I think our criminal system has gotten clogged with too much red tape. From the police on the street the guard in prisons and every step in between there's red tape piled high.

Unfortunetly much of it is CYA type stuff which is a neccissary evil in today's legal climate where you can sue for almost anything it seems. At this point I'm not sure what can really be done to clean it all up.

As for this case any murder case, especially one with this much evidence, will require time to process and make sure all the "I's" are dotted and the "T's" crossed. Since there's so much CYA I can see why there'll be lots of delay before it goes to trial.

Sure, it'd be quicker to just blast the guy and be done with it, but that's not justice, especially because it could turn out at the end of the day the guy isn't guilty.

Gozer,

I'm not necessarily arguing for a speedy trial - and I'm opposed to the death penalty - I'm just saying that we've got a case here where the evidence seems pretty solid - it shouldn't take one to two years to bring this man to trial.

I want each defendent to have a vigorous attorney, but even so the purpose of a trial should be to get at the truth - it seems to me that prosecuters, defense attorneys and judges are working diligently to prevent the whole truth from coming about because the full, unadulterated truth might not be fair...

I have had many of the same thoughts this past year. Being a court reporter at the Fulton County Courthouse in Atlanta, GA, I am very close to the criminal justice system and believe in it. However, after Brian Nichols murdered my friends and coworkers last year in front of witnesses, I have questioned why the State has now spent hundreds of thousands of taxpayers' money for his defense. Why? What defense could he possibly have and who would defend him? Mostly the defense attorneys have been spending our money stonewalling and looking for loopholes in the law. It's reprehensible.

Well, if you read his blog at all, he talks about being lonely, depressed, off of his medications, etc. Someone will, no doubt, figure out a way to say that this isn't his fault because he had emotional problems.

Mark,
There is a saying learned by all attorneys while in Law School: Hard cases make bad law. Underwood's case is without doubt a hard case. In my own mind I have no doubt that he is guilty, he is evil and he needs to be put to death. That being said, we cannot change our system of justice because of cases like Underwood's. First and foremost our constitution guarrantees a trial by jury. If we conservatives want respect for all constitutional rights we cannot advocate abrogation of any of those rights.

Most defense attorney's, despite popular belief to the contrary, are ethical. When I practiced Law my goal was not usually to get my client off the hook. My goal was always to make sure that the State (or in my case, the Commonwealth) abided by all legal requirements in obtaining evidence and presenting their case. Once we begin excusing the State from the constitutional requirements in cases like Underwood's, it trickles (and then floods) down to other cases. Cases where guilt is not so sure, but corners were cut in gathering evidence and presenting a case, because there are no longer controls on the state requiring it to abide by Constitutional requirements.

We should never forget that when a person is indicted for a crime he has the resources of a State or the Federal government arrayed against him. Multiple investigators have worked hard to gather evidence, multi-million Dollar laboratories and multiple experts have examined that evidence and all have worked with the ultimate goal of conviction. Against this juggernaut you have the Defendant, his attorney or attorneys, and sometimes one or two experts.

I would much rather fight the battle to control government power at the battlelines formed around Underwood types, than at a battleline formed around those persons like Raymond Donovan. (For the memory impaired here is a quote from Wikipedia: After ending his service as Secretary of Labor, Donovan was charged with larceny and fraud. ....... In 1987, Donovan was acquitted of these charges. After his acquittal, Donovan was famously quoted as asking, "Where do I go to get my reputation back?")

So while it is tempting to abandon adherence to the rights guarranteed by the constitution for people like Underwood, we cannot give in to that temptation.

Mark,

The subject of Underwood may be philosophical, but the related issue you raise has its basis in politics.

I think the entire American legal, court, and justice system has BIG problems and sorely needs to be changed. Many of its problems have been created due to politics and haven't been fixed because of more politics.

Something has to be done to reign in the number of lawsuits, the ease with which frivilous lawsuits can be filed, and the ludicrous settlements. They are placing a huge economic burden on America and Americans. It's easier and quicker to get rich by suing someone or a big company than to work or to win a legitimate lottery. Even if the defendent isn't guilty, perhaps they won't have enough money to defend themselves, or perhaps their insurance company will pay out rather than spend the time and money of going to court, or the risk of yet another ridiculous settlement.

Courts have become the method for transfering blame and responsibility to someone else for a person's own actions. They are used by special interest groups like environmentalists, abortionists, gay rights, aethist, and other groups to circumvent the intent of our constitution and our laws and to impose the agenda of these groups on the majority of Americans.

America's legal system seems more concerned about providing a guilty person with the means to escape punishment and responsibility for their actions than in providing justic. And, if one has enough money and can hire enough wealthy lawyers, they can even get away with murder! On the other hand, if a person is poor or of moderate income and can't afford the huge legal fees, they may have to plead guilty to some lesser offense rather than risk a trial, knowing they are innocent. I have seen it!

In the case of Underwood, if what the media has reported is even half true, then I see little reason to waste tax dollars and the court's time with an extended trial. But liberals will say I am trying to rush to judgement. There "could" be extenuating circumstances. He has the right to look for an attorney or technicality that will allow him to go free. He may have been raised in a bad home, abused, watched video games, had a reaction to a drug or food allergy, or some other reason why he is not responsible for his own actions. Perhaps his attorneys can show it was really the victim's fault. His attorneys just need time to figure out why he is responsible for his actions or find some loophole to "justify" why he is not guilty. And then there are those years and years of appeals looking for some other "reason" he is not responsible for the crime or why he should escape justice!

And as Gozer pointed out, there is always that ever present and all encompasing mass of red tape. Perhaps his attorney can show that someone didn't read him his "rights", they slurred their words, or left out a word in the "court approved statement" -- as if no one knows their rights these days! Perhaps some piece of evidence wasn't "handled" in accordance with the red tape. His lawyers need all of the time they can to look through every piece of that red tape and see if they can't find something that will get their guilty client off and back on the streets!

I see no reason that those who commit a felony or heinous crime should get off just because of some technicality (maybe not for a misdomeanor or minor crime). If the evidence proves they are guilty, then they are guilty... period... case closed! If the police officer or investigators made a technical error, in most cases it would just be the guilty person's bad luck. I would still include the evidence and "hang" hang the crook. I would then reprimand or punish the officer, investigator, or other person who committed the technical error or otherwise "violated" the criminal's rights. If it were a pattern of abuse or a significant error, then I might fire the person who "violated" the criminal's rights. If it were a blatant abuse of their position, the person who "violated" the criminal's rights might go to jail right along with the criminal, but the criminal would still be in jail.

AAR

Patrick is exactly right.

We can't throw the constitutional right of a fair trial out the window because a person is "obviously" guilty. There is no "obviously" in the US court of law. It's innocent until proven guilty.

There have been instances where someone "obviously" guilty has been proven innocent. A vigorous prosecution and defense is the ideal -- no matter who the defendent is or what crime he is accussed of.

Mark,
I agree that the justice system moves entirely too slowly insure public protection while guaranteeing the rights of the accused, we have only our courts’ history to blame. Over the past 30 years or so the courts have made some absurd rulings allowing the government, police authorities and others under the cover of authority, unrestricted abuse of rights which should be constitutionally guaranteed. At the same time, defense attorneys have exploited technicalities within the system to confuse and confound the issues. The first situation leads directly to the second.

The most abhorrent of these abuses are caused by the authorities marshalling all the weight of the government in adversary of citizens who were in all probability guilty of the crimes for which they were accused. The “anything to put this guy away” mentality has produced a series of rulings rife that defy logic, and endanger innocents with the government’s abusive authority.

The courts decisions to ignore the rule of law in order to put possibly dangerous people behind bars only insure that the standard guilt beyond a reasonable doubt becomes a moving target. The courts have to accept that some investigations are gravely flawed, and some police tactics can be questionable at best; unconstitutional at worst. When that happens, the accused, no matter how guilty in our minds, must be set free.

I don’t know if I agree with Tom’s assessment that some obviously guilty have been proven innocent, as much as I believe that the system has created the ability of the obviously guilty to find ways to be acquitted.

Our justice system is based on our forefathers belief that it is better to keep one innocent man and 10 guilty men out of jail than 10 guilty and one innocent man in jail. That the individual's right to freedom is so great that the system is geared to support it above retributions, corruption and revenge.

At this point in this case the defense attorny is there to make sure this man is given due process. That his rights are looked after, that his is treated the same way everyone else is supposed to be treated in the system, presumed innocent until a verdict is arrived at.

How that happens is how we all go through it, the system runs it's cogs. Sometimes that takes time.

It's a horrible henious crime that makes people cry for vengence. Our court system is not suppose to support that and the mob mentality behind it. It suppose to support the uniquness of every case and the rights of the defendent as a presumably innocent man.

Mark,
I agree that the justice system moves entirely too slowly insure public protection while guaranteeing the rights of the accused, we have only our courts’ history to blame. Over the past 30 years or so the courts have made some absurd rulings allowing the government, police authorities and others under the cover of authority, unrestricted abuse of rights which should be constitutionally guaranteed. At the same time, defense attorneys have exploited technicalities within the system to confuse and confound the issues. The first situation leads directly to the second.

The most abhorrent of these abuses are caused by the authorities marshalling all the weight of the government in adversary of citizens who were in all probability guilty of the crimes for which they were accused. The “anything to put this guy away” mentality has produced a series of rulings rife that defy logic, and endanger innocents with the government’s abusive authority.

The courts decisions to ignore the rule of law in order to put possibly dangerous people behind bars only insure that the standard guilt beyond a reasonable doubt becomes a moving target. The courts have to accept that some investigations are gravely flawed, and some police tactics can be questionable at best; unconstitutional at worst. When that happens, the accused, no matter how guilty in our minds, must be set free.

I don’t know if I agree with Tom’s assessment that some obviously guilty have been proven innocent, as much as I believe that the system has created the ability of the obviously guilty to find ways to be acquitted.

Tom,

But what about the larger issue:

It is going to take one to two years to bring this man to trial, even with the vast array of evidence already collected against him...and when at trial, the defense attorney, the prosecutor and the judge will at times seek to prevent the whole truth coming out...someone in the trial will seek to prevent the jury from seeing some relevant fact.

Justice must seek the truth, in my view, and justice is impossible if anyone is preventing the full truth from coming out. This is what I'm pondering...

Everyone,

Great posts so far, I don't have time to get into the depth some of you have...but I will later.

First of all - reject the notion that the American System of Justice is a search for the TRUTH. It is clearly an adversary system where both sides want to win. Artificial rules of this system have not been created by the legislated representatives of the people, but by judges. As practiced, both sides are content with being legally accurate, without volunteering information. This is a far cry from the truth, the whole truth, and nothing but the truth.
Students of this system recognize a dual model of justice. the vast majority of cases are processed with plea bargaining. Only a few, high profile cases, receive the full protection of the presumption of innocence. This makes every case an adventure to the first police officer on the scene: should he/she safeguard evidence, assist the victim, or pursue the offender? A poor choice may 'contaminate' evidence, cause further injury to the victim, or allow the guilty to escape.
The system can only operate on a presumption of guilt. The police have no authority to arrest someone they believe is innocent! The District attorney will not charge, nor will a Grand Jury Indict one who they believe is guilty. If the presumption of innocence prevailed, no one would be brought to trial.
We may not be ready to accept this, but our system of justice is designed to provide order in times of disorder. Police arrest to stop further violence. The system allows for opposing views to be heard and approximate a just outcome. When the rights of the accused to behave violently conflict with the rights of victims to be free from violence truth is not the issue.
Judges vigorously protect the rights of the accused ---there is no one to stand up for the rights of the victim. The system needs two years of delay to allow the public to forget the violence brought to the victim and for the defense to build sympathy for the violator. With this passage of time there is little public outrage when the violator avoids the legislated sanction associated with the criminal conduct.

"It is going to take one to two years to bring this man to trial, even with the vast array of evidence already collected against him...and when at trial, the defense attorney, the prosecutor and the judge will at times seek to prevent the whole truth coming out...someone in the trial will seek to prevent the jury from seeing some relevant fact."

The prosecution and the defense may try and block relevant information from being heard, but a judge never will (unless he is corrupt). It's up to the judge to, well, judge whether evidence is relevant to the trial or not.

But I don't really see your point. Because someone might try and block relevant information from being seen or heard, we shouldn't have a trial? I don't know what you're trying to get at.

In the end, the judge deems what's relevant or not.

And yes, our legal system can be slow. But I'm not willing to cut corners on the fairness of a trial to speed up the process. Maybe there are other way to speed things. That's certainly worth discussing.

Judges are less interested in what is relevant and material and more concerned with following procedures set by the courts. TRUTH is routinely suppressed and jurors are asked to determine guilt while facts and evidence is withheld.

Tom,

There just seems something wrong in the concept that a defense attorney should try to get his man off by hiding some or all of the truth...we all get outraged when the prosecution tries to hide some relevant, exculpatory fact...but we don't get upset, at least in the official sense, when a defense attorney does it...nor do we get worked up if a judge decides that relevant fact X shall not be presented because it might be "prejudicial" or gathered in error by the prosecutor.

I'm not arguing for a particular reform proposal here, I'm just pondering justice, and what it all means.

Did you feel happy when the OJ verdict came down? Here was a clearly guilty man who got off because his attorneys muddied the waters and, from what I can recall, actually prevented some evidence from coming to trial. A trial happened, but justice was nowhere to be found in it.

I'm just wondering - doesn't a defense attorney have a responsibility to the truth, or is it really that his job is by hook or crook to get even the guilty off?

AAR,

I'm with you - but I think our problem is in mindset: our judicial system doesn't seek the truth...it is lost in the cobwebs of the law, or what some judge somewhere thinks the law is, or ought to be.

To me, what a trial should be about is not so much the defendent and victim, but an exposition of what happened in full context, which would bring in any mitigating circumstances as relates to whomever might have done an actual crime in the event being dissected. The people need to know what happened, in full, so that we can as far as possible assign reward and punishment. The judge, in this view, should be a person who is on both defense and prosecution to bring out the truth...not a referee as two sets of lawyers tie and untie legal knots.

"There just seems something wrong in the concept that a defense attorney should try to get his man off by hiding some or all of the truth..."

If a defense attorney comes across evidence that may help the prosecution, I believe he is required by law to share that evidence. And vice versa with if the prosecution comes across evidence that would help the defense.

I'm a little out of my league here, so if there are any lawyers around who know more than I, please chime in.

Often times defense and prosecution will try and make a case that some evidence is not relevant to a trial, but it's up to a judge to make that call.

"I'm just wondering - doesn't a defense attorney have a responsibility to the truth, or is it really that his job is by hook or crook to get even the guilty off?"

It's a defense attorney's job to make the best case for his or her client based on the facts of the case. The "truth" is not in the hands of the defense or prosecution, but rests with the judge and the jury.

Tom,

Hmmm...not sure I'll go with you on that...I think that Truth is objective and discoverable; it isn't within the judgement of a person - something is either true, or it isn't true...subjective judgements come in when we decide what to do about a truth or a falsehood.

I think that a trial should attempt to discover the truth - after that is discovered, then we can determine what to do with this truth.

I do believe that a defense attorney, as an officer of the court, has a theoretical obligation to the truth, but in practice I don't think there's anyway to force a defense attorney to bring forth evidence of his client's guilt - and I'm not talking about his client fessing up in private that he did the crime...getting back to the OJ example: I don't know if you remember the preliminary hearing, but I seem to recall that there was a bag picked up by the police - it contained items, but no one - not even the police - knew what they were. It seems that ownership of the bag was in question, and that prevented a search of the contents...what harm could there have been in opening the bag and seeing what was in it? If it ended up being germane to the OJ case, then it was vital...if it wasn't germane, then who the heck cares what was found in it? As I recall, ownership of the bag was claimed by some OJ attorney and thus the bag was kept away from the police and prosecutors...what was in it? Perhaps just a change of underwear, but perhaps a bit of evidence which would have made OJ's guilt incontrovertible...or, perhaps, something that would have exhonerated OJ, but implicated someone he wanted to protect (some theories are that OJ's kid did it, and OJ was taking the fall to save his kid's life)....we'll never know; truth was prevented from occuring.

Truth - it is the most vital thing in all human activity; if you've got truth, then 90% of the task is done...if you don't have it,then anything you do is worthless.

Mark, "Fruit of the poisoned tree"
If the bag contained incriminating evidence and the custody was challenged the evidence and everything else gathered as a result of finding that bag would be inadmissible.
Also, the defense attorney in a criminal trial and the defendant are considered one and the same; the 5th Amendment to the constitution doesn’t require that you incriminate yourself, why would it require you to turn over physical evidence that would incriminate you? What I’m saying is, the attorney is acting in the defendant’s behalf, the defendant, and by extension the defense attorney, has the right to not incriminate himself even if he is guilty.

LAPD; so inept they couldn’t frame a guilty man!

Bane,

Oh, I know all that - but in the interest of truth, it should have been brought forward...if hiding the truth gets a guilty man off, then it should not be allowed. To me, self-incrimination is just that: SELF incrimination. This provision was put in to ensure that no one would bother torturing a suspect into confessing because it would just be thrown out on appeal, even if it made it through trial...but I can't see the logic in allowing a felon to hide the evidence of his crime and then get away with such hiding unless the prosecutor acts with perfection in 20/20 hindsight.