Skip to main content

View Diary: AL lesbian viciously beaten by girlfriend's brother in horrific Thanksgiving Day hate crime (238 comments)

Comment Preferences

  •  Yeah, "not pressing charges" is so wrong on every (6+ / 0-)

    level.  A victim "never" presses charges, but the problem is that even the police use that language, not to mention it being common on every single police/legal procedural on the planet (and yes, despite being a lawyer, I love those shows, even the ones that butcher the law).

    Speaking generically and not as to this specific situation, it's shorthand for the police asking "If we send this to the prosecutor's office, do you want them to prosecute?  Will you show up as a witness?  Will you cooperate with the assigned attorney and any investigators?  In a setting where close personal relationships are at issue, are you prepared to move/disassociate yourself from the family member(s), acquaintance(s) or significant other(s)?"

    Sometimes, the decision not to prosecute is made by the police.  They have wide latitude to informally resolve all sorts of situations and, from what I've experienced, commonly do.  Loud argument?  Annoying stereo?  Gets the subject a warning unless the subject is engaged in other behavior.  Sometimes the decision not to prosecute is made by the DA because, perhaps while we wish the behavior was criminal, it actually isn't, or because of problems of proof.  For instance, if Alabama were to have had hate crimes laws for GLBT individuals (it apparently doesn't) even if circumstantially you and I feel safe assuming that it's a hate crime, if I were the prosecuting attorney, I'd also have to be able to prove beyond a reasonable doubt that the crime was motivated or otherwise fueled by, basically, homophobia (the actual language is denser and varies by state).  Common sense is greatly for daily life but common sense alone can't get you proof beyond a reasonable doubt.

    At any step in the process a victim can back out, basically telling the police or the DA's office that they won't or can't testify.  That doesn't just happen because of "bad" reasons - if I'm on a flight from here to Portland and I change planes in LA where someone steals a $20 from me, I am not inclined to fly back to LA to testify in that case.  It's just not worth it (unfortunately, this is a sort of Tragedy of the Commons - pickpockets flourish in tourist areas because of this - they may get arrested, but a conviction is rare if they keep to tourists only).  Other example - a dispute between neighbors or co-workers can escalate but then, cooler heads may prevail and, so long as nobody was injured, the police tend to walk away from those if it doesn't seem like Battle Royale will break out as soon as they leave.  Any of those situations would be reported in the newspaper as "not pressing charges."

    In the alternative, in some jurisdictions, the use of force or violence can, for policy reasons, take the decision out of a victim's hands and the police will file and the prosecutors will indict whether or not they think the victim will show up.

    So, yes, "not pressing charges" is one of the most useless, misleading phrases to ever enter into usage in North America.  And that's my rant.

    "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

    by auron renouille on Mon Nov 26, 2012 at 09:03:44 PM PST

    [ Parent ]

    •  Thanks for the long explanation. (3+ / 0-)

      I had a friend who was a prosecutor working in a sex crimes division and he said that there were many times that he personally believed the victim but couldn't prosecute because he felt there wasn't enough evidence to convict. Since I know him and we had a few serious discussions about this, I know he did not make that decision lightly. He was frequently quite torn up about the fact that it was so hard to get a conviction in these cases. It was eye-opening because I was coming at it from a feminist perspective and, I confess, thought that the reason rape was so infrequently prosecuted had to do with the fact that the police or the prosecutors didn't take it seriously as a crime. Now, I'm not saying this to dismiss anyone who themselves has had a bad experience with prosecutors. I'm sure that happens, so I'm not addressing any specific case here.

      Since you're a prosecutor, may I ask another question? Since the ability of the prosecutor to get a conviction is, I imagine, affected by the attitudes of the members of the community who are likely to make up a jury, what would you do if you thought personal prejudice on the part of the jurors was likely to influence the jury? That strikes me as being a possibility in this case.

      •  Well, actually, I do informal defense work for now (2+ / 0-)

        but I've seen things from both sides and will probably end up working on the state's side at some point.

        Every case has emotionally-charged issues in it.  Even in something like a DUI (which in my county is in practice the least-serious crime that you can get a jury trial for), voir dire - jury selection - takes up a large amount of trial time; a ten-hour DUI trial could spend 2-3 hours seating a jury.  There are a lot of questions out there that are asked to try to filter for people who have had experiences in life such that having them on the jury would make the whole exercise pointless.  But at the end of the day, judges don't want to spend a week on voir dire and lawyers have only so many peremptory challenges.  Every lawyer develops their own personal theory on when, how and even occasionally if to use them.  High-profile federal trials (and federal judges have much more time per case than state judges do) will go all-out and use the jury consultants you see on the TV shows.  The vast, vast majority of lawyers are left with their gut and common sense.

        On top of that, one thing that I've always felt is that we need to be realistic - we're not buying computers or carpenter nailshere.  Jury members come with past life experiences.  Sure, we can ask if they've been assaulted, do they know someone that's been assaulted, have they been a witness in a criminal trial, is their spouse a crisis counselor, all sorts of personal and really invasive questions, and that may pull people off the jury who are totally unable to listen to facts.  I once saw a juror member, an older Caucasian religious woman say something so outlandish that the room was left speechless, I think it was something patently ridiculous like wanting to execute - hang, in fact - all drinkers of alcohol or something like that (I live in a Mormon county).  Did she believe what she said?  Did she just want to go home early?  Fuck if I know.  But the judge was the first one to recover and quickly but politely excused her.

        At the end of the day, you're speaking to a bunch of humans, humans that only the really skilled trial attorneys can get a lot of non-verbal feedback from individually during trial, although it's a bit easier to get non-verbal feedback from the whole group en masse.  But really, you kind of have to either have faith in the system working or you'll stop coming to work each day.

        In this case?  If I thought that I had a jury of 75-year-old Southern Baptist housewives?  Emphasize the crime, emphasize the injuries and the wounds, get your facts in a line and your witnesses as prepped as they can be, and if hate crime enhancements were available here in state court (they're not), tread lightly and focus on the law here, try to stay as far, far, far away from "gay marriage" or other political issues, even if the victim's friends want to go there, and keep it simple (I've learned the hard way that your own witnesses can do far more damage to you than the other side's witnesses could dream of doing).  "Well, actually, Mr. Defense Attorney, now that you mention it, I remember that my husband had 12 Bloody Marys before driving home that night."

        Unless the prosecution has fundamental problems of proof here (e.g. because of circumstances they have trouble identifying any one family member as the assailant), I think that the injuries here make the state's case pretty straightforward regardless of whatever the assault charge turns into.  So long as they don't succumb to political pressure and charge attempted murder when the facts show that it was a heat-of-passion knock-down-drag-out fight (I'm not saying that's what happened, just that if that IS what happened, that's risky to over-charge).

        The hate crimes stuff can be harder, in my opinion, and that's where you need to at least try to identify with your jury and find something unifying about your community that others outside of it may not understand - I might, in a closing to those theoretical 75-year-old SBC members, allude to the persecutions faced by Christians in China in explaining why hate crimes laws are important in society and why it's their duty to protect a minority from their abusers.  It's the same as you can do in any sort of business requiring persuasion - get your audience to put themselves in your shoes or, here, the shoes of the victim.  After that, the facts either fit or they don't.

        Sadly, lawyers never let other lawyers on jury panels so I'll never see how it works but in federal court (which is not where I practice, but I've done a federal internship), lawyers regularly talk to jury panels after the fact with the judge present (some jurors often opt out).  A federal judge is the closest thing that we have in the legal community to a life peer so everyone is on their best behavior (in actuality, the legal profession is usually quite cordial and friendly).  In the post-trial talks that I've observed, I'd say juror members took what they had to do far more seriously than anyone expected; they noticed facts that only with hindsight I considered important that perhaps went unnoticed to all of us, and while we don't make it easy for jurors because of how difficult a federal verdict form is (in some ways, it's worse than doing your taxes), I always felt like there was a lot of buy-in on their part.  So while some of my longer-practicing colleagues are probably more cynical, I think that our system actually works most of the time.

        No system is foolproof, but - from both the prosecution and the defense's viewpoints - I suspect ours gets the right answer more often than not.  It's strangely comforting to me that when we get it badly wrong, it's major national news, be it the OJ acquittal or the recent wrongful convictions in the death penalty world.  That implies to me that, while every system can and should be improved, we're probably doing OK.

        "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

        by auron renouille on Tue Nov 27, 2012 at 09:43:45 AM PST

        [ Parent ]

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site