[Vision2020] Re: Wayne's Analysis of Criminal Innocence

Tue Dec 27 10:46:34 PST 2005

Ted wrote:

"If we trust our legal system, why not respect the very important principle of innocent until proven guilty, and let the system do its job?  

There is no doubt that too much discussion of the certain guilt of an accused facing charges can hamper the legal system in assuring a fair trial.  Prosecutors and judges can feel pressure from the public to make decisions based on a kind of mob frenzy, rather than the guide of lady justice blindfolded holding the scales (fairness) and sword (the power of the legal system).  Unbiased jurors can be hard to find when the press and media and even list serves create a bias in huge numbers of people regarding a specific criminal case.  Potential jurors need to state honestly that they can listen to the evidence with an open mind in a trial."

It's hard to know where to start, but perhaps remaking an important distinction might help.

There is a difference, and many times a considerable one, and one that should be kept in mind throughout the entirety of this discussion, between:

[1]    Being found innocent or guilty in the criminal justice system even after all appeals are exhausted, and

[2]    Being, in fact, innocent or guilty of the criminal act(s) of which one is accused.

It often happens that a person who, in fact, is guilty of the criminal acts charged is found not guilty in the criminal justice system.  This happens for a variety of reasons including the loss of evidence by the prosecution because of a violation of the defendant's civil rights, obvious perjury by prosecution witnesses which taints the case so that the "beyond a reasonable doubt" criteria is not met, insufficient or biased investigation, plea bargains, attorney competence/ethics level, attorney malfeasance, attorney lack of diligence, attorney indifference, attorney inexperience, the jury or judge for a variety of reasons just makes a mistake, etc, etc.  Likewise, very unfortunately a few people innocent of the crimes charged are found guilty.

Like other human institutions, the criminal justice system is not perfect.  Anyone who reads the news knows that [1] and [2] above are not the same.  The operational meanings of "innocent" in [1] and [2] are not the same.  For, example, I believe that it is extremely probable that O.J. Simpson murdered his wife, as do the jurors in the civil wrongful death case that ensued.

Therefore, although "letting the system do its job" does provide a legal answer to the question of guilt or innocence, that answer is not always correct.  Innocent people are convicted.  The system should be continually reviewed and changed, if necessary, to prevent his from happening.  However, in my opinion based on reading and observation, it happens that the guilty are found innocent with a much, much greater frequency than the innocent are found guilty.

Hardly anyone does not think it egregiously wrong when an innocent party is convicted.  Hardly anyone I know in Latah County does not believe in a fair trial including a rigorous prosecution and defense and a judge that unbiasedly enforces all the complex rules to the best of her/his ability.  

I have heard no one express an opinion that Kanay Mubita is not entitled to a fair trial.

Will he get one?

First, will the pre-trial investigation be complete and competent enough to provide the facts needed?  It appears that law enforcement is taking this case quite seriously, although because of the nature of the investigation much that is known by the investigators is not public knowledge and the competency of the investigation will only be known if the case goes to trial.

Second, will the prosecution be vigorous and skilled enough?  This is a case where the loss of Robin Eckmann as chief prosecution trial deputy may well make a large difference.  I hope the present personnel in the prosecutor's office are up to the task.  Because of the potential exposure that several witnesses will be subjected to at a trial, a plea bargain may be negotiated.  If so, I hope it is one satisfactory to the victims and the general public.

Third, will the defense be vigorous and skilled enough?  Mubita is represented by a public defender at his juncture.  This is a high profile case.  Perhaps, this will, if needed, provide an additional incentive to the defense to perform at their best.

Fourth, can a reasonably unbiased judge and jury be found?  Some claim that the publicity in the local media and on V 2020 reduce the probability that a fair trial can be held.  As someone pointed out, a jury pool can be imported from elsewhere, there could be a complete change of venue, and, appeal courts exist for the purpose to prevent, among other things, judges from improperly influencing the trial outcome either through error or bias.  All high profile cases are subject to publicity.  That does not mean a correct verdict cannot be rendered in such cases.  [Needless to say, V 2020 participants make up only a small portion of the possible jury pool.]  It is the job of the defense attorney to remove those potential jurors who are biased one way or another.  Because of our remarks, there are many of us on V 2020, that should be properly challenged by either the prosecutor or the defense attorney should any of us be included in the initial jury pool.

Some need to be reminded:  Mubita is not being charged because he is HIV positive.  He is charged with knowingly and intentionally having unprotected sexual relations without informing his partners of his HIV positive status.

The essence of this discussion is a collision of basic rights, the right of free expression to discuss this case by the public and the right of the defendant to have a fair trial not unreasonably tainted by this discussion.

Does public discussion taint or change the process in general?  Probably, in some cases.  Again there are procedural safeguards to lessen this impact, if any.  In addition, some public discussion provides information and perspectives which may be helpful to either side and/or helpful to the judges involved.

Public opinion may be wrong about whether a particular defendant is guilty or not.  Never-the-less, the public has a first amendment right to discussion and to their opinions.  In this case the evidence so far made public provides a high probability that the case against the defendant is very strong, including:

[1]    The defendant's own admissions, 
[2]    The exceptional courage of the witnesses who are victims and who will be placed in a seriously uncomfortable position because of their testimony that they had sex with someone who is HIV positive, and 
[3]    The claims of the health district that Mubita was informed in December of 2001 and several times consequent that he was HIV positive.

Of course, the evidence may be faked, the tests wrong, the witnesses liars, etc, but at this time there is no credible evidence that this is so.  Until there is, I, for one will believe that there is a high probability that the defendant is guilty as charged.  

This view is subject to change if credible evidence to the contrary is presented.

However, given the strength of the case so far made public, neither my opinion nor anyone else's on V 2020 or in the general public is unlikely to affect in any significant manner the outcome in the criminal justice system.  As to the treatment that this case has so far generated in the media, I have not seen anything that could be described as inflammatory; in fact, the media coverage has been bland, understated, and perhaps overly circumspect.

This case is like child molestation cases.  In my opinion such cases present an excellent opportunity for the public to discuss and to educate themselves about the perils, consequences, and means of prevention and prevention of the consequences of the alleged criminal behavior.  This case has certainly raised the level of interest and perhaps the opening of minds about the myriad different problems/consequences of HIV on the Palouse.  I do not believe this important public health issue discussion would have happened without this defendant being charged in this case and the resultant publicity.  I also believe this public discussion will increase the probability of a more rigorous defense and a very careful, unbiased judge.  It is hoped that this discussion will also reduce, at least to some extent, certain risky behaviors with possible dire consequences.

Yes, the defendant has the right to a fair trial.  And the public has a right to discuss the matter for a variety of reasons.  Until I see some credible evidence that the public discussion so far has unreasonably imperiled Mubita's right to a fair trial despite the procedural safeguards in the criminal justice system, I will continue to discuss it, especially the public health issues the case raises, and I suspect many others will also.

Art Deco (Wayne A. Fox)
deco at moscow.com

----- Original Message ----- 
  From: Tbertruss at aol.com 
  To: CJs at Turbonet.com ; chasuk at gmail.com ; vision2020 at moscow.com 
  Sent: Monday, December 26, 2005 5:13 PM
  Subject: [Vision2020] Re: Wayne's Analysis of Criminal Innocence

  Shelley wrote:

  I STRONGLY believe Mubita's name and photo need
  to be out there to notify the possible victims THEY NEED TO BE TESTED. 

  I agree.

  Shelley wrote:

  Do you fully understand HIV? 

  I have posted detailed information to the Vision2020 list regarding scientific and statistical information on HIV/AIDS, with references.  Perhaps you missed these posts?

  Shelley wrote:

  Regarding face to face counseling, if you would have done your homework
  before posting such ridiculous statements you would have known it was a 
  counselor" that reported to the police to do a "well check" regarding Mubita
  possible being suicidal. 

  My comments regarding Mubita's full understanding of what it means to be HIV positive were meant for speculation only, since of course I do not have access to all the facts in this case, nor do I think all the facts have been discovered yet, or made public.  

  You may have info that leads you to draw definite conclusions on the Mubita case, but one of my main points was that now that Mubita is not a threat to the public, let the criminal justice system do its work to determine Mubita's innocence or guilt.

  On that note, perhaps you'd like to respond to the following points from the same post you answered?

  If we trust our legal system, why not respect the very important principle of innocent until proven guilty, and let the system do its job?  

  There is no doubt that too much discussion of the certain guilt of an accused facing charges can hamper the legal system in assuring a fair trial.  Prosecutors and judges can feel pressure from the public to make decisions based on a kind of mob frenzy, rather than the guide of lady justice blindfolded holding the scales (fairness) and sword (the power of the legal system).  Unbiased jurors can be hard to find when the press and media and even list serves create a bias in huge numbers of people regarding a specific criminal case.  Potential jurors need to state honestly that they can listen to the evidence with an open mind in a trial.

  Ted Moffett

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