Tagged: innocent

‘Making a Murderer’ – A Broader Debate

“Making a Murderer,” the Netflix series about Steven Avery, who may or may not have murdered Theresa Halbach in a rural Wisconsin town, has created a healthy controversy. Everybody is asking: “Did he do it? Or was he framed by the police?” Avery served eighteen years in jail for a crime he did not commit until he was exonerated by DNA evidence in 1999. His multi-million dollar lawsuit against the county, he alleges, is the motive for the police charging him with murder. Avery, along with his nephew Brendan Dassey, a mentally-challenged teenager, were convicted in separate trials.

The 10-part series is controversial. The documentarians are accused of biased reporting intended to prove the defendants are innocent. But that’s unfair;  ultimately, the series  demonstrates something true and more important: that despite the guilty verdicts we really do not know who killed Halbach, how, or why. The prosecution presented a strong circumstantial case, but this evidence is carefully dissected, and a viewer can readily believe that what little there was had been planted by the police. Moreover, Dassey’s “confession” in which he “guessed” at what the police wanted to hear, and later repeatedly recanted, is utterly uncorroborated by anything the police could find and appears to be the unreliable product of well-known unsavory police interrogation tactics.

We should broaden the debate beyond guilty or not guilty,  because “Making a Murderer” raises several fundamental questions about the criminal justice system.

First, what is the goal of our system? Is the goal to yield results that society is willing to accept? To be sure, we hope the adversary system and the use of juries lead to reliable results. But we know that, as the documentary shows, tragic mistajes are made, eyewitnesses are mistaken, and that the most we can ever hope for is uncertainty.  Is that enough?

Does the criminal adversary system really produce a fair fight? Avery’s retained lawyers worked incredibly hard, were unstintingly loyal, and were highly effective. Dassey was indigent and was assigned an attorney who, from the beginning, believed and announced that his client was guilty despite Dassey’s protests of innocence, and in fact,  handed the prosecution evidence to use against him. After this attorney was removed, new counsel was appointed and did the best he could. But once again we revisit the age-old maxim that the quality of justice depends on how much money you have.

Did the prosecutors perform their constitutional duty to be “ministers of justice”? Whether one buys the claim that Avery was framed, it’s clear that the prosecutor accepted whatever came from the police without any independent reflection. Even after the court ordered the local police to stay out of the investigation, they stayed deeply involved and produced the only “evidence” of guilt. The prosecutors believed Dassey’s fantastic tale of bloodthirsty sexual assault even though not a drop of blood or any other forensic evidence could be found to support it. Moreover, disregarding his ethical obligations, the prosecutor repeatedly made highly prejudicial statements to the media revealing extensive inflammatory details about the crime.

A few other thoughts. The absence of any racial issues – everyone involved is Whites – simplifies the legal and policy questions raised by the film. This is an excellent opportunity. But in their place we see issues of class and culture at play in a small rural community in middle America, a culture we really can’t penetrate. How do rumor, personal history, kinships, friendships, and resentments impact the quality of justice here?

In the final analysis, nobody really knows why or how Theresa Halbach died. Avery may be innocent, a degenerate, or a predator; Dassey may be no more than an immature, mentally-deficient teenager. They may have killed her, or maybe they did not. The title alone raises the provocative question: did the police “make” a murderer by framing a case against Avery? Or did society “make” a murderer by wrongly imprisoning a young man for eighteen years on the basis of a single mistaken identification? One can always fault the messengers, but the series raises important questions.

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Can Killing of Innocent Civilians at War be Justified?

POST WRITTEN BY: Syed Alam (’17), J.D. Pace Law School

According to the ICRC Principles of Distinction between Civilians and Combatants Rule 1, one of the pillars of international humanitarian law permits military commanders to direct operations against military objectives. At the same time, however, Rule 1 also requires that military commanders distinguish between civilian and military object. This concept was already codified in St. Petersburg Declaration of 1868, which states that States engaging in a war should only commit acts that will help them to weaken the military forces of the enemy party.

It is the duty of the military commander to determine who civilians are and who military opponents are. At time of war, every military force faces a threat from their opponent; however, it hardly faces threats from civilians. Thus, civilians should not be harmed during any war. It is the duty of the military commander to take such steps and measures as to prevent harm to civilians.

How do we define civilians? According to article 50(1) of the Additional Protocol 1 of the Geneva Conventions, 1949, civilians are the persons who do not belong to one of the categories mentioned in articles 4(A)(1)-(3) and 4(A)(6) of the Third Geneva Convention 1949. The categories listed are member of armed forces, member of militias or member of volunteer corps. A person who by any act is not facilitating or acting as part of the armed conflict is a civilian. Additionally, as held by the criminal tribunal in Blaskić, “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Judgement, ¶ 111 (Int’l Crim. Trib. for the Former Yugoslavia Jul 29, 2004).

According to article 50(3) of the Protocol 1 of the Geneva Conventions 1949, even if a civilian population includes some armed people, still they do not lose their civilian status. For example, if militants enter a park filled with civilians – an attack cannot be launched in the park even if intended to only target the militants because under the principle of distinction the civilians ought to be protected. The criminal tribunal in Prosecutor v. Stanislav Galić further confirmed this principle and held that “[a] population may qualify as ‘civilian’ even if non-civilians are among it, as long as the population is predominantly civilian.” Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, ¶ 143 (Int’l Crim. Trib. for Former Yugoslavia Nov. 30, 2006).

According to article 51 of the Protocol 1 of the Geneva Conventions 1949, the protections civilian enjoy during wartime include:

  • Protection against any danger arising out of military operations.
  • Civilians should never be the objects of attack. Any act to spread terror among the civilian people is prohibited.
  • Unless and until civilians take direct part in hostilities, civilians enjoy all the protections mentioned in this article.
  • Indiscriminate attacks such as attacks not directed against a specific military object, methods or means of combat that are not specifically applied to a military object, attacks which do not distinguish between civilian object and military object.
  • Any attack done to several military objects, situated within a civilian locality, bombardment upon such area in prohibited.  Any act, which might result into suffering of civilians, is prohibited.
  • Attack towards the civilians by the way of reprisal is prohibited.
  • Civilians should never be used to shield any military object, to immune it from military operations, by any of the parties.

Under article 8 of the Rome Statute, war crime includes grave breaches of Geneva Conventions of 1949 and also violation of any laws and customs of international laws regarding international armed conflict. As discussed above, Geneva Convention of 1949 made it a crime to kill civilians during war. Article 8 of the Rome Statute re-affirms that position. Thus, killing civilians during war is a war crime.

Although international authorities put forth effort to protect civilians, the history speaks for itself – civilians are often not spared. Although, adequate international laws are in place, States engaged in war often overlook this principle of distinction. The law appears clear – civilian killing in war is a crime. The question then is why these international laws are ignored? States have often used the term ‘collateral damage’ to justify the killing of civilians. However, human life is priceless and no cause is big enough to spare innocent human life. The United Nations should find a way to enforce the international laws addressing civilian killing in war for the sake of humanity.

Student Perspective: The Etan Patz Case – Confession, Lack of Physical Evidence and Reasonable Doubt

POST WRITTEN BY: Alexander Zugaro (’15), Pace Law School

The story of the 6-year-old boy, Etan Patz, who had gone missing in SOHO Manhattan in 1979, is one that stretches over several decades. Now, after a ruling on November 24, 2014 by Judge Maxwell Wiley and almost a three month long trial, the story is reaching a conclusion. In 2012, after police re-opened the investigation, Pedro Hernandez confessed to law enforcement that he was responsible for the disappearance and murder of Etan Patz. He told law enforcement that he strangled Etan and disposed of his body. Mr. Hernandez was an 18-year-old man working in a neighborhood convenience store at the time of Patz’s disappearance.

However, this past fall a hearing was held regarding the admissibility of Mr. Hernandez’s confession. Hernandez’s defense attorney, Harvey Fishbein, argued that Hernandez was schizophrenic and bipolar at the time he made his confession. As such, Mr. Hernandez did not understand he could reassert his right against self-incrimination even after he waived his Miranda warnings. Yet, Judge Maxwell Wiley ruled on November 24, 2014 that the confession was admissible, stating that Hernandez waived his Miranda rights and that such waiver was done knowingly and intelligently.

To date the prosecution has not been able to find any evidence corroborating Hernandez’s confession, except a statement made by Hernandez’s brother who told police that Hernandez had confessed to him two years prior to his arrest and a statement made to members of his prayer group in the summer of 1979, none of whom came forward to testify until after Mr. Hernandez was arrested. The body of Etan Patz was never found, and prosecutors have not presented any physical evidence tying Mr. Hernandez to the boy’s disappearance.

The significance of Judge Wiley’s ruling is that the jury was able to hear Hernandez’s confession and will decide on whether they believe his confession is reliable. Defense attorney Frishbein stated that “Mr. Hernandez is extremely suggestible because of his low I.Q. and other mental handicaps. Anyone who sees these confessions will understand that when the police were finished with him, Mr. Hernandez believed he killed Etan Patz, but that doesn’t mean that he did.” On the other hand, however, the lead prosecutor stated that Mr. Hernandez’s statements contain little-known details about the crime that would be hard for someone to invent. Because Judge Wiley ruled that Hernandez’ confession is admissible, the prosecution was able to present this confession as evidence to the jury, leading to the inevitable back and forth between Mr. Fishbein and the prosecutors about the reliability and weight of the confession.

Generally, if a defendant makes a videotaped confession coupled with voluntary admission to at least one other person, such evidence would be nearly impossible for the defense attorney to overcome. However, since in this case there is no tangible evidence corroborating the confession, will the jury doubt the accuracy of Mr. Hernandez’ confession? Time will soon tell.

Since the beginning of the trial on January 30, 2015, the defense has continued to undermine the reliability of Hernandez’s confession. Not only has the defense argued that the confession was a fantasy invented under police pressure by a man with a weak and malleable mind, plagued by a personality disorder, Mr. Fishbein has presented evidence of an alternative suspect who might have been responsible of Etan Patz’ disappearance. Witnesses place Jose A. Ramos, a man convicted of child molestation in an unrelated case, near Etan Patz’s home around the time of the murder. Ramos was dating Ms. Susan Harrington, who was hired to walk Etan Patz to and from school. The defense witnesses further testified that Ramos met Etan Patz and that he had been in the Patz’s apartment. Although Etan Patz’s mother denied Ramos was ever in their apartment, by presenting this evidence, the defense further undermined Hernandez’s confession.

The confession of Mr. Hernandez has become the focal point of the entire trial. As the attorneys are delivering their closing arguments, many people following the case and trial, I’m sure, have developed their opinions. For me, it was important to realize and understand that an innocent defendant and a defendant being not guilty are two very different things. The defense attorney has to create a reasonable doubt in the jurors’ minds that Hernandez has possibly not committed the alleged crime in order to succeed. Mr. Fishbein’s efforts to cast this doubt by introducing an alternative suspect theory, by undermining the reliability of the original confession, and by pointing to the lack of physical evidence have been clear. However, it is difficult to tell what the outcome of this case will be. As the jury is about to retire to deliberate, the long anticipated verdict will soon be revealed bringing this case to a close after decades of waiting.

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