The Maverick Conservative

See Saturday's entry for part I, and yesterday's entry for part II.  Note, again, that the reason for illustrating my points with Drew Peterson is that he is PROBABLY guilty (although I see no reason to have a firm opinion of the subject, since such an opinion--in the absence of a criminal trial, amunts to back fence gossip--not to mention a presumption of guilt instead of a presumption of innocence).  There is no agenda here that Drew Peterson may not DESERVE the unfair treatment he is getting.  But, in other contexts, the media will jump all over the UNFAIRNESS of the treatment of CRIMINALS (terrorist detaines are an extreme example), on the grounds that such unfairness may NEXT be visited on you or me.  That is why I reglarly call today's media lying, sanctimonious hypocrites--becase they ARE.

As I have noted elsewhere in this blog,  the PRIMARY "Mike Nifongs" in the country today are the people of the MEDIA.  They insist on the "right" to conduct a trial in the media, instead of reporting directly relevant facts, and they try to convict people in that trial based on CHARACTER.   The media was as much or more responsible for the unfairness to the Duke players as Mike Nifong.  Remember the RACIST EMAIL?  That was an attempt to make character prove a specific act (rape), which it does NOT do,. What was Mike Nifong's mistake?  Looking at what happens in other cases, you could conclude that his main mistak was going ON THE RECORD with his false statements.  If he had LEAKED "information", and simply relied on innuendo, he would have been FINE.  The Duke playes would STILL have been trashed, but Mike Nifong would have been fine.   The "lesson" the Mike Nifong case taught "invetigators" and prisecutors is NOT that it is "wrong" to trash people unfairly, but that you need to be sure to be ANONYMOUS aout it--unless you are the media, and willing to be EVIL right out in the open, without appearing to realize what you are doing. 

With that introduction, I am continuing the Socratic dialogue with my mother, starting with the "issue" of CHARACTER::

S:  Do you realize that the law does NOT allow evidence of CHARACTER to prove the a person committed a SPECIC ACT (as you know, I was a lawyer for more than 30 years)?

M:  I don't know whether I knew that.  Why is that?  Is not a person likely to act in accordance with his character?

S:  Take the Duke "rape case" as an example (and there, there was an alleged email that was mainly racist and sexist, but MORE directly relevant on PLANS the young men involved in the email may have had, rather than just character, than most of the character stuff the media digs up to continually come up with "new deveopments").  Assume that the Duke players were alleged to be racist, sexist pings.  Does that really "prove" that they committed rape?  Does it even provide ANY evidence of rape (there are LOTS of racist, sexist pigs out there who do NOT commit rape--much less a specific rape)?

M:  Well, I guess that is true.  But isn't it more likely that a sexist, racist pig will rape a black stripper than that a minister with a wife and children will do it?

S:  Hey!  I am asking the questions here.   In any event, I am not sure of that.  More importantly, if we let the trial be ABOUT the almost irrelevant issue of character, then the jury is fairly likely to convict based on the bad character of the accused (if they think such bad character is proven), rather than evidence that the accused committed the specific act.  That means that the trial becomes ABOUT the character, and not about whether the accused committed the specific event.  That is WRONG.  Tell me this, do you think that rotry bishops and nuns should be allowed to come in and testify to the angelic character of an accused, to show that the accused did NOT commit a murder?

M:  Well, possibly.

S:  You are hopeless.  Don't you realize that a person may commit murder without previous evidence of bad character, and that it is STUPID to have a triall about a person's character, rather than about his ACTS?

M: I sort of see that, but it is hard.

S:  Don't you think you are bing CONDITIONED by the media to think that chat character matters, when the LAW says (correctly) that it is a DISTRACTION, and unfair in terms of any slight relevance(it may very SLIGHTLY increase the probability that a person committed a specific act), to have a criminal trial degenerate into a trial about the accused's character?

M:  I can see that.  But it is FUN.

S:  You ARE hopeless.  Did you also know that the law (correctly) says that indificual "bad" (or "good") acts are NOT admissible to prove a person's character (in a stituation where character maybe relevant--NOT to prove that a person acted in accordance with that character, but for some admissible issue--such as IMPEACHMENT of a witness by showing a BAD reputation for truth and veracity):

M:  That really does not sound right.

S:  Oh but it is.  Don't you realize that the fact that a person committed an unrelated murder ten years ago does NOT provide any proof that he committed another murder NOW?

M:  I can sort of see that, but it does make it somewhat more likely that he did it.

S:  It may be a very SLIGHT indication that a person is more likely to commit murder because he has done so in the past, but that is outweighed by the PREJUDICE of making this trial about some other act.  For example, take wife no. 3 in this case.  If Drew Peterson were charged with killing wife no. 4, and the state were allowed to introduce evidence about wife no. 3 (without a trial on that death having happened), would not the trial become ABOUT whether Peterson killed wife no. 3?  Don't you see that if you allow proof of specific acts to prove character, when individual specific acts do NOT really "prove character (we are ALL "sinners"), then the trial may become ABOUT whether the accused committed the OTHER specific acts, rather that be focused on the real issue of whether the accused committed the specific act with which he is charged?

M:  I guess I see that, but I see evidence come in sometimes.

S:  There are exceptions (which is one reason the accused almost never takes the stand).  As stated above, sometimes you can IMPEACH a witness with evidence of a bad character for truth and veracity.  Plus, the law PRESUMES that conviction of a felony establishes that your credibility is in question, and therefore previous conviction of a felony is admissible automatically, if introduced to impeach the credibility of a witness.  Futher, if a person does put on evidence of GOOD CHARACTER for some reason (like in the penalty phase), the witness can be asked whether he "has heard" of specific insances of alleged bad character.  Then there is the exception for a PATTERN of conduct--take the Keith Peterson case (Petersons seem to be homocidal lately--another non-relevant observation).  In that case, two consecutive wives dies in the SAME way--"falling" down the stairs.  Really, you just about have to allow evidence of BOTH incidents in a trial on EITHER.   The PATTERN (modus operandi) is just too obvious.  Here, whoever, you have no evidence of HOW wife no.4 died, or even conclusive evidence she is dead.  Nevertheless, I can see a possibility that the disappearance of wife no. 4  MIGHT come into evidence in a trial for the miurder of wife no. 3.  I don't see the reverse:  if I were a judge or juror, I just don't see the DEATH of wife no. 3 being admissible to PROVE the murder of wife no. 4. The questioin is just too obvious:  Why don't you try Drew Peterson for wife no. 3, if he killed her?  It appears to be DESPERATION to attempt to bootstrap the mere suspicious death of wife no. 3 into "proof" of the murder of MISSING wife no. 4.   Can you understand all of that?

M:  Well, it is confusing.  But I understnad that you can't be conducting a trial of character, or of alleged OTHER conduct, when you are supposed to be conducting a trial of a specific alleged act.

S:  YES.  You have got it.

M:  But it is interesting to find out this stuff.

S:  AIIIIIIIIIIIIIIIIE!!!! It's hopeless. 

But I continue to try in part IV, coming up today or tomorrow.

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