gillypod
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Post by gillypod on Jan 30, 2009 15:33:19 GMT -6
For all the lawyers who are part of this board, I would like to ask a question.
When a guilty verdict is overturned due to a legal loop hole, is legislation ever put in place to enure that 'hole' is closed and can never be used again.
I understand that it is the job of the defence to do their best to keep their clients out of jail, but how can they watch the guilty go free due to these 'holes'
I am not criticising the American Justice System per se - all Justice Systems have loop holes. I just wondered if there were as many people trying close them as there is trying to find them.
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Post by honeyroastedpeanut on Jan 30, 2009 16:22:24 GMT -6
For all the lawyers who are part of this board, I would like to ask a question. When a guilty verdict is overturned due to a legal loop hole, is legislation ever put in place to enure that 'hole' is closed and can never be used again. I understand that it is the job of the defence to do their best to keep their clients out of jail, but how can they watch the guilty go free due to these 'holes' I am not criticising the American Justice System per se - all Justice Systems have loop holes. I just wondered if there were as many people trying close them as there is trying to find them. It sounds like you're refering to "loop holes" as unwanted, unforeseen criminal liability gaps. I guess when a whole parliament is concerned with criminal law there won't be too many of those loop holes in the laws they pass. Over here every member of parliament has a staff of experts and I believe it's not that different in other countries. So, those gaps are probably wanted and only in rare cases accidental. When it's really accidental a court can call upon the parliament to implement changes in the law but of course this is not binding in any way due to the seperation of the legislative and judiciary branch. Courts cannot fill this gap via analogous reasoning as well (at least in Germany they can't) because it is prohibited to use analogy against the accused and of course courts cannot ignore the will of the parliament (sometimes they do it though but wouldn't admit it...). By the way: What loop holes do you have in mind?
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gillypod
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Post by gillypod on Jan 30, 2009 16:30:11 GMT -6
To be honest with you there are too many loop holes to mention. Every time I read about a criminal being freed because of this, I seethe with anger. Nothing is perfect, but shouldn't we try to make things better. I would rather sleep better in my bed at night knowing there were lawyers out there trying to shut these holes down. Would that not be a far better solution than crowing when they find a way to release a guilty inmate.
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Post by beej76 on Jan 30, 2009 16:34:26 GMT -6
To be honest with you there are too many loop holes to mention. Every time I read about a criminal being freed because of this, I seethe with anger. Nothing is perfect, but shouldn't we try to make things better. I would rather sleep better in my bed at night knowing there were lawyers out there trying to shut these holes down. Would that not be a far better solution than crowing when they find a way to release a guilty inmate. What do you consider a loophole though and what do you consider a legit right? I mean, you are on a jury - a guy has confessed to a crime after 30 hours of interrogations and being starved (I know, extreme example) - later, they let the guy off saying that the confession wasn't legit. Is this a "loophole"?
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gillypod
Old Hand
PRO-DP Scot. PTO hates me - I am blessed
Posts: 596
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Post by gillypod on Jan 30, 2009 16:43:02 GMT -6
To be honest with you there are too many loop holes to mention. Every time I read about a criminal being freed because of this, I seethe with anger. Nothing is perfect, but shouldn't we try to make things better. I would rather sleep better in my bed at night knowing there were lawyers out there trying to shut these holes down. Would that not be a far better solution than crowing when they find a way to release a guilty inmate. What do you consider a loophole though and what do you consider a legit right? I mean, you are on a jury - a guy has confessed to a crime after 30 hours of interrogations and being starved (I know, extreme example) - later, they let the guy off saying that the confession wasn't legit. Is this a "loophole"? What a really stupid question. Are you deliberately being obtuse? I am talking about convicted criminals who have been proven guilty in any country's courts and is subsequently released thanks to some lawyer finding a way through the justice system. Does being released suddenly exonerate the criminal from their crime? I do not think so. Your argument is something completely different.
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Post by beej76 on Jan 30, 2009 16:46:25 GMT -6
What do you consider a loophole though and what do you consider a legit right? I mean, you are on a jury - a guy has confessed to a crime after 30 hours of interrogations and being starved (I know, extreme example) - later, they let the guy off saying that the confession wasn't legit. Is this a "loophole"? What a really stupid question. Are you deliberately being obtuse? I am talking about convicted criminals who have been proven guilty in any country's courts and is subsequently released thanks to some lawyer finding a way through the justice system. Does being released suddenly exonerate the criminal from their crime? I do not think so. Your argument is something completely different. So essentially you are asking is if, after courts overturn a sentence because somebody screwed with the rights of the criminal, or screwed with the processes and rules of the system - if there's a process where the lawyers go back and rewrite the laws? And I'm the one being obtuse? "Yes, let's rewrite that one sir - torture IS a good idea!" Come on.
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Post by honeyroastedpeanut on Jan 30, 2009 16:56:47 GMT -6
To be honest with you there are too many loop holes to mention. Every time I read about a criminal being freed because of this, I seethe with anger. Nothing is perfect, but shouldn't we try to make things better. I would rather sleep better in my bed at night knowing there were lawyers out there trying to shut these holes down. Would that not be a far better solution than crowing when they find a way to release a guilty inmate. Actually I wouldn't have much of a problem with defending a murderer and using a loop hole to get him free even though I were convinced of his guilt. I would have a problem though if he were some sexual predator sob who would probably kill again. But actually lawyers using the loop holes help fixing them because it will be all over the news.
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Post by vikki on Jan 30, 2009 17:42:08 GMT -6
What do you consider a loophole though and what do you consider a legit right? I mean, you are on a jury - a guy has confessed to a crime after 30 hours of interrogations and being starved (I know, extreme example) - later, they let the guy off saying that the confession wasn't legit. Is this a "loophole"? What a really stupid question. Are you deliberately being obtuse? I am talking about convicted criminals who have been proven guilty in any country's courts and is subsequently released thanks to some lawyer finding a way through the justice system. Does being released suddenly exonerate the criminal from their crime? I do not think so. Your argument is something completely different. Convicted criminals have been released by lawyers finding a way through the justice system, the gilford 4, the birmingham 6, stefan kiszko. At the time, people believed them to be guily, lawyers defended them even after their guilty plea, and subsequently, they were released. I understand you point, but in some cases, the lawyers are right.
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gillypod
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Post by gillypod on Jan 31, 2009 1:37:05 GMT -6
I have no beef when an innocent is released. I have a real beef when the truly guilty are released.
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Post by beej76 on Jan 31, 2009 12:45:07 GMT -6
I have no beef when an innocent is released. I have a real beef when the truly guilty are released. What if a truly guilty person's legal constitutional rights are trampled on in the process?
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Deleted
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Post by Deleted on Feb 7, 2009 7:26:56 GMT -6
Convicted criminals have been released by lawyers finding a way through the justice system, the gilford 4, the birmingham 6, stefan kiszko. At the time, people believed them to be guily, lawyers defended them even after their guilty plea, and subsequently, they were released. I understand you point, but in some cases, the lawyers are right. The Guildford 4 were released because the police at the time did NOT hand over material to the defence which exonerated them. Nor did they inform them when they were in prison that a number of men that they had subsequently caught had admitted to bombing Guildford, amongst other places and TOLD them that there were innocent men and women in prison for that crime. They were freed on what was perceived to be a loophole because the British justice system could not bring themselves to declare them innocent so they instead freed them on the basis of incompetence by the original police investigators and prosecuting lawyers, none of whom, by the way, have ever been held to account for thei actions. The reality is that they were innocent men and women held in jail by the British for 14 years. The only lawyers "finding a way through the justice system" in this case were those trying to right a miscarriage of justice.
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Post by lawrence on Feb 7, 2009 7:52:24 GMT -6
Big fella , you stole my thunder.
Vikki, im an ex squaddie and i saw what the IRA terrorists did first had and i have no love for them or the loyalists but i can tell you that the guildford four and Birmingham 6 were in fact innocent and they were jailed not only because of false evidence and other failings but because the bloody politicians got involved and put the old bill under too much pressure to get a conviction.
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mst3k4evur
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Post by mst3k4evur on Feb 7, 2009 10:57:01 GMT -6
I have no beef when an innocent is released. I have a real beef when the truly guilty are released. What if a truly guilty person's legal constitutional rights are trampled on in the process? Then the best response is to have the officers, judges and prosecutors responsible punished. If you release the truly guilty under these circumstances you are rewarding them for the malfeasance of others.
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Post by Lauren on Feb 7, 2009 11:17:50 GMT -6
The only way, I could think of without looking up information, is if:
a.) The accused rights were not read properly b.) Evidence was tampered with c.) In rare cases, if the confession was taken under false pretences. . However, I believe that under these circumstances, the confession would not be used as evidence. d.) Perjury
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Post by mel77 on Feb 8, 2009 12:39:49 GMT -6
Perhaps I am missing something but I fail to see how the fact that a defendant's rights being ignored, and his being exonerated as a result, is a loophole.
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Jules
Old Hand
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Post by Jules on Feb 10, 2009 16:44:23 GMT -6
Seems to me we need a clear definition of a loophole. A loophole to me is something where a minor discrepancy in the legal process is allowed to overule a conviction, where the conviction would still have stood had the jury at the time been allowed to hear the nature of the discrpancy, and state yes / no to the conviction.
This kills the witholding of evidence, misleading of the jury etc argument, but maintains the rights of the accused. No "loophole" should ever result in freedom without a second trial.
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