The Lindsay Clancy verdict has raised a legal question that requires a larger national discussion. In what practical sense is a full trial and exposure to legal penalty, including life sentences or the death penalty not legal jeopardy?
The government is required to prove any criminal case beyond a reasonable doubt. The government has the advantage of making the charge, including a myriad of lesser included offenses (lesser crimes encompassed within but not as severe as the main charge), unlimited resources for investigation, witness payment, or out right bribery through plea bargaining and immunity agreements, professionally trained witnesses and prosecutors that the defendant has probably help to pay. Juries usually provide law enforcement with an undeserved level of credibility. The government speaks first and always gets the last word.
Conviction is always a possibility that inheres in the function of a trial. Legal jeopardy is defined as:
"Jeopardy is a danger of harm or the risk of loss. In legal contexts, jeopardy often refers to the danger of punishment and criminal liability that a defendant faces at trial. Jeopardy attaches at the moment a prosecution commences: in a jury trial, it is when the jury is sworn in (impaneled); in a bench trial, it is when the first witness is sworn."
The United States Supreme Court got it wrong 202 years ago in United States v. Perez, 22 U.S. 579 (1824). A criminal trial and possible execution is the ultimate danger of harm or risk of loss. A century before the Magna Carta, Mamonides said it was better to acquit a thousand guilty persons than execute a single innocent man. Benjamin Franklin said "It is better 100 guilty persons should escape than one innocent man suffer."
So why should the government, with all its tremendous advantages in almost every trial have the ability to theoretically put a person on trial, giving the government the advantage of fixing every mistake, every misbegotten theory or misspoken question or argument, until the government finally finds a jury that will convict the government's target? This happened in the Owl's own home town in the infamous Techel case. In what sense is that is that a process that could ever produce a fair outcome?
So why should the government, with all its tremendous advantages in almost every trial have the ability to theoretically put a person on trial, giving the government the advantage of fixing every mistake, every misbegotten theory or misspoken question or argument, until the government finally finds a jury that will convict the government's target? This happened in the Owl's own home town in the infamous Techel case. In what sense is that is that a process that could ever produce a fair outcome?
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