Ornery.org
  Front Page   |   About Ornery.org   |   World Watch   |   Guest Essays   |   Contact Us

The Ornery American Forum Post New Topic  Post A Reply
my profile login | register | search | faq | forum home

  next oldest topic   next newest topic
» The Ornery American Forum » General Comments » When Beardless Moslems Attack ...

 - UBBFriend: Email this page to someone!    
Author Topic: When Beardless Moslems Attack ...
Pete at Home
Member
Member # 429

 - posted      Profile for Pete at Home   Email Pete at Home   Send New Private Message       Edit/Delete Post   Reply With Quote 
http://usnews.nbcnews.com/_news/2012/10/18/14543054-court-rules-fort-hood-shooting-suspect-nidal-hasan-must-shave-beard?lite

"The military judge has the authority to prescribe the proper uniform for trial."

quote:
Hasan faces the death penalty or life in prison without parole if convicted in the Nov. 5, 2009, attack that killed 13 people and wounded more than two dozen others at the Army post about 130 miles southwest of Dallas.

His trial has been on hold for months while the issue of his beard was adjudicated.

Hasan's attorneys also want the appeals court to overturn six contempt-of-court rulings Col. Gregory Gross issued against Hasan for having a beard at pretrial hearings this past summer, when he first showed up in court with facial hair.

Army grooming standards prohibit beards but allow for religious exceptions. Gross denied Hasan's request for such an exception. He found that Hasan's claims of religious sincerity did not outweigh prosecutor's arguments that Hasan grew the beard just before his August trial date so witnesses wouldn't be able to identify him in court.

At an Oct. 11 hearing, defense attorney Capt. Kristin McGrory said military judges have no authority to order forcible shaving. She said military regulations authorize it for inmates only for safety and health reasons.

McGrory also disputed Gross' assertion that the beard would be a disruption during Hasan's trial.

"The fact that he's wearing a beard does not materially interfere with the course of the trial," she told the panel of judges.

IMO, Captain McGrory is full of crap. Changing Defendant's appearance before witnesses identify Defendant would OBVIOUSLY interfere with the course of the trial.

Defendant had no beard at the time of the murders, and hasn't changed religion since the murders.

Posts: 44193 | Registered: Jun 2001  |  IP: Logged | Report this post to a Moderator
D.W.
Member
Member # 4370

 - posted      Profile for D.W.   Email D.W.   Send New Private Message       Edit/Delete Post   Reply With Quote 
Are no photos of that time available? A simple, "the defense recognizes this photo as the defendant for the purposes of identification." should do the trick right? No "mugshot" equivilent?
Posts: 4308 | Registered: Apr 2007  |  IP: Logged | Report this post to a Moderator
Pete at Home
Member
Member # 429

 - posted      Profile for Pete at Home   Email Pete at Home   Send New Private Message       Edit/Delete Post   Reply With Quote 
Inadequate for a jury.
Posts: 44193 | Registered: Jun 2001  |  IP: Logged | Report this post to a Moderator
Funean
Member
Member # 2345

 - posted      Profile for Funean   Email Funean   Send New Private Message       Edit/Delete Post   Reply With Quote 
What is the legal basis here--prioritizing his right to a fair trial (insofar as that hinges on accurate identification) over his right to freely express his religious beliefs? (fwiw, I find his beard need disingenuous in the extreme, but that doesn't invalidate the argument)
Posts: 5277 | Registered: Mar 2005  |  IP: Logged | Report this post to a Moderator
Pete at Home
Member
Member # 429

 - posted      Profile for Pete at Home   Email Pete at Home   Send New Private Message       Edit/Delete Post   Reply With Quote 
Your analysis seems excellent, if I understand you correctly. Defendant's argument is not invalid; it's simply weak. The valid religious right is outweighed in this case by (1) the need for accurate identification at trial, and (2) that the facts in this case suggest false piety cloaking an intent to mislead jurors. If it was a female Moslem accused of the Ft. Hood murders, should she be allowed to suddenly get fundy and wear a Burkha?
Posts: 44193 | Registered: Jun 2001  |  IP: Logged | Report this post to a Moderator
Funean
Member
Member # 2345

 - posted      Profile for Funean   Email Funean   Send New Private Message       Edit/Delete Post   Reply With Quote 
Well, right. But the problem with prioritizing competing rights is the reliability of the yardstick. I mean, is "meh....I don't buy it, dude" a good rule for deciding one right should be subordinate to another? And even given the strong argument that his sudden piety is BS, can we judge the legitimacy of a stated religious need by previous apostasy (the fact that he used to be beardless)? So that leaves us with

Why is his right to a fair trial more important than his right to freedom of religious expression?

Some possibilities....right to a fair trail is more explicitly articulated in the Constitution and subsequent law than vague, hand-wavey "religious expression," there is a more compelling public need on one side than the other (this would be a troubling precedent), or there is some case law, somewhere, that does actually prioritize this stuff.

I think this happens more often than is made an issue, and might be something that that colors American jurisprudence and civil liberties way more pervasively than the obvious case law stuff does.

Posts: 5277 | Registered: Mar 2005  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 99

 - posted      Profile for TomDavidson   Email TomDavidson   Send New Private Message       Edit/Delete Post   Reply With Quote 
I'm a little curious why accurate identification at trial is important at all, in broad strokes. That seems profoundly cinematic to me, by which I mean stupidly florid.
Posts: 22935 | Registered: Nov 2000  |  IP: Logged | Report this post to a Moderator
Pete at Home
Member
Member # 429

 - posted      Profile for Pete at Home   Email Pete at Home   Send New Private Message       Edit/Delete Post   Reply With Quote 
It seems less offensive to life, liberty and pursuit of happiness to force-shave an accused murderer to the state that he looked like at the time of the murder, than to convict the wrong man of murder.

I believe that answers both Tom's comment and Funean's question.

Posts: 44193 | Registered: Jun 2001  |  IP: Logged | Report this post to a Moderator
D.W.
Member
Member # 4370

 - posted      Profile for D.W.   Email D.W.   Send New Private Message       Edit/Delete Post   Reply With Quote 
I don't think it does answer Tom's question. Does the identification really happen at the trial? Has it not already taken place by the witnesses? If pointing him out and saying definitively, "This is the man I saw." is part of the trial then I agree, yes he should shave. If he had the beard at the time of arrest his claim he wants to keep it for religious reasons would hold weight.

I don't get the police line-up aspect of this question. But I'm unfamiliar with military courts procedure.

Posts: 4308 | Registered: Apr 2007  |  IP: Logged | Report this post to a Moderator
Pete at Home
Member
Member # 429

 - posted      Profile for Pete at Home   Email Pete at Home   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
Originally posted by D.W.:
I don't think it does answer Tom's question. Does the identification really happen at the trial?

Of course it will! In front of the jury. There are multiple eyewitnesses to the actual murders.
"I saw that man (point) shoot the victims."

Posts: 44193 | Registered: Jun 2001  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 99

 - posted      Profile for TomDavidson   Email TomDavidson   Send New Private Message       Edit/Delete Post   Reply With Quote 
But that's just theater. Pointing to "that man" is completely irrelevant.

I mean, you don't conduct a DNA test in front of the jury; neither do you really finger a suspect from the stand.

Posts: 22935 | Registered: Nov 2000  |  IP: Logged | Report this post to a Moderator
Adam Masterman
Member
Member # 1142

 - posted      Profile for Adam Masterman   Email Adam Masterman   Send New Private Message       Edit/Delete Post   Reply With Quote 
Wasn't this guy taken alive at the conclusion of the shooting? Is there any reasonable doubt as to whether he's the person in question? I'm finding it difficult to believe that the defense is even going to attempt anything along the lines of "nope, he was home watching t.v. that day." The article alludes to the idea of him changing his appearance to confuse witnesses, but the main thrust seems to be the military judges prerogative to dictate standards of dress in court. Let him keep his beard, and get on with convicting him.
Posts: 4823 | Registered: Jul 2003  |  IP: Logged | Report this post to a Moderator
Pete at Home
Member
Member # 429

 - posted      Profile for Pete at Home   Email Pete at Home   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
Originally posted by TomDavidson:
But that's just theater.

Eyewitness testimony is "theater"?

That sort of astonishing moral cynicism is the reason I used to take you for some sort of nihilist. I've revised my opinion, but I submit your remark as exhibit A that what I said about you in 2001 was stated in good faith.

quote:

I mean, you don't conduct a DNA test in front of the jury;

[DOH]
A DNA test isn't first hand eyewitness testimony.

Posts: 44193 | Registered: Jun 2001  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 99

 - posted      Profile for TomDavidson   Email TomDavidson   Send New Private Message       Edit/Delete Post   Reply With Quote 
That eyewitness testimony was given before putting the witness on the stand. What possible value is provided by asking the eyewitness on the stand that they saw Person X?

Heck, if there were any possible new information to be gleaned by asking an eyewitness to identify someone from the stand, wouldn't that fall under discovery?

Posts: 22935 | Registered: Nov 2000  |  IP: Logged | Report this post to a Moderator
Pete at Home
Member
Member # 429

 - posted      Profile for Pete at Home   Email Pete at Home   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
Originally posted by TomDavidson:
That eyewitness testimony was given before putting the witness on the stand.

Irrelevant. It's the jury's job to evaluate the credibility of eyewitness testimony.
Posts: 44193 | Registered: Jun 2001  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 99

 - posted      Profile for TomDavidson   Email TomDavidson   Send New Private Message       Edit/Delete Post   Reply With Quote 
Why isn't it the jury's job to evaluate the credibility of a DNA test?
Posts: 22935 | Registered: Nov 2000  |  IP: Logged | Report this post to a Moderator
Pete at Home
Member
Member # 429

 - posted      Profile for Pete at Home   Email Pete at Home   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
Originally posted by TomDavidson:
Why isn't it the jury's job to evaluate the credibility of a DNA test?

Because all US juries in murder trials are painstakingly screened by both legal teams and the judge, in order to weed out any potential jurors that are even capable of that level of thought, Tom.
Posts: 44193 | Registered: Jun 2001  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 99

 - posted      Profile for TomDavidson   Email TomDavidson   Send New Private Message       Edit/Delete Post   Reply With Quote 
I know you're speaking tongue-in-cheek, but you're not doing your argument any favors by pointing out that jurors are stupid enough to not really have a meaningful impact on the process.
Posts: 22935 | Registered: Nov 2000  |  IP: Logged | Report this post to a Moderator
D.W.
Member
Member # 4370

 - posted      Profile for D.W.   Email D.W.   Send New Private Message       Edit/Delete Post   Reply With Quote 
Oh they have an impact.
Posts: 4308 | Registered: Apr 2007  |  IP: Logged | Report this post to a Moderator
Pete at Home
Member
Member # 429

 - posted      Profile for Pete at Home   Email Pete at Home   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
Originally posted by TomDavidson:
I know you're speaking tongue-in-cheek, but you're not doing your argument any favors by pointing out that jurors are stupid enough to not really have a meaningful impact on the process.

Ignorance about the workings of DNA does not make someone "stupid," Tom. Nor does excessive respect for authority.

AFAIK, the way that our system handle DNA evidence has resulted in the release of dozens of persons who had been wrongfully convicted. I'm happy to let the experts handle the DNA evidence, and to let jurors evaluate the credibility of eyewitnesses. Your alternate recommendations seem rather foolish in comparison.

Posts: 44193 | Registered: Jun 2001  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 99

 - posted      Profile for TomDavidson   Email TomDavidson   Send New Private Message       Edit/Delete Post   Reply With Quote 
What do you believe equips a juror to best evaluate the credibility of an eyewitness based on having that eyewitness point to somebody sitting in the defendant's chair in a courtroom?
Posts: 22935 | Registered: Nov 2000  |  IP: Logged | Report this post to a Moderator
Pete at Home
Member
Member # 429

 - posted      Profile for Pete at Home   Email Pete at Home   Send New Private Message       Edit/Delete Post   Reply With Quote 
Having a brain. Being there in the court. Listening to the witness testimony, and watching witness body language. Being able to discuss one's impressions with 11 other jurors. Needing to come to a 12-juror consensus.
Posts: 44193 | Registered: Jun 2001  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 99

 - posted      Profile for TomDavidson   Email TomDavidson   Send New Private Message       Edit/Delete Post   Reply With Quote 
And what part of that process, specifically, depends on the witness pointing to the person sitting in the defendant's chair?
Posts: 22935 | Registered: Nov 2000  |  IP: Logged | Report this post to a Moderator
Pete at Home
Member
Member # 429

 - posted      Profile for Pete at Home   Email Pete at Home   Send New Private Message       Edit/Delete Post   Reply With Quote 
That's a foolishly constructed question.

When you listen to the witness testify to the shooting, you want to be able to connect the shooting to the individual.

Eyewitnesses to a killing leave society feeling pretty comfortable with the outcome. And I think that's warranted.

As a defense attorney, I'm a lot more troubled with identification in front of the jury where the witness did NOT actually witness the killing. There are numerous cases where your remarks about drama actually hold water. But in THIS case, where we're dealing with actual eyewitnesses to the murders, it would be an abortion of justice to interfere with identification before the jury.

Posts: 44193 | Registered: Jun 2001  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 99

 - posted      Profile for TomDavidson   Email TomDavidson   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
When you listen to the witness testify to the shooting, you want to be able to connect the shooting to the individual.
Which, of course, has already happened. If the witness hadn't done so, the prosecution wouldn't've put him up there.

What, again, does having the witness repeat that process in the courtroom bring to the process?

Posts: 22935 | Registered: Nov 2000  |  IP: Logged | Report this post to a Moderator
Pete at Home
Member
Member # 429

 - posted      Profile for Pete at Home   Email Pete at Home   Send New Private Message       Edit/Delete Post   Reply With Quote 
"Which, of course, has already happened. If the witness hadn't done so, the prosecution wouldn't've put him up there."

Wow.

Just ...

Wow.

So why put him on trial at all if you want to trust the prosecution with that?

"What, again, does having the witness repeat that process in the courtroom bring to the process? "

Asked and answered.

Posts: 44193 | Registered: Jun 2001  |  IP: Logged | Report this post to a Moderator
Pete at Home
Member
Member # 429

 - posted      Profile for Pete at Home   Email Pete at Home   Send New Private Message       Edit/Delete Post   Reply With Quote 
Here's an example of a point-identification that seems more abusive:

http://www.youtube.com/watch?v=pFOnB9ODRkA

about 8:50 into the clip. The problem here is that there's no eyewitness to the crime, so the pointing seems prejudicial.

Posts: 44193 | Registered: Jun 2001  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 99

 - posted      Profile for TomDavidson   Email TomDavidson   Send New Private Message       Edit/Delete Post   Reply With Quote 
I don't see that you have answered, Pete. What actual value does eyewitness identification at trial bring to the trial? If an eyewitness loses his sight in an unrelated accident a couple days after picking the subject out of a lineup, is his testimony less credible?
Posts: 22935 | Registered: Nov 2000  |  IP: Logged | Report this post to a Moderator
Pete at Home
Member
Member # 429

 - posted      Profile for Pete at Home   Email Pete at Home   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
Originally posted by TomDavidson:
I don't see that you have answered, Pete. What actual value does eyewitness identification at trial bring to the trial?

It provides the jury with the opportunity to observe any hesitation, uncertainty, etc. in the identification that might contribute to reasonable doubt.

Just 3 months ago, I resolved a case for a client who was picked up near the scene where a white kid was beaten nearly to death by some black gang members. My client was not a gang member, but he was black, and due to the news coverage, the city was eager to quickly punish someone. Fortunately the victim got out of the hospital, came to court, and was certain that my client wasn't one of the black kids that beat him. Now the prosecution KNEW before hand that he wasn't one of the beaters (they were trying to loop him in via "conspiracy"), but once they knew that the victim was going to say that in front of a jury, they made an offer that dropped all felony charges.

Posts: 44193 | Registered: Jun 2001  |  IP: Logged | Report this post to a Moderator
TomDavidson
Member
Member # 99

 - posted      Profile for TomDavidson   Email TomDavidson   Send New Private Message       Edit/Delete Post   Reply With Quote 
But that's the definition of theater. If they really wanted to give the jury that opportunity, they'd film the initial identification. After the fact, it's just re-enactment.
Posts: 22935 | Registered: Nov 2000  |  IP: Logged | Report this post to a Moderator
Pyrtolin
Member
Member # 2638

 - posted      Profile for Pyrtolin   Email Pyrtolin   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
Originally posted by TomDavidson:
quote:
When you listen to the witness testify to the shooting, you want to be able to connect the shooting to the individual.
Which, of course, has already happened. If the witness hadn't done so, the prosecution wouldn't've put him up there.
In the trial that I was on the jury for, the prosecution presented as part of its evidence the lineup photo that they'd used to have the witnesses use to identify the defendant. The picture consisted of the defendant (a skinny fellow) and five or six guys that looked like they could have been linebackers. Someone could have picked the defendant out of it by just playing "one of these things is not like the others" without ever having seen him, never mind being able to remmeber him well enough to positively identify him.
Posts: 11997 | Registered: Oct 2005  |  IP: Logged | Report this post to a Moderator
Pete at Home
Member
Member # 429

 - posted      Profile for Pete at Home   Email Pete at Home   Send New Private Message       Edit/Delete Post   Reply With Quote 
Initial identification isn't done under oath, Tom, so it's more than re-enactment. But I do agree with you that it would be in the interests of justice to put the original identification on film. Hell, let's record all police and prosecution interactions with the accused and with witnesses.

But I'm not interested in making changes to the system that "level the playing field" between innocent defendants and guilty defendants. The whole idea of the system is to (gasp) discriminate between the innocent and the guilty.

Posts: 44193 | Registered: Jun 2001  |  IP: Logged | Report this post to a Moderator
D.W.
Member
Member # 4370

 - posted      Profile for D.W.   Email D.W.   Send New Private Message       Edit/Delete Post   Reply With Quote 
Explain to the jury that the defendant refuses to shave his beard citing religious reasons. In order to accommodate his wishes you have obtained a photograph of the defendant from around the time of the incident.

Present photo of the defendant to the defense team.

“Do you acknowledge this is a photograph of the defendant?”

If No: explain that you believe the defendant is using religion as an excuse to change his appearance in an attempt to confuse identification by witnesses.

If Yes: present photo to witness.

“Is this the man you saw commit the crime?”

It’s less powerful theater in a way, but more powerful in another. It’s prejudicial towards the defendant. It insinuates that he is guilty and hiding behind religion. If the defense has a problem with it, he can shave… Tada problem solved.

Posts: 4308 | Registered: Apr 2007  |  IP: Logged | Report this post to a Moderator
D.W.
Member
Member # 4370

 - posted      Profile for D.W.   Email D.W.   Send New Private Message       Edit/Delete Post   Reply With Quote 
If this tactic actually worked why wouldn't a defendant just smash their face causing bruising or swelling to throw off the process?
Posts: 4308 | Registered: Apr 2007  |  IP: Logged | Report this post to a Moderator
D Pace
Member
Member # 1493

 - posted      Profile for D Pace   Email D Pace       Edit/Delete Post   Reply With Quote 
Trial is just mandatory theater. Our rules require live testimony, and the exclusion of hearsay prevents simple submission of past out of court statements.

Nearly all the above suggestions are "good ideas" but simply aren't admissible under the U.S. rules of evidence.

You can't submit that someone identified someone in a lineup-- it's hearsay. The witness has to be alive to testify in open court, and has to be willing to testify in open court, and has to be able to be cross examined, and the jury gets to watch and listen to them.

If a witness identifies somebody in a lineup, but that witness doesn't appear at the trial, the identification isn't going to be presented to the jury.

If the witness is there at trial, he can say that's the guy sitting there, but he might say,"I don't recognize him now as he sits in front him," in which case you might put a picture from the time of the shooting and he could say the guy in the picture looks like the guy who shot me. (but it won't be allowed to be a picture in a jumpsuit).

Anyway the U.S. trial system is theater / requires the theater. It may or not be the best idea, but it's the rules of the U.S. system.

Posts: 376 | Registered: Feb 2004  |  IP: Logged | Report this post to a Moderator
Pete at Home
Member
Member # 429

 - posted      Profile for Pete at Home   Email Pete at Home   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
Originally posted by D.W.:
If this tactic actually worked why wouldn't a defendant just smash their face causing bruising or swelling to throw off the process?

It hurts less to grow a beard and pretend religious reasons.

But I'd be very surprised if no defendants in history have ever taken the tactic that you described.

Even though it's a fairly narrow selection of cases to begin with where there are eyewitnesses to the actual commission of a capital crime.

[ October 25, 2012, 03:34 PM: Message edited by: Pete at Home ]

Posts: 44193 | Registered: Jun 2001  |  IP: Logged | Report this post to a Moderator
Pete at Home
Member
Member # 429

 - posted      Profile for Pete at Home   Email Pete at Home   Send New Private Message       Edit/Delete Post   Reply With Quote 
"Anyway the U.S. trial system is theater / requires the theater. It may or not be the best idea, but it's the rules of the U.S. system."

Agreed. Given the overall jury system, to take that sort of decision out of the jury hands would be a complete perversion of the system.

A unanimous decision by twelve technically uninformed and relatively disinterested persons has its weaknesses, but evaluating credibility of eyewitness testimony is one of its strengths.

Posts: 44193 | Registered: Jun 2001  |  IP: Logged | Report this post to a Moderator
   

Quick Reply
Message:

HTML is not enabled.
UBB Code™ is enabled.
UBB Code™ Images not permitted.
Instant Graemlins
   


Post New Topic  Post A Reply Close Topic   Feature Topic   Move Topic   Delete Topic next oldest topic   next newest topic
 - Printer-friendly view of this topic
Hop To:


Contact Us | Ornery.org Front Page

Powered by Infopop Corporation
UBB.classic™ 6.7.1