THE DEFENSE NEVER RESTS

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DOUBLE JEOPARDY OR WHEEL OF FORTUNE?

April 14, 2009

   A jury found Phil Spector guilty of second degree murder which is secondary to the fact that double jeopardy is as in the allegory of the cave - merely a shadow on the wall.  After an initial hung jury the government is afforded a second try to convict Phil Spector which they did. How many tries would the prosecution get under a pro prosecution judge? If a jury fails to find one guilty of crime unanimously then you are acquitted right? Not at all. In our criminal system if the jury fails to unanimously agree it means the states burden has not failed it just has to try again. The defendant rides the lottery wave of the jury he will receive under the chance of jury selection. 

   A hung jury should be an acquittal. The government has the burden. The government fails to meet their burden when the jury does not unanimously agree to convict. It does not matter that some wanted to convict it only matters that there was no unanimous decision to convict.

   This in effect puts a burden on the defendant to sway the twelve juries to not convict. Theoretically  there is NO burden on the defendant. However our system squarely puts the burden on both sides.  The defendant must persuade all the jurors he's not guilty and the state must sway all the jurors that he/she is. Logically unconscionable.  If the state fails to persuade then they have failed and the result should be an acquittal.

Phil Spector found guilty after retrial

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