The perfect witness who won't testify

[RivkahChaya]

Interesting article in this mornings "I" newspaper.
Tonight's Dispatches TV show has footage of a senior British rabbi telling a victim of child sex abuse not to go to the police.
He tells the alleged victim that it was "mesira", or forbidden, to report a suspected Jewish sex offender to a non-Jewish authority.

Dispatches - Channel 4 - 10:30

Very interesting in light of Robert Anderson's comments ?

That only applies to certain crimes, and I have never heard of murder being one of them, and in any case, this was not turning over the suspect. "Mesira" literally means "delivery," and refers to delivering, or turning over, the suspect, not offering testimony. It doesn't mean "forbidden," either, the rabbi was just stating that "mesira" is forbidden.

When someone in an Orthodox community suspects someone of something, the procedure is to go to the rabbinate, and then the rabbinate will contact the police if they deem it necessary.

I don't know anything about this particular case, or why it was deemed unnecessary. I don't know whether the rabbis thought the evidence wasn't good enough, or they planned to punish the person themselves. It may be that the rabbis were going to use members of the community to make sure the person was never again alone with a child, and this way spare the person the loss of his livelihood, which could have happened if he were convicted of a sex offense. I don't know anything about the case, so I really have no idea.

I don't like the rabbis doing this, but such is the life in an Orthodox community.

I don't know off-hand the range of offenses to which mesira applies; it will probably vary a little by country, but it hasn't included murder. You will find situations in history where the larger country didn't want to have anything to do with the Jews, and were only interested in prosecuting them for murder of a gentile, business fraud where gentiles are victims, and sedition. The rabbinical courts dealt with all other crimes, including murder of another Jew.

[hkev]

Interesting article in this mornings "I" newspaper.
Tonight's Dispatches TV show has footage of a senior British rabbi telling a victim of child sex abuse not to go to the police.
He tells the alleged victim that it was "mesira", or forbidden, to report a suspected Jewish sex offender to a non-Jewish authority.

Dispatches - Channel 4 - 10:30

Very interesting in light of Robert Anderson's comments ?

[RivkahChaya]

Well I don't see how they could keep him unless they made excuses as you suggest.

News is business here. It's all about ratings. US news programs haven't really consisted of an anchor sitting at a desk reporting, with occasional still photos, or field clips, since the early 1980s. We don't have Walter Cronkites anymore.

If news programs thought that what an anchor, or other reporter, had done was so bad it would cause a severe ratings drop, then the person would be fired, but losing a familiar face, no matter what the person has done, generally is worse for ratings, and ratings are needed to sell commercial time.

I don't think Americans have any illusions about unbiased sources of news; they just have opinions about which biases are correct, and want the news with the correct bias, if that makes sense.

Now, if a camera caught Jon Stewart saying he wishes he could have voted for Mitt Romney more than once, and Comedy Central couldn't spin it as a joke, and later it turned out that Stewart was a closet Republican, yes, he would probably get fired. But that's because The Daily Show viewers would stop watching, and the rating would go through the floor.

[Robert]

Well I don't see how they could keep him unless they made excuses as you suggest. The public know that their newscasters have their own opinions on politics, but they put that to the back of their minds when watching the news - just as long as they don't know what the newscasters' opinions actually are. That makes all the difference.

I imagine that none of the newscasters even write the stuff that they read out. I think their political leanings should still be kept hidden away.

Over here a few years ago the newscasters started interviewing people during the bulletins.They'd read out some item about the economy and then question a government spokesman sitting next to them in the studio. I think that's a mistake. The newscaster shouldn't get involved in that stuff.

[RivkahChaya]

I suppose over there all your TV news is private so it's a question of who the owners are.

Ah. I see what you mean.

Since news shows are business, even on a supposedly impartial show, like one of the broadcast shows, if that happened, and a popular news anchor got caught on film saying that, it's doubtful that someone who drew ratings would get fired. The cameraman who didn't stop filming on time, or the editor who screwed up the five-second delay would be the one to get fired, and ABC or CBS, or whoever, would issue a press release saying that the guy was making a joke, or telling a story, and people heard only the first half of it, and didn't understand the context.

[Robert]

Oh, over here if they were having a show about the General Election, and the newscaster said "the polls have closed, now the counting begins," and then as he finished his news report we heard him say to someone "Let's hope the tories won" or something like that, I'm pretty sure he'd be sacked or shifted.

It's different with newspapers, because everyone knows that newspapers slant the news. With TV (at least in the UK) news services like BBC news are supposed to be impartial (though many, including me, think that's a joke).

I suppose over there all your TV news is private so it's a question of who the owners are.

[RivkahChaya]

Well, take someone like Hilary Clinton. She has now stepped down from her job with the President, or will soon do so.

I doubt it, because she hasn't been a practicing attorney for a long time, and I don't know that she was ever a trial lawyer. The reasons she has for resigning probably would prevent her from undertaking something stressful like being a trial lawyer.

After all, if a newscaster is heard off-camera making some political remark, he might have to resign, because he's supposed to act as a transparent lens for the news.Once his own personality gets involved, it's all kaput.

Well, not quite. If a newscaster makes an offensive remark he can get into a lot of trouble, but just making a polemic remark doesn't matter. A lot of newscasters' biases are known. It may be different in the UK, that I can't speak to, but my grandfather was a newspaper reporter during the depression, and there was plenty of activist journalism then.

[Robert]

Hi Riv

Well, take someone like Hilary Clinton. She has now stepped down from her job with the President, or will soon do so. I'm just wondering, once she has retired from politics, will she go back to the courts? She's a well-known figure. People must have a view on her, and that must colour their thinking if they're jurors.

After all, if a newscaster is heard off-camera making some political remark, he might have to resign, because he's supposed to act as a transparent lens for the news.Once his own personality gets involved, it's all kaput.

[Robert]

Hi Bridewell

Ha, well of course the MPs have always arranged things to suit themselves. Those graveyard late sittings that women MPs so compained about, were originally the outcome of barrister MPs' desire to do their court business in the earlier part of the day, before toddling off to Westminster to make their learned and precious political contributions. And we should be grateful, I say.

Of couse, if they'd put just a bit more time into their MP work, the survivors of the arctic runs might not still be waiting to be awarded a medal 70 years later.

[RivkahChaya]

You have to remember how big the US is, and laws vary from state to state. There are lawyers who specialize in (US) constitutional law, or practice in federal courts, but generally, someone will be admitted to the bar in just one or two, usually adjoining states. The exception might be lawyers who specialize in something like death penalty appeals, who might be admitted to the bar in Texas and Florida, the states with the most death penalty cases.

Now, someone admitted to the bar in Indiana, who then runs for congress, and wins, is going to end up spending most of his time in Washington, DC. Unless he wants to take time to learn about the law in DC, Virginia, or Maryland, and be admitted to the bar in one of those places, he is going to have a very hard time practicing law in Indiana, and legislating in Washington.

This doesn't mean that he would not serve as a consultant for an old client, say if someone he previously represented in Indiana many years ago has his case taken up by the Innocence Project, and is granted a new trial. He might fly back to Indiana for a week to spend time with the person's new lawyer, handing over all his paperwork and other data on the case, and going over it.

Even if a person is serving in an office in state, though, he may not spend a lot of time in jurisdiction. If someone has a practice in New York City, but is elected to state legislature, and has to be in Albany all the time, he can't keep up with his practice in NYC. And even a mayor of a very small city is going to work too many hours a week to continue a practice.

The only elected job I can think of in direct conflict with being a defense attorney is sheriff, but I really can't see a former criminal defense attorney running for sheriff, and winning.

Now, there are other kinds of lawyers-- patent attorneys, estate planners, and they probably occasionally do things on the side, especially as favors for people, or give advice, and this might mean they have to recuse themselves from legislative votes, but sometimes that happens because of past interests as well. If you were the patent attorney for a drug company, you need to be separate from all previous interests, including selling stock that may have been a perk, if you want the appearance of impartiality when there is some kind of vote coming up involving drug companies and patents. I don't know that there is a law that says you have to, but you don't want your opponent in the next election accusing you of being in the pocket of your former employer.

I'm not sure what your MPs are doing, but it sounds like something not possible logistically, just because of geography, in the US.

[Bridewell]

It must be different for you over there. Over here we have MPs who put in a few hours each week at Westminster and still find time to work as barristers. In my opinion, they should not be allowed to appear in the courts before a jury. Jurors should not be at risk of allowing their opinions of a barrister's politics to sway their opinions of the evidence.

Hi Robert,

I'm amazed that they're allowed to do it. Firstly, being an MP should not be seen as a part-time job, Secondly, I think there is a clear conflict of interests when a person is involved in both the legislature and the courts, especially in a professional capacity.

[Robert]

In theory a juror should have an open mind throughout the whole trial. That isn't incompatible with forming opinions while the trial is taking place. E.g. a juror might feel "I didn't like defendant's explanation there" or "That prosecution witness held a grudge." If a juror gets to the end of the evidence without forming any opinions at all, then he hasn't been listening.

Sometimes the guilt or innocence of the defendant is virtually certain. Even there, though, some discussion in the jury room will serve as an extra check.

It must be different for you over there. Over here we have MPs who put in a few hours each week at Westminster and still find time to work as barristers. In my opinion, they should not be allowed to appear in the courts before a jury. Jurors should not be at risk of allowing their opinions of a barrister's politics to sway their opinions of the evidence.

[RivkahChaya]

But I meant those situations where the defendant is obviously guilty, and is just about to be found guilty, when the judge or someone else says something that couldn't really influence the jury, since their minds were made up before then.

That situation doesn't exist. The defendant is never "just about to be found guilty." You don't know what a jury will decide until it has decided. I've been on a jury. It's possible that on the first vote, eleven people will vote "guilty," and one will vote "not guilty." Then after a couple hours of discussion, eight will vote "guilty," and four will vote "not guilty." Some juries choose to vote by show of hands, and some choose to vote by secret ballot, but either way, in what I just described, the "not guilty" vote in the first count may have been a "guilty" in the second.

The jury vote is never a foregone conclusion. Just ask Casey Anthony or Damien Echols. If it were a foregone conclusion, we wouldn't need jury trials in the first place.

Now, sometimes when something unusual happens in the courtroom, like a family member of the victim having an outburst, or a witness blurting out something on the stand that was part of information ruled inadmissible, the judge will tell the jury to disregard it. If the defense or prosecuting attorney claims that whatever happened or was said was unduly prejudicial, and asks for a mistrial, the judge may decide to call each juror separately into his chambers, with both lawyers present, and interview the juror on the effect of whatever happened, and ask whether the juror thinks that it affects his (her) ability to make an impartial decision. If the juror thinks he can no longer be impartial, the judge will dismiss him, and call in an alternate, interviewing the alternate the same way. If too many jurors are dismissed, and there are not enough alternates to replace them, or the alternates have been similarly dismissed, then the judge will have to declare a mistrial.

On the whole business of juries being influenced, does a lawyer have to give up appearing in court if he or she becomes a politician?

By "politician," I assume you mean some kind of representation, or elected executive, like a mayor, senator, or something. Other than a very small potatos job, like being a local district representative in a small city, those elected positions are full-time jobs. Some is being a criminal attorney, or working for the prosecutor's office. If you are running for office, and work for the prosecutor (that is, are an assistant DA, al la Jack McCoy on Law & Order), you will be asked to resign, because you won't have the time for both.

Now, whether you continue to pay you dues and maintain your membership in the American Bar Association is up to you. Most people who don't intend to practice do not, because it's a lot of money, but some do. Michelle Obama stopped paying her dues when she became a full-time parent when he husband ran for senate, and so her detractors claimed she "lost her license to practice law." That would be the same thing as saying that you lost your driver's license simply because you didn't bother to renew it when you were living in a large city with excellent public transportation, but also high insurance rates for car owners. It's not the same thing as having your license revoked after your third DWI.

So, the answer is that being a practicing criminal attorney, and holding a political office each take too much time for one person to be able to do them both, but there is no law that says you can't try.

Now, there is also the question of conflict of interest. You want your lawyer to represent your interests, and he won't be able to do that very well if he is worried about losing votes. If you are on trial for killing your child, and are very unpopular, like Casey Anthony, that's going to rub off onto your lawyer; if he's worried about re-election, you have to worry about how zealously he'll represent you. Then, there are all sorts of specific conflicts of interest. You want your lawyer to be free of even the appearance of problems. That goes double for the prosecuting attorney, because any appearance of bias may be grounds for appeal.

[Robert]

But I meant those situations where the defendant is obviously guilty, and is just about to be found guilty, when the judge or someone else says something that couldn't really influence the jury, since their minds were made up before then.

On the whole business of juries being influenced, does a lawyer have to give up appearing in court if he or she becomes a politician?

[RivkahChaya]

Well, here's one (invented) : suppose a trial is nearing the end, the defendant has not submitted any good points, whereas the prosecution has a raft of hard evidence which the defence doesn't challenge. Just before the jury is to go out, the judge inadvertently says something that he shouldn't have said, e.g. he reveals some previous comviction of the defendant's that was supposed to have been kept secret, or he mumbles something like "let's hope they fry this Chinese mother******" at which point his conduct of the trial is challenged by the defence team...all sorts of things can happen. The defence might find an obscure loophole which means there's no charge to answer.Who knows?

Uh, in that situation, the defense attorney asks for an immediate mistrial. If the judge doesn't grant it, then the defendant has a really good case for an appeal based on the judge's misconduct. That's no "mere" technicality, though. That's serious misconduct by a judge who ought to be removed from the bench and disbarred. If it turns out he is old, and in the first stages of Alzheimer's, or was in some other way very ill and didn't realize it (like, he had meningitis, or had fallen and hit his head that morning) he may be allowed to resign in good standing. Otherwise, he's going to be mailing his resume out to community colleges by the end of the week.

A new trial will commence with a different judge.

The defense is not required to present a case. Sometimes the defense lawyer wants to use an "affirmative defense," which means arguing special circumstances, rather than the facts of the case, like insanity, or self-defense, or battered-wife syndrome. The defense is allowed to cross-examine all the prosecution's witnesses, and is allowed to present counter-arguments, like presenting an alibi witness, or an expert who calls into question the prosecution's own experts. The prosecution is also allowed to present an alternate theory of the crime by which another person is accused-- this happens all the time on TV, but not so much in real life, although the defense attorney will take any opportunity to show that a conclusion is a leap of faith, or post hoc error: eg, just because the defendant's fingerprints are on something doesn't mean he touched it at the crucial moment relevant to committing the crime.

If all of the prosecution's evidence is shaky piece by piece, and the prosecution is hoping that the jury will think that all of it together can't be a coincidence, but when you get down to it, you have a witness account by a very traumatized victim, who insists, emotionally, the person at the defendants table did it, but did not initially pick the person out of a line-up, fingerprints that could have been left at another time, and a defendant whose alibi is that he was home alone at the time, substantiated only by a neighbor who heard his TV on, but didn't actually see him, the defense attorney can say to the jury "The prosecution doesn't have a case. The burden of proof is on the prosecution, and the prosecution has not met it. We don't need to present you with reasonable doubt, because you should already have it."