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Forum: Old Message Board
Thread (Discussion): "no" means "no"...or maybe "more wine?" - Re:
Message 118093
"no" means "no"...or maybe "more wine?"
Posted by x_simon
on Oct 12, 2003 03:58 PM | Also by x_simon
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http://slate.msn.com/id/2089687/
"No means no" is still a pretty good rule.
By Dahlia Lithwick
Posted Friday, October 10, 2003, at 3:12 PM PT
In a preliminary hearing this week in Eagle, Colo., the details of Kobe Bryant's alleged rape of a 19-year-old woman were recounted on the stand. Bryant's accuser, speaking through the police detective who met with her after the alleged assault, indicated that she said "no" at least twice over the course of the encounter. Today, Gregg Easterbrook suggests that the problem is that the word "no" is just not strong enough to signal that a rape has taken place. Why? Because, according to Easterbrook, "no" has come to mean "yes." As he observes (doubtless with the empirical evidence to back it up), "Maybe half the sex in world history has followed an initial 'no.' "
I'm guessing it's closer to 80 percent, but that still makes it rape, doesn't it?
Why is this? "Because," according to Easterbrook, "men know this—because in the real world 'no' does not always mean no." Sometimes, he goes on, "no" just means "not now, but maybe after more wine." His suggestion? Since the word "no" has lost all social and legal meaning, we should raise the bar a little and require women to say, "This is rape." That, according to Easterbrook, would stop all but the most callous rapists in their tracks.
It's tough to figure out when a rape has occurred, says Easterbrook, so let's put a heavier burden on women to clarify things.
Here's what Easterbrook's suggestion ignores: Once upon a time the word "no" had social meaning, too. It didn't lose its social meaning because the word "no" is ambiguous. (If someone asks to borrow my Honda and I say "no," it's clear I haven't consented.) The word "no" has lost meaning because in this situation we choose to ignore its directive to desist. So, why would we possibly take "This is rape" more seriously? Easterbrook suggests that the very word "rape" would chill any sentient man. Maybe for a year or two, until "This is rape" becomes subject to the same social forces that suggest to Easterbrook that "no" merely means "try harder."
Soon there will be Harlequin Romances featuring heroines in heaving bodices breathing, "But Sir ... This is rape," just before being delightedly ravished. Soon, "Oh baby, this is rape," will be the answer to "Oooooh, talk dirty to me."
The problem is not one of nomenclature. Words signify concepts and "no" still signals the concept of non-consent, for 100 percent of the world's English-speaking population, 100 percent of the time. The problem, as Easterbrook illustrates, is that we keep perpetuating stereotypes in which men are cast as ravening beasts and women are cast as confused madonna/whores. The word "no" isn't the issue. The fact that men (and some women) still think "no" means "yes" is. We already put the burden on women to say "no," which is complicated enough. (I don't have to say "no" when someone steals my car keys.) Now Easterbrook wants them to have to say, "This is rape," a sentence virtually impossible to utter unless you are truly being violently forced by a maniac. It's tough enough to say "no" in a fraught and nuanced sexual encounter. But Easterbrook wants us to have to read the guy's Miranda rights.
Saying "This is rape" instead of "No" bizarrely asks women to be even less precise than the status quo. It may not be rape. It may just be yucky sex. Why do I have to call it rape just to get it to stop?
It's not the place of the criminal legal system to resolve age-old ambiguity in sexual language. The criminal law exists to punish criminals. Books like "Men Are From Mars, Women Are From Venus" exist to resolve age-old ambiguity in sexual language, and it's not clear that's working all that well, either. So, let's not make our rape laws the social laboratory for fixing human communication. And let's not make it harder to convict rapists, just so that men and women can say we understand each other a bit better.
The law is perfectly clear: When a woman says "no," even — take note, Kobe's lawyers — after 5 minutes of necking, she really means no. If Kobe, or Easterbrook, or any other man chooses to hear "try more wine," then by all means, bring out the Chianti. But if a man chooses to hear it as "forge ahead, and force me, I may just be kidding," then he'd best be prepared for the consequences. The notion that men are hard-wired to dominate and overcome ambivalent women stopped being cute about 10,000 years ago.
Is sexual conversation confusing? Yes? Is it frustrating? Maybe. Should we change laws because women are conflicted and men are horny? No.
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Message 118098 (In Reply to Message 118093)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_SurvivorForeve
on Oct 13, 2003 02:19 AM | Also by x_SurvivorForeve
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simon wrote:
>
> http://slate.msn.com/id/2089687/
>
> "No means no" is still a pretty good rule.
> By Dahlia Lithwick
> Posted Friday, October 10, 2003, at 3:12 PM PT
>
> In a preliminary hearing this week in Eagle, Colo., the
> details of Kobe Bryant's alleged rape of a 19-year-old woman
> were recounted on the stand. Bryant's accuser, speaking
> through the police detective who met with her after the
> alleged assault, indicated that she said "no" at least twice
> over the course of the encounter. Today, Gregg Easterbrook
> suggests that the problem is that the word "no" is just not
> strong enough to signal that a rape has taken place. Why?
> Because, according to Easterbrook, "no" has come to mean
> "yes." As he observes (doubtless with the empirical evidence
> to back it up), "Maybe half the sex in world history has
> followed an initial 'no.' "
>
> I'm guessing it's closer to 80 percent, but that still makes
> it rape, doesn't it?
>
> Why is this? "Because," according to Easterbrook, "men know
> this—because in the real world 'no' does not always mean no."
> Sometimes, he goes on, "no" just means "not now, but maybe
> after more wine." His suggestion? Since the word "no" has
> lost all social and legal meaning, we should raise the bar a
> little and require women to say, "This is rape." That,
> according to Easterbrook, would stop all but the most callous
> rapists in their tracks.
>
> It's tough to figure out when a rape has occurred, says
> Easterbrook, so let's put a heavier burden on women to
> clarify things.
>
Maybe they will be able to tell by the 6 inch tear in her vagina. Injuries like this are caused only by force.
Survivor
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Message 118125 (In Reply to Message 118093)
well considering.
Posted by x_HPierce
on Oct 13, 2003 08:25 AM | Also by x_HPierce
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Considering that any weak response from a female can be taken as meaning 'no' then I agree, it is time that if a women means no she should say 'no, this is rape'.
I don't think it should have to come to this but rape has been watered down to include actions that aren't rape, so for protection on either side there needs to be a clear signal that the person fells the actions are rape.
H. Pierce (proud pedosexual)
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Message 118138 (In Reply to Message 118093)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_orolan
on Oct 13, 2003 10:14 AM | Also by x_orolan
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Good article.
But it does nothing to solve the other "age-old" dilemma of how to achieve justice in a "her word against his word" situation, one where the jury predominantly will side with "her".
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Message 118150 (In Reply to Message 118125)
Re: well considering.
Posted by x_marta
on Oct 13, 2003 11:08 AM | Also by x_marta
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H. Pierce wrote:
>
> Considering that any weak response from a female can be taken
> as meaning 'no' then I agree, it is time that if a women
> means no she should say 'no, this is rape'.
How about if no just continues to mean no - as it does for EVERYTHING else, and the men in question start assuming the widely accepted definition of the word? Most men don't have a problem with that. And ultimately what would it mean anyway? A delay in getting some tail? I think that's worth saving one's own, but apparently some people are incapable of controlling themselves for self-preservation's sake.
> I don't think it should have to come to this but rape has
> been watered down to include actions that aren't rape,
I agree, but what do those cases have to do with a case where a woman says no?
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Message 118164 (In Reply to Message 118138)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_marta
on Oct 13, 2003 04:36 PM | Also by x_marta
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orolan wrote:
>
> Good article.
> But it does nothing to solve the other "age-old" dilemma of
> how to achieve justice in a "her word against his word"
> situation, one where the jury predominantly will side with
> "her".
Your proof for your assertion that juries predominantly side with women in such situations? It's not that I don't believe it's possible that's the case, but I'd like to see some data on it.
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Message 118173 (In Reply to Message 118164)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_orolan
on Oct 13, 2003 07:13 PM | Also by x_orolan
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No "hard" data at the moment, but I'll give you some food for thought while I track some down.
"But this type of evidence is commonplace in all sorts of cases. The spread of DNA analysis has exonerated many convicted rapists who had been wrongly identified by victims. Of 108 post-conviction exonerations by DNA identified by the Innocence Project at the Benjamin N. Cardozo School of Law, some 97 involved sexual-assault and rape charges, and most of these convictions hinged on faulty eyewitness testimony."
"What makes eyewitness identifications especially mischievous is that they are not only often inaccurate, but usually they can be quite convincing to juries, regardless of their veracity. One of the most powerful forms of evidence a prosecutor can deploy is a person who was at the scene of the crime, who will point to the defendant in court and say, "That's the man who did it." Juries often believe such witnesses even when loud alarm bells are warning them away. After a woman was raped in her New Jersey apartment in 1992, the victim couldn't find her assailant in police photos. But eight months later, she saw McKinley Cromedy on the street and implicated him--even though she had passed him over in the original photo lineup. Fingerprints from her apartment didn't match his; neither did hairs or blood samples recovered by police. He was convicted anyway and sentenced to 60 years in prison, five of which he served before a DNA analysis cleared him."
"Robert Nasuti was convicted in Dover on the testimony of a 13-year-old who claimed she remembered this man assaulting her while babysitting when she was three years old. This master sergeant in the U.S. Army and father of three was convicted in spite of the fact the girl's own parents testified he could not have been babysitting as he was working the same shift at the same factory as them."(OK, not a rape case. But the theory is the same)
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Message 118188 (In Reply to Message 118164)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_losttime
on Oct 13, 2003 08:29 PM | Also by x_losttime
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This data is from the USDOJ.
http://www.ojp.usdoj.gov/bjs/pub/pdf/soo.pdf
Figure 12 on page 18 shows that of the men arrested for rape in 6 states in 1990, 20% were not prosecuted, 29% had their charges dismissed, 48% were convicted, 2% were aquitted and 1% fall into an "other" category. To talk about juries siding with either side, only contested cases are relevant. They report that 80% of the convictions were by guilty pleas. That leaves 20% of 48% = a little over 9% convicted in trial. 9% convicted to 2% acquitted is a fairly large lopside in favor of the plaintiff. BUT, you still can't draw any big conclusion as it does not break down the cases into types. There is no way from this data to know what evidence was presented at how many of these trials. It is entirely possible that the 2% aquittals were all he said/she said and the 9% trial convictions had better evidence. It is equally possible, and in my opinion likely, that the ones with good evidence were the ones that plead guilty and that the 11% contested cases probably had lower amounts of evidence. From everything I've seen and heard, slam dunk cases don't go to trial.
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Message 118192 (In Reply to Message 118173)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_marta
on Oct 13, 2003 10:13 PM | Also by x_marta
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orolan wrote:
>
> No "hard" data at the moment, but I'll give you some food for
> thought while I track some down.
>
> "But this type of evidence is commonplace in all sorts of
> cases. The spread of DNA analysis has exonerated many
> convicted rapists who had been wrongly identified by
> victims. Of 108 post-conviction exonerations by DNA
> identified by the Innocence Project at the Benjamin N.
> Cardozo School of Law, some 97 involved sexual-assault and
> rape charges, and most of these convictions hinged on faulty
> eyewitness testimony."
>
> "What makes eyewitness identifications especially mischievous
> is that they are not only often inaccurate, but usually they
> can be quite convincing to juries, regardless of their
> veracity. One of the most powerful forms of evidence a
> prosecutor can deploy is a person who was at the scene of the
> crime, who will point to the defendant in court and say,
> "That's the man who did it." Juries often believe such
> witnesses even when loud alarm bells are warning them away.
> After a woman was raped in her New Jersey apartment in 1992,
> the victim couldn't find her assailant in police photos. But
> eight months later, she saw McKinley Cromedy on the street
> and implicated him--even though she had passed him over in
> the original photo lineup. Fingerprints from her apartment
> didn't match his; neither did hairs or blood samples
> recovered by police. He was convicted anyway and sentenced to
> 60 years in prison, five of which he served before a DNA
> analysis cleared him."
>
> "Robert Nasuti was convicted in Dover on the testimony of a
> 13-year-old who claimed she remembered this man assaulting
> her while babysitting when she was three years old. This
> master sergeant in the U.S. Army and father of three was
> convicted in spite of the fact the girl's own parents
> testified he could not have been babysitting as he was
> working the same shift at the same factory as them."(OK, not
> a rape case. But the theory is the same)
All this supports is the fact that eyewitness testimony is often faulty - and not even conclusively at that - but, for the sake of argument, I'll assume it's fairly accurate. However, you must admit that such testimony is an essential, if not sufficient, tool for identifying a suspect. As such, it become a part of the case against him.
I do agree that more than eyewitness testimony alone should be required to put someone away. It does not seem to me that a case like that would make it past a grand jury. Maybe I'll do some research. Do you know the case citation by any chance?
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Message 118216 (In Reply to Message 118192)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_orolan
on Oct 14, 2003 12:12 PM | Also by x_orolan
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In many cases, eyewitness testimony by the victim is an important part of the case. Eyewitness testimomny by a third party would be even better, because it would corroborate.
Where the trouble started was when the laws were changed to allow a conviction based only on the testimony of the victim. Used to be that corroborating evidence was required to gain a conviction for rape.
The case of McKinley Cromedy is a good one, but it is not really 100% applicable. His case basically was remanded for trial based on the judge's failure to properly instruct the jury. While the DNA evidence did not conclusively clear him, it also did not conclusively implicate him.
I only have the NJSC opinion, but your welcome to it.
1999 N.J. LEXIS 386,*;158 N.J. 112; 727 A.2d 457
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MCKINLEY CROMEDY, a/k/a DADDY, MAC, FLAVOR, CROMEDY MCKINLEY, MCKINLEY ANDREW CROMEDY, MACKAY CROMEDY, MCKINLEY CROMEDY, III and REHEM CROMEDY, Defendant-Appellant.
Robert Nasuti apparently did not appeal, because I find no record of it. If you want to look, the case was in New Hampshire in the mid 90's.
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Message 118236 (In Reply to Message 118216)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_marta
on Oct 14, 2003 04:00 PM | Also by x_marta
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orolan wrote:
>
> In many cases, eyewitness testimony by the victim is an
> important part of the case. Eyewitness testimomny by a third
> party would be even better, because it would corroborate.
> Where the trouble started was when the laws were changed to
> allow a conviction based only on the testimony of the victim.
I was not aware that laws were changed to allow this. It was my understanding that such a thing was always possible, but only occurred where the jury found the accuser far more credible than the accused.
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Message 118247 (In Reply to Message 118236)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_orolan
on Oct 14, 2003 07:31 PM | Also by x_orolan
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"I was not aware that laws were changed to allow this"
A brief rundown of the evolution of New York's rape laws and corroboration requirements, albeit written from a feminist accomplishment point of view:
Margaret Stern, New York’s Corroboration Requirement: Women Effecting Change (1991)
http://www.law.georgetown.edu/glh/stern.htm
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Message 118252 (In Reply to Message 118247)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_marta
on Oct 14, 2003 08:41 PM | Also by x_marta
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orolan wrote:
>
> "I was not aware that laws were changed to allow this"
>
> A brief rundown of the evolution of New York's rape laws and
> corroboration requirements, albeit written from a feminist
> accomplishment point of view:
>
> Margaret Stern, New York’s Corroboration Requirement:
> Women Effecting Change (1991)
> http://www.law.georgetown.edu/glh/stern.htm
IF this is the case in other places besides New York state, I assume you have a problem with it because you're convinced that a jury (composed of the accused's peers - mind you) is more likely to convict than to acquit where rape is concerned. Do you have no faith in the jury as a judge of credibility, or do you simply believe that women are better liars?
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Message 118265 (In Reply to Message 118252)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_losttime
on Oct 15, 2003 05:11 AM | Also by x_losttime
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Not better liars marta. Changes in laws allow juries to hear "evidence" that would never be heard in a murder trial. This includes blanket hearsay exemptions that allowed a social worker to testify against my friend using 3rd party hearsay and get a conviction. In his case there was no physical evidence whatsoever, the victim was unable to answer simple questions without prompting, but the jury believed the social worker who was the only person who actually sat in the witness chair and said "he did it". They also now give CPS workers immunity because they serve a "quasi-prosecutorial" role in the courtroom.
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Message 118267 (In Reply to Message 118265)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_marta
on Oct 15, 2003 09:36 AM | Also by x_marta
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lost time wrote:
>
> Not better liars marta. Changes in laws allow juries to hear
> "evidence" that would never be heard in a murder trial. This
> includes blanket hearsay exemptions that allowed a social
> worker to testify against my friend using 3rd party hearsay
> and get a conviction.
This is anecdotal. Please give me a regulation, a statute, or a citation to a law review or encyclopedia that supports your argument.
> In his case there was no physical
> evidence whatsoever, the victim was unable to answer simple
> questions without prompting, but the jury believed the social
> worker who was the only person who actually sat in the
> witness chair and said "he did it". They also now give CPS
> workers immunity because they serve a "quasi-prosecutorial"
> role in the courtroom.
If this man was accused of raping a mentally disabled girl, who couldn't realistically testify to the facts herself, who knows what kind of bending of evidentiary rules they allowed. Then again, I don't have the whole picture, now do I? And since the one standing accused was your friend, I can hardly expect to get an unbiased account from you. I wouldn't entirely trust my own flesh and blood, given the same situation, let alone a complete stranger on a messageboard.
Again, give me some information I can trust, and I'm perfectly willing to believe you.
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Message 118303 (In Reply to Message 118267)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_losttime
on Oct 16, 2003 01:53 AM | Also by x_losttime
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It was his 3 year old daughter. She did not understand what they were asking her. I did not go to the trial but several of my coworkers did. You have a little girl who is afraid of and will not talk to strangers and a CPS worker who has this big detailed story the child supposedly told her but nobody else heard it. The things other people could testify to hearing were vague at best and required several leaps of faith to get to sexual assault. Also, the CPS worker was allowed to sit at the prosecutor's table as co-counsel. She testified last. The DA also managed to get the mother's diary, where the child said She was talking about daddy putting cream on her when she was sore, supressed as hearsay so the jury never saw or heard that. Hearsay from the mother is supressed but hearsay from the CPS worker is OK? They argued it with the jury out of the room so my coworkers heard it but the jury did not. I also learned today from one of the guys who was there that his daughter tried to run to him when she saw hm in the courtroom but a bailiff intervened. That's the last time he saw his daughter. The more I hear and read about this trial the madder I get.
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Message 118312 (In Reply to Message 118252)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_orolan
on Oct 16, 2003 12:33 PM | Also by x_orolan
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"Do you have no faith in the jury as a judge of credibility, or do you simply believe that women are better liars?"
Very little faith in the credibility of juries. I wish I could find the case from back East where a man stood accused of molesting his 13 year-old step-daughter. There was zero evidence. None. Only the girl's somewhat vague testimony. The jury convicted.
A reporter spoke to the jury foreman afterwords, asking how the jury could convict with no evidence. The jury foreman's reply?
"We realized that there was no evidence to convict him for the offense. But we felt that even if he didn't do it, he was probably thinking about doing it. So we convicted to prevent a possible future tragedy." Or something like that.
This man's conviction was overturned. But I lost all respect for juries in sex crime cases when I read about it.
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Message 118316 (In Reply to Message 118303)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_marta
on Oct 16, 2003 07:45 PM | Also by x_marta
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lost time wrote:
>
> It was his 3 year old daughter. She did not understand what
> they were asking her.
You brought up the fact that evidentiary rules have been changed to allow hearsay, as though you were talking about one adult testifying to the fact that a different adult got raped. This, I agree, is unacceptable, unless the person testifying was an eyewitness to the rape.
I am not, however, so suspicious of child psychologists or social workers that I believe they should not be able to interview children and testify on their behalf. While they are not my FAVORITE people in the whole world, I do not have an image of these professionals as evil, hairy goblins who revel in locking up potentially innocent people and depriving children of their parent in the process.
You're also forgetting that this person (child-psych/welfare professional) can NOT get up there and say that a rape occurred IN FACT. Just like a physician, all s(he) can say is that the evidence s(he) found was, or was not, consistent with a child who has been raped/molested. If the professional testifies that the child said the rape occurred, it had better be consistent with the court transcripts of his/her interview with the child. If the professional acted unethically by leading/bullying the child into saying a rape occurred, it will be apparent in the same transcript, which the JURY WILL READ. All of this, taken with the testimony of the accused, character witnesses, defense's experts, etc., is, in my opinion, highly unlikely to result in a conviction where one is not warranted.
> I did not go to the trial but several of my coworkers did.
This is of consequence, no?
> The things other people could testify to hearing were vague at > best and required several leaps of faith to get to sexual
> assault.
And they were . . . ?
> Also, the CPS worker was allowed to sit at the prosecutor's
> table as co-counsel.
Not unless she's also a lawyer. If she is not and she sat at the prosecutor's table, it was as a witness.
> The DA also managed to get the mother's
> diary, where the child said She was talking about daddy
> putting cream on her when she was sore, supressed as hearsay
> so the jury never saw or heard that.
How would this help the guy? Where was he applying it? If you don't know, it's not clear to me why you brought this up.
> The more I hear and read about this trial the madder I get.
All I can say is that neither of us is there in the courtroom, and even if we were, we wouldn't know everything necessary to make a decision. Only the jury does. I am confident in the ability of 12 people to come up with the right answer based on the evidence.
Why not get more information before you get angry?
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Message 118317 (In Reply to Message 118312)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_marta
on Oct 16, 2003 07:48 PM | Also by x_marta
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orolan wrote:
> Very little faith in the credibility of juries.
I was asking if you didn't have faith in the ability of 9/12 people to judge someone ELSE'S credibility. People, in my experience, are pretty good at telling when someone's lying, or when things don't add up.
> I wish I could find the case from back East where a man stood > accused of molesting his 13 year-old step-daughter.
I wish you could too.
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Message 118320 (In Reply to Message 118316)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_losttime
on Oct 17, 2003 01:09 AM | Also by x_losttime
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If the
> professional testifies that the child said the rape occurred,
> it had better be consistent with the court transcripts of
> his/her interview with the child
Her interview was one on one -no court, no transcripts, no tape. Just the CPS worker and the child alone. her word alone.
> Not unless she's also a lawyer. If she is not and she sat at
> the prosecutor's table, it was as a witness.
Witnesses are not allowed in the courtroom until after they have testified and usually not even then. This is so they cannot modify their testimony based on what they hear from previous witnesses. The judge said she could not remain in the courtroom. The DA invoked a rule that allows the DA to have 1 other person at his table. This person does not have to be a lawyer. She is not. My friend tried to get a motion passed to allow his expert witness to sit in on the trial as well and was refused.
> > The DA also managed to get the mother's
> > diary, where the child said She was talking about daddy
> > putting cream on her when she was sore, supressed as hearsay
> > so the jury never saw or heard that.
> How would this help the guy? Where was he applying it? If
> you don't know, it's not clear to me why you brought this up.
His defense is that the only time he ever touched her in the pubic area was in the act of normal hygiene. Applying diaper rash cream etc. He had the daughters medical chart which showed a phone conv where the child's physician advised him to do so when she had a rash.
> > The more I hear and read about this trial the madder I get.
>
> All I can say is that neither of us is there in the
> courtroom, and even if we were, we wouldn't know everything
> necessary to make a decision. Only the jury does. I am
> confident in the ability of 12 people to come up with the
> right answer based on the evidence.
There is/was no evidence. The doctor said so. The mother said so. The one person who said so testified illegally. The appeals court agreed that she should not have been able to testify. But they declared it harmless error. This is the same appellate court that declared it harmless error when a man was convicted by a jury containing a man who did not speak english. He sat in prison until the supreme court ordered him a new trial.
http://truthinjustice.org/carlson.htm
> Why not get more information before you get angry?
No offense marta, but I have a lot of information. The people I talked to were at the trial and heard the same evidence the jurors did. My friend went to trial with the same naive confidence in the jury system you have. It cost him everything.
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Message 118325 (In Reply to Message 118317)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_orolan
on Oct 17, 2003 11:35 AM | Also by x_orolan
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Considering the number of people sent to prison by juries who are being exonerated through DNA testing, it's obvious something is rotten in the system. The juries chose to believe the prosecutor and/or the victim in these cases, for some reason believing them to be more credible than the defendant. Doesn't appear to me that juries are very good at telling who is doing the lying.
To quote George Carlin(I think); "Would you trust your freedom to 12 people who were too stupid to get out of jury duty?"
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Message 118334 (In Reply to Message 118320)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_marta
on Oct 17, 2003 08:06 PM | Also by x_marta
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lost time wrote:
> Her interview was one on one -no court, no transcripts, no
> tape. Just the CPS worker and the child alone. her word alone.
You know what kind of weight you would give this testimony. I know what kind of weight I would give this testimony. Why do you imagine, without having talked to them, that the jury did anything different?
> > Not unless she's also a lawyer. If she is not and she sat at
> > the prosecutor's table, it was as a witness.
>
> Witnesses are not allowed in the courtroom until after they
> have testified and usually not even then. This is so they
> cannot modify their testimony based on what they hear from
> previous witnesses. The judge said she could not remain in
> the courtroom. The DA invoked a rule that allows the DA to
> have 1 other person at his table. This person does not have
> to be a lawyer. She is not. My friend tried to get a motion
> passed to allow his expert witness to sit in on the trial as
> well and was refused.
Judges are kings of the fiefdom that is their courtroom. If the lawyer was able to let the person stay, it was because it was not within the judge's discretion to make her leave, i.e. it was perfectly legal. You may think it's cruddy and unfair because this guy is your friend, but, from someone else's perspective (including the judge, apparently) it does not rise to the level of unfairly biasing the jury. Are you going to tell me that, in addition to the DA and the child psychologist, the JUDGE is also in on the witch-hunt to burn your innocent friend at the stake?
> His defense is that the only time he ever touched her in the
> pubic area was in the act of normal hygiene. Applying diaper
> rash cream etc. He had the daughters medical chart which
> showed a phone conv where the child's physician advised him
> to do so when she had a rash.
If the girl's diary was supressed as hearsay, and the mother's testimony was supressed as hearsay, how did this application of topical medicine come into the picture?
And why do you think that the testimony of said physician wasn't sufficient to counter the otherwise unsupported hearsay of the child psychologist?
> There is/was no evidence. The doctor said so. The mother said
> so. The one person who said so testified illegally. The
> appeals court agreed that she should not have been able to
> testify.
So the guy has not been declared guilty of a crime yet?
> But they declared it harmless error. This is the
> same appellate court that declared it harmless error when a
> man was convicted by a jury containing a man who did not
> speak english.
To me, this says nothing more than that there is a problem with a specific court, not the whole system. In the end the system worked, did it not?
> > Why not get more information before you get angry?
>
> No offense marta, but I have a lot of information. The people
> I talked to were at the trial and heard the same evidence the
> jurors did.
No they did not. There were, without a doubt, evidence exhibits that were not seen by spectators, but that were read/examined by the jury. Your friends also were not exposed to the instructions given to the jury regarding matters of law, which are often what a finding of guilt or innocence turns on.
> My friend went to trial with the same naive confidence in the > jury system you have. It cost him everything.
Are you saying he was wrongfully convicted? How do you know? Were you there when the alleged criminal acts were supposedly taking place, and saw nothing? Or are you relying just as heavily on what could be YOUR naive confidence in your buddy's innocence? I fail to see how my confidence in the justice system is any less reasonable than your confidence in your friend. But then again, I guess that's all a matter of perspective.
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Message 118335 (In Reply to Message 118325)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_marta
on Oct 17, 2003 08:19 PM | Also by x_marta
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orolan wrote:
>
> Considering the number of people sent to prison by juries who
> are being exonerated through DNA testing, it's obvious
> something is rotten in the system.
And that would be what percentage of the total incarcerated?
> The juries chose to believe the prosecutor and/or the victim
> in these cases, for some reason believing them to be more
> credible than the defendant.
Why do you assume this, instead of thinking that perhaps the available evidence was compelling enough at the time of trial to convince a jury beyond a reasonable doubt? It's all fine and dandy to second-guess a jury with fresh DNA evidence in hand, but in the absence of such evidence, there are less absolute things to vindicate or damn the accused. So DNA evidence is perfect and other forms of evidence are not. I agree that, where relevant, DNA evidence should be mandated. That does not mean, however, that a jury is incapable of making a reasonable conclusion of guilt based on other sufficient other evidence. The bottom line is that a wrongful conviction is a travesty, but have them you will, in ANY system of justice you choose, and no matter how many evidentiary improvements you make.
My question is: how would you change the justice system to fix the problem with he said/she said rape cases?
And let's get the definition of "he said/she said" out of the way first so that we're both talking about the same thing.
> Doesn't appear to me that juries are very good at telling who > is doing the lying.
And I have yet to see statistics, reliable or otherwise, that make me think there is a problem. It's not that I'm unwilling to accept that there is one, I just won't do so on the basis of what are clearly your FEELINGS, instead of cold, hard data.
> To quote George Carlin(I think); "Would you trust your
> freedom to 12 people who were too stupid to get out of jury
> duty?"
This is a stupid joke. I would LOVE to serve on a jury. I see it as part of my civic duty. Where is your sense of responsibility? How will anyone ever find justice if people like you (with unquestionable sense of fairness and good judgment) don't serve on juries? Oh, yeah, . . . that's right, they DO.
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Message 118339 (In Reply to Message 118335)
Re: "no" means "no"...or maybe "more wine?"
Posted by x_orolan
on Oct 17, 2003 09:45 PM | Also by x_orolan
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"And that would be what percentage of the total incarcerated?"
Makes no difference. Do you feel that 5% of the people on death row actually being innocent is an acceptable number? How about 10%? 20%? Where does it stop being "insignificant"?
ONE person in prison unjustly is a problem. You can't see it, because you aren't that person. But if you were, would your opinion still be the same?
"Why do you assume this, instead of thinking that perhaps the available evidence was compelling enough at the time of trial to convince a jury beyond a reasonable doubt?"
True. The evidence may be compelling. And it also may be tainted, twisted, or downright false. But since the prosecution brought the evidence, it has instant credibility in the eyes of the jury. Perhaps this is why of the first 70 cases(now up to 138) in which the Innocence Project has exonerated people, 61 of those cases involved mistaken ID(somebody said "It was him" and the jury believed the witness), 34 involved prosecutorial misconduct, 38 involved police misconduct, 17 involved false testimony by "other" witnesses, and 16 involved false information provided by snitches and informants, among other reasons. Since these add up to a lot more than 70, it is also obvious that some combination of these were used to gain a conviction.
Oftentimes, all a defendant can say is "I didn't do it". God forbid that a person should be at home alone watching TV. They could find themselves doing life next month. And people like you wouldn't care, because you're safe in your bed, knowing that "justice was served, and the jury has spoken".
"And I have yet to see statistics, reliable or otherwise, that make me think there is a problem"
Since I'm already using his data, Barry Scheck and his 138 freed people is all the statistic I need to know there is a problem. If juries will make mistakes like this when a person's LIFE hangs in the balance, what makes you think they would be any more diligent when the crime is something like burglary?
"Where is your sense of responsibility?"
The state took it away when I became a "convicted felon". I am considered "undesirable" because I've been convicted of a crime myself. So I would naturally vote for acquittal every time. Hogwash. That logic dictates that a jury of "honest" people would always vote for conviction, which we know isn't true.
"My question is: how would you change the justice system to fix the problem with he said/she said rape cases?"
"And let's get the definition of "he said/she said" out of the way first so that we're both talking about the same thing"
Saved these for last. Were you going to define "he said/she said", or did you want me to? And perhaps we should move these last two questions to the new board, as this one will go down soon.
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Message 118347 (In Reply to Message 118339)
Re:
Posted by x_marta
on Oct 19, 2003 04:57 AM | Also by x_marta
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orolan wrote:
> Makes no difference. Do you feel that 5% of the people on
> death row actually being innocent is an acceptable number?
> How about 10%? 20%? Where does it stop being "insignificant"?
Once you offer a workable alternative that gives a 4% incidence of wrongful conviction, I would willingly switch to such a system. It is my opinion that 5% is pretty damn good, given the alternatives practiced by the rest of the world. I think that you can change all the laws that you want and you will still end up with a certain percentage of innocent people going to jail . . . and that's about it. And I never said anything about insignificance.
> ONE person in prison unjustly is a problem. You can't see it,
> because you aren't that person. But if you were, would your
> opinion still be the same?
You don't understand my opinion. Even if I were wrongfully convicted, I wouldn't rail against the system as a whole, I would simply assert that, in my case, it failed. I understand that NO system works perfectly ALL OF THE TIME.
> True. The evidence may be compelling. And it also may be
> tainted, twisted, or downright false. But since the
> prosecution brought the evidence, it has instant credibility
> in the eyes of the jury.
I simply do not believe that the prosecution is that evil or the jury, that indiscriminate.
> Perhaps this is why of the first 70
> cases(now up to 138) in which the Innocence Project has
> exonerated people, 61 of those cases involved mistaken
> ID(somebody said "It was him" and the jury believed the
> witness),
Without any other evidence?
> God forbid that a person should be at home alone watching TV.
> They could find themselves doing life next month. And people
> like you wouldn't care, because you're safe in your bed,
> knowing that "justice was served, and the jury has spoken".
Except by your logic, if I'm home alone watching TV, I too can easily be accused and wrongfully convicted of murder. You are oversimplifying because you are passionate about this issue - which is fine, except ordinary people stop listening when people get hyper-emotional about an issue. If you want to be convincing, you've got to drop the bad-prosecutor-boogey-man puts-hordes-of-innocents-in-jail line and dig up a TON more data. Talk data to yourself until you're fluent in it, until you can use it calmly and effectively. Emotions won't get you very far by themselves.
> Since I'm already using his data, Barry Scheck and his 138
> freed people is all the statistic I need to know there is a
> problem.
Except that your average person is going to look at this number and think, "Man, 138? That's nothing. More people than that were killed by Texas alone in the past 6 months. Such a small fraction of the total . . . nothing to worry about." Whether it's an accurate perception or not, that's the impression you give with these numbers.
> If juries will make mistakes like this when a person's LIFE
> hangs in the balance, what makes you think they
> would be any more diligent when the crime is something like
> burglary?
You define it as a "mistake," but I still think that the evidence at the time of trial was sufficiently compelling to prove guilt beyond a reasonable doubt. There is no mistake. There is a tragedy . . . and there are appeals, but nonetheless tragedies may still occur, no matter what one does to try to avert them.
> "Where is your sense of responsibility?"
>
> The state took it away when I became a "convicted felon". I
> am considered "undesirable" because I've been convicted of a
> crime myself. So I would naturally vote for acquittal every
> time. Hogwash. That logic dictates that a jury of "honest"
> people would always vote for conviction, which we know isn't
> true.
The state wasn't assuming that YOU, orolan, would vote for acquittal everytime, they simply don't want convicted criminals on juries because SOME of them might vote for acquittals more often than warranted by the evidence. What? Do you want the judgement of each convicted felon to be evaluated on a case-by-case basis? You shouldn't take it personally - it's simply a practical decision that, in reality, may have absolutely nothing to do with you.
> "My question is: how would you change the justice system to
> fix the problem with he said/she said rape cases?"
> "And let's get the definition of "he said/she said" out of
> the way first so that we're both talking about the same thing"
>
> Saved these for last. Were you going to define "he said/she
> said", or did you want me to? And perhaps we should move
> these last two questions to the new board, as this one will
> go down soon.
I haven't decided if I'm moving to the new board.
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Message 118351 (In Reply to Message 118347)
Re:
Posted by x_orolan
on Oct 19, 2003 06:56 PM | Also by x_orolan
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"given the alternatives practiced by the rest of the world"
Considering that we have a higher per-capita prison population than any other country in the world and we are the last of the so-called "civilized" world to still execute people, I'd be all for the "alternatives".
"I simply do not believe that the prosecution is that evil..."
Prosecutorial misconduct, particularly in capital cases, is well documented. Sorry, but a prosecutor will do whatever it takes to get a person convicted. Acquittals don't get you re-elected, convictions do.
Which side of the room do you plan on being on when you get your sheepskin? Planning on being a prosecutor? If so, I hope you can maintain your fair and honest attitude while managing to keep your job, too.
"Without any other evidence?"
As I said, these cases typically involved more than one of the listed factors. So yes, there was most likely other evidence. But it was also probably false or mis-represented. Or in some cases, there was evidence that pointed strongly towards the defendant's innocence, but the prosecutor(honest, forthright and upstanding person that he is) swept it under the rug.
"they simply don't want convicted criminals on juries because SOME of them might vote for acquittals more often than warranted by the evidence"
And "some" of the lily-white might vote for convictions more often than warranted by the evidence. Tit for tat.
I know they didn't pass these laws strictly on my behalf. But as a member of that disenfranchised class, I am entitled to take it personally.
"I haven't decided if I'm moving to the new board."
I hope you do. These debates are quite stimulating, and I would miss them. Although it may not seem like it at times, they do cause me to stop and think about my feelings and beliefs.
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Message 118358 (In Reply to Message 118351)
Re:
Posted by x_marta
on Oct 20, 2003 01:01 PM | Also by x_marta
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orolan wrote:
>
> "given the alternatives practiced by the rest of the world"
> Considering that we have a higher per-capita prison
> population than any other country in the world and we are the
> last of the so-called "civilized" world to still execute
> people, I'd be all for the "alternatives".
And what would those be?
> "I simply do not believe that the prosecution is that evil..."
> Prosecutorial misconduct, particularly in capital cases, is
> well documented. Sorry, but a prosecutor will do whatever it
> takes to get a person convicted. Acquittals don't get you
> re-elected, convictions do.
Baloney. You act as though prosecutors are unchecked by judges or by defense attorneys. Prosecutors do their jobs, they fill a specific role of aggressively seeking conviction. It is the defense's job to limit the state's ability to incarcerate at will. If there's a real system-wide problem here, it's that there is inadequate defense for many people.
> Which side of the room do you plan on being on when you get
> your sheepskin? Planning on being a prosecutor? If so, I hope
> you can maintain your fair and honest attitude while managing
> to keep your job, too.
Hell no. I'm aiming for a judgeship or will remain in academia.
> "Without any other evidence?"
> As I said, these cases typically involved more than one of
> the listed factors. So yes, there was most likely other
> evidence. But it was also probably false or mis-represented.
You simply don't know this. To argue that evidence is likely false or mis-represented without knowing so is irresponsible. It also creates fear where there might not need be any. If what you think holds true, it will stand up to inspection when you go to look for examples.
> I know they didn't pass these laws strictly on my behalf. But
> as a member of that disenfranchised class, I am entitled to
> take it personally.
Of course you are. You're entitled to feel anything you want.
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Message 118361 (In Reply to Message 118358)
Re:
Posted by x_orolan
on Oct 20, 2003 02:31 PM | Also by x_orolan
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"And what would those be?"
Don't know. You brought them up, so why don't you tell me what they are?
"If there's a real system-wide problem here, it's that there is inadequate defense for many people."
I won't disagree with that. But it isn't the only problem, and it is one taken advantage of by prosecutors.
"Hell no. I'm aiming for a judgeship or will remain in academia."
Good for you. I think you'd make a good one.
"To argue that evidence is likely false or mis-represented without knowing so is irresponsible"
I simply quoted data from the Innocence Project. Since I'm not doing the case reviews myself, I have to trust that Barry Scheck knows what he's talking about. And since he's managed to get these 138 people off death row and exonerated, somebody else obviously thinks he does.
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Message 118365 (In Reply to Message 118361)
Re:
Posted by x_marta
on Oct 20, 2003 06:13 PM | Also by x_marta
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orolan wrote:
>
> "And what would those be?"
> Don't know. You brought them up, so why don't you tell me
> what they are?
Actually, I brought up systems that are worse than ours. YOU suggested that there are systems that are better. My examples would have been any number of Muslim countries, Columbia, Stalinist Russia, China, etc. What are yours?
> "If there's a real system-wide problem here, it's that there
> is inadequate defense for many people."
>
> I won't disagree with that. But it isn't the only problem,
> and it is one taken advantage of by prosecutors.
Prosecutors do their jobs. In a system where everyone had adequate defense, a sufficient check would exist on prosecutorial zeal. That's the way it's supposed to work. I'm simply suggesting we fix the real problem, instead of demonizing prosecutors.
> "To argue that evidence is likely false or mis-represented
> without knowing so is irresponsible"
> I simply quoted data from the Innocence Project. Since I'm
> not doing the case reviews myself, I have to trust that Barry
> Scheck knows what he's talking about. And since he's managed
> to get these 138 people off death row and exonerated,
> somebody else obviously thinks he does.
You were quoting people at the Innocence Project when you said that evidence was misrepresented or distorted?
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Thread
118093, x_simon, Oct 12, 2003 03:58 PM ["no" means "no"...or maybe &qu...]
118098, x_SurvivorForeve, Oct 13, 2003 02:19 AM [Re: "no" means "no&quo...]
118125, x_HPierce, Oct 13, 2003 08:25 AM [well considering.]
118150, x_marta, Oct 13, 2003 11:08 AM [Re: well considering.]
118138, x_orolan, Oct 13, 2003 10:14 AM [Re: "no" means "no"...or ...]
118164, x_marta, Oct 13, 2003 04:36 PM [Re: "no" means "no"...o...]
118173, x_orolan, Oct 13, 2003 07:13 PM [Re: "no" means "no"...]
118192, x_marta, Oct 13, 2003 10:13 PM [Re: "no" means "no&quo...]
118216, x_orolan, Oct 14, 2003 12:12 PM [Re: "no" means "no...]
118236, x_marta, Oct 14, 2003 04:00 PM [Re: "no" means "...]
118247, x_orolan, Oct 14, 2003 07:31 PM [Re: "no" means &...]
118252, x_marta, Oct 14, 2003 08:41 PM [Re: "no" means...]
118265, x_losttime, Oct 15, 2003 05:11 AM [Re: "no"...]
118267, x_marta, Oct 15, 2003 09:36 AM [Re: "no"...]
118303, x_losttime, Oct 16, 2003 01:53 AM [Re: "no...]
118316, x_marta, Oct 16, 2003 07:45 PM [Re: "n...]
118320, x_losttime, Oct 17, 2003 01:09 AM [Re: &...]
118334, x_marta, Oct 17, 2003 08:06 PM [Re: &...]
118312, x_orolan, Oct 16, 2003 12:33 PM [Re: "no" m...]
118317, x_marta, Oct 16, 2003 07:48 PM [Re: "no"...]
118325, x_orolan, Oct 17, 2003 11:35 AM [Re: "no&q...]
118335, x_marta, Oct 17, 2003 08:19 PM [Re: "n...]
118339, x_orolan, Oct 17, 2003 09:45 PM [Re: &qu...]
118347, x_marta, Oct 19, 2003 04:57 AM [Re:]
118351, x_orolan, Oct 19, 2003 06:56 PM [Re:]
118358, x_marta, Oct 20, 2003 01:01 PM [Re...]
118361, x_orolan, Oct 20, 2003 02:31 PM [...]
118365, x_marta, Oct 20, 2003 06:13 PM [...]
146015, Rejected
118188, x_losttime, Oct 13, 2003 08:29 PM [Re: "no" means "no&quo...]
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