stuff (though I suppose they might have done that too), they just doubled down.

Speaking on the BBC Radio 4 Today programme, Alison Levitt QC, principal legal adviser at the CPS, stressed that the "exceptional power" to quash acquittals had been used sparingly since its introduction eight years ago.

Levitt said: "In 2005 the law was changed to allow what is called bad character evidence, which is evidence that somebody has done something so similar or of the same type of offence on another occasion.

"It's a very exceptional power.

"When something has gone wrong and the evidence is strong enough, as we said it was in this case, it is only right that we should use it."

You know, there's this whole idea the Republicans (and especially the Tea Partiers) emphasize that the government can't be trusted.  Except, of course, when it comes to prosecuting people.  Then we can trust them. Never to abuse the power.  And never to make mistakes.

If The Guardian story is right and they've tried this only rarely in Britain, well, good for them.  But we know what happens once a small breach occurs. Now that they see it works, they'll do it again.  And again.

And all those folks who say that we should never look at foreign law will be lining up.

Salivating.


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Edward Douglass White

*No, not Whizzer White.  Associate Justice Edward Douglass White.  The, er, distinguished looking dude on the right.





**You won't do better if you really want to trace it than to read Alexander Volokh's law review article, n Guilty Men. (H/t to Greenfield for pointing me to it a couple of years ago.)

***I'm not just talking about the ones doing life or death for murders and sex offenses, though there are plenty of those.  I'm talking about the ones who plead guilty because the deal is too good to take a chance on trial and the ones who plead guilty because they've already served more than the maximum they could get but they couldn't bond out because they were too poor and the ones who . . . .