Tuesday, January 05, 2016


In American criminal law is it possible to have justice without fairness? The unambiguous answer from our United States Supreme Court could be viewed as almost un-American. After all how can there be justice unless it is laced with fairness?

Yet our Court has often ruled that for expediency, also known as judicial economy, proof of absolute innocence - even for a defendant facing serious consequences such as the death penalty - is not sufficient reason alone for the Court to address a case.
Even this cold Lady Justice
is presumed innocent till proven guilty.

Thinking about the lawful definition of justice in America today leaves little room for questions of fairness. Instead the Court looks to finality. The need to always be moving forward with an ever lengthening line of criminal cases persuades the Court that each case must be resolved within its given framework of available time. When the clock runs out, the sentence stands for all time, innocence be damned. The prevailing law for criminal justice in our country is justice as convenience rather than justice as fairness.

And that makes the occasional call for fairness from a defendant's family member years after some obvious abuse easy for the criminal justice system to simply brush aside. The likelihood of success in opening a long ago closed case becomes a game of finding some method to lever the case open. It has nothing to do with guilt nor innocence. 

An example of the quality of leverage required to reopen a change of plea would be finding proof thru the Court Reporter's transcript of proceedings during the change of plea that the judge failed to ascertain if the defendant was affected by medication during the process of the plea. Other examples that could result in a plea being overturned would be incompetent counsel or not knowing the English language. In Florida most judges read questions and await responses with further probing questions when in doubt about the integrity of a plea with the goal of making certain that someone who pleads fully understands what he is doing as well as the consequences of the plea. 

If there was a trial by jury and the appeals process has run its course, then the chances of finding some lever to reopen a case are even more remote. Clearly once a person is found guilty there can no longer be any presumption of innocence. Unfortunately arguments based on fairness such as one that the defendant is actually innocent will be of little use. Allegations of unfairness and even proof of innocence will not likely to change the result of a criminal case. All of this means that the best chance for success in any criminal case is at the beginning. 

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