21 steps to trial and secrecy of justice

Madeleine Beth McCann went missing from PDL in Portugal on the 3rd May 2007, there are so many unanswered questions, please discuss

Re: 21 steps to trial and secrecy of justice

Postby Dreyfus » Fri May 23, 2008 10:59 pm

thank you for that, guys.
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Re: 21 steps to trial and secrecy of justice

Postby beachy » Sat May 24, 2008 5:54 am

pear wrote:
Dreyfus wrote:Beachy, as a layperson, I would say the thing I think will disappoint a lot of UK / US people on here is the lack of cross-examination. What a lot of us really want to see and hear is Gerry sweat and squirm under the scrutiny of a sh*t-hot prosecuting barrister, and because of the procedure in the PT judicial system, I don't think we're going to get that.

The civil system trial – or inquisitorial system trial to use another term – can be dissatisfying to someone used to the common law / adversarial system. A European trial can seem a bit of an anti-climax – as if you've turned up late for a play in the theatre and only caught the final act, while all the action happened before the interval.

The non-professional legal person doesn't seem to get the satisfaction of their "day in Court".


Of course, there is cross-examination: from both parties AND the judges.


Pear and SS, I apologise. What I should have said is something like this: Still another way that common-law systems and civil-law systems can be described is common-law = adversarial, and civil-law = inquisitorial. In adversarial systems like those in the UK and US, the focus of a trial is whether or not the prosecution can prove the accused guilty of the charges beyond a reasonable doubt; it is basically a contest between the prosecution and defence. In inquisitorial systems like Portugal's, whilst of course the prosecution must present evidence to support the charges, a trial is an enquiry to establish the truth.

Judges in civil-law systems are much more active during the trial than judges in common-law systems, who are basically passive referees. In a trial in a civil-law country, witnesses are questioned by the judges, as well as lawyers for both sides; however, we should not look for the sort of cross-examination designed primarily to knock holes in a witness's testimony which we are used to seeing in trials in the UK and US; the purpose of this questioning in a civil-law system, like the rest of the trial, is to get at the truth.
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Re: 21 steps to trial and secrecy of justice

Postby Dreyfus » Sat May 24, 2008 2:58 pm

Pear (and Luz), for a long time you both seem to think I'm intent on dissing completely the PT Justice system. Nothing could be further from the truth. All I have wanted to point out is that one of the weaknesses of the Inquisitorial system is the amount of power vested in judges which leaves them open to outside influence and even corruption.

Stinky Sardine said:
Quote:
"but pt judges are more interventive because of their slighly different role."


Beachy said:
Quote:
"Judges in civil-law systems are much more active during the trial than judges in common-law systems, who are basically passive referees."


The active role of the judge means they have more influence over the outcome of the case. In the real world, where human beings have foibles and are prone to weakness, it means judges are more liable to attempts at corruption by outside forces. That's simply the point I want to make.
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Re: 21 steps to trial and secrecy of justice

Postby beachy » Sat May 24, 2008 5:21 pm

Dreyfus wrote:Pear (and Luz), for a long time you both seem to think I'm intent on dissing completely the PT Justice system. Nothing could be further from the truth. All I have wanted to point out is that one of the weaknesses of the Inquisitorial system is the amount of power vested in judges which leaves them open to outside influence and even corruption.

Stinky Sardine said:
Quote:
"but pt judges are more interventive because of their slighly different role."


Beachy said:
Quote:
"Judges in civil-law systems are much more active during the trial than judges in common-law systems, who are basically passive referees."


The active role of the judge means they have more influence over the outcome of the case. In the real world, where human beings have foibles and are prone to weakness, it means judges are more liable to attempts at corruption by outside forces. That's simply the point I want to make.


Dreyfus, I have seen judges do surpassingly stupid things, and I know that they can be dishonest. Some years ago in America, I assisted the FBI (by turning over evidence I had developed in a financial fraud case) in the investigation of a corrupt judge who was taking bribes. It was sickening.

However, I must say that if I were ever accused of a crime myself, I would without question forgo a jury and stand trial before a judge. Having seen many jury trials in two common-law countries over three decades, I simply do not trust juries. Sometimes they make you proud just to be their fellow citizen. (The jury in the Timothy McVeigh Oklahoma City bombing case comes to mind, a collection of ordinary citizens who rendered extraordinary service, in my opinion.) But I have also, all too often, seen juries that were too easily swayed by emotional arguments, prejudiced, or just plain dumb. Judges, in my opinion, have a much higher degree of intelligence than jurors, they know the law better, and they are more likely to decide a case based on the facts than on emotion or misunderstanding. And in a system like Portugal's, where serious cases are often heard by a panel of judges, it seems to me that a corrupt judge would have a much lower chance of causing an unfair outcome in a case. If I understand correctly, judges in Portugal are also required to produce a document at the end of a trial explaining why they decided a case as they did, which evidence they relied on and what principles of law were applied, another safeguard against an unfair verdict.

Just my opinion. You are certainly entitled to yours.
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Re: 21 steps to trial and secrecy of justice

Postby Luz » Sat May 24, 2008 7:07 pm

beachy wrote:
Dreyfus wrote:Pear (and Luz), for a long time you both seem to think I'm intent on dissing completely the PT Justice system. Nothing could be further from the truth. All I have wanted to point out is that one of the weaknesses of the Inquisitorial system is the amount of power vested in judges which leaves them open to outside influence and even corruption.

Stinky Sardine said:
Quote:
"but pt judges are more interventive because of their slighly different role."


Beachy said:
Quote:
"Judges in civil-law systems are much more active during the trial than judges in common-law systems, who are basically passive referees."


The active role of the judge means they have more influence over the outcome of the case. In the real world, where human beings have foibles and are prone to weakness, it means judges are more liable to attempts at corruption by outside forces. That's simply the point I want to make.


Dreyfus, I have seen judges do surpassingly stupid things, and I know that they can be dishonest. Some years ago in America, I assisted the FBI (by turning over evidence I had developed in a financial fraud case) in the investigation of a corrupt judge who was taking bribes. It was sickening.

However, I must say that if I were ever accused of a crime myself, I would without question forgo a jury and stand trial before a judge. Having seen many jury trials in two common-law countries over three decades, I simply do not trust juries. Sometimes they make you proud just to be their fellow citizen. (The jury in the Timothy McVeigh Oklahoma City bombing case comes to mind, a collection of ordinary citizens who rendered extraordinary service, in my opinion.) But I have also, all too often, seen juries that were too easily swayed by emotional arguments, prejudiced, or just plain dumb. Judges, in my opinion, have a much higher degree of intelligence than jurors, they know the law better, and they are more likely to decide a case based on the facts than on emotion or misunderstanding. And in a system like Portugal's, where serious cases are often heard by a panel of judges, it seems to me that a corrupt judge would have a much lower chance of causing an unfair outcome in a case. If I understand correctly, judges in Portugal are also required to produce a document at the end of a trial explaining why they decided a case as they did, which evidence they relied on and what principles of law were applied, another safeguard against an unfair verdict.

Just my opinion. You are certainly entitled to yours.


No Dreyfus, of course I never insinuated that you intended to critisize the PT judicial system. Did I ??? :? if so, I'm sorry


Beachy I agree fully with you.
Judges are very strictly scrutinised over here, and being in a panel of 3, it's not easy to be corrupt, and yes they have to produce a document (Acordão) where they fully fundament the reason for the decision stating facts and laws. There is no place for a twisting of the law or for subjectivity. Just some days ago a woman judge asked to be excused from a Trial over a medical malpractice that caused the death of a newborn - she argumented that she couldn't be objective over that particular case, and she was excused. In the same manner the Defense or Prosecution may ask for a certain judge to be set aside because they find that there may be conflincting interests (It has happen at least once in the Casa Pia Process, requested by the Defendants).

Furthermore, after a sentence is passed by a judge there is a period of time for contestation, to a higher level Court, if any of the parties find that the decision is not well fundamented. And there is even a 3rd Level, the High Court. So I don't think that corruption is more susceptible to be carried on such a system than in one with civilian juries.
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Re: 21 steps to trial and secrecy of justice

Postby pear » Sun May 25, 2008 5:22 pm

Dreyfus wrote:Pear (and Luz), for a long time you both seem to think I'm intent on dissing completely the PT Justice system. Nothing could be further from the truth. All I have wanted to point out is that one of the weaknesses of the Inquisitorial system is the amount of power vested in judges which leaves them open to outside influence and even corruption.

Stinky Sardine said:
Quote:
"but pt judges are more interventive because of their slighly different role."


Beachy said:
Quote:
"Judges in civil-law systems are much more active during the trial than judges in common-law systems, who are basically passive referees."


The active role of the judge means they have more influence over the outcome of the case. In the real world, where human beings have foibles and are prone to weakness, it means judges are more liable to attempts at corruption by outside forces. That's simply the point I want to make.


As far as I understand, judicial systems seem to be divided between two positions, one where the people invested with the power of judging other people (be it jurors or judges) come out of society and are directly responsible to it (by being elected or chosen among citizens), and another where those people are more or less totally independent and irresponsible. Both positions have advantages and disadvantages, of course, and there are obviously all sort of intermediate positions. Berlusconi, for example, has always been very annoyed with the enormous independence of Italian prosecutors: "I am ELECTED, they are NOT!". The other day I asked SirPrize about the Aisenberg's case, and what went wrong, and her explanation was that in the US a lot of LE offcials are elected and, therefore, prone to pressure to have the cases solved very quickly.

So, yes, Portuguese judges have a lot of power. That, in itself, doesn't bother me. The question is if there are cheks and balances in place, and if they work in practice. The fact that they have to justify their actions in writting is one, of course, that I didn't realise that common law doesn't have (duh!). The fact that for any penalty above 5 years a panel of 3 judges is required is another. But I'm sure that the system goes wrong every now and then. I'm not aware of charges of corruption, but I must say that I don't follow the "crimes and courts" section very closely.
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Re: 21 steps to trial and secrecy of justice

Postby Dreyfus » Sun May 25, 2008 8:03 pm

Berlusconi for example, is someone who has managed to escape conviction by bribing judges. Trials against him on this didn't result in a not-guilty verdict, they ran out of time because of the statute of limitations. Incidentally his government shortened the time allowed for the trials to run for certain offences, which just happened to be the ones he was accused of!

I don't have direct experience of Portugal, but what is scary to see in Italy is when the investigating judge seems to have his / her mind deadset on a certain version of events, and can't be budged. A case giving cause for concern at the moment is the Meredith murder, where 2 suspects have been detained since last November and are yet to be charged - Amanda Knox and her Italian boyfriend Raffaele Sollecito.

I agree there is good and bad in both systems. One point I believe though, is that the McCanns were led to believe that their Roman Catholicism could help them in any judicial action against them. They played the RC card very hard in those early months.
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Re: 21 steps to trial and secrecy of justice

Postby pear » Sun May 25, 2008 9:12 pm

Dreyfus wrote:One point I believe though, is that the McCanns were led to believe that their Roman Catholicism could help them in any judicial action against them. They played the RC card very hard in those early months.


Could be. They (like anybody else would) played with whatever mental picture they had of the society surrounding them. I can't imagine a Portuguese playing that kind of card, though: the card of respectability, even the card of "spirituality", I agree, but not RC as a protection (I think that that's what you are implying, but maybe I'm reading too much in what you are saying). Basically, good PR but not necessarily goo legal protection... a confusion they seem to have made all the time.

ETA: As far as i understood, some laws were changed in Italy to fit Berlusconi needs, but by the Parliament, not the judges. And his complains about the investigating judges seem to mirror yours :D
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Re: 21 steps to trial and secrecy of justice

Postby Dreyfus » Sun May 25, 2008 9:33 pm

pear wrote:
Dreyfus wrote:One point I believe though, is that the McCanns were led to believe that their Roman Catholicism could help them in any judicial action against them. They played the RC card very hard in those early months.


Could be. They (like anybody else would) played with whatever mental picture they had of the society surrounding them. I can't imagine a Portuguese playing that kind of card, though: the card of respectability, even the card of "spirituality", I agree, but not RC as a protection (I think that that's what you are implying, but maybe I'm reading too much in what you are saying). Basically, good PR but not necessarily goo legal protection... a confusion they seem to have made all the time.

ETA: As far as i understood, some laws were changed in Italy to fit Berlusconi needs, but by the Parliament, not the judges. And his complains about the investigating judges seem to mirror yours :D


I didn't say the laws in Italy were changed by judges Pear, they were changed by his government, of which he was Prime Minister to suit his needs as you say. One of the ways the law was changed was to shorten the statute of limitations allowed on the crime of bribing judges, which he was accused of, so he couldn't be convicted, because the trial ran out of time.

As for his complaints about Italian judges - rather like the McCanns, he chooses to accuse anyone who opposes him of being a "communist" or wilfully corrupt - whatever suits his personal agenda at the time. (He is someone that I personally dispise, but that's another matter).

On the Catholic thing, something you said the other day was very interesting. You said that a lot of professional legal people were, for historical reasons, Freemasons, but at a certain point there was a "detente" between them and someone else (something about some guy having a funeral in a particular church.) Who was the other party involved in this detente - was it Opus Dei?
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Re: 21 steps to trial and secrecy of justice

Postby pear » Sun May 25, 2008 10:04 pm

Dreyfus wrote:
pear wrote:
Dreyfus wrote:One point I believe though, is that the McCanns were led to believe that their Roman Catholicism could help them in any judicial action against them. They played the RC card very hard in those early months.


Could be. They (like anybody else would) played with whatever mental picture they had of the society surrounding them. I can't imagine a Portuguese playing that kind of card, though: the card of respectability, even the card of "spirituality", I agree, but not RC as a protection (I think that that's what you are implying, but maybe I'm reading too much in what you are saying). Basically, good PR but not necessarily goo legal protection... a confusion they seem to have made all the time.

ETA: As far as i understood, some laws were changed in Italy to fit Berlusconi needs, but by the Parliament, not the judges. And his complains about the investigating judges seem to mirror yours :D


I didn't say the laws in Italy were changed by judges Pear, they were changed by his government, of which he was Prime Minister to suit his needs as you say. One of the ways the law was changed was to shorten the statute of limitations allowed on the crime of bribing judges, which he was accused of, so he couldn't be convicted, because the trial ran out of time.

As for his complaints about Italian judges - rather like the McCanns, he chooses to accuse anyone who opposes him of being a "communist" or wilfully corrupt - whatever suits his personal agenda at the time. (He is someone that I personally dispise, but that's another matter).

On the Catholic thing, something you said the other day was very interesting. You said that a lot of professional legal people were, for historical reasons, Freemasons, but at a certain point there was a "detente" between them and someone else (something about some guy having a funeral in a particular church.) Who was the other party involved in this detente - was it Opus Dei?


I don't know if it can be called a detente, it was just a funny episode some 4 years ago: the President of the Constitutional Court (the 3rd figure of the State, the one that represents the judicial "arm") died suddenly and he was going to have a no-frills masonic ceremony (I have no idea what was the political affiliation of this guy, maybe Socialist but I don't really know); the President of the Republic, a Socialist (said to be a freemason also, but I don't think he ever came out of the mason closet), non catholic (jewish mother, but non religious either, as far as I know) decided that that would not do, he had to have a State funeral, which would imply the Portuguese equivalent to Westminster Abbey; the Patriarch (certainly no friend of Opus Dei, way too progressive for that) agreed on letting a masonic funeral to take place in "Westminster Abbey". I would say there was no "party" involved, it was a couple of personal decisions, of the President and the Patriarch.
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