Our legal system is a bloated white elephant

[telewinz]

NOT an anti-lawyer thread.

Why do we need lawyers to defend us? The LAW is a fixture, a person either committed an illegal activity or he/she did not. An educated (in federal or state law) 3 judge panel should be abe to determine if a crime was committed, the proper defense, the unusual circumstances of each case (if any), fact from opinion, guilt or innocence, a just verdict, and sentence (if any).

A lawyer as often as not screws things up by poor research and a poor effort caused by the attorney's inexperience or a lack of money on the part of the defendant. Rich defendants on the other hand have often gotten off with no other damage except to their checking account. How often have judges sentenced a person simply because of a lawyer's poor defense or set a guilty person free because the courtroom was turned into a circus by the high paid lawyers or the prosecutor was only an average law student at a 2nd rate law school?

Just thing how stream-lined our justice system would become if we did away with courtroom lawyers? We would save millions of dollars now wasted on defense and prosecuting lawyers and their support staff. Just think, the average man would almost be equal to a rich man in the eyes of the law. Isn't that what was intended 200 years ago?

 

[WYO]

So you're advocating abolishing the current adversary system and the jury system with a 3 judge inquisition system? That sounds much worse than what we already have.

 

[Pilgrim]

Why do we need lawyers to defend us? The LAW is a fixture, a person either committed an illegal activity or he/she did not. An educated (in federal or state law) 3 judge panel should be abe to determine if a crime was committed, the proper defense, the unusual circumstances of each case (if any), fact from opinion, guilt or innocence, a just verdict, and sentence (if any).

I think the antics of the three judge panels of the Ninth 'Circus' Court of Appeals should be answer enough to your question. Turning the decision of guilt or innocence over to the judges would institutionalize justice and gradually evolve into a system of rubber stamp justice you and I would not be happy with. We already have enough of these decisions where people who use lawfully use a firearm to defend their lives and the lives of their families are punished because the firearm wasn't licensed or permitted by the political systems in power.

Without a jury system Randy Weaver and Kevin Harris would be rotting in prison for the murder of a deputy U.S. marshal.

I think before you advocate streamlining the criminal justice system, consider if you want those 'improvements' implemented if you are accused of a crime you didn't commit, or of a crime you were forced to commit to preserve your life or the lives of your family members. Would you have the resources while sitting in your jail cell to interview witnesses, examine evidence, talk to experts in the field, and prepare your defense so that you don't make critical mistakes prejudicial to your case in front of a three judge panel of 'experts' on crime and criminal justice procedure?

The conviction rate of most prosecutors is in the 90+% range. Do you want to risk your life and welfare going up against experts in the field of putting people in jail? Oh, did you really think that by doing away with defense attorneys the government would hire amateurs to prosecute you just to be fair?

Our jury system dates back to the Magna Carta in the early thirteenth century to correct abuses caused by a justice system that was in essence owned by the King. Don't be a hurry to reinstitute such a system.

Pilgrim

 

[Sarge111]

Where do you think...

judges come from?

 

[telewinz]

Our jury system dates back to the Magna Carta in the early thirteenth century to correct abuses caused by a justice system that was in essence owned by the King.

Small pox predates the Magna Carta, does that mean its OK? A panel of judges would have a very good chance of working out better than our present system with its PROVEN poor performance. Again, why do I need a lawyer to present the facts and circumstances? Who said no jury? I'm just saying no dead weight (lawyers).

The Federal Constitution was written as you know over 200 years ago. Something is wrong if I can CCW in Texas but go to prison in New York for doing the same thing. I didn't know freedom or rights were a regional thing that comes in different flavors. I guess you pick YOUR freedoms then move to that region of the country. Is that what our founding fathers had in mind? Yet that is the World we live in today.

 

[Dashunde]

Well... I think he has a few good points, particularly relating to a trial lawyer's ability to research and apply case history effectively.

It's been long known that our system falls bias towards money, but I for one, am happy to take my chances with the way things are. After all, most of us "average" American's do have an equal shot at fairness.

 

[telewinz]

Its matter of supply and demand, its easier to find a few educated, honest judges than it is to find alot of educated, honest lawyers.

 

[Waitone]

I am no big fan of what passes for the judicial system now days. It is however a sight better than what is in second place. What we have now has rather large warts on it face. Two of those warts are overreaching, overbearing, and unaccountable judges (at all levels) and attorneys who are interested in mining the system. Not all judges and attorneys qualify for my blast, just a few, but the damage and destruction they cause is profound.

That said I'm really happy with the jury system. Fact is I'd like it to expanded to say 15 to 18 jurors and I'd like to see every charge to a jury to include a section on Jury Nullification. The jury in our society is an incredibly powerful institution and I surely would not want to reduce it by handing its function over to a panel of overreaching, overbearing, and unaccountable judges.

We have societal trouble headed our way due to the de-industrialization of the US, the ruling classes' dismissive attitude toward illegal immigration, and land and water use regulations. I will add to the list a future revolt against the power our courts have. That particular rebellion take one step closer every time a judge issues a ruling attacking Americans or America.

 

[Cal4D4]

Go thru the two stages of small claims court some time as a primer on the judicial system. I doubt if you would ever suggest trial by judicial panel again. There is nothing in our legal system more arbitrary and capricious than the actions and opinions of a judge.

 

[El Tejon]

I believe they have this in the People's Republic of China. A panel of judges implements the law (the dictates of the CCP) and then a fair trial occurs.

tele, I'm confused. Please clarify your desire for me. You want the European/Chinese model of the judge (or panel of judges) as prosecution and trier of fact? Is there a jury or not? Who represents the State? Who represents the accused?

If no jury, what about the BoR? If no counsel for defendant, what about the BoR? How about the subsequent fallout, right to remain silent? separation of functions? Right to procedural due process? Right to cross examination?

It was never intended that everyone be equal. Only that due process be the same for all. Everyone has the right to self-defense, however it is inherently unequal as those that possess the means of self-defense and train continually are far more ready to exercise their rights. Same with Problem #2.

 

[mantispid]

All you really need to do to 'repair' a lot of the judicial system is to make Juries completely random. No selection allowed. If some jurors are biased, so be it.. they're part of the population. Bias is perfectly acceptable when it comes to representing a cross-section of the community.

Just make it so that if there are 3 hung juries in a row, it's an automatic acquittal.

I started a thread on the true power of a jury (when not stacked like they are these days). The link is here.

Another solution is to eliminate the Bar. Well, eliminate it as a requirement to practicing law. That would open up the field of legal counsel to competition, and would likely greatly improve quality and decrease price. Since passing the Bar is currently required by law, it creates a type of monopoly. Monopolies by government = bad.


An additional, more radical alternative, is to completely eliminate the criminal justice system, and instead handle everything through civil courts. In addition, create private work prisons that the convicted can select between. When the convict pays off the 'debt' to the victim (determined by judge or jury), the convict goes free and his rights restored. If the convict commits a major crime like murder, he's sentenced to a ridiculously high monetary amount, so never goes free. 90% of proceeds generated by the convict go to the victim or the victim's survivors. This is the system advocated by John Hasnas , Law Professor at George Mason University, and by Dr. Mary J. Ruwart. Interestingly enough they came to the same conclusion independently.

 

[TheeBadOne]

The legal system is a playground built by lawyers. "Build it and they will come". It's so complex that you need to hire a lawyer to do anything in it. That's why you have a country where the lawyer out number the doctors 10 to 1.

 

[7.62FullMetalJacket]

I think what telewiz is getting at is that the system of LAWS is so complicated that lawyers can not always competently defend. There are so many convoluted, conflicting and confusing laws.

Moreover, should not the law be such that the average man can understand it? Telewiz is stating the the system of laws should be basic enough for the average guy to defend himself without reliance on unknown quantities (incompetent lawyers). There are two faults with this argument: 1) Average Joe does not want to know the law or 2) the laws are so complex that even the lawyers do not understand them.

Further, how can the average man stay within the law if it is not understood? Case: Look at the AWB and attendent Exec Orders. How many questions cross this forum concerning what is and is not legal? Is the intent to make the average guy afraid of owning potentially outlawed firearms? I think so.

El T is right. Only due process is guaranteed. Like everything else, more money buys a more favorable outcome (some can afford a lorcin, and some can afford a real gun).

Juries? Absolutely. Inquisition panels? I think not.

Having blanket federal laws are scary. Competiition among the states promotes freedom. I get warm fuzzies regarding federal CCW, but then get cold thinking of federal gun-free zones, or federal assault weapon bans:banghead:

 

[Baba Louie]

Warning: Dead White Guy Quotes

The entire section below taken from:

http://etext.lib.virginia.edu/jefferson/quotations/jeff1520.htm

Trial by Jury

Trial by jury is another constitutional protection for the rights of the people. By assuring that the people themselves participate in the judicial process, governing authorities are prevented from unjustly prosecuting individuals. Trial by jury assumes that the people themselves are the best guardians of their own rights, and that they will release from custody any person unjustly charged. It also allows the people to make unjust laws of no effect with their power of jury nullification.
"I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." --Thomas Jefferson to Thomas Paine, 1789. ME 7:408, Papers 15:269

"[The people] are not qualified to judge questions of law, but they are very capable of judging question of fact. In the form of juries, therefore, they determine all controverted matters of fact, leaving thus as little as possible, merely the law of the case, to the decision of the judges." --Thomas Jefferson to Abbe Arnoux, 1789. ME 7:422, Papers 15:283

"With us, the people (by which is meant the mass of individuals composing the society), being competent to judge of the facts occurring in ordinary life, they have retained the functions of judges of facts under the name of jurors." --Thomas Jefferson to Pierre Samuel Dupont de Nemours, 1816. ME 14:488

"The following [addition to the Bill of Rights] would have pleased me:... All facts put in issue before any judicature shall be tried by jury except, 1, in cases of admiralty jurisdiction wherein a foreigner shall be interested; 2, in cases cognizable before a court martial concerning only the regular officers and soldiers of the United States or members of the militia in actual service in time of war or insurrection; and, 3, in impeachments allowed by the Constitution." --Thomas Jefferson James Madison, 1789. ME 7:450, Papers 15:367

"It will be worthy [of] consideration whether the protection of the inestimable institution of juries has been extended to all the cases involving the security of our persons and property. Their impartial selection also being essential to their value, we ought further to consider whether that is sufficiently secured in those States where they are named by a marshall depending on Executive will, or designated by the court or by officers dependent on them." --Thomas Jefferson: 1st Annual Message, 1801. ME 3:338


Jury Nullification
"It is left... to the juries, if they think the permanent judges are under any bias whatever in any cause, to take on themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges; and by the exercise of this power they have been the firmest bulwarks of English liberty." --Thomas Jefferson to Abbe Arnoux, 1789. ME 7:423, Papers 15:283

"If the question before [the magistrates] be a question of law only, they decide on it themselves: but if it be of fact, or of fact and law combined, it must be referred to a jury. In the latter case of a combination of law and fact, it is usual for the jurors to decide the fact and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact. If they be mistaken, a decision against right which is casual only is less dangerous to the state and less afflicting to the loser than one which makes part of a regular and uniform system." --Thomas Jefferson: Notes on Virginia Q.XIV, 1782. ME 2:179

"The juries [are] our judges of all fact, and of law when they choose it." --Thomas Jefferson to Samuel Kercheval, 1816. ME 15:35

"We all know that permanent judges acquire an esprit de corps; that, being known, they are liable to be tempted by bribery; that they are misled by favor, by relationship, by a spirit of party, by a devotion to the executive or legislative; that it is better to leave a cause to the decision of cross and pile than to that of a judge biased to one side; and that the opinion of twelve honest jurymen gives still a better hope of right than cross and pile does." --Thomas Jefferson to Abbe Arnoux, 1789. ME 7:423, Papers 15:283


sigh... eeerggh

Unfortunately, we've strayed too far from the Path set out by wise minds...
But what do I know?

Adios

 

[El Tejon]

I think 7.62 has it. I believe the blind hatred, jealousy, and bitterness that is manifested at lawyers [O.K., O.K. unless it is anger at me, usually by the young and nubile] is really a demonstration of frustration at the sheer volume of the law. Law for this, law for that, but little justice. More laws, less justice.

When I was a LEO and all this was orchard, my office was next door to a guy who had been at the office since 1978. My state issues mini-versions of the criminal code, the PAs give them to the coppers.

This guy had every edition sitting on a book shelf from '78 to the new '96 (this was in 1995). The editions got thicker and thicker with more and more laws. And every time you turn around someone is bleating "we need a law."

No we don't. We need self-control.

 

[M67]

El T.

You want the European/Chinese model

There is a European model?

In my country we had jury trials several hundred years before the Magna Carta. It worked a bit differently back then, there was no public prosecutor and no judge, just one person bringing a case against another. Each party nominated six jurors and these twelve had the opportunity to consult a "law sayer", someone who knew the law and could cite previous cases, as most of the law at the time was based on precedence. The jury then came to an agreement. The accused was not even required to show up, really - except that anyone who didn't show, lost the case by default...

All this is irrelevant of course, as people in those days believed in concepts that do not seem to be very popular nowadays, like honesty and such...

Today we have a jury system like yours with some differences. If the verdict is guilty, some of the jurors (I think three or four) are drawn by lot to join the judge(s) to decide the sentence. This is a fairly new thing but as far as I know it works well.

In addition we have a system with lay judges instead of a traditional jury, I don't know what to call it in English. I'm not a lawyer, so I don't know exactly when this system is used instead of a "regular" jury trial. Anyway, it can either consist of one professional judge and two lay judges or two professionals and three jurors. In either case the "mere mortals" outvote the judge(s), although the latter can call for a re-trial if they think that the majority have misinterpreted the law or made some other procedural mistake.

In both cases there are of course courtroom lawyers, both prosecution and defence.

Some people want to abolish the "traditional" jury in favour of the other system I described. Those lay judges are picked the same way as jurors so the aspect of being tried by your peers is still present. The main difference is that a traditional jury does not explain what they have discussed during deliberation or why they have reached a certain decision. So if a bunch of complete morons have reached a decision based on nothing but misunderstandings, no one outside the jury will ever know. In the other system the "jurors" serve as judges and all decisions, regarding both verdict and sentencing, are explained in detail in writing, so it is possible for others, as for example the defence counsel or the press, to review the decision-making.

I don't really have that much of an opinion in the matter myself, I don't know enough about the whole thing to feel strongly one way or the other.

My point, if I have one, is that there is more than one way to skin a cat.

El Tejon, just saw your last post as I was submitting this.
"And every time you turn around someone is bleating "we need a law." No we don't. We need self-control."
You know, you would make a lousy politician. And that's a compliment, in case you didn't get it.

 

[El Tejon]

M67, yes, it's European. Obviously not Norge or Ingerish, but continental.

Lousy politician? You bet (Ooooh, shake hands and kiss babies--I thought they said babes as in attractive young females). Last election in '98 brought only 11%. See what '06 brings.

 

[telewinz]

Having served on a jury and doing a complete 180 turn due to my experience, I have a GREAT amount of faith in our jury system. Problem is the jury is not informed of their power, in practice they are the "employees" of the judge and trial lawyers. Keep the jury, educate them on their real duties and replace the lawyers with a 3 judge panel that applies the law regardless of the defendent's wealth or lack thereof. Because this system is used in China or any other country should not be viewed as a strike against this "system". The rich are afraid of a real justice system, how else could they use their "hard earned" wealth to their advantage? Why its un-American M67's observations seem to indicate there is some worth to this idea.

 

[Waitone]

We have tee shirts saying "Molon Labe."

Any demand out there for a tee shirt emblazoned with "Ask Me About Jury Nullification !"

Wonder what would happen to the jury pool.

 

[telewinz]

If our legal system is "fair", who here believes M. Jackson will serve time in prison IF he's guilty. Gee, I wonder what M. Jackson could have that would sway our justice system to his advantage? Maybe he'd sing a song, yea that must be it.

 

[El Tejon]

tel, so the judges are the prosecutor and the defense attorney? How then is evidence presented? How is cross examination handled?

What about the due process right of impartiality??? Right of confrontation??? Right to counsel???

Why must we destroy the BoR?

If "the rich" are somehow exertiing undue influence over the criminal justice system now, how would your reform change that? Why and how is your reform "real" criminal justice?

Using your own Michael Jackson example, sentencing, if convicted, is up to the court. How would your "reform" change anything at all.

 

[telewinz]

The judges (3) ask the questions, decide on the best defense, determine what is factural evidence and what is not. They are neither for or against the defendant, they just insure due process and a higher degree of fairness. They would not be rewarded by the number or convictions they generate. We just get rid of the middle man, the trial lawyers. The police still investigate and the jury still determines guilt. The judges can be elected or appointed, either method has its advantages, either side can pick and choose to sit a jury and a panel of judges (within reason). The judges would have paralegal clerks to do the research and such for them just like a well heeled attorney. What addition fears could you have that don't already exist? The idea is to eliminate/reduce the undo influence (wealth) and uneven talent ([edited by moderator for bypassing word filter]) that has always plagued our legal system.

 

[7.62FullMetalJacket]

 

[telewinz]

 

[hammer4nc]

The idea is to eliminate/reduce the undo influence (wealth) and uneven talent (shi-tty lawyer) that has always plagued our legal system.

Big problem: presumably, these "judges" receive their paycheck from the state. Already a built-in conflict of interest, as they would be deciding crucial matters in "The State vs. John Doe".

Another problem: the workload for these judges (and staff) would determine how much time could be spent on each case. Just look at the disasters that have been made of State Child Protective programs in just about every state. Those programs have a "professional case worker" scenario, similar to what you propose. It sounds good at the outset, only their work load is so severe they're lucky to spend 15 minutes a month on any but the most outrageous cases. They falsify reports of home visits to meet quotas. Kids wind up dead for months or years, before the system even is aware of it!

While the current system has many flaws, your proposal might guarantee equal representation...only problem, it may well be equally sh-tty for erevyone.