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Comment by k__ | Hacker News Reader

"In the history of Western culture no legal system has ever made a more valiant effort to perfect its safeguards and thereby to exclude completely the possibility of mistaken conviction"

Reminds me of a law that was repealed recently in Germany.

They wanted to "reopen" cases where people were already found not guilty, when new technology would find new evidence.

In one case, a murderer was found not guilty, and later they had DNA analysis that would have proven his guilt. The new law would have put him behind bars.

However, the federal constitutional court repealed the law, as the constitution forbids to convict someone two times for the same crime. They said legal certainty was more important than finding the truth.

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That is called "double jeopardy". It is explicitly prohibited in most legal systems. Even where it isn't explicitly prohibited, it's generally assumed as a basic principle (like innocent until proven guilty).

It's basic: if someone can be retried because of new evidence, the prosecution will introduce a little bit more evidence (probably evidence they intentionally held back!) after each acquittal, and try them again.

The Americans in particular take it much further than some do; here in Canada the prosecution can appeal from an acquittal due to legal error in the decision; the prohibition on double jeopardy only applies to the entire process as a whole, after a final verdict including appeals. In the USA, a verdict issued by a jury, even at the first trial, is generally final and cannot be appealed even for reasons of legal error, while a guilty verdict can be appealed. American pluricentric power does create an odd circumstance where you can be tried twice in practice, though. If the federal government prosecutes someone for a crime, and fails to convict, if it was illegal under state law, the state government can try again under state law, or vice versa.

Innocent until proven guilty isn't generally assumed. Look at India.

Or even at France, if memory serves.

Is this what you are referring to?

https://www.france24.com/en/20170830-france-reacts-dutertes-...

There is that "factual innocence is not a reason to let the convict goes, because somehow magically knowing an innocent person is in prison makes justice system more trustworthy" supreme court gem.

There should be obvious difference between "minor new development" and "major new finding". Likewise, there should be obvious difference between "potentially innocent person is in prison" and "prosecutor wants new attempt situations.

I'm not sure precisely what supreme court gem you're referring to, but just to be clear, double jeopardy only applies when a jury finds a person innocent. People who are found guilty can potentially have a new trial if new evidence comes to light.

In 2020 or January 2021 the federal Supreme Court affirmed the execution of a convict when it was demonstrated that their court appointed attorney had ignored exculpatory evidence that the accused had been elsewhere at the time of the crime. The process was considered more important than the result.

There was a lot in the headlines at the time and though this made the news other things quickly drove it “off the front page” (don’t know what metaphor we should use for that expression these days).

> There is that "factual innocence is not a reason to let the convict goes, because somehow magically knowing an innocent person is in prison makes justice system more trustworthy" supreme court gem.

Is that for real? It sounds positively Cardassian.

Dukat: "On Cardassia, the verdict is always known before the trial begins. And it's always the same."

Sisko: "In that case, why bother with a trial at all?"

Dukat: "Because the people demand it. They enjoy watching justice triumph over evil every time. They find it comforting."

Yes it was real. The person was executed.

Uh. So once again, Justice was served, and in the triumph of State over Evil, Order was assured.

The case you're referring to is Herrera v. Collins, 506 U.S. 390 (1993). The relevant excerpt is in Justice Antonin Scalia's concurrence [1]:

> There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.

...

> With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today's opinion requires would fail to produce an executive pardon.

Note: In the excerpt above from source [1], Snopes removed a page break and inserted a comma (mistake?). Keep that in mind when using ctrl-F in source [2].

The Supreme Court's ruling (6-3) was that someone who was already convicted for a crime but later makes a claim of new evidence of innocence is not entitled for a new judicial trial [2]. In simple terms, there's no guarantee to a new trial after the fact, and the burden on the courts would be too much anyway. Scalia's concurrence went further and asserted that executing someone who was convicted in a procedurally proper trial but was actually innocent is not "cruel and unusual punishment" (by the standards of the past 200+ years of US history, which supposedly involved plenty of executions of innocent people convicted in proper trials) and is not a violation of due process.

The majority (including Scalia) weren't in favor of executing an innocent person, they were just arguing that the convict making the new claim of innocence can't count on the judicial system. The majority, including Scalia, points to the only option being seeking executive clemency/pardon, i.e. request the governor/president to evaluate the new evidence of supposed innocence and hope that the governor/president agrees - or at least reduces the sentence [2]. A request for clemency is outside of the scope of due process.

> Herrera is not left without a forum to raise his actual innocence claim. He may file a request for clemency under Texas law, which contains specific guidelines for pardons on the ground of innocence. History shows that executive clemency is the traditional "fail safe" remedy

[page break]

> for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion.

From the convict's perspective, "no new trial, but you can ask for a pardon" is cold comfort, but not necessarily a dead end.

[1] https://www.snopes.com/fact-check/scalia-death-penalty-quote...

[2] https://supreme.justia.com/cases/federal/us/506/390/ https://supreme.justia.com/cases/federal/us/506/390/case.pdf

It's hard not to read SCOTUS's argument as selfish. The zeroeth amendment of every legal system is "the people shall not waste the judge's time", and apparently it comes even before "we let 10 guilty men go free to save 1 innocent man".

> Four months after the Court's ruling, Herrera was executed. His last words were: "I am innocent, innocent, innocent. . . . I am an innocent man, and something very wrong is taking place tonight."

https://en.wikipedia.org/wiki/Herrera_v._Collins#Subsequent_...

Seems like if they believed he was innocent they should’ve contacted the executive themselves to request a pardon.

People who become agents of the correctional system are not selected for their independence of thought, or openness to deviating from protocol.

Those are, in fact, actually qualities that are grounds for dismissal in selection processes for law enforcement; the on ramp of the corrections pipeline.

Any philosopher finding themselves in the System's custody may as well, despair. Before the Law, not even God's mercy will stay the wheels of Justice as she's wrought.

Clemency is a wonderful tradition, but I get the impression that those who hold that power tend to view it as purely prerogative with no moral obligation. Which is too bad, because it certainly is meant to be justice’s last resort.

The USA still has a form of double jeopardy. Under our dual sovereignty system, federal and state authorities can both prosecute a defendant for the same underlying crime.

https://www.cnn.com/2019/06/17/politics/supreme-court-double...

Triple jeopardy, since you can also be subject to a civil suit, which has a lower standard of proof.

There are more exceptions than just jurisdiction.

Can't the German supreme court reopen cases?

The Swedish Supreme Court can reopen cases when there are new evidence, through there are some restrictions. The new evidence/circumstances need to be significant enough that if it was already known during the first trial, then the outcome would most likely been different. There also need to be a good and valid reason why the new evidence was not presented during the first trial.

New DNA technology has been the cause for such trials. Last year a person was found guilty of murder after 26 years, after being acquitted from a lack of evidence.

Although my first reaction is to support the idea of being able to retry cases when new evidence emerges, I can see the pitfalls if this were applied in a real-world justice system. There would have to be some pretty big barriers to overcome to prevent abuse (on the usual suspects, the poor and/or people the police/politicians just don't like) and then more rules to make sure those barriers themselves aren't used as loopholes by the truly guilty. I think it could be done, but its just as likely they do it in such a way to maximize state power without checks or balances.

I totally understand where they coming from.

Nevertheless, this loophole gives guilty people plausible deniability, since the system can never be sure to find the truth.

Isn't it common to be able to re-open court cases? That (technically, legally) sidesteps ne bis in idem (aka double jeopardy), but it requires that substantial new evidence is brought. So basically it adds that barrier, and the barrier becomes higher for every new attempt.

No, it's not common to reopen court cases if the jury finds a person innocent. You can certainly reopen court cases where someone was found guilty, but that's not double jeopardy.

Juries make guilty/not guilty findings, not innocence.

What's the technical distinction between "not guilty" and "innocent?"

IANAL, but

Innocent = "We, the jury, are certain the defendant didn't do it."

Not guilty = "The prosecution did not convince us, the jury, that the defendant did it."

And because our criminal justice system is not set up to establish innocence, only to check if there's enough evidence to prove guilt, we don't use the term "innocent" for decisions.

You’re a statistician, aren’t you?

No such safeguard in Italy: people are regularly tried from three to up to five times.

It’s not rare for someone to be found guilty after having been found not guilty once, and sometimes even twice.

https://www.nicolaporro.it/uccise-il-padre-per-difendere-la-...

Even that article refers to the fact that the same principle applies in Italy too, though it's interpreted differently.

In the US (to take a reference) only convictions can be appealed, in Italy the prosecution can also appeal if the accused has been acquitted. Once the appeals have been exhausted however the principle applies

It's a weaker guarantee but it's incorrect to say that it's missing entirely

> the constitution forbids to convict someone two times for the same crime He wasn't convicted, which means the reason he isn't convicted for the first time now is because he is not allowed to be convicted twice. That doesn't make sense to me.

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