Insight into our Legal System

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Quite by accident - driven to watch by absence of worthwhile streaming content - we tuned in to Max (I think) - the series “Body in the Snow”. It is an attention-getting tale of the death of a Boston police officer, John O’Keefe at the hands, says the Commonwealth of MA, of Karen Read. The producers of this competently executed video production’s aimed to offer the viewer a balanced view of the defendant and the prosecution contemporaneously.

That is, the film crew were given full access to the defendant and her lawyers in real time, beginning shortly before the trial began. They also had access to the official public prosecution documents. They were permitted to film in court during the procedings. No one knew the outcome during filming. There was lots of drama as the weight of evidence seemed to shift several times. It made for entertaining “reality TV” - type viewing. This particular aspect was greatly sharpened, as well, by the demonstrative taking of sides by the local community. Near continuous, energetic and loud partisan demonstrations went on outside the court house in this heretofore placid suburb of Boston.

This community division even included aspects of political “color revolutions”, with pink assigned as the favorite color of defendant Karen Read (though she states that she never wears anything pink). The tenor of the interactions of the factions had the intensity of Trump derangement syndrome. Pink for innocence of the defendant, blue to refocus attention from Read’s notoriety to remembrance of the dead police officer. As the trial unfolded, we were treated to corrupt police behavior, including lurid texts which became public.

There were enough undisputed facts to lead me to conclude that there were arguably reasonable grounds to charge vehicular homicide under the influence, for which Read was initially arrested. Then, and I’m not sure why (other than the fact the victim was a police officer), the state got a grand jury to charge murder 2. As the trial proceeded, it became clear to me there was plenty of reasonable doubt to defeat that over-charge.

The documentary ended when the jury came back hung. This was the case despite, we learn at the end that it had found unanimously that Karen Read was not guilty of that charge. However, the reason the jury was hung was because of a 6 - 6 split on the charge of vehicular homicide. Somehow, the MA law did not allow for juries to split their findings on separate offense charged over the same set of facts. This should have resulted in dismissal of the murder 2 charge after a unanimous jury, as res judicata! (double jeopardy) and MA is now again re-prosecuting for murder 2. The new trial began April 1 (and it’s not April Fool).

I come away from this imbued, not so much with the clear injustice of this particular result. Remember, the death was at the end of January 2022 and the legal proceedings are still going on in April 2025. The Commonwealth of MA has surely spent millions of taxpayer dollars prosecuting someone unlikely to murder in the future (yes, she might drive drunk, hardly a rare thing). It’s hard not to compare the hyper- vigorous prosecution of this defendant (she’s not a particularly sympathetic one) with the well-known politicized approach of ($oros) prosecutors toward the habitually criminal in most every city and believe there’s much “justice” involved.

The net result of all this is to affirm my longstanding belief that the US legal system has failed so badly that it is cannot be remediated. It’s irrevocably broken, can’t be fixed. It must be torn down and completely replaced with a rational system. “Speedy justice” cannot take 2+ years and millions of dollars on each side (Read’s expenses were >$5million, from sale of her house and liquidation of her pension account). I started law school at age 41, having practiced anesthesiology for the 4 previous years.

I recall realizing in my first year that process had completely consumed substance in functioning of the law. “Justice” did not inhere in the result! It was completely determined by whether or not every jot and tittle of the process was followed (i didn’t matter how long that took - the lawyers lived on billable hours and there exists an infinity of those - especially for those most fortunate on the government teat). Everyone knows all of this; it’s no secret. The average individual is not slightly served by the legal system. (S)he can only avoid it in order to have a life.

To engage with the legal system today is to be consumed - physically, financially, emotionally; ground to fine particles, like talcum. If you are ever charged criminally, even if you ‘win’, you are bankrupted, slowly mulcted, painfully, as your family dissolves. Lose, you get the bankruptcy - as with ‘winning’ - and in addition, you get all your bodily orifices terminally dilated. Just for good measure, while you’re enduring the largesse of Club Fed, the corrupt, well-fed authorities charged with your rehabilitation and ‘penitence’ - they know all about it, even as you know they know and that they couldn’t care less - especially if you come from ‘privilege’.

And that, ladies, gentlemen, and those otherwise confused, is a snapshot - and one not very wide of the mark (no pun intended) - of the state of the “rule of law” in the US today. I hasten to add that I have not even mentioned the degree to which this iteration of the “rule of law” has been recently corrupted by the self-appointed defenders of “Our Democracy™” against President Trump and his supporters.

Nor have I said how, at this very moment, it is being sorely used by the likes of democrat district court judges (notwithstanding the gratuitous and false statements of Hon. Justice John Roberts, denying their existence “there are no Obama judges…”), who are fashioning nation wide injunctive powers for themselves out of whole cloth. Those latter are terminal diseases of the US legal system and though they only indirectly affect most citizens, they will likely be recorded on the Death Certificate of these (dis-)United States as the ‘Immediate Cause of Death’ of the body politic. Selah.

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Two issues. First overcharging can make the jury feel more comfortable about convicting of a lesser charge. Second, negligently hitting followed by intentionally failing to render aid would typically be murder.

It did. What happened was that the judge was incompetent. She gave the jury instructions that that one juror took to mean that and he then apparently intimidated the other jurors who wanted to ask for confirmation. He then wrote a jury note (or perhaps asked chatGPT to do so) that was ambiguous as to what the situation was. Rather than inquire, it appears the judge assumed they were hung on all counts and declared a mistrial.

IMHO, had the defense asked the judge in advance that the jury be polled whether they were in agreement on “any of the charges” it would have gone the other way if the judge refused. Somewhat less if they asked immediately upon declaring the mistrial.

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This was earlier on:

followed by:

TLDR:

Defense non-MA attorney Jackson: This verdict form is bat shit crazy.

Judge: This is the way it’s always been done in MA. Mr. Yanetti (defense MA attorney) please tell Jackson that.

Yanetti: Jackson is right.

Then someone apparently explained to her she was wrong.

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That is how “The Law” looks to those of us on the outside – a vast reservoir of well-paid disguised under-employment for a less-productive segment of the Upper Middle Class. If only we had something like a Constitution which guaranteed all citizens “… the right to a speedy and public trial …” instead of the certainty of interminable delays and no justice!

One can’t help but think that less advanced societies over history were able to deliver a better approximation to justice in a fraction of the time at much lower cost.

Undoubtedly there are some good people in the legal profession. The question is whether there are enough of them to reform Big Law from within … or whether it will take blood in the streets to bring common sense and justice back to the Courts?

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Sadly, they can have virtually no effect. That’s because the process severely constrains the realm of their permissible acts at every single decision point. This is one of the ways the system has taken leave of the underlying reality in which it should function. It is truly crazy-making to principled practitioners.

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My personal motto since I got my JD has always been:
“ Neither a plantiff nor a defendant be.”

As for being a CRIMINAL defendant::scream:.

And people have no idea how easy it is to become one. 3 felonies a day, is what we all commit, says Silverglate in his eponymous book.

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ONE of the very real atrocities that the SCOTUS foisted upon us was the ruling back in the 90’s that judges no longer had to instruct the juries that one of their jobs was to evaluate the law itself. Today it is derisively called “jury nullification”, as if it’s some abomination. But the Founders DID, indeed, want the jury to have the last word on the law. So here we are some 25-30 years later and suddenly jury nullification is a dirty word. Note that the duty was never removed;only the notification. How short our memories are.

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It seems to me that multiple charges for the same offense is double jeopardy. It just is a more efficient double jeopardy. If the State charges you with murder and you are found not guilty, could they then charge you with manslaughter?

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I think further charges for the same underlying acts are barred by collateral estoppel - so no new charges can be made (double jeopardy) for the same set of facts.

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Yep. The real problem with the justice system is that Justice is practically inaccessible for all but the wealthiest and/or most powerful.

It is only with Trumpism that it started to dawn on the wealthiest that it was becoming practically inaccessible even to them.

That Trump recognized this instinctively and did not hold working class men in contempt – and had just enough wealth to defend himself – is what truly horrified that unspeakable thing in DC with all of its power.

Others associated with him who have suffered must be made whole. Steve Bannon and Giuliani are the tip of the iceberg.

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And John Eastman. As fr as I can tell, he is being prosecuted for doing legal research.
My BMD and I talk about this all the time: how do people mange who don’t have a lawyer and a doctor in the family? The medical and legal crises we have endured—I can’t IMAGINE the agony of having to wait on the leisure of some hired doctor or lawyer. I only wish we had a tax return preparer! .

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You do hopefully as a friend of mine is now doing. He is a member of our church, has two children he has raised on his own as his. wife died. He haas also been responsible for his 83 y/o father. He has an older brother who lives in Atlanta and is not involved in any way with the care and keeping of his father.

Early last week his father was hospitalized with renal failure. He has turned to me to act as the go-between with the Drs. there. It has been a chore. First of all, the docs don’t want to talk to me. The hoapiralisst is dumber than a box of rocks. Finally last Wednesday evening he got bad enough to transfer to the ICU. Took the intensives another day to form some cohesive plan, but at least there was a plan!

Now I’m going to Mexico on a vacation trip planed many months ago. I worry where they are going to slow-walk this poor old man, probably into a grave.

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That “doctor-friend-intermediary” is such a tough rôle to play, Dev. My BMD has done it a few times too. The doctors on the case resent you and the patient-friend often doesn’t take your advice!

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I have been more fortunate than many. The renal group did not want to talk to me, as I asked embarrassing questions. But I voiced those self-same questions to the nursing staff, who obviously couldn’t answer my questions but recognized them to be solid questions. My friend eventually went far enough down the tubes to end up in ICU, where the inteensivist actually had a plan. He could speak to ALL the systems involved and cohesively set out a rational, if a little too conservative for me, plan on dealing with the issues.

In all events my friend died yesterday evening. He did live long enough for grandkids and other son to come in from Atlanta and be there before he died.

Now come the questions. ?Should the docs been more aggressive (I think so, but I’m an aggressive doc type). ?Was there malpractice involved (much harder to prove, especially since the ICU did do a good job). An autopsy would cost $3800 and that’s a lot of money for anyone to put out, not really knowing what will be shown. ?Will they be able to show a totally different etiology for his “renal disease”. ?Will it show why he had such a huge central hyperventilation drive (his PCO2 was 26 and his pH on ABG’s was 7.52 - not really compatible with renal failure, but perhaps they dialysed him too aggressively to begin with and left him centrally acidotic and peripherally alkalotic; the blood/brain barrier can cause such serious mismatches, with resulting demyelination). These are all difficult questions to answer.

I am just a friend, not a family member. I have done my best to light a fire under the docs, to ask pertinent questions, to advocate FOR Peter. He died anyway. That’s how these go sometimes. The algorhythms aren’t there because the odds are against them; it’s the outliers that fall through, and they are hard to spot.

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You have my sympathy, sir. You did what you could, and that is all any of us can ever do.

About that old lady I mentioned in another thread – the one whose extended family was struggling to pay for the treatment she had following a stroke – she died too. Funeral is tomorrow.

The hospital released her when her condition seemed stable – then she relapsed. The family rushed her back to hospital, where the doctors advised the best thing to do was to take her home and let her spend her final hours with her family, with dignity. That is what they did. As someone once said, getting old is not for the faint of heart.

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Oh so sorry, Dev. He was lucky to have you.

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More information continues to emerge, especially as to why the unanimity of verdict of “not guilty” on two of the three charges. The debate seems to be centering on the question of who should have requested that the jury be polled and the result entered as to each count; and how and if the jury should have been instructed as to reporting their findings - prior to finding the jury hung.

We have all come to understand the danger of considering operation of “the law” in these once-United States according to common sense or logic. Sadly, this pertains only rarely. However, a longstanding principle of legal function is the notion of ‘judicial economy’. Thus, I believe the judge in this case is incompetent and in a manner not unlike an air traffic controller flying one plane into the path of another.

This judge knew there were multiple counts, each of which may have been treated separately. Indeed, the reason for multiple charges by prosecutors is an attempt to get some conviction rather than none. As well, the strategy is to manipulate the jury into being more “comfortable” finding guilt on more serious charges.

Notwithstanding all this, there is good reason for courts to not re-litigate once-decided matters. Witness rules of res judicata and collateral estoppel. Had this judge allowed two brain cells to rub together, she might easily have learned that this jury, before her and largely under her control, had reached a unanimous verdict of “not guilty” on the most serious charge brought by the prosecutor. How was it NOT the judge’s duty to know this? How was it NOT the most basic element of her job to allow this fact, duly arrived at under her all-but-complete control of the proceedings of the court over which she presides? Could anyone assert that her failure to see to precisely what the jury was doing and had decided should remain beyond her ken before declaring a mistrial as to all the counts? To assert this is preposterous.

The title of the post was “Insight into our Legal System”. Lots of insights were available, but this single aspect tells how thoroughly out of touch with reality it is - beginning with an incompetent judge. Defendant exonerated, in secret, in open court! unknown to the judge in charge of the entire process. Defendant now in double jeopardy having been exonerated, which is in no one’s interest, least of all the public, paying for an unnecessary prosecution. Is anyone surprised that our “public servants” could care less that cost of their incompetence and decisions is routinely passed through to the public who pays their salaries (and very generous fringe benefits) in the first place?

Not interested in socialized costs? Then consider - any of this could happen to you or someone you love. To repeat: failure of governance, proximate to systemic collapse.

ADDENDUM: Here is the federal rule of criminal procedure, from a Restatement precedents: (2) Multiple Counts. “If the jury cannot agree on all counts as to any defendant, the jury may return a verdict on those counts on which it has agreed”. The permissive “may” is within the discretion of the judge. Though the federal rule is not binding on MA judges, the restatements usually reflect a considered body of sound precedent. As I said, what happened in the “hung jury” determination in the first trial was nonsensical and served no one’s interest. (Like much of the entire legal system, but I repeat myself).

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