Blogo and the loophole of "double jeopardy".

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Blogo and the loophole of "double jeopardy".

One thing that has always bothered me about our court system is allowing a "non-decision" a "hung jury" to retry someone. I have never liked that.

Blogo is one example. But re-trying someone happens all the time with "hung juries".

I don't understand why that is constitutional.

I think the only instance a re-trial should be allowed is when the defense upon appeal shows a court that the guilty verdict had a flaw in the process.

But a "hung jury" is still a decision "we cant decide".

I find it nothing more than a loophole to allow government to keep coming after you when they were unable to prove you guilty.

I know that precedence has established a "hung jury" as not violating double jeopardy, but I have never been comfortable with it. It seems nothing more than a loophole to allow government do-overs.

I think the government should only be allowed one shot at it and "hung jury" should still count as the "one shot'.

To me this isn't about one case or one person, but long term what kind of society and government we want to live under. We have limitations on how long government can have to bring charges against someone to protect us from an over zealous government.

"Not guilty" in a literal sense does not mean they didn't do it, but that the court did not prove it's case. How is "hung" any different? If the court had proven it's case the verdict would have come back guilty.

The only time to me that it is acceptable to retry someone is when they have been convicted and a flaw has been proven in the process of that conviction.

I think it is wrong to give the government more than one shot when the jury did not come up with a guilty verdict.

"hung jury" to me is a loophole allowing "double jeopardy" to be pissed on.

Please don't bring up Blogo. He is just merely a title to draw you into the subject matter.

I am uncomfortable with allowing another trial after a jury has said to the court their case was not proven.

 

 

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for me the decisions should

for me the decisions should be guilty, not guilty or not proven guilty, the last one is important as if that is issued it would allow for retrial, I personally don't believe in just 2 options for trials, if the prosecutor wasn't able to provided enough evidence to conclusively convict the person due to missing evidence etc, but enough to cast doubt to give an innocent verdict then this should be an option, so that they can go after the person if more evidence comes up. However if the person is given a not guilty verdict then they should walk scot free, without the free of another trial.


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I hear you on that Brian.

I hear you on that Brian. Although my particular ax to grind is over the civil trial that sometimes happens after a criminal one. Basically, it sounds to me like: “We can't put you in jail but we can take away everything you have ever worked for and earned”. To my way of thinking, that is far more of the proverbial second bite at the apple than redoing a failed criminal trial is.

 

You see, while in jail or not in jail is a binary matter, there can be finer shades of meaning in the law than just that.

 

As an example, if through prosecutor incompetence, the govt. fails to make a case that the jury can find fact on, then they may vote to let the person go, even in a case where “everybody know he did it”.

 

Also, a jury has the power to refuse to convict despite the evidence at hand. This is fairly rare and kept even rarer by the fact that judges love to instruct juries that they are supposed to rule on the facts that have been presented. It does happen occasionally though.

 

Then too, don't confuse a hung jury with a mistrial. They really are different things.

 

A hung jury is where the vote is taken but it never comes out to a clear verdict. A mistrial is where the judge cancels the trial before it comes down to a verdict.

 

So technically, a hung jury is a form of mistrial. However, there are any number of reasons to declare a mistrial. For example, if the most damaging evidence against a defendant was obtained illegally and presented anyway, then the judge may have to rule a mistrial. In that case (at least in the US), the prosecution does not get to redo the trial because of the evidence fuck up and protection against double jeopardy.

 

A hung jury usually does provide a redo on the original trial under the assumption that the problem was with the jurors and not the litigants.

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I never said there were not

I never said there were not shades of gray. I know strictly from a precedence aspect retrying someone after a hung jury is legal, but to me, only as a loophole. It doesn't mean I have to like it.

It just seems to get around the concept of "you cant chase someone forever" that the Constitution's idealism sets up. I simply think once you start the process you have already started it and if you haven't proven your case you should not get another shot at it.

Again, that idea is to prevent government from harassing it's citizens indefinitely. I am strictly talking about allowing it as a concept, I am not talking about why it is allowed from a legal standpoint.

My objection to this hits home personally, not from any criminal charge. I don't have any felonies and haven't had a car accident, speeding ticket or parking ticket in 7 years.

I simply know what it is like to be falsely accused of something I know I didn't do. I had an entire private middle school, both teachers and students angry at me because I wouldn't confess to throwing a rock at a car, during a playground day for all the students. I was standing by myself and saw a car run over a small rock and the TIRE kicked it up and it hit the door.

The guy saw me standing next to the road and heard the ding and ASSUMED that I had thrown it. Because I didn't confess to it, and tried to tell the principle the truth, he took it out on the entire student body which in turn got all of them angry at me. It was a lynch mob and one that presumed guilt even after I told the truth.

That was a non-criminal event. It becomes even more important when a government threatens to take away your freedom. I think it is wrong for government to get a do over when they fuck up. Especially when a citizens freedom is at stake.

 

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Answers in Gene Simmons

Answers in Gene Simmons wrote:

I hear you on that Brian. Although my particular ax to grind is over the civil trial that sometimes happens after a criminal one. Basically, it sounds to me like: “We can't put you in jail but we can take away everything you have ever worked for and earned”. To my way of thinking, that is far more of the proverbial second bite at the apple than redoing a failed criminal trial is.

 

You see, while in jail or not in jail is a binary matter, there can be finer shades of meaning in the law than just that.

 

As an example, if through prosecutor incompetence, the govt. fails to make a case that the jury can find fact on, then they may vote to let the person go, even in a case where “everybody know he did it”.

 

Also, a jury has the power to refuse to convict despite the evidence at hand. This is fairly rare and kept even rarer by the fact that judges love to instruct juries that they are supposed to rule on the facts that have been presented. It does happen occasionally though.

 

Then too, don't confuse a hung jury with a mistrial. They really are different things.

 

A hung jury is where the vote is taken but it never comes out to a clear verdict. A mistrial is where the judge cancels the trial before it comes down to a verdict.

 

So technically, a hung jury is a form of mistrial. However, there are any number of reasons to declare a mistrial. For example, if the most damaging evidence against a defendant was obtained illegally and presented anyway, then the judge may have to rule a mistrial. In that case (at least in the US), the prosecution does not get to redo the trial because of the evidence fuck up and protection against double jeopardy.

 

A hung jury usually does provide a redo on the original trial under the assumption that the problem was with the jurors and not the litigants.

 

.

A retrial is no different than hitting reset on a video game. Why should the government be able to hit reset? Because it doesn't like the outcome? I think that is dangerous to freedom. If the court proves it's case the first time then the verdict is guilty, no need for a second trial.

And you already pointed out cases where a re-trial is ok to me and that is when upon defense  appeal to a court sees that somewhere in the process the defendant's rights and or the process was not properly followed. Any retrial should default to giving the defendant a do over, not the prosecution.

I think "hung jury" should be treated the same as "not guilty". Neither in a literal sense mean the person is innocent, it merely says the court did not prove it's case. If the state cant prove it's case then it shouldn't get a second shot at it.

And second chance should be afforded to the convicted to insure if a mistake was made in the guilty conviction, that it can be reversed.

 

 

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Quote:A hung jury usually

Quote:
A hung jury usually does provide a redo on the original trial under the assumption that the problem was with the jurors and not the litigants.

So? Again, if the state had "proven beyond a reasonable doubt" there would be no hung jury, the verdict would be guilty. Why should the state get a second chance at taking someone's freedom away the same charge they couldn't prove the first time?

Re trials are only acceptable to me when  the defendants rights have been violated or new evidence comes up that could free the convicted. I think it is wrong when the state does not come up with a guilty verdict and then wants a redo. The only party that should be able to ask for a redo is the defendant, not the state.

I wish the law language went more like this.

"The state proved its case beyond a reasonable doubt"

"The state did not prove its case beyond a reasonable doubt"

I simply see "hung jury" as the STATE'S, not the defendant's, but the States way of pissing on double jeopardy. I see it as nothing but a loophole the State uses because they didn't get the guilty verdict they wanted.

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US constitution wrote:any

US constitution wrote:
any person be subject for the same offense to be twice put in jeopardy of life or limb;

For double jeopardy to go into force, an acquittal must be made.

IMO, a judicial system that aims for anything less than "locking up ALL guilty parties" (not scapegoating or falsely identifying the wrong party, as in Brian's case) is a system that promotes vigilantism to the degree in which said judicial system has failed to bring criminal parties to justice. It's a controversial take, yes, but I also believe it to be an inevitable consequence of faltering justice.

“A meritocratic society is one in which inequalities of wealth and social position solely reflect the unequal distribution of merit or skills amongst human beings, or are based upon factors beyond human control, for example luck or chance. Such a society is socially just because individuals are judged not by their gender, the colour of their skin or their religion, but according to their talents and willingness to work, or on what Martin Luther King called 'the content of their character'. By extension, social equality is unjust because it treats unequal individuals equally.” "Political Ideologies" by Andrew Heywood (2003)


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Kapkao wrote:US constitution

Kapkao wrote:

US constitution wrote:
any person be subject for the same offense to be twice put in jeopardy of life or limb;

For double jeopardy to go into force, an acquittal must be made.

IMO, a judicial system that aims for anything less than "locking up ALL guilty parties" (not scapegoating or falsely identifying the wrong party, as in Brian's case) is a system that promotes vigilantism to the degree in which said judicial system has failed to bring criminal parties to justice. It's a controversial take, yes, but I also believe it to be an inevitable consequence of faltering justice.

We all know that. I am NOT talking about the way the law is currently set up. I am saying I see "hung jury" as a loophole.

Again.

"not guilty" is that acquittal. But as I said in the prior posts, "not guilty" does not mean innocent, it means the state did not prove its case beyond a reasonable doubt.

"hung jury" means the same thing to me, otherwise the verdict would have come back guilty.I don't think the state should ever get a second chance at prosecuting someone for the same charge when they did not get a guilty verdict.

"hung jury" is a loophole allowing the state to retry someone when they didn't get the "guilty" outcome they wanted  the first time.

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Tell me this much - have you

Tell me this much - have you ever heard of the term "jury nullification"? What does that mean to you?

Quote:

"hung jury" means the same thing to me, otherwise the verdict would have come back guilty.I don't think the state should ever get a second chance at prosecuting someone for the same charge when they did not get a guilty verdict.

"hung jury" is a loophole allowing the state to retry someone when they didn't get the "guilty" outcome they wanted  the first time.

Black n' white illustrations of common law look great 'on paper' but they don't hold up so well in practice. To me, your equating "not guilty" with a hung jury misses one giant pink elephant in the room; the need to isolate criminals from the general populace and protect civilians from them. This is particularly true in the case of violent felonies, sexual abuse crimes, destruction of property and theft, but also in the broader picture of society.

Brian37, you do NOT want to see a criminal justice system that has been effectively castrated, not because of the creeps and ne'er-do-wells going free, but because of how it would entitle the common masses to pursue a Dexter Morgan-like quest of "private justice".

“A meritocratic society is one in which inequalities of wealth and social position solely reflect the unequal distribution of merit or skills amongst human beings, or are based upon factors beyond human control, for example luck or chance. Such a society is socially just because individuals are judged not by their gender, the colour of their skin or their religion, but according to their talents and willingness to work, or on what Martin Luther King called 'the content of their character'. By extension, social equality is unjust because it treats unequal individuals equally.” "Political Ideologies" by Andrew Heywood (2003)


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Kapkao wrote:Tell me this

Kapkao wrote:

Tell me this much - have you ever heard of the term "jury nullification"? What does that mean to you?

Quote:

"hung jury" means the same thing to me, otherwise the verdict would have come back guilty.I don't think the state should ever get a second chance at prosecuting someone for the same charge when they did not get a guilty verdict.

"hung jury" is a loophole allowing the state to retry someone when they didn't get the "guilty" outcome they wanted  the first time.

Black n' white illustrations of common law look great 'on paper' but they don't hold up so well in practice. To me, your equating "not guilty" with a hung jury misses one giant pink elephant in the room; the need to isolate criminals from the general populace and protect civilians from them. This is particularly true in the case of violent felonies, sexual abuse crimes, destruction of property and theft, but also in the broader picture of society.

Brian37, you do NOT want to see a criminal justice system that has been effectively castrated, not because of the creeps and ne'er-do-wells going free, but because of how it would entitle the common masses to pursue a Dexter Morgan-like quest of "private justice".

Who wants to "castrate" keeping the bad guys in jail? Not me. I think we should have better tools to insure the quality of the charge so that there is no doubt.  I worry about abuse of government at the expense of our rights long term.

If you make your case right the first time and prove your case the first time and don't make any mistakes then the guilty verdict will be hard to reverse and will be rock solid.

I think it is much better to let the guilty go free than it is to put an innocent person in prison. I simply don't like the idea that the state can retry you when it didnt get the guilty verdict it wanted.

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Kapkao wrote:   US

Kapkao wrote:

 

US constitution wrote:
any person be subject for the same offense to be twice put in jeopardy of life or limb;

 

For double jeopardy to go into force, an acquittal must be made.

 

Actually, that is more wrong than it is right. An acquittal is a very public matter. If someone was acquitted and then retried UNDER THE EXACT SAME LAW, that would be double jeopardy.

 

For example, if a robbery went bad and someone was shot dead, the defendant could be charged separately for robbery, manslaughter and unlawful weapons possession. Those three charges can be heard all at once by the same court or in series under different judges and still not be double jeopardy.

 

However, if the defendant is exonerated for one of those charges, the prosecutor can proceed with the other charges fair and square. What cannot happen is that the previous charge be retried.

 

What does happen from time to time is that a person will be exonerated on a charge and then the state will pass a new law that he can be convicted of. Since it is a different law (even if the specifics are identical), that would not be double jeopardy.

 

It would however still be a violation of at least one and possibly two other stipulations of the constitution.

 

And ex post facto trial is one where you are charged with breaking a law that was not on the books at the time of the actual crime. Let's say for example that you dump some chemical down a sewer but it is not listed as a bad chemical at the time you do it. Two years later that chemical gets listed as bad.

 

In that case, they cannot go back and arrest you for doing something that was not a crime when you did it.

 

A bill of attainder is a law that was written specifically so that the state could “get you”. In this case, let's say that you actually did some real crime but the state does not have enough evidence to convict you. Then eight years later, they find the evidence. Well, too bad for them, the statute of limitations has expired. So they pass a new law that extends the statue of limitations.

 

Well, in this case, what you did was illegal when you did it, so ex post facto does not kick in here. However, they did pass the revised law specifically for you. No, they cannot do that. They have to pass a law for everybody. And because they passed the law the way that they did, they still have to give you a pass on the matter.

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So basically what I said

So basically what I said with added clarifications

 

Thx for playing.

“A meritocratic society is one in which inequalities of wealth and social position solely reflect the unequal distribution of merit or skills amongst human beings, or are based upon factors beyond human control, for example luck or chance. Such a society is socially just because individuals are judged not by their gender, the colour of their skin or their religion, but according to their talents and willingness to work, or on what Martin Luther King called 'the content of their character'. By extension, social equality is unjust because it treats unequal individuals equally.” "Political Ideologies" by Andrew Heywood (2003)


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If by “added

If by “added clarifications” you mean telling you that you were like 99.999% wrong, then yes, I added corrections.

 

However, if you meant that I specified why you were wrong and went into enough detail to show that you are posting from ignorance, then, um, well, You have no clue what you are talking about. You may stop for now.

 

Also, please refrain from voting.

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question???????

i have question.....what rights of mine have been violated, in 2005 i got arrested and did my time and paid my fine. well in 2006 i got arrested on all the same charges AGAIN!!!!!!!!!!!!!!    isnt that double jeoperty?

 


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jess wrote:i have

jess wrote:

i have question.....what rights of mine have been violated, in 2005 i got arrested and did my time and paid my fine. well in 2006 i got arrested on all the same charges AGAIN!!!!!!!!!!!!!!    isnt that double jeoperty?

 

did you commit the same offenses again?

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It's an old post, but worth a bite

Answers in Gene Simmons wrote:

If by “added clarifications” you mean telling you that you were like 99.999% wrong, then yes, I added corrections.

Histrionics makes it funny.

Yes, a person can be retried under different laws. Sorry I wasn't specific enough for your tastes...

 

Quote:
also, please refrain from voting

cute

“A meritocratic society is one in which inequalities of wealth and social position solely reflect the unequal distribution of merit or skills amongst human beings, or are based upon factors beyond human control, for example luck or chance. Such a society is socially just because individuals are judged not by their gender, the colour of their skin or their religion, but according to their talents and willingness to work, or on what Martin Luther King called 'the content of their character'. By extension, social equality is unjust because it treats unequal individuals equally.” "Political Ideologies" by Andrew Heywood (2003)


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Did you know that if you

Did you know that if you were tried and convicted at the local city level for say drunk driving and you agreed to say go for a year probation with drug testing and a rigorous regimen of AA classes.  The State can pick up your case and add more say take your license away and other things months after you have already agreed to your conviction at the local city level.  How is it that the State can just come in and say you were already convicted and add their own punishments just because they can.  The only reason I know this can be done is my friend just had it done to him.  He had already gone through court, lawyers agreed to his punishment the judge sentenced him and he was serving out his probation when the state came in and decided almost a year later to take his drivers license which of course he has to have to get to his AA classes and drug screens.  Now the state never even allowed him a day in court just did it.  Is this a type of double jeapordy or just a plain screwing because he doesn't have the money for a decent lawyer.  would like your opinion on this. 

 

 

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ReverendWillieg wrote:Did

ReverendWillieg wrote:

Did you know that if you were tried and convicted at the local city level for say drunk driving and you agreed to say go for a year probation with drug testing and a rigorous regimen of AA classes.  The State can pick up your case and add more say take your license away and other things months after you have already agreed to your conviction at the local city level.  How is it that the State can just come in and say you were already convicted and add their own punishments just because they can.  The only reason I know this can be done is my friend just had it done to him.  He had already gone through court, lawyers agreed to his punishment the judge sentenced him and he was serving out his probation when the state came in and decided almost a year later to take his drivers license which of course he has to have to get to his AA classes and drug screens.  Now the state never even allowed him a day in court just did it.  Is this a type of double jeapordy or just a plain screwing because he doesn't have the money for a decent lawyer.  would like your opinion on this. 

 

 

 

You do not have a right to a drivers license. A state can set whatever requirements it wants on drivers licenses and can take it away at anytime without legal proceedings for any reason. So it is not double jeopardy because the state is not "punishing" you it is simply revoking your right to a state issued license.


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 ReverendWillieg,   Can

 

ReverendWillieg,

 

Can you provide a location of the court and a case number so that I can review the files over the internet? That would really help to understand the specifics of the case.

 

That being said, even if you live in a huge city like New York of Chicago, you don't have “city courts”. The fact is that licenses to practice law are handed out on the state level. Since all judges are lawyers, your local judge is actually a state judge and the case was handled in your local branch of state court.

 

Really, you are aware that driving drunk is a violation of state law and not some local ordinance that can vary from town to town, right?

 

In any case, I can pretty much guarantee that your friend accepted a Nolle prosequi. Basically, the prosecutor offered him a deal to get out from under his stupid mistake.

 

The deal is that the prosecutor is willing to take an agreement that if your friend will abide by certain conditions (such as attending alcohol education, getting right with a substance abuse therapist and whatever else), the prosecutor will be willing to defer the actual trial until your friend can show the court that he is seriously sorry about what he did and will not be doing it again. If your friend actually did whatever the deal was for, then the prosecutor will drop the charges.

 

However, if your friend messes up again, then the deal is off and the prosecutor can resume the case. Generally, this is done with a delay factor of one year. If your friend was, say, 90% good with the law, the prosecutor might not be pleased but that would probably be close enough for him to hold to his end of the deal and drop the original charge.

 

Your friend may well have misled you when the law came down on him but what probably happened was that he did not follow through on the deal that he made with the prosecutor. The judge had nothing to do with this. In fact, he was never on probation in the first place.

 

To the extent that he violated the terms of his Nolle prosequi, he was still legally exposed to what was done to him because the judge never actually made an official ruling. When the time came for the judge to review the case and the prosecutor told the judge that your friend was not showing that he was working to get right with the law. At that point, well all bets are off and there is no issue of double jeopardy here.

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