UnderGround Forums
 

LegalGround >> Why and when torture is ok and constitutional!


1/3/09 11:14 PM
Ignore | Quote | Vote Down | Vote Up
bflex
1 The total sum of your votes up and votes down Send Private Message Add Comment To Profile

Member Since: 5/11/02
Posts: 4801
 
Ok dojosensei, all yours!
1/4/09 12:51 AM
Ignore | Quote | Vote Down | Vote Up
Bunkou
Send Private Message Add Comment To Profile

Member Since: 12/16/04
Posts: 339
Brought over from the other thread:

"Criminals have TOO MANY rights and are PROTECTED more than the victims."

What a completely ignorant statement, parroted endlessly by people with no understanding of the justice system.

Please list one, single right that criminals have that victims do not. Or, supply one right you think victims should have that they currently do not, and we can discuss why they don't and why that might be a bad idea.
1/4/09 2:56 AM
Ignore | Quote | Vote Down | Vote Up
Shaz
Send Private Message Add Comment To Profile

Member Since: 1/1/01
Posts: 1225
Well I don't necessary agree with the statement that criminals have "too many" rights, but there are plenty of rights the defendant has that the victim does not.

- Right to a jury or bench trial - that's up to the defendant, the victim has no say.
- Right to testify or not - the defendant has the absolute right to testify or not testify, and his refusal to testify can't be used against him. The victim has no right to testify, they can only do so if called by either side, and they have no right NOT to testify, if they're subpoenaed they must testify. If they don't testify the jury will often get a "missing witness" charge which is adverse to the prosecution
- Right to be present during the entire trial - the victim, if a witness, is often "sequestered" in that they can not watch any other part of the trial
- Right to an attorney - while the victim can certainly retain counsel, they won't be appointed one if they have no money
- Right to have bad acts testimony excluded - the Judge will decide before trial what if any prior crimes or bad acts will come out at trial if the defendant testifies, often plenty of things are kept out. If the victim testifies, the defense attorney can question about anything and everything, and often can even ask other witnesses about the victim's criminal history
- Right to have investigator or attorney contact victim - the police are not permitted to speak with the defendant once he has counsel, but the defendant can have his attorney or investigators speak to the victim, take a statement, etc.

Again, I'm not saying any of these are bad things, but it's clear that defendants are treated much differently than victims in our system.

-Shaz!
1/4/09 2:26 PM
Ignore | Quote | Vote Down | Vote Up
Bunkou
Send Private Message Add Comment To Profile

Member Since: 12/16/04
Posts: 340
True, Shaz, but of course I was making the point that victims have the exact same rights, they just haven't been accused of anything yet. And you and I know how often a victim is either a former defendant or a future defendant (especially in DV!).

But let's look at these as they apply to a victim/criminal relationship within a specific trial, anyway.

Jury or bench? Not always up to the defendant (depending on charge and jurisdiction). And there are plenty of judges who will slam defendants simply for demanding a jury trial. Also, there are plenty of judges who have no idea what "reasonable doubt" means at a bench trial, especially elected judges. Pretty much a damned if you do, damned if you don't scenario.

Right to not testify? Many a "victim" has exercised their Fifth Amendment rights in my cases. They knew what was going to happen once cross started. And if they don't get called, then it's only because the prosecutor knew they couldn't convey their story on the stand, suggesting it really is a load of bull.

Right to be present? Depends on jurisdiction. In military cases, the liar..er, victim...does have a right to be present and watch the proceedings and change their story and cry and do everything else to taint the panel. And I can't count the times I wish I could have waived my clients presence in trials (because they would act up, or change their story in the middle of trial, or glower at the judge/witness/jury), so that's a double edged "right".

Right to an attorney? Mostly irrelevant. They don't have standing, and so many prosecutions would be messed up if the victim got counsel. Hmm, maybe that one's not such a bad idea....

Right to bad acts excluded? I don't know what it's like in your jurisdiction, but that's not the case under Hawaii, Military, or Federal rules of evidence. Yes, the defendant gets slightly more protection, but most bad acts aren't coming in for witnesses either (especially in Hawaii where a felony conviction alone cannot be used for impeachment). But I fell like I'm misunderstanding you here. Perhaps you could clarify?

Right to contact? Again, the exact same rights apply to the victim if they have an attorney. Which would also preclude the police and prosecutors from talking to them. Besides, nothing can force the victim to talk to investigators or attorneys from either side.

Victims, on the other hand, generally get a "victim witness advocate" who is usually not an attorney and certainly not an advocate, but does like to coach victims on how to fix their story, how to avoid talking to the defense, and how to screw with the process. I've had to get so many court orders and sanctions against VWAD's it's become a cottage industry for me.

Victims get restitution for losses associated with the crime, including court proceedings. They get witness fees (not much, in some areas, but it's a sight more than defendants get).

We know exactly what the accused gets: nothing. You can spend more than a year in jail waiting trial on a trumped up charge, lose your wife, job, home, credit rating, and good name, then win at the trial and all you get is a hug from your defense attorney and a lecture from the judge about how you "got lucky" this time. I've had a moron judge delay a trial where my client was sitting in custody just because the "victims" wanted to take a vacation when trial was scheduled. Oh yeah, I got a good diatribe on the record that day.

Yes, bflex, we've slightly hijacked your thread again. But we'll get back on track when dojosensei comes on here to make his points.
1/5/09 12:25 AM
Ignore | Quote | Vote Down | Vote Up
Dojosensei
11 The total sum of your votes up and votes down Send Private Message Add Comment To Profile

Member Since: 5/19/02
Posts: 12829
Nah, I got nothin', I'm in a good mood today, catch me when I'm riled up about something. I'll come back and post some good shit when I get there haha
1/6/09 12:08 PM
Ignore | Quote | Vote Down | Vote Up
Bunkou
Send Private Message Add Comment To Profile

Member Since: 12/16/04
Posts: 344
Let's start with this Devil's Advocate approach:

The Constitution does not preclude torture per se. Cruel and unusual punishment, yes, but not harsh interrogation techniques.

So what in the Constitution does bar torture? The Fifth Amendment (for criminal cases)? The Fourth Amendment? The takings clause (just how much due process do you get before being tortured)?

And how does any of this apply to stateless actors captured and detained outside of the United States?
1/6/09 12:34 PM
Ignore | Quote | Vote Down | Vote Up
Dojosensei
11 The total sum of your votes up and votes down Send Private Message Add Comment To Profile

Member Since: 5/19/02
Posts: 12861
Ok, not really riled up about anything but here is one example of when I consider torture a good tool.

Casey Anthony is in custody. She has made false statements to the investigators. It is a MISSING PERSON'S CASE.

Child is missing, mother is making false statements, she knows SOMETHING about the missing child.

Torture is ok in this situation as it may be the ONLY way she will give up the information. If she still lies, torture begins again. Sooner or later, you will find out the truth. And yes, you would be very surprised how quickly people actually do break.
1/7/09 12:59 AM
Ignore | Quote | Vote Down | Vote Up
Bunkou
Send Private Message Add Comment To Profile

Member Since: 12/16/04
Posts: 350
Assuming you're right and she does know something (which is just a strong suspicion on your part), and she breaks under torture and tells the truth rather than just what you want to hear: now what?

She says she killed the child. She tells you where the body was all along, where the murder weapon is.

Now you have to let her go, because every bit of evidence you gained is in violation of her Fifth Amendment right against self-incrimination.

So what did you gain through that torture? Other than completely blowing whatever case you may have had?
1/7/09 11:48 AM
Ignore | Quote | Vote Down | Vote Up
Dojosensei
11 The total sum of your votes up and votes down Send Private Message Add Comment To Profile

Member Since: 5/19/02
Posts: 12881
Um dude...you can't allow torture without amending the laws to protect what you find during torture. Why would you do it and not do the other?

I think you'd be surprised how many people would agree that torture needs to be allowed in certain situations. And you'd be very surprised how many of the "christians" would be ok with it as well.
1/7/09 12:51 PM
Ignore | Quote | Vote Down | Vote Up
Bunkou
Send Private Message Add Comment To Profile

Member Since: 12/16/04
Posts: 351
That would be the crux of the problem, wouldn't it? You could just torture people until they confessed and actual guilt wouldn't matter anymore. That's exactly why our Constitution was written to protect against it.

Why do you think I'd be surprised with how many people support torture in certain circumstance? Plus, I'm never surprised by the hypocrisy of self-professed Christians anymore.
1/7/09 5:12 PM
Ignore | Quote | Vote Down | Vote Up
Dojosensei
11 The total sum of your votes up and votes down Send Private Message Add Comment To Profile

Member Since: 5/19/02
Posts: 12882
Our constitution was written by wealthy fuckers FOR wealthy fuckers. Didn't see any black folk signing it. Didn't really see any black folk getting anything from it until about 100 yrs later (I said ABOUT).

The constituation has been a joke for many years. The last generation with any honor and loyalty to the country was the generation of WWII. The worth of the constitution is dying with them as they drop off.
1/7/09 7:37 PM
Ignore | Quote | Vote Down | Vote Up
Bunkou
Send Private Message Add Comment To Profile

Member Since: 12/16/04
Posts: 355
You know, I wasn't born in America. I didn't grow up here. It was only as I became more educated as an adult that I chose to live here. That was solely because of the Constitution, and the rights and freedoms it guarantees. That has driven me to serve my country in every way I could.

When I enlisted in the US Navy, I took an oath. When I was elected to public office, I took an oath. When I was admitted to the bar, I took an oath. When I later enlisted in the US Army, I took an oath. When I gained a commission in the US Army, I took an oath.

Every single one of those oaths was about supporting and defending the Constitution of the United States of America.

You could not have offended me more if you spit in my mother's face.

To dismiss the Constitution as a joke is to either fail to understand it, or to embrace everything the Constitution stands against. Given your previous comments, it would seem to be a combination of the two. You are part totalitarian/statist fascist, and part ignorant kneejerk.

And you dare to impugn the loyalty and honor of others.

Fortunately for you, the Constitution allows you the freedom of speech to call your own rights a joke. Fortunately for me, it gives me the right to tell you to get the fuck out of my country. As the generation of WWII would have said to you, "Your kind aren't wanted here."
1/7/09 8:08 PM
Ignore | Quote | Vote Down | Vote Up
jbapk
Send Private Message Add Comment To Profile

Member Since: 1/1/01
Posts: 8457
I'm sure black people in the 18th century would have been all for allowing legal torture....
1/7/09 9:28 PM
Ignore | Quote | Vote Down | Vote Up
Dojosensei
11 The total sum of your votes up and votes down Send Private Message Add Comment To Profile

Member Since: 5/19/02
Posts: 12885
You know, I used to be a hardcore, God Country and Applepie. I would have been the first one up telling a peace loving piece of shit to kiss my ass. Hippies...hated them. Supported the military whole heartedly. Supported law enforcement whole heartedly.

Something happened along the way. Honestly couldn't put my finger on it nor do I know what it was. I seemed to still believe in honor and society seemed to have said "honor? what's that?"

Now, don't get me wrong, I personally don't think it's a joke, I think it's treated as a joke. Honor as a general rule doesn't exist in our society and that's sad. There are the exceptions to the rule. I'm speaking from a "society" standpoint, not a personal one.
1/8/09 2:17 AM
Ignore | Quote | Vote Down | Vote Up
Shaz
Send Private Message Add Comment To Profile

Member Since: 1/1/01
Posts: 1234
Well the problem is that it's a slippery slope. Once we permit torture in order to gain legally admissible "confessions", where do we draw the line in terms of when it's allowed? And what's the stop us from going back to when torture was regularly used to coerce false confessions which were used to convict at trial?

-Shaz!
1/8/09 8:42 PM
Ignore | Quote | Vote Down | Vote Up
Dojosensei
11 The total sum of your votes up and votes down Send Private Message Add Comment To Profile

Member Since: 5/19/02
Posts: 12902
That's a good point Shaz. It is a very slippery slope. I guess my concerns are in the more severe crimes...kidnapping, murder etc... that's when I can justify it. Problem is, po po's already power trippin, we can't necessarily tell them they are now allowed to beat people too. Especially not with the younger generation of cops out there. Snot nosed party animal mutha fuggas that have no business at all being in the field for at least another 10 yrs.
1/9/09 12:40 PM
Ignore | Quote | Vote Down | Vote Up
Bunkou
Send Private Message Add Comment To Profile

Member Since: 12/16/04
Posts: 365
How would you even know who to torture?
1/9/09 7:00 PM
Ignore | Quote | Vote Down | Vote Up
GladiatorGannon
300 The total sum of your votes up and votes down Send Private Message Add Comment To Profile

Edited: 01/09/09 7:01 PM
Member Since: 9/1/04
Posts: 5122
Dojosensei - Um dude...you can't allow torture without amending the laws to protect what you find during torture. Why would you do it and not do the other?



i thought that was the premise of Dershowitzes book on legalizing torture, that it would be inadmissible as evidence, but could still be used to save lives in "ticking bomb" scenarios.
1/10/09 1:16 PM
Ignore | Quote | Vote Down | Vote Up
Dojosensei
11 The total sum of your votes up and votes down Send Private Message Add Comment To Profile

Member Since: 5/19/02
Posts: 12906
And I would be fine with that. If I'm on a time limit, someone's life hangs in the balance (god I hate that phrase) then yes, torture the fuck out of them. If they don't go to jail for THAT, they will end up going for SOMETHING
1/12/09 2:51 PM
Ignore | Quote | Vote Down | Vote Up
BarkLikeADog
Send Private Message Add Comment To Profile

Member Since: 10/11/05
Posts: 9330
Makes me sad that an otherwise intelligent person can fail to see how dangerous an opinion that is to hold.
1/14/09 8:55 PM
Ignore | Quote | Vote Down | Vote Up
Dojosensei
11 The total sum of your votes up and votes down Send Private Message Add Comment To Profile

Member Since: 5/19/02
Posts: 12935
Oh I see the danger in it, the difference is, it's a risk I'm willing to take.

Reply Post

You must log in to post a reply. Click here to login.