Posted on 05/15/2006 1:33:17 PM PDT by my_pointy_head_is_sharp
You'd think the question of his guilt or lack of it might be a factor, but it won't be. The Law has (d)evolved beyond that question.
When it's family, they don't want some incompetent politically correct boob, they want a real lawyer.
Just like PC went down the tubes when it came to wind power, when the proposed site would have been visible from the Kennedy compound.
It is tricky because apparently the statute of limitations on the crime had not yet run. The body was found on halloween 1975. The statute of limitations at that point was 5 years.
The legislature eliminated the statute of limitations in 1976. At a time when Skakel could have been prosecuted because the five year SOL had not even close to run.
So the question is - once he committed the crime on October 30-31 1975, did the state have to prosecute him w/in 5 years in order not to violate the ex post facto clause of the constitution? Did ex post facto lock in that statute for that crime.
After all, when he committed the crime, he was committing a crime that had to be prosecuted within 5 years or he went free. In 1976, that same crime was one that could have been prosecuted at any time whatsoever.
Imagine for a minute that it is not a murder - say it is trespassing. Imagine you know trespassing on another's property is illegal, but if you are not prosecuted within, say 1 year, you are free. And you really need to or want to trespass for a reason you think is OK, but you know it is technically illegal. You may do it thinking that they will never catch you within a year. You do the cost benefit analysis and therefore you commit the crime because it is not likely you will be prosecuted.
Now imagine that the week after you committed the crime, the law was changed so that you could be prosecuted forever - it would be hanging over you forever. Wouldn't your cost/benefit analysis change if you had that information? You may not have determined it was worth it if you knew they could try to find you and prosecute you for the rest of your life.
The point is that the ex post facto clause commands that you be permitted to do that analysis of behavior right before you commit the crime, according to SCOTUS, so long as the rule change happens after the statute runs. The question is does the ex post facto clause command that you be permitted that same analysis if the law changes the next week? I think there is a strong argument that it does. That the ex post facto clause allows you to be aware of the full extent of your punishment - the full extent of the ramifications of your actions, so you can undertake an informed analysis of whether or not to commit the crime at the time of the crime.
I know that murder is really bad, of course, but there is no ex post facto exception related to the seriousness of the crime, so the analysis should be the same as the trespassing hypothetical I just set up.
It seems to me that the statute of limitations should go back the the state of the law at the time the crime was committed.
Maybe, but it had not expired when it was eliminated by the Legislature. The State Supreme Court has already ruled that there was no ex post facto violation. Remember this was the Supreme Court of the State of Massachusetts, which the Kennedys appear to more or less own.
My prediction: The Supreme Court will deny cert.
I can't think of a principled distinction between 1) where the statute had expired and it is unconstitutional to change the SOL later (which is current law) and 2) where the statute had not expired when the SOL was changed (which is the Skakel case, and other cases have said this is not ex post facto problem).
I think the Kennedy connection here is just not at all an issue. No one on SCOTUS cares about Skakel. They all care about ex post facto. This is such a technical issue that defendant's identity couldn't possibly have any effect on the outcome.
As to whether Cert. is granted, it does not seem to be a circuit split right now. If court takes it, it is because Olson will be arguing and he's one of the best - so why not decide this issue with the best attorneys on both sides of it possible?
The MA Supreme Court disagrees with you. So does the ninth US circuit, but most of the time the don't agree with themselves, so that doesn't count for much.
What is the federal question? Due process? I can't see any other federally protected right that might have been violated. (Other than the withholding of evidence, but I figure that was just a throwaway line by the other defense attorney, else the state Supreme Court would have jumped on it with both feet.
After all, since the case was not prosecuted until after the 5 year SoL had run out, you'd think that would have been brought up as an objection in pretrial, and in every appeal since then.
I say again, denial of cert is the most likely outcome at this point. And so the "Kennedy" will just have to continue rotting in jail.
No problem - I'm a defense lawyer too. I shouldn't be judged by my clients. I serve a system. A system that doesn't work if there is a conviction every time, or the government gets to do whatever it wants if the person actually did something wrong.
Probably in the range of $750 an hour for him.
Olson probably needs the money.
But I wasn't aware that he had expertise in criminal law.
Lawyers specialize, you know...
It also doesn't work if the person gets to do whatever they want, that is commit any crime without being punished, if the government does something technicaly wrong. If nothing else that undermines the confidence of the people in the system.
This issue is not criminal law; it is one of constitutional law.
You have obviously never been on the wrong end of a corrupt judge or prosecutor. I used to have a low opinion of criminal defense attorney's. That scorn is now reserved for prosecutors; and they deserve it.
If nothing else that undermines the confidence of the people in the system.
You think violating someone's constitutional rights is a technicality? As far as undermining the peoples confidence in the legal system goes, that horse left the barn a long time ago.
I tell people that the primary job of a criminal defense attorney is to make sure the prosecutor does his; and to make sure that if a guilty person is convicted, it is only for the actual crime committed and not some more serious one.
That's right. Demand and maintain the integrity of the system. If the person really did it then the prosecutor shouldn't be worried. Just follow the rules. How can you expect the people to believe in the system if the prosecutors don't - if the prosecutors think they have to buck the system to get their conviction?
Letting an occasional guilty one go free because of "technicalities" is the ONLY incentive for prosecutors and police not to violate our rights.
I was just involved in a federal case where the judge let victims of the crime sit on the jury that convicted my client and would not let us cross examine prosecution witnesses on their bias and motive in testifying. Only 2 of about 15-20 heinous errors by the judge. And this judge knew what he/she was doing - but he/she decided it was his/her job to put my client in jail because it was a high profile case. The prosecutor also withheld evidence that would have impeached his most important witness. We caught him, and the judge said "I don't know why he didn't turn it over, I'm not psychic" to us, and denied our request for him/her to question the prosecutor who was standing right there in the courtroom as to why he didn't turn it over. The judge refused to sanction the prosecutor, refused to ask if there was more information he was withholding and refused to strike the witness's testimony. Then the judge in denying our post-trial motion for acquittal said he/she relied heavily on that witness's testimony, finding it "remarkable" and saying that the court would not have understood the complex transactions at issue without his testimony.
Thank goodness for appeals court. I expect a total reversal.
Huh? I thought there wasn't a statute of limitations where murder was concerned?
Not if that's really what is happening, but good lawyers have found many "rights" in the Constitution that I can't seem to locate. That's part of the reason I mentioned a federal question. The Constitution's prohibition on ex post facto laws is not contained in the Bill of Rights, but rather in the section containing limitations on the power of Congress, Art. 1 Section 9. The state courts have already ruled that this is not a violation of their state's ex post facto prohibition. All this hoohaw about "well if the defendant expected the statute of limitations to run out before he could be caught" and changing that law *before it ran out* is somehow a violation of the rights of the defendant is just bovine scat. What about the rights of the girl he beat to death, which fact was already established at trial. Where's her rights or the rights of the next scum who thinks he probably won't get caught before the statute of limitations runs out?
Nothing in the Constitution required a an effective finding of not guilty by reason of prosecutorial error. That's a "right" made up by the courts long ago. I'd much rather they'd laid some heavy punishment on those violating rights of defendents, up to and including removal from office of legislators who pass these unconstitutional laws. There needs to be a punishment mechanism for violating the Constitution, and the only remedy surely is not to let rapists and murders loose, to further prey on the innocent?
Now I notice there is also a "withholding of evidence" allegation, and that is horse of a different color. That potentially bears on the guilt or innocense question, and also perhaps on the appropriatenes of the sentence.
There isn't anymore in MA, but there was when this Kennedy cousin murdered a girl. It's a state by state thing.
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