What Do The Terms "Presumption Of Innocence" and "Reasonable Doubt" Mean?

Recently I came across a jury instruction given in a criminal case presided over by the Hon. Robert H. Whaley, Chief Judge, United States District Court for the Eastern District of Washington, that explains better than any jury instruction I have ever seen what the terms "presumption of innocence" and "proof beyond a reasonable doubt" really mean.

The law presumes a Defendant to be innocent of a crime. This is not an idle presumption or one that we merely give lip service to. The presumption of innocence is a basic and most important part of our criminal justice system. It is a true presumption of innocence that exists at the start of the trial and that continues throughout the trial. The presumption of innocence alone is a proper basis for a finding of not guilty unless all twelve jurors are convinced that the prosecution has established the guilt of the Defendant by proof beyond a reasonable doubt.

The burden of proof beyond a reasonable doubt is always upon the prosecution. There is no burden what-so-ever on a Defendant to prove his or her innocence or to call any witnesses or to produce any evidence.

Proof beyond a reasonable doubt must be proof of such a convincing nature that you would not hesitate to rely and act upon such evidence in making the most important decisions in your own life. It is not necessary, however, for the Government to establish guilt beyond all possible doubt. Proof beyond a reasonable doubt is the highest burden of proof in our justice system.

The scale of burdens in our justice system starts with a preponderance of the evidence. That means "more likely than not." Obviously, proof that is more likely than not does not constitute proof beyond a reasonable doubt. The next highest burden of proof in our system is by "clear and convincing evidence," which is much higher than the preponderance of the evidence. "Clear and convincing evidence" means that the evidence meets a "highly probable" standard. Even "highly probable" clear and convincing evidence does not establish proof beyond a reasonable doubt.

A reasonable doubt may arise not only from the evidence, but also from a lack of evidence. If you, as a jury, after careful and impartial consideration of all the evidence, finds that the prosecution has not met its burden of proving a Defendant is guilty of a charge by proof beyond a reasonable doubt, it is your duty and obligation to return a Not Guilty ("Not Proven Beyond a Reasonable Doubt") verdict to that charge. On the other hand, if the prosecution has established the guilt of the Defendant on a charge by proof beyond a reasonable doubt, it is your duty and obligation to return a guilty ("Proven Beyond a Reasonable Doubt") verdict to that charge.

Because this instruction gives real meaning to these important concepts, the government always opposes it. There would be fewer wrongful convictions at trial if other judges would give juries this instruction of law.

Innocent!

In 1970 Congress enacted the first federal criminal forfeiture law in the form of the Racketeer Influenced and Corrupt Organizations (RICO) Act. The purported justification for criminal forfeiture was that it was a criminal punishment for the guilty; a punishment imposed through a criminal proceeding directed against an individual for his criminal acts. Since 1970 Congress has steadily increased the types of criminal offenses for which criminal forfeiture is a sanction.

Forfeiture laws, both criminal and civil, have become increasingly popular with state and federal law enforcement officials. A subject that was once relegated to obscure passages in the musty recesses of law books, and rarely invoked in practice, has become the darling of law enforcement. Over the past 20 years, criminal and civil forfeiture have become a major weapon in both the states’ and the federal government's "war on drugs." In many jurisdictions local police rely on seized and forfeited property to significantly finance their operational budgets. Forfeitures have truly become a monetary tail wagging the law enforcement dog.

I just finished reading a book by Sam Harris entitled The End of Faith. Mr. Harris makes many intelligent and well reasoned arguments pointing out the dangers and absurdities of organized religion. But when Mr. Harris recounts for his readers the horrors of the 12th and 13th century Holy Inquisition, it occured to me that it is from this dark period in human history from whence our modern day forfeiture laws have sprung. According to Mr. Harris, although The Holy Inquisition formally began under Pope Lucius III in 1184, it really hit its stride in 1199, when Pope Innocent III decreed that all property belonging to a convicted heretic would be forfeited to the Church and shared with local officials as a reward for their candor in exposing a heretic.

Drug dealer? Heretic? Both alleged miscreants engaged in victimless crimes with local officials only too happy to share in the plunder of their worldly goods. How ironic. The man to whom we can trace our morally bankrupt practice of criminal forfeiture was a religious man named Innocent!

Someone At The DOC Deserves A Big BOOYAH!

The Department of Corrections will soon issue photo identification to offenders released from prison to aid them in obtaining new driver's licenses or Washington state identification cards, the agency announced Friday.

Convicts often lack proper identification because they lost their driver's licenses or failed to keep track of other documents such as Social Security cards. That can make it more difficult upon their release to find employment or housing, which boosts their chances for recidivism, according to the Corrections Department.

When they're released, Corrections will provide offenders with department-issued ID cards that the Department of Licensing has agreed to accept as one of several required documents for obtaining a state driver's license or ID card. The department still will require offenders to present documents such as birth certificates, passports or military ID to verify identity.

Under the agreement with the Licensing Department, Corrections will send an electronic notification to Licensing with the offender's photo, description, Social Security number and date of birth.

http://seattlepi.nwsource.com/local/337010_doc27.html

Prof. John Strait's Three Golden Rules of Criminal Defense Work

1. Get the money up front.
2. If somebody goes to jail, make sure it's your client and not you.
3. Get the money up front.

Scare Them To Death Or Work Them To Death

The term plea bargaining can be defined as the process whereby the defense and the prosecution in a criminal case work out a mutually acceptable disposition of the defendant's case. That disposition, called a plea agreement, is subject to court approval. Properly negotiated and structured, plea agreements in general benefit defendants, the government, and the judiciary. In addition, the public benefits from plea-bargaining because plea agreements result in the conservation of public resources as well as the quick disposition of criminal cases.

Although to a defense attorney there are no sweeter words than the two words "not guilty," years of experience have taught me that a client is usually better served by a good deal than by going to trial. Unfortunately what the prosecutor offers is usually not what the defense would call a good deal.

There are more than a few defense attorneys, derisively called "dump trucks," who, when faced with bad facts and a bad plea offer, will turn on their clients to get them to plead guilty no matter how bad the deal. The true masters are those who when faced with bad facts, no defense and a bad plea offer, still manage to get their clients a better deal and a reasonable sentence.

How do the masters do it? To paraphrase what John Houseman used to say in his commercials for Smith Barney, "they earn it."

The defense attorneys who get the best deals are the ones who have a reputation for trying tough cases and making the prosecutor work hard to gain a conviction. Nothing motivates a busy prosecutor to deal away a case more than the thought of having to spend the weekend working to reply to numerous legal memorandums or even worse, the thought of losing face by possibly losing at trial. Even though the case is a slam dunk winner for the prosecutor the true master makes his/her client's case the prosecutor's worse nightmare, a case from hell. Like the constant drip, drip, drip of water on a rock, you have to wear the prosecutor down in order to extract every concession possible.

Scare Them To Death Or Work Them To Death. That's the way you do it.

The Lost Jewel by Emily Dickenson

I held a Jewel in my fingers -- And went to sleep -- The day was warm, and winds were prosy -- I said "Twill keep" -- I woke -- and chide my honest fingers, The Gem was gone -- And now, an Amethyst remembrance Is all I own --

These days it is common in plea negotiations where there is a firearm involved in the facts for a state prosecutor to threaten defense counsel that if the defendant doesn't take the state's plea offer, the defendant's case will be reviewed for federal filing.

The prospects of having a state case go federal is real. In theory any drug or gun case can be both a federal case and a state case. The federal government has concurrent jurisdiction with the state over drug and firearm related offenses. Although most people think otherwise, the concept of double jeopardy does not apply to prevent the federal government from prosecuting the same offense a second time after a state prosecution. But, as a practical matter, the lack of prosecutorial resources keep most state firearm cases in the state courts and the government usually doesn't prosecute a state offender for the same offense again in federal court.

In the past decades, however, with the advent of federal funding for prosecution of firearms and firearm related offenses, more and more state prosecutor offices have had one of their deputy prosecutors sworn in as a Special Assistant United States Attorneys whose sole job is to select for federal prosecution and then prosecute in federal court repeat firearm offenders.

If the case is indicted as a federal offense the client is often facing a sentencing scheme that is two or three times harsher than the state sentencing structure. Once a defendant's case has been referred for review by one of these Special Assistant United States Attorneys, it's a real problem getting the client to believe that the state prosecutor is not bluffing about having the case go federal.

Over the past years I've spoken to numerous individuals who had been detained without bond in the federal detention center because they refused the state's plea offer, set their state case for trial and then found themself arrested on a federal bench warrant. Unbeknownst to the client the federal government indicted, the state then dismissed and the former plea deal, which once looked so bad, became a sought after jewel that was lost forever.

Sorry we missed you ....

Paranoia is a disturbed thought process characterized by excessive anxiety or fear, often to the point of irrationality and delusion. Paranoid thinking typically includes persecutory beliefs concerning a perceived threat.

Sorry we missed you ....

It would be nice if the government would leave a calling card when you were suspected of criminal behavior. But the fact that the government doesn't let you know you are under investigation does not mean you are not being watched and observed. It's getting more and more common these days for the government to eavesdrop on your cell phone calls, read your email correspondence, analyized your bank records, search your garbage, check your credit background and interview your neighbors without ever getting a warrant or contacting you. As the old joke goes, just because you're paranoid doesn't mean they aren't out to get you.

GVM (Green Vegetable Matter)

With three months still to go, teams of federal, state, and local law-enforcement officials have already confiscated a mind-bending haul of marijuana plants from indoor and outdoor grows across Washington this year, they say. The remarkable seizure of 242,000 plants—38,000 from one Central Washington garden alone—is altogether about 100,000 more plants than all of last year's record confiscation, says Lt. Rich Wiley of the Washington State Patrol narcotics program, pushing the Evergreen State ever higher on the list of America's top dope-producing regions. Almost 250 suspects were arrested in the past nine months for tending or aiding the operations, most of them outdoor grows east of the Cascades.

MARIJUANA BY THE NUMBERS

Price to set up a full house indoor marijuana grow: $50,000

Pounds of marijuana seized in 2006 in Washington: 9,598
Plants seized at Washington indoor grows, 2003: 23,557
Plants seized at Washington indoor grows, 2006: 32,440
Plants seized in raids at King County indoor grows in 2006: 17,618
Price paid by traffickers for marijuana grown indoors in the Northwest: About $2,200 per pound
Price paid for outdoor-grown marijuana: About $1,800 per pound

Potential penalty for getting caught with 1000 plants or more marijuana plants: 10 years

Having a good defense attorney: Priceless!

Sources: Seattle PI, National Drug Intelligence Center, court documents

http://www.seattleweekly.com/2007-10-03/news/marijuana-is-washington-s-hottest-agricultural-product.php