Korean Job Discussion Forums

[TheUrbanMyth]

Okay the term "tried" was poor terminlogy. Regardless he still went to court twice over the same issue. (That better?) He was tried in criminal court for murder and then sued in civil court for "wrongful death". The reason they didn't call it murder was to avoid the double jeopardy issue. Also calling it murder would have put it into criminal court where he'd been accquited already.


As for stupidest quotes, Mr Gwangjuboy, sorry but one has to only look at your past posts to see this honor belongs to you.

As for everybody else, I suggest you go back to your homelands. You can make much more being lawyers than ESL teachers. It seems that everyone is a brilliant courtroom lawyer. I didn't know we had so many legal eagles here on Dave ESL cafe. Please excuse my misue of legal terms. I'm only a layman and not a lawyer like the rest of you.


EDIT: Whether you call it "wrongful death" or "murder" it amounted to the same thing. Two people died and by O.J. Simpson's hand. He went to court twice over this issue. Does anybody disagree with the last two sentences as they stand (apart from "O.J. Simpson's hand" for those of you who think he's innocent)? No? Good. Anything else is semantics and I am not going to argue over that.

[candu]

SuperHero,

I found seeing the guy getting cracked in the skull at Immigration kind of hard to believe myself, but saw it I did, as did several dozen other people. I've got better things to do than make up stories - I presume the motive being to sully Korea's image - and resent the insinuation that the incident was fabricated. It left me, my wife, and I would suspect more than a few other people - not least of all the guy and his wife - pretty disturbed. I would love to have a news report documenting the incident - because I believe it merits the attention - but I'm not surprised that it didn't make the front page - or any page - of the local attempts at newspapers. Next time I'll try to remember to bring my camera with me.

[Gwangjuboy]

[Gwangjuboy]

[diver]

I get what UrbanMyth is trying to say, and I have always thought that the civil suit was a way to get around the double jeopardy law. I am still not comfortable with the process to be honest because it is essentially being put on the spot for the same act. Two members of the Canadian Supreme Court would agree with that, but they were the minority opinion. You can read their reasoning in the link below.

While poking around for some info, I found that the Supreme Court of Canada, in a 3-2 decision, would agree that a criminal trial and civil trial are NOT double jeopardy. The majority opinion said that essentially a person is answerable to the state for the crime and to the victim for injury caused. I don't know of any cases in Canada that are similar to the O.J. Simpson case, where a person went to both a criminal and a civil trial for the same crime. Anyone got an example?

http://www.lexum.umontreal.ca/csc-scc/en/pub/1990/vol1/html/1990scr1_0003.html

Gwangjuboy's reference to the Canadian Charter of Rights and Freedoms is absolutely correct. It would seem that Canada has a 'Double Jeopardy' provision in its constitution. However, a couple of US commentators seem to think otherwise:


http://www.criminaljustice.org/CHAMPION/ARTICLES/98aug01.htm
In Canada, the prosecution has the right to appeal an acquittal in an effort to show that the trial judge made a fundamental error prejudicing the Crown's right to a fair trial. The prohibition against double jeopardy is not one of the rights ensconced into Canada's Charter of Rights and Freedoms, their equivalent of our Constitution and Bill of Rights.

http://www.wpni.com/wp-srv/inatl/longterm/canada/stories/convict062297.htm
Conviction of Innocent Man Spurs Questions About Double Jeopardy in Canada
Charged in 1985 with the assault and murder of the girl, Morin initially was acquitted by a jury whose members agreed that the evidence was not compelling. But because prosecutors here are not bound by the same double jeopardy restrictions that prevent defendants in the United States from being tried twice for the same offense, government attorneys appealed the case and won a chance to try Morin again.
In 1992, in Morin's second trial, he was convicted and sentenced to life in prison.

So, since I am not a lawyer, does anyone out there know how Guy Paul Morin got to be tried twice for the same crime in Canada, despite Section 11(h) of the Canadian Charter of Rights and Freedoms? Was his second trial based on 'compelling new evidence'?

[matko]

The consequences of losing a criminal case and civil case are EXTREME!!

In one you can die.

In the other, you pay cash.

How is that getting around double jeopardy?

[diver]

Matko,

As I said, I used to think that way. Now I am wavering. The Canadian Supreme Court ruling that I mentioned does make sense though, that a person is answerable to the state AND to the victim. I can't say it's 'wrong' per se, as people who know a lot more about the law than I do make the rules. I wish I could think of better legal terminology than 'it just doesn't feel right', but that's the best I can come up with.

I don't disagree in theory that the criminal accused should be answerable to the victim. But, it was my understanding, that the crown, er, state, represented the people (including the victim). Why two systems?

To me, and this is just my opinion (no doubt someone here will call me an idiot or something for having an opinion different from theirs), it seems like a consolation prize. 'We couldn't get you in the criminal court, but we'll get you in the civil court.' While the chances are slim, what about the possibility of a slippery slope...what happens if you lose the civil trial. Then what?

The dissenting opinion in the Canadian Supreme Court case that I mentioned earlier said that: A true penal consequence occurs if imprisonment or a fine is imposed which, by its magnitude, would appear to be imposed for the purpose of redressing the wrong done to society at large. The idea (in Canada anyway) is that a person cannot face a penal consequence twice. The judgement against OJ was huge, and could be interpreted as redressing a wrong done to society. However, then the next debate would be; What is the value of a human life? I don't want to get into it because I honestly don't know. And in the end, the opinion listed above was the minority, the majority disagreed with them and felt that two trials in different courts would be okay.

Sorry for the long-winded answer to your query matko. I guess I would just be more comfortable with one system. If you're not guilty, you're not guilty. But that's just my opinion...

[Gwangjuboy]

[TheUrbanMyth]

[TheUrbanMyth]

[Gwangjuboy]

[matko]

UrbanMyth,

I think it's time to stop replying.

It wouldn't be so bad if you didn't come across as so arrogant, but to be honest you deserve your spanking in this thread.

Why do you continue to embarrass yourself?

[diver]

I have been thinking about the response I gave to matko recently, the one where I said, basically, 'It doesn't feel right'. It was late and I was tired and that was the best way I could put it at the time. I do feel that since he asked what I hope was a sincere question, I owe him a better answer.

First let me say that I understand the difference between the two courts, and the difference between the charge of murder and being sued for wrongful death. I also understand the difference between the burden of proof required for each court, that is 'beyond a reasonable doubt' vs 'a preponderance of evidence'. Just to prove that I understand this, I will demonstrate. Bythe way, since message boards don't convey tone of voice, I don't do this in an arrogant manner, just to show that I understand the concept, but simpley disagree with it. I think the OJ case is a bad example actually. A better example would be a husband who backs over his wife in the driveway with his car. For whatever reason, the police think he meant to do it. He is charged with murder. His defense is that it was an accident. The jury believes him and he is acquitted of murder BUT he is still responsible for the death of his wife. Just because he didn't murder her doesn't mean he didn't kill her. Okay.

I don't disagree with the principle of the victim being compensated for the crime. I only think a civil suit should be allowed to proceed if the responsibility for the death is not in dispute. There are two cases I can think of 1) someone is found guilty of the crime (murder, manslaughter and all the variations of each), or 2) someone who is acquitted of the above mentioned crimes, but does not dispute responsibility for the death (defense of accident, sel-defense, etc).

I just simply disagree with the current system that allows someone who is found not guilty in a criminal court to be brought to trial in a civil court. Is it technically or legally a way around double jeopardy? No, it is not and the Supreme Court of Canada (and I would assume, the United States Supreme Court also) says so. But, I still think it will in the end become a de facto court of second chance. The rhetoric around the OJ Simpson case suggests this may be so. There really was an attitude during the trial that if 'we don't get you in the criminal court we'll get you the civil court'. That was at least how I interpreted the tone coming from the families of Brown and Goldman. I don't blame them. I think OJ is probably guilty (but thinking isn't enough in our system).

Matko made a good point that the penalty that the defendant faces in the two courts could be vastly different. The gas chamber vs a financial penalty. However, the difference is not always that great. It saounds as if they are getting a speeding ticket. Bankrupting someone for the rest of their life is pretty serious too (though OJ still seems to be living a better lifestyle than I and I don't have a multi-million dollar judgement against me).

Two Canadian Supreme Court judges wrote 'A true penal consequence occurs if imprisonment or a fine is imposed which, by its magnitude, would appear to be imposed for the purpose of redressing the wrong done to society at large" What they were saying is that the requirements for double jeopardy were met if a person faced 'true penal' consequences for the same crime. They argued that if the fine was large enough to appear to be redressing the wrong done to society, then it was a 'true penal consequence' and thus double jeopardy. I do note that these two judges were in the minority, and three judges ruled that a fine/compensation to the victime or victim's family was not double jeopary. I offer the info not to prove that I or Urban Myth are legally correct, but to show that people who know a lot more about the law than anyone on this board also have problems with the system.

Anyway, sorry for the long-winded answer. That is why I don't like the systme, and that is why I feel that a person is facing punishment twice for the same crime.

[Gwangjuboy]

[Gwangjuboy]