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We're pretty far outside of ordinary "Defense Attorneys" and a decent distance from ordinary Prosecutors as well. Once you get deep into appeals, you're dealing with ideologues on the defense side who dedicate their lives to this kind of activist anti-death penalty work. These kinds of people are basically anti-death penalty, and often anti LWOP, extremists who take "an unjust law is no law" to heart. They will actively try to overturn what they view as an inherently unjust sentence by any means necessary.
This particular prosecutor is running for congress. Not that this means he's wrong, or cynical, but it does mean he has different motivations for public advocacy than most DAs.
Now, to engage with the meat of the post:
Not exactly, because you're confusing the logic by trying to smuggle in Bayesian probabilism to a binary based in religious morality. "Beyond a reasonable doubt" began as essentially a theological formula: it was the point of certainty at which even a mistake by the jury that lead to the death of an innocent man would not harm their souls' salvation. Beyond a reasonable doubt is a defense you offer to the Lord on judgment day "Hey look I had doubts but they weren't reasonable;" which hypothetical then becomes a standard for taking action "I'm comfortable with this verdict because I would be comfortable defending this action on judgment day."
I can update toward innocence or a jury mistake in my heart of hearts all I want, the question is at what point we make a binary switch from his legal guilt to his legal innocence (or a legal mistrial, but we'll ignore that for the moment). Moving back from the death penalty for reasons of doubt about his guilt isn't really an option within the legal system, nor should it be, the penalty and guilt phases are separate, either you free him or you kill him. We're not talking about updating Bayesian probabilities, we're talking about taking action. Either killing a murderer or freeing him.
So you agree with me that the standard for reversing a verdict should be reversed in strength from the standard for reaching it. The burden has shifted.
Now as I keep emphasizing these are not probabilities, but using probabilities to make the point: if you set your decision points at >95% to reach a guilty verdict, and at <50% certainty you overturn the verdict on appeal, any update after the verdict that doesn't get you to 49% is irrelevant. I can update all I want between 95 and 51, the verdict stands, he fries.
Where I object is when people try to smuggle in reasonable doubt after the verdict, so that the standard is >95% to convict, and if at any time afterward any other person involved (judge, prosecutor, etc) gets to <95% the conviction should be overturned.
Thanks for the background on reasonable doubt.
You are correct, in the absence of numerical odds given by the jury and given that updates after the verdict are very costly, we should have some hysteresis built in for the verdict. Say we don't want to execute some man who is innocent with a probability p_k (perhaps 10%, or 5%, or 1%). What we should do is require a higher standard for conviction verdicts, perhaps p<p_k/x (Where x might be 5, perhaps). Then after the verdict, we have some slack to not revert the verdict even in the case of evidence with an odds ratio 1:x in favor of innocence.
Of course, an extremist view would be that we should never overturn verdicts and just accept the deaths of innocents as already priced in, statistically, in our p_k threshold (as long as the juries are well calibrated). However, not using all the available info (with exception of the exclusionary rule in court) seems indefensible (and I see neither you nor anyone here arguing for it). The reasonable doubt standard on judgement day likely applies on a case-by-case base, the governor who signed an execution order for a man who is likely innocent and just tells God 'well, I found that jury verdicts generally achieve your ordained threshold, and found it to bothersome to update, but look, the other 19 men I hanged were all murderers, so statistically speaking, we are good' would likely be hellbound in most theologies.
Of course, Scott Alexander advocates explicit probabilities:
I'm confused as to what you're saying here, so I don't want to argue about it too hard until you explain it.
I think you're ignoring the systemic value of finality in verdicts. If we constantly allow convictions and sentences to be paused and altered while we sit and consider whether some new piece of evidence alters the probability of guilt to a degree too great to countenance, we'll never get anything done.
Made up probabilities are all well and good for those of us in the peanut gallery, but for decision makers final decisions must be made, and they must be respected with some degree of certainty.
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