|
Korean Job Discussion Forums
"The Internet's Meeting Place for ESL/EFL Teachers from Around the World!"
|
| View previous topic :: View next topic |
| Author |
Message |
maxxx_power
Joined: 17 Mar 2003
Location: BWAHAHAHAHA! I'M FREE!!!!!!!
|
 Posted: Sat Jan 24, 2004 8:09 pm Post subject: |
 |
|
He was tried in criminal court and acquitted. He then was tried in civil court as he was being sued by the families.
The burdens of proof are different for the different courts.
The criminal court requires evidence "beyond a reasonable doubt" whereas the civil court's ruling is based on a "preponderence of evidence".
Same case but the criminal suit was brought on by the "man" and the civil suit was brought on by the families.
The same can be said about Enron. There are criminal cases brought on by various states and the feds, as well as civil cases filed by employees and former employees of Enron. The company and it's officers may face both criminal and civil trials for the same crime.
This is not "double jeopardy"
School's out! haha.
| Quote: |
DOUBLE JEOPARDY - Being tried twice for the same offense; prohibited by the 5th Amendmentto the U.S. Constitution. '[T]he Double Jeopardy Clause protects against three distinct abuses: [1] a second prosecution for the same offense after acquittal; [2] a second prosecution for the same offense after conviction; and [3] multiple punishments for the same offense.' U.S. v. Halper, 490 U.S. 435, 440 (1989).
Separate punishments in multiple criminal prosecution are constitutionally permissible, however, if the punishments are not based upon the same offenses. In Blockburger v. U.S., 284 U.S. 299 (1932), the Supreme Court held that punishment for two statutory offenses arising out of the same criminal act or transaction does not violate the Double Jeopardy Clause if 'each provision requires proof of an additional fact which the other does not.' Id. at 304.
More recently, in U.S. v. Dixon, 113 S.Ct. 2849, 2856 (1993), the Court clarified the use of the 'same elements test' set forth in Blockburger when it over-ruled the 'same conduct' test announced in Grady v. Corbin, 495 U.S. 508 (1990), and held that the Double Jeopardy Clause bars successive prosecutions only when the previously concluded and subsequently charged offenses fail the 'same elements' test articulated in Blockburger. See also Gavieres v. U.S., 220 U.S. 338, 345 (1911) (early precedent establishing that in a subsequent prosecution '[w]hile it is true that the conduct of the accused was one and the same, two offenses resulted, each of which had an element not embraced in the other').
In U.S. v. Felix, 112 S.Ct. 1377 (1992), the Court held that 'prosecution of a defendant for conspiracy, where certain of the overt acts relied upon by the Government are based on substantive offenses for which the defendant has been previously convicted, does not violate the Double Jeopardy Clause.' Felix, at 1380. See also Saccoccia, 18 F.3d at 798 (citing Felix, at 1384) ('A substantive crime and a conspiracy to commit that crime are not the same offense for double jeopardy purposes.')
The Double Jeopardy Clause protects against multiple punishments for the same offense. Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 306 (1984).
However, stretching the bounds of logic, the courts have decided that since the state and federal governments are separate sovereigns and therefore successive prosecutions based on the same underlying conduct do not violate the Double Jeopardy Clause if the prosecutions are brought by separate sovereigns. See, e.g., U.S. v. Koon, 34 F.3d 1416, 1438 (9th Cir.'94).
But, double jeopardy may exist if the federal prosecutors were mere 'tools' of the state or that the federal proceeding was a 'sham' carried out at the behest of the state. Koon, at 1438.
Close coordination between state and federal authorities, including 'the employment of agents of one sovereign to help the other sovereign in its prosecution,' does not implicate the Double Jeopardy Clause. U.S. v. Figueroa-Soto, 938 F.2d 1015, 1020 (9th Cir.'91), cert. denied, 502 U.S. 1098 (1992); accord U.S. v. Paiz, 905 F.2d 1014, 1024 (7th Cir.'90), cert. denied, 499 U.S. 924 (1991) (holding that the fact 'that an Indiana prosecutor was later designated a Special Deputy United States Attorney for purposes of a federal prosecution' was insufficient to establish a sham prosecution). Nor is a county's possible pecuniary interest in a federal proceeding sufficient to transform the federal government into a mere 'tool' of the county. |
From - http://www.lectlaw.com/def/d075.htm
Last edited by maxxx_power on Sat Jan 24, 2004 8:17 pm; edited 1 time in total |
|
| Back to top |
|
 |
TheUrbanMyth
Joined: 28 Jan 2003
Location: Retired
|
| Posted: Sat Jan 24, 2004 8:16 pm Post subject: |
|
|
| maxxx_power wrote: |
He was tried in criminal court and acquitted. He then was tried in civil court as he was being sued by the families.
The burdens of proof are different for the different courts.
The criminal court requires evidence "beyond a reasonable doubt" whereas the civil court's ruling is based on a "preponderence of evidence".
Same case but the criminal suit was brought on by the "man" and the civil suit was brought on by the families.
School's out! haha. |
The point I was making was not that he was tried in same or different courts. Try to read the post BEFORE responding. The point that I was making and that still has to be refuted was that[/i] he was tried twice for the same thing Got it? TWICE is the one of the keywords, and "the same thing" is the other. Nobody is disputing that he was tried in criminal and civil court. Nobody is disputing that the "man" bought on the criminal suit, and the family brought on the civil suit.
Regardless of whether it was criminal, civil or who bought it against him, O.J Simpson was tried twice for the same crime. Period. You and Matko may want to brush up on your reading skills. BTW where did I say this was "double jeopardy"?
Don't be so hasty to dismiss school. Looks like you need some more.
Last edited by TheUrbanMyth on Sat Jan 24, 2004 8:18 pm; edited 1 time in total |
|
| Back to top |
|
|
The Lemon
Joined: 11 Jan 2003
|
| Posted: Sat Jan 24, 2004 8:18 pm Post subject: Re: Death Row |
|
|
| Ajarn wrote: |
| If the conviction was overturned, they have the option of taking it to trial again. That's the way it works. |
That's not quite how it worked for Mr. Faulder. It appears that the man's first conviction was overturned, and the state prosecution chose not to retry the case. However, a second trial was prosecuted by lawyers of the victim's family rather than government prosecutors, under a special provision of Texas state law. This led to his conviction and death sentence.
Here's an editorial from the Dallas Morning News, published a week before the man's execution. It does a good job of recounting the details:
DALLAS MORNING NEWS EDITORIAL, DECEMBER 4, 1998
TEXAS SHOULD SPARE JOSEPH STANLEY FAULDER, a convicted murderer who is scheduled to die by lethal injection on Dec. 10 at Huntsville prison.
The main reasons for sparing Mr. Faulder have nothing to do with his Canadian citizenship, or Canada's moral aversion to capital punishment or his government's strenuous efforts to halt his execution on grounds that Texas neglected its treaty obligation to tell him of his right to seek help from consular officials.
Rather, the reasons for sparing him have to do with the irregularity of the trial that produced his conviction in 1981, the incompetence of his attorney at sentencing, the porousness of the evidence against him and the strong possibility that a prosecutor may have withheld important evidence.
Texas didn't restore the death penalty to see it applied to people whose guilt is in reasonable doubt or whose lawyers cannot mount an adequate defense or whose convictions were obtained by tawdry or possibly illegal means.
Mr. Faulder probably did murder Inez Phillips. The elderly matriarch of a Gladewater oil family was stabbed and bludgeoned to death in 1975 during a robbery attempt at her home. For that horrendous crime, he should remain in jail for life.
However, the death penalty is inappropriate for someone who was not linked to the crime by fingerprints or other physical evidence, who had no history of violence, whose accusers were offered money to testify against him and whose attorney at sentencing failed to argue why he should not be executed.
Mr. Faulder was first convicted in 1977. The Texas Court of Criminal Appeals threw out the conviction in 1979 on grounds that his confession had been obtained by coercive means.
Mr. Faulder's second trial was not prosecuted by the district attorney but by a private lawyer hired by the victim's family, using a special provision of Texas law.
During that second trial, Mr. Faulder's accomplice, Linda McCann, testified that she had seen him beat and stab Ms. Phillips. Her husband supported her story, saying that she and Mr. Faulder told him how they had planned to rob Ms. Phillips.
However, Mr. Faulder's current lawyer, Sandra Babcock, says that the private prosecutor offered Ms. McCann $15,000 in "relocation" money for her testimony, though the money apparently was never paid, and that Ms. McCann's husband was offered $2,000.
Furthermore, Ms. Babcock has found a memorandum in the file of the now-deceased private prosecutor's quoting Ms. McCann as saying that her husband "participated in all the discussions and planning" of the botched robbery. If the memorandum is true, then two accomplices to murder - the McCanns - may have ganged up on
a third in order to secure their own liberty. That, according legal experts, is insufficient under Texas law to obtain a murder conviction without corroborating evidence.
There is one other reason to keep Mr. Faulder behind bars rather than put him to death: When he was 3 years old, he fell out of a moving automobile and suffered a near-fatal brain injury. Doctors who examined him in 1992 said that he has a severe mental condition that was probably caused by the fall.
Texas' failure to inform Mr. Faulder of his right to seek help from consular officials is relevant to the moral and legal imperative to spare Mr. Faulder only insofar as it may have prevented him from getting adequate legal help. By itself, it is, and should remain, insufficient to halt his execution, though the state should make greater efforts to ensure that it fulfills its treaty obligation.
The Texas Board of Paroles and Pardons should commute Mr. Faulder's death sentence to life in prison. If the board has insufficient time to act, Gov. George W. Bush should use his authority to grant Mr. Faulder a 30-day reprieve and urge the board to be lenient.
Agree with it or not, capital punishment is legal in Texas. However, it should not be applied erratically or cavalierly. There are just too many irregularities in this case to justify its use. Mr. Faulder should pay for his crime, but not with his life.
Last edited by The Lemon on Sat Jan 24, 2004 8:26 pm; edited 2 times in total |
|
| Back to top |
|
|
maxxx_power
Joined: 17 Mar 2003
Location: BWAHAHAHAHA! I'M FREE!!!!!!!
|
| Posted: Sat Jan 24, 2004 8:19 pm Post subject: |
|
|
| TheUrbanMyth wrote: |
| matko wrote: |
| How did it amount to the same thing? |
They tried him for the murder of Nicole Brown and that other guy (can't remember his name)
Then they sued him for the murder of Nicole Brown and that other guy
Basically he went on trial TWICE for the same reason. |
What is this? Are you suffering from Mad Cow disease?
Edit- two DIFFERENT courts and two DIFFERENT plaintiffs, see Lemon's post above.
Maybe you should do some brusing up on the case history of double jeopardy.
| Quote: |
| BTW where did I say this was "double jeopardy"? |
If it looks like a duck, quacks like a duck...  |
|
| Back to top |
|
|
Gwangjuboy
Joined: 08 Jul 2003
Location: England
|
| Posted: Sat Jan 24, 2004 9:48 pm Post subject: |
|
|
| TheUrbanMyth wrote: |
| Gwangjuboy wrote: |
| Gord wrote: |
| Mr. Pink wrote: |
| Prosecutors have the right to appeal a ruling...that is F**ked up!!! |
What country are you referring to that doesn't allow this option? |
Double Jeopardy as a Fundamental Legal Right
The right not to be tried twice for the same offence is a fundamental legal and human right recognised in many Bills of Rights and human rights treaties. Here's a sample of them:
UN International Covenant on Civil and Political Rights, Article 14(7)
No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
US Constitution, Fifth Amendment
No person shall be...subject for the same offence to be twice put in jeopardy of life or limb...
Bill of Rights Act 1990 (NZ) Section 26(2)
No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.
Charter of Fundamental Rights of the European Union (2000) Article 50
No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.
Canadian Charter of Rights and Freedoms (1982) Section 11(h)
Any person charged with an offence has the right...if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again. |
Look at O.J. Simpson. They tried him twice for the same thing. Sure one was in civil court and the other in criminal court...but it still amounted to the same thing. You can also do this in Canada as well. Maybe Mr. Gord (if you ask him nicely) will elaborate on his above post. |
I don't need an elaboration. You have just shown that you know very little about the subject. In a civil court OJ wasn't being tried for anything. You are only tried for a crime. He was being sued. A Civil court has different remedies too. That's the difference. Please read below, and you will find that your chum Gord has been educated too.
Last edited by Gwangjuboy on Sat Jan 24, 2004 10:45 pm; edited 2 times in total |
|
| Back to top |
|
|
Gwangjuboy
Joined: 08 Jul 2003
Location: England
|
| Posted: Sat Jan 24, 2004 9:51 pm Post subject: |
|
|
| TheUrbanMyth wrote: |
Regardless of whether it was criminal, civil or who bought it against him, O.J Simpson was tried twice for the same crime. Period. You and Matko may want to brush up on your reading skills. BTW where did I say this was "double jeopardy"?
Don't be so hasty to dismiss school. Looks like you need some more.[/i] |
Oh dear! You really need to read about this area of law. You are digging a hole. HE WAS NOT TRIED FOR A CRIME IN THE CIVIL COURT! |
|
| Back to top |
|
|
maxxx_power
Joined: 17 Mar 2003
Location: BWAHAHAHAHA! I'M FREE!!!!!!!
|
| Posted: Sat Jan 24, 2004 9:56 pm Post subject: |
|
|
| Yes, it was a wrongful death suit if I remember correctly. |
|
| Back to top |
|
|
Gwangjuboy
Joined: 08 Jul 2003
Location: England
|
| Posted: Sat Jan 24, 2004 10:04 pm Post subject: |
|
|
| Gord wrote: |
| Gwangjuboy wrote: |
Double Jeopardy as a Fundamental Legal Right
The right not to be tried twice for the same offence is a fundamental legal and human right recognised in many Bills of Rights and human rights treaties. |
Double Jeopardy <> Acquittal/conviction appeal.
Appeals happen all the time, including in the beloved U S o A that you later cite as not engaging in double jeopardy. Same here in Korea, Canada, Norway, and ... so forth and so forth. |
Are you claiming that the US has no legal provision for the double jeopardy rule? The Faulder case you pointed to lacks an acquittal, thus the jeopardy rule doesn't apply. The prosecutors didn't appeal anything. I think you should read the constitution. In the US the jeopardy rule even applies in forfeiture cases. Maybe you can read these cases. Torres and McCaslin say hi!
U.S. v. $405, 089.23, 94 WL 476736 (9th Cir. Sept. 6, 1994); U.S. v. McCaslin, W.D.WA. No. CR90-165WD (Sept. 2, 1994); U.S. v. Torres, 28 F.3d 1463 1994 WL 328567 (7th Cir. (Ill.) 1994).
Also, please read the Canadian Charter of Rights. Of the countries you cited, only Korea and Norway allow for prosecutorial appeal. If you want to gain more knowledge about the difference bewteen the Korean and the US legal positions on double jeopardy read this. It comes from the US embassy website. Anything else you wish to "inform" us about?
http://usembassy.state.gov/seoul/wwwh3421.html
Last edited by Gwangjuboy on Sat Jan 24, 2004 11:46 pm; edited 2 times in total |
|
| Back to top |
|
|
Ajarn Miguk
Joined: 22 Jan 2003
Location: TDY As Assigned
|
| Posted: Sat Jan 24, 2004 10:59 pm Post subject: Re: Death Row |
|
|
The Lemon wrote:
"That's not quite how it worked for Mr. Faulder. It appears that the man's first conviction was overturned, and the state prosecution chose not to retry the case. However, a second trial was prosecuted by lawyers of the victim's family rather than government prosecutors, under a special provision of Texas state law. This led to his conviction and death sentence."
Makes no difference. Absent an acquittal, the prosecution (whoever the prosecuting authority is) has the right to retry the case. There is no double jeopardy privilege here. In this particular instance, the State of Texas saved some money by letting the victim's family bear the costs of the subsequent prosecution. Once the case was overturned on appeal, everything reverts to de novo. That's how it works. Really. |
|
| Back to top |
|
|
matko
Joined: 16 Jan 2003
Location: in a world of hurt!
|
| Posted: Sat Jan 24, 2004 11:08 pm Post subject: |
|
|
| TheUrbanMyth wrote: |
| matko wrote: |
| TheUrbanMyth wrote: |
| matko wrote: |
| How did it amount to the same thing? |
They tried him for the murder of Nicole Brown and that other guy (can't remember his name)
Then they sued him for the murder of Nicole Brown and that other guy
Basically he went on trial TWICE for the same reason. |
Apples and oranges. |
Want to enlighten us on how it was apples and oranges, or are you just blowing smoke out of your a**?
He went on trial twice for the same thing. If you are going to deny fact at least provide some support for your fantasy |
Now, now UM.
No need to get all huffy and self righteous there. Take a deep breath and calm down.
Are we in a happy place now?
It seems that the other guys have schooled you already about the difference. No need to kick you when you're down.
As for fantasy........
da Plane, da plane!!!! |
|
| Back to top |
|
|
Gwangjuboy
Joined: 08 Jul 2003
Location: England
|
| Posted: Sat Jan 24, 2004 11:18 pm Post subject: |
|
|
| TheUrbanMyth wrote: |
| Look at O.J. Simpson. They tried him twice for the same thing. Sure one was in civil court and the other in criminal court...but it still amounted to the same thing. . |
I had to highlight this stupidity. If ever the phrase "hoisted by your own petard" was so appropriate! This rivals Rumsfeld, Bush, and above all DAN QUALYE! |
|
| Back to top |
|
|
maxxx_power
Joined: 17 Mar 2003
Location: BWAHAHAHAHA! I'M FREE!!!!!!!
|
| Posted: Sat Jan 24, 2004 11:27 pm Post subject: |
|
|
| Gwangjuboy wrote: |
| TheUrbanMyth wrote: |
| Look at O.J. Simpson. They tried him twice for the same thing. Sure one was in civil court and the other in criminal court...but it still amounted to the same thing. . |
I had to highlight this stupidity. If ever the phrase "hoisted by your own petard" was so appropriate! This rivals Rumsfeld, Bush, and above all DAN QUALYE! |
Hehe, is Dan Qualye related to Mike Dukaksis? 
"potatoe" |
|
| Back to top |
|
|
Gwangjuboy
Joined: 08 Jul 2003
Location: England
|
| Posted: Sat Jan 24, 2004 11:53 pm Post subject: |
|
|
| TheUrbanMyth wrote: |
Regardless of whether it was criminal, civil or who bought it against him, O.J Simpson was tried twice for the same crime. Period. You and Matko may want to brush up on your reading skills[/i] |
I am still trying to understand this! Crime? In a civil court? I thought that was what the criminal courts were for. Some great quotes from UM. I am going to construct a website in your honour. Any ideas for it's title? I thought "daftquotes.com." 
| Quote: |
| But he still went on trial two times for the same reason regardless of the terminology used. |
And this gem. Jesus!
| Quote: |
| The point that I was making and that still has to be refuted was that[/i] he was tried twice for the same thing Got it? |
Do you still believe this? |
|
| Back to top |
|
|
TheUrbanMyth
Joined: 28 Jan 2003
Location: Retired
|
| Posted: Sun Jan 25, 2004 1:03 am Post subject: |
|
|
edit see below
Last edited by TheUrbanMyth on Sun Jan 25, 2004 1:48 am; edited 1 time in total |
|
| Back to top |
|
|
Gord
Joined: 25 Feb 2003
|
| Posted: Sun Jan 25, 2004 1:07 am Post subject: |
|
|
| Gwangjuboy wrote: |
| Also, please read the Canadian Charter of Rights. Of the countries you cited, only Korea and Norway allow for prosecutorial appeal. If you want to gain more knowledge about the difference bewteen the Korean and the US legal positions on double jeopardy read this. It comes from the US embassy website. Anything else you wish to "inform" us about? |
In reading up on U.S. law and whatnot, what you've said is half true. While the U.S. position on double jeopardy does greatly limit the option of appeal by a prosecutor, it does allow for an appeal when new evidence is brought forward.
So if someone was acquitted of killing someone, then after the trial the family finds a video of the killing on the home computer through a webcam that was turned on that clearly showed that the person who was acquitted did in fact kill the person, an appeal can be lodged. |
|
| Back to top |
|
|
|
|
You cannot post new topics in this forum
You cannot reply to topics in this forum
You cannot edit your posts in this forum
You cannot delete your posts in this forum
You cannot vote in polls in this forum
|
|
FAQ
Search
Memberlist
Usergroups
Register
Profile
Log in to check your private messages
Log in
