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Friday, June 17, 2011

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Hi Bill,

The clarity of your position invites and deserves a brief reply.

Ignoring some qualifications and caveats that are already on the record, we can say that in our system of criminal justice only jurors are empowered to decide guilt or innocence. Only seated jurors. You and I and Sherlock Holmes and the Deity himself are not seated jurors. It matters not what we know or think we know, we are not empowered (“competent” in the legal sense) to judge whether someone is guilty or innocent of a charge brought to trial.

We can be unhappy with a jury's verdict. We can wish that the jury had reached a different verdict. We can believe that if we had been on the jury we would have voted for a different verdict. Fine, we can have all those opinions, only please let us not try to express them by saying of someone who has been acquitted that he is nevertheless guilty. No, he can’t be. The only people competent to decide have decided and he’s innocent, and that’s it.

When a jury finds someone like OJ innocent of a double murder, it is virtually impossible to have that verdict set aside. OJ can go on Oprah and brag about killing his wife. He is still innocent. A tape could surface clearly showing OJ knifing his wife to death. He is still innocent. The only thing OJ must never say is “I bribed a juror”. That would open the gates of Hell for OJ.

Guilt or innocence is not something that follows from a set of facts and laws. Jurors are not expected to be experts in inference and probability. From even “OJ confessed to kill his wife and Ron Goldman” we can never infer that he is guilty of a double murder. A confession is a fact that may or may not be admissible in a trial. Jurors see only admissible evidence and must make their decision based on what is presented to them. “But key facts are sometimes kept from them!” Yes, for good reasons. For example, OJ had recently trained in knife fighting. Too prejudicial, the judge decided, and not probative of any criminal intent , etc. OJ’s jury considered the evidence presented to them and decided he was innocent. Did that mean they believed he didn’t do it? No. It meant that they thought the prosecution didn’t prove it. OJ’s jurors apparently focused on errors and misconduct by the police, which they concluded fatally compromised and tainted the prosecution (a “not proven” verdict under Scottish law). So, having been acquitted, OJ is innocent of those murders, now and forever, regardless of what he did. Say if you wish "He killed them", but you cannot say at this point "He's guilty of those killings".

Unfortunately, you didn't reply to my point.

Hi Bill,

I am (let’s assume) a properly ordained minister—Rev. Phil at your service, weddings and exorcisms my specialties. A couple with a properly executed marriage license appear before me and ask me to marry them. They fork over $20 and we have a tasteful little ceremony which ends with me solemnly intoning “ By the authority vested in me by the State of Arizona I now pronounce you man and wife”. Having gone through this little ceremony and been pronounced man and wife, the couple are now legally married. Someone who says “Oh sure, Rev Phil pronounced them man and wife, but are they really married?” has been much too long at the reception punch bowl.

A jury has a similar special legal power to convict or acquit. When the foreman of the jury stands up at the end of the trial and says “we find the defendant not guilty of all charges”, he has created an innocent man. It is the same kind of nonsense then to say “Oh sure, the jury found him innocence, but in fact he’s guilty.” People who don’t understand the law sometimes utter this kind of oxymoron (to the vast amusement of legal professionals), but it makes no sense than saying “oh sure, they were legally pronounced man and wife but in fact they aren’t married.”

“We find the defendant not guilty” is what JL Austin called a performative utterance. It is an important performative recognized at law. Only the jury may utter this, and when they do, it has the effect of creating an innocence man. Just as when the Queen says “I create you Lord Philip of Scottsdale”, she has created a peer.

As you know, all performances are subject to various infecilities, which can compromise or even void the act. If the lady I "married" forgot to mention she was already legally married, or “she” is really a he, then in AZ the marriage is void. If it can be proven that the jury who said “innocence” was bribed, then that verdict can be set aside. When you say “he was found innocent but he’s guilty”, are you trying to hint that some misconduct occurred that merits a set-aside? Then it would be much better to say that.

After his acquittal OJ can admit he killed his wife, and that confession would have absolutely no bearing on his innocence of her murder. Innocence is protected by double jeopardy. This is the point that I think is not understood: after an acquital a defendant is innocent of that crime regardless of what he in fact did. That’s why it’s oxymoronic to say “He was found innocent but he’s guilty”, or worse “Innocent men have been convicted, sentenced, etc.” That CAN’T happen.

Forgive me if I’m a little reluctant to talk about procedures and proceduralism. The terms are not familiar to me, especially what all would count as a procedure. I am more comfortable using Austin’s now familiar distinction of performative and non-performative, which Austin in fact took from the law. If I say “I promise” I have promised. If I’m a minister and say “you are married”, you are married. If I’m a jury and say “innocent”, you are innocent. Saying makes it so! Being found innocent makes you innocent.


Philoponus,

I just recently read How to Do Things with Words, and I must say that I loved it to the core. Among its many merits is that therein Austin staunchly refuses to let any theorising, including and especially his own theorising, get in the way of the datanic facts concerning language that provide the basis for his investigations. And among those facts are that a man can rationally and truthfully

—cry "But I'm innocent!" upon being found guilty by a jury,
—confess to his attorney that he is guilty of the crime,
—lament that the guilty often go free and the innocent are punished,
—tell his friends in private, in a conversation concerning another friend's trial, "I am the guilty party,"

or the like. All of these are, I say, philosophical data, and anyone who objected to their utterance on the grounds that the language-game of guilt and innocence makes them oxymoronic would deserve the raised eyebrows and snarky replies he would receive. (This is not to say that the speech act whereby a jury charges a man with guilt is not a performative: it makes the man a convict. This, however, is a separate philosophical issue deserving of treatment in its own right.)

If it can be proven that the jury who said “innocence” was bribed, then that verdict can be set aside. When you say “he was found innocent but he’s guilty”, are you trying to hint that some misconduct occurred that merits a set-aside? Then it would be much better to say that.

But I think it pretty clear that Dr. Vallicella does not mean that at all. "Suppose," he writes, "a man is found guilty of a crime in a court of law in which all the proper procedures have been followed. Assume that the prosecution, the defense, the judge, and the jury are all highly competent and morally above reproach" (emphasis mine). Surely there can be sources of error in jury deliberation aside from Austinian infelicities. After all, the jury is not required to be infallible.

Finally, if your point is simply that in technical legal jargon "guilty" means "found guilty by a comptent jury," then I don't see that the point has much philosophical interest. The law is free to define words as it likes; nomina significant ad placitum. If, however, the topic of our discussion is one of the real, as opposed to merely nominal, definitions of guilt and innocence, their true essences, then I think all of the above stands.

(A further point: if being found guilty by a comptent jury is that in virtue of which a man is guilty, then what guilt is there to be found by the jury to begin with? But perhaps this is merely a result of incidental wording.)

Leo,

I can't believe you're a freshman! That's just excellent. And I don't say that because you are now agreeing with me. I said something similar earlier when you were disagreeing with me.

Hi Leo,

I am surprised but pleased to find a young person reading Austin. These days isn't he much unread and unloved by the philos? Urmson did a decent job publishing his James Lectures, which you refer to, but I think you'll find his best work in some of the essays in PHIL PAPERS.

You wonder whether I’m championing a piece of technical jargon. God strike me dead! On the contrary, I’m resisting jargon at all cost and trying to speak plain English. My point is something I hoped the more conservative readers of this fine blog would be sympathetic to. It is a point about language and proper usage. There is clear, precise meaning associated with “guilty” and “ innocent” which I find respected in many careful writers and speakers—a meaning informed by understanding what it is jury does when they find someone guilty or innocent—and there is a debased contemporary usage which seems utterly oblivious to what guilt and innocence really are in the context of crime.

I confess I foam at the mouth and my eyes roll back when I hear “innocent men are convicted, sentenced and executed”. That can’t happen—or maybe it can happen in a story by Kafka: a man is tried and found innocent and then the judge says to him “Defendant, the jury has pronounced you innocent. The penalty prescribed by law for being innocent of this crime is unfortunately the same as for being guilty. I hereby sentence you to…” We don’t do that here (yet). Innocent men are men not convicted of a crime. Bachelors don’t take their wives to dinner and innocent men don’t come up for sentencing.

OJ is innocent of the double homicide he was tried for. Now and forever innocent. If you think he killed those people, please just say that, but don’t say things like “he was found innocent but he’s guilty”, conflating the (possibly open) question of what actually happened with his guilt or innocence, which is now a closed question. Could we agree that it is better to speak carefully and precisely about guilt & innocence, or should I just shut up and go sit quietly in the corner?

Philoponus - As I understand your position, it is impossible, in virtue of the meaning of words, for the judgement of a court of law to be "factually incorrect." Only legal, procedural errors are possible. Is that correct?

Hi Bob,

Yes, when a jury declares someone innocent, they are not saying he didn't do it. They are not offering an epistemic/inductive opinion about whether the defendant likely did what the prosecution alleges. They are saying the prosecution's case failed to persuade them beyond a reasonable doubt and that judgement is not subject to further dispute. Juries, God bless them, take their commission seriously and will let people walk that they think did it because of a flawed and insufficient prosecution. OJ is a classic case. Read what Gerry Spence and Richard "Racehorse" Haynes say about this--they were both very successful criminal defense attorneys.

A jury's verdict is not a factual claim or assertion at all. It is a decision that can only rarely be set aside. It is in this sense nearly irrevocable, not "infallible" (Leo, are you listening?) I have never heard of an acquittal being set aside.

Philoponus,

Two points.

First, philosophy is about reflecting on a practice and discerning the most fundamental elements embodied in such a practice. Philosophy of law, then, is a reflection upon law; its purpose is to identify the most salient aspects of this practice and discern their relationship to other aspects of human life (e.g., morality). Such reflection may uncover aspects that are not immediately apparent from merely observing the actual procedures enacted in a court of law (This point has been long ago emphasized by Plato).

You tend to think that you can refute a philosophical position such as Legal-Realism by reciting different kinds of legal cases and procedures in law. But this cannot be done, unless of course you dismiss philosophical inquiry as a legitimate form of inquiry at least with respect to law. Adopting such an attitude is right in line with positivism; and, my friend, you are a positivist and not merely regarding philosophy of law.

Second, since Legal-Realism claims that there *exists* a distinction between legal-facts vs. legal-decisions, you cannot refute this position by merely citing *some* cases where the distinction does not exist. You must show that the distinction fails in every case. And you have not done so. Why? Because in order to do so you need to enter into a philosophical inquiry about the legal practice, thereby, undermining your positivism. Hence, all you do, and all you can do, is narrate some cases where the distinction seems to be absent, while all along never venturing too far from a mere depiction of what goes on in a legal setting. I do not find this method convincing, but I understand why you are forced to follow it.

It is for this reason that Bill posted above:

"Unfortunately, you didn't reply to my point."

Posted by: Bill Vallicella | Saturday, June 18, 2011 at 03:19 PM

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