From: simon@magpie.iro.umontreal.ca (Daniel Simon)
Newsgroups: misc.headlines,talk.politics.misc,misc.legal
Subject: Re: Say it ain't so
Date: 23 Dec 92 20:53:01 GMT
Organization: Universite de Montreal, Canada

In article <1992Dec20.213222.13753@panix.com> eck@panix.com (Mark Eckenwiler) writes:
>In <1992Dec19.081442.24189@IRO.UMontreal.CA>, simon@saguenay.iro.umontreal.ca sez:
>>
>>There certainly was a question (in the defendants' minds, at least,
>>and in the end, in the jury's as well) as to whether the police
>>officers who beat Rodney King had "done it" (ie., committed the crime
>>of assault).  That they had admitted to the actual beating is no more 
>>significant than the fact that Lemrick Nelson admitted to being 
>>somewhere in the vicinity during the Rosenbaum murder; neither 
>>admission had much relevance to the real issues facing the respective 
>>juries as they determined their verdicts.
>
>I suggest you familiarize yourself with the term "actus reus".  It
>might prevent your making demonstrably incorrect statements such as
>the second sentence above.

First of all, I would like to reassure Mr. Eckenwiler that he need not
feel ashamed of his inability to explain bits of basic legal
terminology in plain English.  It is in fact quite common for
otherwise intelligent, articulate, successful people to find
themselves incapable of such simple writing tasks, whether for lack of
proficiency or merely for lack of confidence.  Still, a sincere
effort, or at least a frank admission of inadequacy, would doubtless
gain him much more sympathy and understanding than a transparent
attempt to paper over his failings with a show of condescending bluff.

Now, if I may try my (legally untutored) hand: in order for a
defendant (the accused, in Canada) to be found guilty of a crime, the
prosecution must establish both "actus reus" ("guilty act", ie., that
the criminal act in question was in fact committed by the accused) and
"mens rea" ("guilty mind", ie., that the intent of the act was
criminal).  Mr. Eckenwiler's rather laconic response to my posting
suggests that he considers the police officers' admission that they
had beaten Rodney King to have established "actus reus" by itself.
But I cannot agree; after all, had the beating presented in the
infamous "King" videotape merely been of a slightly different
character (had Rodney King offered considerably greater resistance,
for instance, or had the police officers obviously stopped once his
resistance ceased), then even Mr. Eckenwiler would likely have agreed
that "actus reus", far from being established, was in fact very much
in doubt.

Of course, both Mr. Eckenwiler and Mr. Nieporent (whose original claim
prompted my posting) may believe that the *contents* of the actual
videotape, as interpreted by them, establish "actus reus" (although
"mens rea" is another matter).  But the mere fact that the beating of
Rodney King was videotaped, and the contents of the videotape conceded
by the defendants to be accurate, confers no special status upon that
particular piece of evidence that is not also conferred on more
conventional evidence--Lemrick Nelson's admitted presence in the
vicinity of the Rosenbaum murder, for instance.  In both cases, it is
in principle quite possible (as the juries demonstrated) to accept the
evidence without accepting the prosecution's interpretation of it.

It is true that the videotape in the "King" case (as well as other
evidence presented during the trial) seemed to us casual observers to
lend itself better to the prosecution's interpretation of it than to
the defense's; however, exactly the same could be said of the array of
evidence presented by the prosecution in the "Rosenbaum" case.  Mr.
Nieporent's near-mystical invocation of the words "videotape" and
"admitted", as though portable camcorders had an automatic
guilt-determination feature, is nothing but a red herring.  The
question remains: why is it impossible for Mr. Nieporent to accept the
"King" jury's interpretation of the (apparently damning) evidence
presented in that case as indicating King's continuing menace to the
police, yet easy for him to accept the "Rosenbaum" jury's
interpretation of the (apparently damning) evidence presented in
*that* case as the product of a police conspiracy?


"Que dites vous?  C'est inutile?  Je le sais!		Daniel R. Simon
 Mais on ne se bat pas dans l'espoir du succe`s!"	simon@iro.umontreal.ca
					-Rostand
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