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"Not so quick" <[EMAIL PROTECTED]> wrote in message news:[EMAIL PROTECTED]
Re: Can somebody please say "unless proven guilty" instead of "until proven guilty". Comment?
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
14th Ammendment: http://supreme.lp.findlaw.com/constitution/amendment14/index.html
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"Better that ten guilty persons escape than that one innocent suffer," 2 says English jurist William Blackstone. The ratio 10:1 has become known as the "Blackstone ratio."
http://www1.law.ucla.edu/~volokh/guilty.htm
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What is the "presumption of innocence?"
All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant's guilt, but also that the defendant need not say or do anything in his own defense. If the prosecutor can't convince the jury that the defendant is guilty, the defendant goes free.
The presumption of innocence, coupled with the fact that the prosecutor must prove the defendant's guilt beyond a reasonable doubt (see below), makes it difficult for the government to put people behind bars.
Legal FAQ: http://tinyurl.com/wdqg
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The Presumption of Innocence in a Criminal Trial
What then is the appropriate role for the presumption of innocence? In a criminal trial, the presumption of innocence is an important constitutional protection for the accused. It means that the jury may only pronounce the defendant guilty if the physical and testimonial evidence presented prove guilt beyond a reasonable doubt. Put differently, the jury must say "not guilty" even when it believes the defendant is guilty and often, it follows, even when the defendant in fact is guilty. Until the evidentiary threshold of proof beyond a reasonable doubt is reached, the judge and the Constitution order the jury to acquit.
The reason for this rule is that a guilty verdict subjects a person to incarceration, the deprivation of freedom that we all cherish and that is guaranteed us under normal circumstances. Though the acquittal of a factually guilty man is unfortunate and costly, it is an inevitable byproduct of a system designed to reduce to close to zero the odds that a factually innocent person will be convicted of a crime.
http://writ.corporate.findlaw.com/colb/20020617.html
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How come they treat me as if I am guilty when I am presumed innocent until proven otherwise?
By reading this page you will know what less then 1 in 1,000 know, and what many attorneys and Judges only think they know.
In an argument a presumption is what someone owns. Think of an argument as a scale. If both sides of the scale are equal the one that owns the presumption wins. A presumption can be a presumption of debt, a presumption of title and so on. As a defendant you own the "presumption of innocence".
Many confuse presumption with assumption or assertion. An assumption is a position that is not proven but because of the circumstances can be considered correct. An assertion is a claim made justifying the assumption. If challenged by the owner of the presumption the Burdon of proving the assertion is placed upon the party making the assertion. Failure to prove the assertion results in the owner of the presumption prevailing in the dispute.
In an arrest the person making the arrest warrants to the court (makes a type of guarantee) that there is a warrant (a link between a claim and evidence) to prove an assertion. In other words the arresting officer when he fills out your ticket swears to the court that there is sufficient evidence to to prove his assertion that you were speeding.
http://www.tipmra.com/presumption_of_innocence.htm
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Proof, Burden of Proof, and Presumptions.--The due process clauses of the Fifth and Fourteenth Amendments ''[protect] the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.''83 ''The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence--that bedrock 'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the administration of our criminal law.'''84 In many past cases, this standard was assumed to be the required one,85 but because it was so widely accepted only recently has the Court had the opportunity to pronounce it guaranteed by due process.86 The presumption of inno cence is valuable in assuring defendants a fair trial,87 and it operates to ensure that the jury considers the case solely on the evidence.88
The Court has long held it would set aside under the due process clause convictions that are supported by no evidence at all,89 but Winship necessitated a reconsideration of whether it should in reviewing state cases weigh the sufficiency of the evidence. Thus, in Jackson v. Virginia,90 it held that federal courts, on direct appeal of federal convictions or collateral review of state convictions, must satisfy themselves whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. The question the reviewing court is to ask itself is not whether it believes the evidence at the trial established guilt beyond a reasonable doubt, but whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.91
Inasmuch as due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged, the Court held in Mullaney v. Wilbur92 that it was a denial of this constitutional guarantee to require a defendant charged with murder to prove that he acted ''in the heat of passion on sudden provocation'' in order to reduce the homicide to manslaughter. The Court indicated that a balancing of interests test was to be employed to determine when the due process clause re quired the prosecution to carry the burden and when some part of the burden might be shifted to the defendant, but the decision called into question the practice in many States under which some burdens of persuasion were borne by the defense, and raised the prospect that the prosecution must bear all burdens of persuasion, a significant and weighty task given the large numbers of affirmative defenses.
But the Court soon summarily rejected the argument that Mullaney means that the prosecution must negate the insanity defense,93 and in full-scale consideration upheld a state statute that provided that an intentional killing is murder but permitted the defendant to assert ''extreme emotional disturbance'' as an affirmative defense which, if proved by the defense by a preponderance of the evidence, would reduce the murder offense to manslaughter.94 According to the Court, the constitutional deficiency in Mullaney was that the statute made malice an element of the offense but permitted malice to be presumed upon proof of the other elements and required the defendant to prove the absence of malice. In Patterson the statute obligated the State to prove each element of the offense (the death, the intent to kill, and the causation) beyond a reasonable doubt, but allowed the defendant to present an affirmative defense that would reduce the degree of the offense, and as to which the defendant bears the burden of persuasion by a preponderance of the evidence. The decisive issue, then, was whether the statute required the state to prove beyond a reasonable doubt each element of the offense. So defined, the distinction and the constitutional mandate are formalistic, and the legislature can shift burdens of persuasion between prosecution and defense easily through the statutory definitions of the offenses.95 Also formalistic is the distinction between elements of the crime and sentencing factors; a state may treat as a sentencing consideration provable by a preponderance of the evidence the fact that the defendant ''visibly possessed a firearm'' during commission of the offense.96
Quite closely related is the issue of statutory presumptions; these generally provide for the proof of the presumed fact, an element of a crime, by the establishment of another fact, the basic fact.97 In Tot v. United States,98 the Court held that a statutory presumption was valid under the due process clause if it met a ''rational connection'' test. ''Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from the proof of the other is arbitrary because of lack of connection between the two in common experience.'' In Leary v. United States,99 however, the due process test was stiffened to require that for such a ''rational connection'' to exist, it must ''at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.'' Thus, a provision which permitted a jury to infer from defendant's possession of marijuana his knowledge of its illegal importation was voided. A lengthy canvass of factual materials established to the Court's satisfaction that while the greater part of marijuana consumed here is of foreign origin there was still a good amount produced domestically and there was thus no way to assure that the majority of those possessing marijuana have any reason to know their marijuana is imported.100 The Court left open the question whether a presumption which survived the ''rational connection'' test ''must also satisfy the criminal 'reasonable doubt' standard if proof of the crime charged or an essential element thereof depends upon its use.''101
In its most recent case, a closely divided Court drew a distinction between mandatory presumptions, which a jury must accept, and permissive presumptions, which may be presented to the jury as part of all the evidence to be considered. With respect to mandatory presumptions, ''since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption, unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.'' But, with respect to permissive presumptions, ''the prosecution may rely on all of the evidence in the record to meet the reasonable doubt standard. There is no more reason to require a permissive statutory presumption to meet a reasonable-doubt standard before it may be permitted to play any part in a trial than there is to require that degree of probative force for other relevant evidence before it may be admitted.''102 Thus, because the jury was told it had to believe in defendants' guilt beyond a reasonable doubt and that it could consider the inference, due process was not violated by the application of the statutory presumption that the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle.103
The division of the Court in these cases and in the Mullaney v. Wilbur line of cases clearly shows the unsettled doctrinal nature of the issues.
http://supreme.lp.findlaw.com/constitution/amendment14/16.html
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The History of the Presumption of Innocence
It is better than 5, 10, 20, or 100 guilty men go free than for one innocent man to be put to death. This prinicple is embodied in the presumption of innocence. In 1895, the U.S. Supreme Court, in a decision in the case Coffin v. United States, 156 U.S. 432; 15 S. Ct. 394, traced the presumption of innocence, past England, Ancient Greece and Ancient Rome, and, at least according to Greenleaf, to Deuteronomy. [also, Alexander Volokh wrote a law review article on the issue, available free here.]
The Coffin case stands for the proposition that at the request of a defendant, a court must not only instruct on the prosecution's burden of proof--that a defendant cannot be convicted unless the government has proven his guilt beyond a reasonable doubt--but also must instruct on the presumption of innocence--by informing the jury that a defendant is presumed innocent. The Court stated,
The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.
In tracing the presumption of innocence, the Court goes on to state:
It is stated as unquestioned in the text-books, and has been referred to as a matter of course in the decisions of this court and in the courts of the several States. See Taylor on Evidence, vol. 1, c. 5, 126, 127; Wills on Circumstantial Evidence, c. 5, 91; Best on Presumptions, part 2, c. 1, 63, 64; c. 3, 31-58; Greenleaf on Evidence, part 5, § § 29, &c.; 11 Criminal Law Magazine, 3; Wharton on Evidence, § 1244; Phillips on Evidence, Cowen & Hill's Notes, vol. 2, p. 289; Lilienthal v. United States, 97 U.S. 237; Hopt v. Utah, 120 U.S. 430; Commonwealth v. Webster, 5 Cush. 295, 320; State v. Bartlett, 43 N.H. 224; Alexander v. People, 96 Illinois, 96; People v. Fairchild, 48 Michigan, 31; People v. Millard, 53 Michigan, 63; Commonwealth v. Whittaker, 131 Mass. 224; Blake v. State, 3 Tex. App. 581; Wharton v. State, 73 Alabama, 366; State v. Tibbetts, 35 Maine, 81; Moorer v. State, 44 Alabama, 15.
Greenleaf traces this presumption to Deuteronomy, and quotes Mascardus De Probationibus to show that it was substantially embodied in the laws of Sparta and Athens. Greenl. Ev. part 5, section 29, note. Whether Greenleaf is correct or not in this view, there can be no question that the Roman law was pervaded with the results of this maxim of criminal administration, as the following extracts show:
"Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day." Code, L. IV, T. XX, 1, 1. 25.
The noble (bivus) Trajan wrote to Julius Frontonus that no man should be condemned on a criminal charge in his absence, because it was better to let the crime of a guilty person go unpunished than to condemn the innocent." Dig. L. XLVIII, Tit. 19, 1. 5. "In all cases of doubt, the most merciful construction of facts should be preferred." Dig. L. L, Tit. XVII, 1. 56. "In criminal cases the milder construction shall always be preserved." Dig. L. L, Tit. XVII, 1. 155, s. 2. "In cases of doubt it is no less just than it is safe to adopt the milder construction." Dig. L. L, Tit. XVII, 1. 192, s. 1.
Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, "a passionate man," seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, "Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?" to which Julian replied, "If it suffices to accuse, what will become of the innocent?" Rerum Gestarum, L. XVIII, c. 1. The rule thus found in the Roman law was, along with many other fundamental and humane maxims of that system, preserved for mankind by the canon law. Decretum Gratiani de Presumptionibus, L. II, T. XXIII, c. 14, A.D. 1198; [***492] Corpus Juris Canonici Hispani et Indici, R.P. Murillo Velarde, Tom. 1, L. II, n. 140. Exactly when this presumption was in precise words stated to be a part of the common law is involved in doubt. The writer of an able article in the North American Review, January, 1851, tracing the genesis of the principle, says that no express mention of the presumption of innocence can be found in the books of the common law earlier than the date of McNally's Evidence (1802). Whether this statement is correct is a matter of no moment, for there can be no doubt that, if the principle had not found formal expression in the common law writers at an earlier date, yet the practice which flowed from it has existed in the common law from the earliest time.
Fortescue says: "Who, then, in England can be put to death unjustly for any crime? since he is allowed so many pleas and privileges in favor of life; none but his neighbors, men of honest and good repute, against whom he can have no probable cause of exception, can find the person accused guilty. Indeed, one would much rather that twenty guilty persons should escape the punishment of death than that one innocent person should be condemned and suffer capitally." De Laudibus Legum Angliae, Amos' translation, Cambridge, 1825.
[*456] Lord Hale (1678) says: "In some cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die." 2 Hale P.C. 290. He further observes: "And thus the reasons stand on both sides, and though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger, quod dubitas, ne faceris." 1 Hale P.C. 24.
Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem. How fully the presumption of innocence had been evolved as a principle and applied at common law is shown in McKinley's case (1817), 33 St. Tr. 275, 506, where Lord Gillies says: "It is impossible to look at it [a treasonable oath which it was alleged that [**404] McKinley had taken] without suspecting, and thinking it probable, it imports an obligation to commit a capital crime. That has been and is my impression. But the presumption in favor of innocence is not to be reargued by mere suspicion. I am sorry to see, in this information, that the public prosecutor treats this too lightly; he seems to think that the law entertains no such presumption of innocence. I cannot listen to this. I conceive that this presumption is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman; and I was happy to hear from Lord Hermand he is inclined to give full effect to it. To overturn this, there must be legal evidence of guilt, carrying home a decree of conviction short only absolute certainty."
The Coffin case was later overruled on other grounds, having nothing to do with these principles.
http://www.talkleft.com/archives/001907.html
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INTERNATIONAL LAW PRESUMPTIONS
1. The presumption of innocence: an integral part of international human rights law
Chapter 1: The presumption of innocence: an integral part of international human rights law The principle that anyone who is accused of a penal offence shall be considered innocent until proven guilty is, as stated above, a fundamental principle in any state with a just legal system. It is also an important part of universal human rights law, and is laid down in Article 11 of the United Nations Universal Declaration on Human Rights (December 10, 1948):
"Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defence."
This principle is also established in Article 6 (2) of the Council of Europe's European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) :
"Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law."
The wording of Article 14 (2) of the United Nations International Convention on Civil and Political Rights (December 14, 1966) is almost identical:
"Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."
The former Soviet Union/Russia signed and ratified both the Universal Declaration of Human Rights and the International Convention on Civil and Political Rights, and when Russia became a member of the Council of Europe in February, 1996, the governing authorities declared that the country would fulfil all of the requirements of the ECHR so as to sign the convention and its accompanying protocol within a year. Russia also agreed to ratify the Convention within three years (opinion 193/1996). Furthermore, the Russian Constitution of 1993 states that the country is a democratic judicial society (Article 1) and a number of provisions have been made in which it is stated that international human rights are binding for Russian authorities. Subsequently, Article 14, Section 4 of the Russian Constitution states that "recognised principles and rules of international law make up a part of the internal law;" it also establishes that in the event of a conflict, international law takes precedence over national law. Furthermore, the Russian Constitution guarantees human rights in accordance with recognised principles and norms of international law (Article 17) and establishes that human rights have immediate effect in national law (Article 18).[2] Hence on these grounds Russian authorities are bound both politically and legally by the international principles of law that anyone accused of a penal offence shall be presumed innocent until proven guilty. It is also inherent in this that any reasonable doubt in a criminal case must be applied in favour of the accused. The presumption of innocence applies to individuals who are suspected of or accused of having committed a crime, and it grants citizens general protection from being singled out by the authorities as criminals before their guilt has been established in a court of law. Thus it may be considered a breach of the presumption of innocence when the police and the public prosecution issue statements and pronouncements that may form a basis for drawing conclusions about the guilt of the accused person. The same is true if a representative for the state publicly asserts that a person is guilty of a crime before the person's guilt has been established by a court, cf. the statement from the Human Rights Commission of the Council of Europe in the case "Petra Krause vs. Switzerland" (1979) which addressed certain statements made by the Swiss Justice Minister during a television broadcast.
In most instances, the eventual trial of a penal case in court sufficient to "repair" those violations to the individual's rights which, seen in isolation, pronouncements of guilt issuing from the police, the prosecution, or other representatives of the state may represent. Yet in the Nikitin case, there appear to have been so many isolated instances whereby the presumption of innocence has been ignored that it is uncertain whether acquittal in court will, of itself, be sufficient to offset the damage. In any case, developments in the case so far give the impression that the FSB, along with actors in the prosecution and in the local courts who have thus far handled the case has already decided that Nikitin is guilty.
It remains an indisputable fact that a number of different representatives for the federal security police and prosecuting authorities have held up Nikitin as guilty of having committed serious criminal offences even before the investigation of the case had been concluded and before the defendant's case has been tried and his guilt established by an independent court. Their pronouncements have appeared partly in the form of interviews on the television and in newspapers, and partly in the form of official letters to persons or groups who have spoken critically about or who have requested further information about the basis for the charges against Nikitin. Other authorities too have come forward with statements in which there is raised little doubt about Nikitin's guilt. In Section 3, a chronological overview of a number of these pronouncements is presented along with accompanying commentaries.
Over the entire course of the case against Nikitin, the FSB has also stood behind a number of "planted" newspaper articles in which the reader is left in little doubt as to the question of guilt, and in which Nikitin and his defence counsel are discussed in quite negative terms. Such newspaper articles do not often have great impact with respect to the presumption of innocence in a case in that they normally do not influence the court's consideration of the case. However, in Russia the effect may be different, in part because the country's judicial branch hardly enjoys the same independence with respect to other bodies of state as would be true of a Western system of justice. Furthermore, in Russia the security police has traditionally held an extremely strong position with respect to other bodies of state. Hence it may be of some relevance to evaluate some of the various "planted" FSB articles on the Nikitin case with respect to the presumption of innocence. However, an examination of such extent is beyond the scope of this note; subsequently articles of this type are not addressed in the ensuing discussion.
http://tinyurl.com/wdro
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The sheriff listens to Little Hawk, who tries to convince him of his innocence: He only wanted to lead the horses to better pastures. By now the pursuer is questioned by his boss: Why didn't he kill the Indian- he had been ordered to cause Indian trouble in the area. He tried, but Little Hawk was too quick. And he tells his boss that the Padre has seen Little Hawk steal the mission ponies, while Little Hawk was thinking he took a nap. Now they plan a lynch mob to cause trouble with the Indians. When the editor sees the mob coming, he quickly warns the sheriff. Sheriff Hollister knows that they do not have much of a chance against all and takes Little Hawk to the mission through the back door, riding with two other cowboys and asks the editor: "Do you think you can hold them up until we are gone?" "Well, I think so, they are not mad at me ... yet." He answers.
http://www.ponilla.org/Nimoy/TVFilms_Tombstone.htm
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The actions of the authorities so angered the people, that on the night of August 9th, a group of them, wearing masks and cloaks, broke into the jail, bound up the jailer and proceeded to drag the prisoner from his cell. They tied a rope around his neck and looped the end of it around the bars of the jailhouse door. Pulling up on the rope, they drew him hard up to the door until he died of strangulation. In this manner, William Otis Hall became the first known victim of a lynch mob in the central coast region.
A flurry of such activities was quick to follow, including, in 1856, the hanging of three Indians who were suspects in the murders of Francois Picart and A. Mellon in the Carmel Valley. Also in 1856, two brothers, Juan and Jose Alvitre, both hard cases who had served time at San Quentin, died at the hands of the vigilance committee in Monterey. The following year, the infamous Anastacio Garcia was found hanging from the beams in the same cell where Otis Hall had met his fate five years earlier. The lynchings continued on into the next decade with the executions of Carmel Indian Gregoria, who admitted shooting John Martin in the valley on January 6, 1864, and Juan Valenzuela for the murder of Natividad store keeper Frank Johnson during the month of September, 1866.
http://www.santacruzpl.org/history/crime/pajaro2.shtml
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Their arraignment took place on June 6, 1986, in the Nazareth office of District Justice Elmo Frey Jr. The unprovoked bank murders aroused law-abiding citizens of Allentown as no earlier crime had done. A lynch mob formed, and state troopers were brought in to protect the killers. "It was scary," said Appel.
The following morning someone spray-painted "Hang 'Em High" on the side of Appel's trailer.
http://www.cybersleuths.com/billkelly/bkchap3.htm
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Only once in its history has the United States Supreme Court conducted a criminal trial. The trial, taking place in both Tennessee and the District of Columbia in 1907 and 1908, resulted in the conviction of a sheriff, a deputy sheriff, and four members of a Chattanooga lynch mob. Outraged justices ordered the trial on criminal contempt charges after an almost certainly innocent black man, having been convicted of raping a white woman, was lynched less than a day after word reached Chattanooga that his scheduled execution had been stayed by the U. S. Supreme Court...
...Word of Johnson's arrest spread quickly. That evening a large crowd--many carrying guns--gathered in front of the Hamilton County Jail. Bullets were fired into the sky. Nevada Taylor's younger brother adds fuel to the fire in a brief speech he delivers to the mob: "The time for justice and punishment has come. We want the Negro. He must be punished for what he did to my sister." Soon one member of the mob stepped forward to tell Captain George Brown, second in command at the jail, that he would allow five minutes for someone to turn over the keys or he would lead a violent assault on the jail. No keys were delivered. Leaders of the mob grabbed a steel post and began ramming it against the front door. Others in the mob took over the electric plant, throwing the jail into darkness. Men stole sledgehammers from a nearby blacksmith shop and started working on hinges of the heavy door.
The jail sustained heavy damage from the attack, but there was to be no lynching of Ed Johnson--at least not yet. Deputies and members of Troop B of the National Guard--ordered to the scene by Governor Cox--arrived at the jail. A group of deputies succeeded in grabbing away the sledgehammers. Minutes later, Judge Samuel McReynolds showed up. "The jury is in, Judge, we find him guilty and sentence him to hang by the neck until dead," one man in the crowd announces. McReynolds replied, "Go home." Then the judge told the crowd that the man they were looking for was not in the jail, that he had been sent to Knoxville a few hours earlier. (In fact, Johnson had been sent to Nashville.) McReynolds offered to let five men from the disbelieving crowd inspect the jail: "See for yourself he is not there." After a cell-by-cell search, the five chosen men told the crowd that the judge was right: Johnson was gone.
http://tinyurl.com/wduk
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LYNCHING. Lynching is the illegal killing of a person under the pretext of service to justice, race, or tradition. Though it often refers to hanging, the word became a generic term for any form of execution without due process of law. Though it is hard to estimate the frequency of lynchings before the 1880s, it seems that they occurred only sporadically before 1865, and were likely to be the result of "frontier justice" dispensed in areas where formal legal systems did not exist.
In antebellum Texasqv and earlier, vigilantes instigated most lynchings. Often acting under the leadership of the local elite, the vigilante mob usually handled its victims with considerable formality, imitating legal court procedure. The captured offender was "tried" before a vigilante judge and a jury consisting of either a select group of vigilantes or the whole of the assembled mob. Convictions most often resulted in whipping, followed by expulsion from the community, but at least seventeen vigilante organizations resorted to the noose, claiming some 140 lives. The earliest of these groups, the Shelby County Regulators of 1840-44, killed at least ten people during the Regulator-Moderator War.qv The San Saba County lynchers, the deadliest of the lot, claimed some twenty-five victims between 1880 and 1896. Vigilante lynching died out in the 1890s, but other varieties of mobs continued.
It is uncertain when the first of the non-vigilante lynch mobs appeared in Texas, but certainly they increased in frequency with the approach of the Civil War.qv In the five years preceding the war, mobs frequently sought out suspected slave rebels and white abolitionists. The most serious outbreak of this sort occurred in North Texas in 1860, when rumors of a slave insurrection led to the lynching of an estimated thirty to fifty slaves and possibly more than twenty whites (see TEXAS TROUBLES, SLAVE INSURRECTIONS). The stresses of the Civil War, such as racism, regional loyalties, political factionalism, economic tension, and the growth of the abolition movement, inured people to violence in a way that seemed to make lynching increasingly easy to contemplate. War-generated tensions produced the greatest mass lynching in the history of the state, the Great Hanging at Gainesville,qv when vigilantes hanged forty-one suspected Unionists during a thirteen-day period in October 1862.
The use of organized terror by lynch mobs appeared in Texas during Reconstruction as the Ku Klux Klanqqv and similar organizations resorted to violent methods of restoring white supremacy. The humiliation of defeat, increasing idleness and violence, mistrust of all levels of government, alteration of the traditional racial order, and fear of violence by blacks all contributed to a great outbreak of lynch-mob activity and instilled in many whites a belief in a "right to lynch." The Klan declined in Texas in the early 1870s and experienced a brief resurgence in the 1920s. Immediately after Reconstruction, lynch law evidently declined somewhat, but it soon increased again, and began to be characterized by events in which mobs removed victims from legal custody, sometimes with the cooperation of legal authorities. In 1885 an estimated twenty-two mobs lynched forty-three people, including nineteen blacks and twenty-four whites, one of whom was female. After this the number of lynching victims generally decreased, dropping to five in 1893, but increased again to twenty-six in 1897. The number of victims continued to decline (to twenty-three in 1908 and fifteen in 1909) until 1915, when there were thirty-two. The 1915 figure, which is probably an underestimate, reflected an increase in racial hostility that accompanied the spread of Jim Crow laws and border troubles growing out of the Mexican Revolution.qv Six mobs in Cameron, Willacy, and Hidalgo counties accounted for twenty-six of the victims. In 1922 thirteen mobs claimed fifteen victims. After this there was a sharp decline; 1925 was the first lynching-free year. The Sherman Riotqv in 1930, however, was a notable example of racial violence committed by a mob. After 1930 there was never more than one mob a year. Six years without a lynching preceded the final clear-cut case, the lynching of accused rapist William Vinson at Texarkana on July 13, 1942.
Texas stands third among the states, after Mississippi and Georgia, in the total number of lynching victims. Of the 468 victims in Texas between 1885 and 1942, 339 were black, 77 white, 53 Hispanic, and 1 Indian. Half of the white victims died between 1885 and 1889, and 53 percent of the Hispanics died in the 1915 troubles. Between 1889 and 1942 charges of murder or attempted murder precipitated at least 40 percent of the mobs; rape or attempted rape accounted for 26 percent. Blacks were more likely to be lynched for rape than were members of other groups, although even among blacks murder-related charges accounted for 40 percent of the lynchings and rape for only 32 percent. All but 15 of the 322 lynching incidents that have a known locality occurred in the eastern half of the state. The heaviest concentration of mob activity was along the Brazos River from Waco to the Gulf of Mexico, where eleven counties accounted for 20 percent of all lynch mobs. Other concentrations were in Harrison and neighboring counties on the Louisiana border, adjacent to Caddo Parish, Louisiana, one of the most lynching-prone areas in the country, and in Lamar and surrounding counties in Northeast Texas.
Texans also made important contributions to the antilynching movement. Part of this was unintentional: the gruesome and widely publicized 1893 torture-burning of Henry Smith before an assembly of thousands at Paris helped galvanize the infant antilynching movement into action. In a more positive vein, Texas native Jessie Daniel Amesqv of Georgetown founded and served as president of the Association of Southern Women for the Prevention of Lynching,qv the most effective antilynching group in the country. The legislature passed an antilynching law in 1897, governors called out the Texas Volunteer Guard to help defend prisoners on numerous occasions, and local officers sometimes went to great lengths to protect their prisoners.
BIBLIOGRAPHY: Norman D. Brown, Hood, Bonnet, and Little Brown Jug: Texas Politics, 1921-1928 (College Station: Texas A&M University Press, 1984). David Chapman, Lynching in Texas (M.A. thesis, Texas Tech University, 1973). Jacquelyn Dowd Hall, Revolt Against Chivalry: Jessie Daniel Ames and the Women's Campaign Against Lynching (New York: Columbia University Press, 1979). Lawrence D. Rice, The Negro in Texas, 1874-1900 (Baton Rouge: Louisiana State University Press, 1971). John Ross, At the Bar of Judge Lynch: Lynching and Lynch Mobs in America (Ph.D. dissertation, Texas Tech University, 1983). Allen W. Trelease, White Terror: The Ku Klux Klan Conspiracy and Southern Reconstruction (New York: Harper and Row, 1971).
John R. Ross http://www.tsha.utexas.edu/handbook/online/articles/view/LL/jgl1.html
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III. LAW ON THE ISLAND
As noted at the outset of this essay, numerous episodes of Gilligan's Island contain legal references, and many employ legal themes as their central storyline. In Episode 7, entitled "The Sound of Quacking," for example, Gilligan dreams that he is Marshal Gilligan, a lawman of the Old West. Despite the demands of a lynch mob (led by the Professor and Mr. Howell), he refuses to surrender the object of the crowd's bloodlust: a duck they want to turn into dinner.
In Episode 13, entitled "Three Million Dollars More or Less," Gilligan wins $ 3 million from Mr. Howell in a golf game. When it comes time to pay, Mr. Howell uses a convoluted explanation of the federal tax laws to convince Gilligan that receiving stock in a (worthless) oil company is better than getting cash.
In Episode 16, entitled "Plant You Now, Dig You Later,"
LEGAL TALES FROM GILLIGAN'S ISLAND http://www.law.utexas.edu/lpop/etext/jarvis.htm
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In one of the most compelling scenes in the film, as the children begin taking a shortcut home, four cars noisily converge on the jail from the Meridian Highway. The children hide and watch from the cover of the bushes. The armed men get out of their cars and surround Atticus - they are a self-appointed lynch mob that has gathered to take justice into its own hands after diverting Sheriff Tate. To get a closer look, the three kids run over to the cars. Scout, in particular, who is oblivious to the danger, pushes her way through the crowd to glimpse her stern-faced father - he immediately fears for their safety. While Jem stands by his father and stubbornly refuses to leave after his father's command, a stalwart Scout faces down the crowd and sees someone she recognizes. She conducts an innocent, uninhibited exchange with Walter Cunningham Sr., and engages him in a disarming, candid, yet humanized conversation. Scout makes him uncomfortable in front of the mob:
I said, 'Hey,' Mr. Cunningham. How's your entailment getting along? (He turns and looks away.) Don't you remember me, Mr. Cunningham? I'm Jean Louise Finch. You brought us some hickory nuts one early morning, remember? We had a talk. I went and got my daddy to come out and thank you. I go to school with your boy. I go to school with Walter. He's a nice boy. Tell him 'hey' for me, won't you? You know something, Mr. Cunningham, entailments are bad. Entailments...(She suddenly becomes self-conscious) Atticus, I was just saying to Mr. Cunningham that entailments were bad but not to worry. Takes a long time sometimes...(To the men who are staring up at her) What's the matter? I sure meant no harm, Mr. Cunningham.
Scout's words cause him to break up the potential lynching. The embarrassed crowd disbands.
To Kill A Mockingbird (1962) http://www.filmsite.org/toki2.html
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