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In El Chapo’s Trial, Extraordinary Steps to Keep Witnesses Alive
- olliej 8y agoIf this were a movie we could just attach a bomb to him that's set off if any witnesses die. But seriously at some point I find myself asking why we must have a trial with witnesses. If you have so much accrued evidence that you know these steps are necessary to protect witnesses that should be sufficient to give you life in prison/death penalty. Which is kind of gross, but if someone has clearly so much disregard for the law, why should they get to abuse it?
- RcouF1uZ4gsC 8y agoI think that is because we conflate the concept of justice with the process of justice. Justice is getting what you deserve for your actions. We came up with the process of justice for example trials, witnesses, juries, etc to help us as a society more reliably achieve justice the concept. However, these two things are disctinct.
- jvln 8y agoIf justice existed the guy would be killed long time ago. It is a power show of that nobody can mess with the state.
- wjnc 8y agoI think this a fair, populist point. I have the same struggles surrounding policing and justice. There are categories of society that act so clearly outside the societal norm that clear and present danger is easily established (say terrorists actively plotting). Still we hold to our procedural law. The killing squads of Duterte are an obvious example why you wouldn't want 00-style justice. But I do wonder if there is a middle ground. I presume not. So that would be my current answer: we hold to procedural law for anyone and everyone because any deviance from that is on a very short, slippery slope to fascism and dictatorship. (I use the term fascism loosely, but the Latin origin is appropriate.)
- wallace_f 8y agoWe are clearly living outside the norm right now. Any cursory examination of history shows that slope to be insanely slippery. Even the subject of this article is the product state-run tyranny on its own people. Probably best to fight for those civil liberties we take for granted.
- raverbashing 8y ago> Even the subject of this article is the product state-run tyranny on its own people Oh yeah, poor him, oppressed by the government. That kind of attitude only makes a huge mockery of those who obey the law.
- wallace_f 8y agoYou misinterpreted my comment. My intended meaning is that if you end the War on Drugs, powerful, murderous cartel bosses would no longer exist. So even now, in times where we don't think of ourselves as living in tyranny, our state is creating it. The War on Drugd has always been a war on people, not a pro-humanity experiment.
- wahern 8y agoMaybe I'm playing semantic games, but I think words like "extrajudicial" hint at a solution to the paradox of how a political system can address existential threats. A political system encompasses both a legal process and a system of allocating power. Extrajudicial means not authorized, but it doesn't imply the power exercised was illegitimate. Rather, it suggests the power was legitimate. Contrast that with a murderer, who never possessed any legitimate power to take a life, let alone take one according to some legal right. Cold comfort but in principle a meaningful distinction, especially if you agree that power is principally defined and circumscribed by the office, and only secondarily by the rules for executing that office. For the sake of argument, let's say the drug scourge was truly an immediate and existential threat to the Philippine polity. Duterte's mistake wasn't to unleash vigilante death squads, it was to admit to and purport to authorize the death squads. If he had (1) quietly unleashed the death squads, (2) creating plausible deniability and permitting the existence of the fiction that the state wasn't involved, and crucially (3) left himself and the vigilantes exposed in principal to punishment for exercising power without legal right, then there would have been no substantial injury to the rule of law. It's like civil disobedience--it nominally violates the law but as long as you're willing to accept the legal consequences the rule of law isn't injured. You're putting yourself at the mercy of the law in service to the law. It's why I absolutely opposed the Bush-era and Obama-era strategies to "legalize" various tactics in the War on Terror, and would have preferred the status quo ante where the president exercised unchecked powers. Both Bush (notwithstanding "Unitary Executive" advisers) and Obama argued Congressional authorization made the executive more accountable. But it made the executive less accountable because now it had both the power (slightly diminished, maybe) and the legal right where once it only had the power. Legalization corrupted our law and our morality by authorizing behaviors that should never be authorized, merely tolerated as a practical matter. Previously, as long as both Congress and the People believed an exigency legitimate they had the option of looking the other way, especially if the President never admitted it and maintained enough restraint to maintain the polite fiction. By leaving themselves exposed to punishment the President and his agents are incentivized to restrain themselves and as a practical matter limited to exercising their powers in situations and in a manner that doesn't openly flout the rule of law--in other words, precisely those contexts where the rule of law is already inoperable or under existential threat. As with civil disobedience, however, the solution to the paradox requires selflessness and credible risk of self-sacrifice. The existence of such leadership seems as scare as it ever has been. The parallels with Socrates' trial and death are not coincidental, though it was by putting together the above theory that led me to a fuller understanding (I think) and greater appreciation of the story. How might this work with El Chapo, presuming reasonable necessity? From a position of legitimate power (President, General), arrange and permit his extrajudicial assassination by an otherwise respectable citizen (i.e. not a rival, though perhaps a victim if public sympathy is important) willing to face public prosecution (not to mention cartel reprisal) for the promise (not guarantee) of a commuted sentence. It's risky--how do you know when the rule of law is existentially threatened, or that an act is reasonably necessary in defense? But at least the risk of punishment faced by all parties serves to sharpen judgement and, if necessary, is available to remedy any harm to the rule of law if the judgement was in fact mistaken. Moreover, at least in the West sentencing rules typically mandate proportionality (a function of moral culpability, among other things)[1], and while extrajudicial acts could easily mandate swift and severe punishment, in principle leniency is also permitted so judgment needn't be flawless. [1] Mandatory minimums are, strictly speaking, unconstitutional at the U.S. Federal level as SCOTUS has declared sentencing ultimately the peculiar purview of the trial court, recognizing that proportionality necessarily requires one to account for the innumerable facts and context of the case in a way impossible to accomplish a priori. Mandatory sentencing is a legal contradiction, at least from the perspective of Western morality.
- skummetmaelk 8y agoBecause if you make the process optional in a case as extreme as this, you will have to reevaluate that decision for EVERY case. No matter how small. And you know there will always be people arguing that the process should be abandoned.
- archgoon 8y agoRoper: So now you'd give the Devil benefit of law! More: Yes. What would you do? Cut a great road through the law to get after the Devil? Roper: I'd cut down every law in England to do that! More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake. -- A Man For All Seasons
- arethuza 8y agoThe UK suspended trial by jury in Northern Ireland during the Troubles with the so-called "Diplock Courts": https://en.wikipedia.org/wiki/Diplock_courts https://en.wikipedia.org/wiki/Diplock_courts With the benefit of hindsight they appear to have done more harm than good in that they played into the Republican strategy of making NI ungovernable by normal means.
- wahern 8y agoYour link ultimately led me to the Criminal Justice Act of 2003 (https://en.wikipedia.org/wiki/Criminal_Justice_Act_2003 https://en.wikipedia.org/wiki/Criminal_Justice_Act_2003) and the 2010 trial of a bankrobber, the "first criminal trial without a jury to take place in England and Wales in more than 400 years". (https://www.theguardian.com/uk/2010/jan/10/heathrow-robbery-trial-jury-twomey https://www.theguardian.com/uk/2010/jan/10/heathrow-robbery-...) That 2003 law also created an exemption for Double Jeopardy. I guess Parliamentary Supremacy finally defeated the Magna Carta.
- cm2187 8y agoI don’t think it is so much a matter of the defendant’s regard to the law, but whether above a certain threshold of power, the opposing force is still of the domain of common law. You won’t conduct a civil war with judges and policemen. If a drug cartel has become so powerful that you end up having to take extreme measures just to do a trial, I think asking wether this becomes the realm of the military is a fair question.
- deleted 8y ago[deleted]
- olliej 8y agoOk so this comment weirdly oscillates. I’m really interested in just how many votes it’s received now. Anyway I agree with the many people who have said variations on “slippery slope”, only i think it’s more of a cliff. But I also think that we do need to develop some system for managing defendants who directly attack the legal system and the people involved. Clearly the current approach has a weakness when dealing with people like el chapo.
- bitcharmer 8y agoFrom the article [about how isolated he is now and how unable to threaten or kill witnesses]: “(...) unless the government is suggesting that the defense team will disseminate hit orders from Mr. Guzmán, there is no realistic way for him to do anything” to the witnesses at all." Assuming that the leader of Sinaola cartel who had people murdered in thousands has lawyers that would deny him the means to order hits on witnesses is childishly naive.
- TeMPOraL 8y agoAlso, it's not like other people in the cartel are incapable of taking initiative to support their boss...
- londons_explore 8y agoExactly. One can assume that literally anyone who succeeds in getting him out of jail will be given lavish rewards and protection.
- FabHK 8y ago> is childishly naive Absolutely, and what chutzpah by the lawyers, really! "Oh just give us the information, we'll play by the rules! why would you even suspect that we wouldn't???"
- raverbashing 8y agoWell, they're being paid millions, they don't see a reason to care about justice being carried.
- deleted 8y ago[deleted]
- Aqueous 8y agomillions in blood money, too.
- 8y ago
- danso 8y agoFWIW, the submitted article links to two more in-depth articles from 2017 about the NYC prison in which Guzman currently resides, in the graf that reads: "10 South, the maximum-security wing of the Metropolitan Correctional Center, New York City's most impenetrable jail" https://www.nytimes.com/2017/04/24/nyregion/el-chapo-complains-about-conditions-at-manhattan-jail.html https://www.nytimes.com/2017/04/24/nyregion/el-chapo-complai... https://www.nytimes.com/2017/01/23/nyregion/el-chapo-guzman-manhattan-jail.html https://www.nytimes.com/2017/01/23/nyregion/el-chapo-guzman-... Google Maps/Earth view: https://goo.gl/maps/2Qp8Xt7D5Fw https://goo.gl/maps/2Qp8Xt7D5Fw I worked downtown Manhattan for several years and had no idea a high-security prison "tougher than Guantánamo Bay" was sandwiched right in there.
- draw_down 8y agoWelcome to America!
- pweissbrod 8y agoI'm no prison security specialist but right in downtown Manhattan, of all places, sounds like the least secure spot to host this powerful escape artist of a drug lord of anywhere in the country.
- murph-almighty 8y agoI was curious and decided to map possible escape routes. He's pretty close to a 4/5/6, an R/W, a J/Z, and maybe a 1 train. That puts him at about 25 minutes from NY Penn, which allows him access to Amtrak or the LIRR. He's about an hour by public transport from LGA, but that would require a bus. The fastest route to JFK would be 1h11m if he took the A (which isn't all that close) followed by an airtrain. If he chose Newark Airport it'd be something like 25 minutes to NY Penn station + 25 minutes to Newark Penn station and maybe another 10 minutes to Newark Airport via NJ Transit, so about an hour. In other words, from escape to the front door of the airport he's looking at at least an hour of commute, by which point I'd hope someone noticed he's missing. This all, of course, assumes he takes public transport.
- kolderman 8y agoThis is why the cartels should be treated like a military, not a legal problem. Drone strikes, thermobaric bombs and an acceptable level of collateral damage. There's plenty of El Chapos ready to take his spot, every decade or so you are able to actually arrest one of them.
- jonathanstrange 8y agoAre you a Mexican? If not, would you also consider it okay if the military of your country conducted drone strikes and used thermobaric bombs with "acceptable level of collateral damage" for extrajudicial killings of fellow citizens in your own country? I would find this totally unacceptable. I also find extrajudicial killings by drone strikes in other countries totally unacceptable but in my own country I'd consider such practices even worse.
- JohnTClark 8y agoI always wonder, when they catch this kind of criminals, why not shoot them on sight like they did Pablo Escobar or Osama? Special forces officer: "it was low light operation and we thought that he had a weapon so we shot him." and thats that.
- dragonwriter 8y agoBecause the sanctifying aura of procedure is a cornerstone of the State’s monopoly on *legitimate violence. And because, in many cases, that procedure actually reflects real values to which the leaders of government have actual commitment even beyond the pragmatic motivation to be seen as committed.
- RHSeeger 8y agoPeople sometimes forget that, even though there are bad actors in law enforcement, there are many good actors. Those good actors are likely trying to do the right thing most of the time.
- pas 8y agoProbably to send a message to the populace, to milk the trial as a show of justice. Even if the whole thing is useless in the big scheme of incentives.
- gehsty 8y agoAlways better to humiliate them in court than make a martyr. Shooting them is what the cartels do, justice would be that he is tried by a jury and sentenced under law. I can see how there could be a net benefit to shooting them on site, but you can't say for sure that the witnesses etc lives would then be safe.
- pas 8y agoHe can be tried and sentenced in absentia. (The problem is, as long as the profit is so insanely high, and the risk is relatively low, thousans will try to take his place.)
- gnode 8y agoWhilst the benefit to the safety of the jury and prosecution's witnesses is obvious, this also seems incompatible with the defence's discovery rights. Although I'm not sure how the two could be reconciled, such that a fair trial could be held.