Thursday, August 06, 2009
Guilt by Alliteration
"And call these foul offenders to their answers,
And poise the cause in justice's equal scales,
Whose beam stands sure, whose rightful cause prevails."
(Henry VI - Second Part, Act II Sc. I).
While my arguments for sentencing found themselves no kin to Shakespeare, the court and clerk were apparently amused by my apt alliteration as I proclaimed the defendant (already found guilty by a jury) a martial arts practitioner of some prowess... and therefore by implication worthy of some more serious punishment for his crime. Alas, the court was amused but not persuaded.
In another case, defense counsel noted that his client was actually pretty young in spite of the lengthy criminal record that he had accumulated. However, he failed to make the argument at sentencing that the defendant should therefore be looked upon as an over achiever.
And poise the cause in justice's equal scales,
Whose beam stands sure, whose rightful cause prevails."
(Henry VI - Second Part, Act II Sc. I).
While my arguments for sentencing found themselves no kin to Shakespeare, the court and clerk were apparently amused by my apt alliteration as I proclaimed the defendant (already found guilty by a jury) a martial arts practitioner of some prowess... and therefore by implication worthy of some more serious punishment for his crime. Alas, the court was amused but not persuaded.
In another case, defense counsel noted that his client was actually pretty young in spite of the lengthy criminal record that he had accumulated. However, he failed to make the argument at sentencing that the defendant should therefore be looked upon as an over achiever.
Monday, June 15, 2009
Limitations of Due Process
This from ninomania.blogspot.com
A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not.-- Justice Scalia, dissenting in Caperton v. Massey
A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not.-- Justice Scalia, dissenting in Caperton v. Massey
A Memorable Court Moment
Police officer has just testified that defendant rolled through a stop sign without stopping.
Defendant testifies and says that she did stop.
Defendant: I call my mother as a witness. But she doesn't speak very much english.
The court has not been notified to provide an interpretor. But the witness takes the stand and is sworn.
Defendant asks witness if she remembers being there when defendant got the ticket. Witness doesn't understand and they exchange some words in spanish. The court stops them and asks the prosecutor if he minds that they communicate in spanish. The prosecutor says he doesn't mind. Defendant and witness exchange more phrases in spanish.
Defendant to the Court: Yes, she says I stopped.
And the really funny part is that the court found her not guilty - not because of the unique presentation or credibility of her mother's testimony - but because the officer gave testimony three times during the hearing and named a different intersection as the scene of the violation each time.
Defendant testifies and says that she did stop.
Defendant: I call my mother as a witness. But she doesn't speak very much english.
The court has not been notified to provide an interpretor. But the witness takes the stand and is sworn.
Defendant asks witness if she remembers being there when defendant got the ticket. Witness doesn't understand and they exchange some words in spanish. The court stops them and asks the prosecutor if he minds that they communicate in spanish. The prosecutor says he doesn't mind. Defendant and witness exchange more phrases in spanish.
Defendant to the Court: Yes, she says I stopped.
And the really funny part is that the court found her not guilty - not because of the unique presentation or credibility of her mother's testimony - but because the officer gave testimony three times during the hearing and named a different intersection as the scene of the violation each time.
Tuesday, April 21, 2009
Hot Topics: Search and Seizure & Miss America
The big legal news today is the USSC decision in Arizona v. Gant - which eviscerates the automatic vehicle search incident to arrest procedure adopted by law enforcement following the Belton decision 2o some years ago. The more sensational news is out of the Miss America Pagent where Miss California's answer to a question cost her the crown.
Here http://www.foxnews.com/story/0,2933,517137,00.html
is the story.
Pagent Judge Perez Hilton, an openly gay gossip blogger, asked, Miss California, Carrie Prejean, whether she believed in gay marriage. Prejean answered "...I believe that a marriage should be between a man and a woman..."
Prejean was asked a question and she gave an honest answer. She did not try to evade the question or to spew some equivocal hodgepodge designed to please everyone.
However, she has been criticized by many, including Keith Lewis, who runs the Miss California competition, who said, "As co-director of the Miss California USA, I am personally saddened and hurt that Miss California believes marriage rights belong only to a man and a woman... religious beliefs have no politics in the Miss California family."
WHAT?? PREJEAN DIDN'T CHOOSE QUESTION! The questions were all prescreened and six questions were selected to be submitted on a random basis to the 5 finalists. The fact is that Prejean is being crucified by the left because she gave an honest answer instead of the answer deemed by liberal extremists and gay activists to be the only correct answer. If there was only one acceptable answer, why allow the question? - Simply to continue to push the liberal agenda (which includes the destruction of traditional values, according to Chuck Schumer).
Here http://www.foxnews.com/story/0,2933,517137,00.html
is the story.
Pagent Judge Perez Hilton, an openly gay gossip blogger, asked, Miss California, Carrie Prejean, whether she believed in gay marriage. Prejean answered "...I believe that a marriage should be between a man and a woman..."
Prejean was asked a question and she gave an honest answer. She did not try to evade the question or to spew some equivocal hodgepodge designed to please everyone.
However, she has been criticized by many, including Keith Lewis, who runs the Miss California competition, who said, "As co-director of the Miss California USA, I am personally saddened and hurt that Miss California believes marriage rights belong only to a man and a woman... religious beliefs have no politics in the Miss California family."
WHAT?? PREJEAN DIDN'T CHOOSE QUESTION! The questions were all prescreened and six questions were selected to be submitted on a random basis to the 5 finalists. The fact is that Prejean is being crucified by the left because she gave an honest answer instead of the answer deemed by liberal extremists and gay activists to be the only correct answer. If there was only one acceptable answer, why allow the question? - Simply to continue to push the liberal agenda (which includes the destruction of traditional values, according to Chuck Schumer).
Saturday, March 21, 2009
Fatal Shooting - Serial Killer
A female has been killed in cold blood - by a juvenile. Manslaughter is out of the question. The juvenile intially gave false information to law enforcement but eventually confessed to the crime and to three other unsolved fatal shootings. The investigation contains some gruesome details. The killing was committed at close range with a small caliber weapon. However, because of the characteristics of the victim, there was some question about the point of entry for the fatal shot. The top of the skull was removed but the entry wound and trajectory of the bullet were not revealed until the skin was removed from the face - the victim was shot between the eyes. The perpetrator is expected to enter a guilty plea and pay restitution in the neighborhood of $1,000.00 - for the killing of the cow. As for the other fatalities, 3 deer, the appropriate law enforcement personnel will evaluate the situation.
Thursday, March 12, 2009
High Courtroom Drama
All the cops in the county, two crossing guards, and a hall monitor were in on a local drug bust. The road was blocked off and the thin blue line had metamorphed into a great, green, flak-jacketed caterillar that hit the gate doing 98 and executed the felony arrest warrant and the accompanying search warrant. The booty included some arrests and enough drugs to keep Molly Hatchet's roadies supplied for at least 45 minutes. Of course, all of this was preceeded in the morning hours by the legal stylings of my boss and myself at the probable cause hearings for the charges and the warrant; and we did a bearly passable job with it - only because the officer provided a fine affidavit and warrant for us to use. This was our first search warrant.
Later, at 4:45 p.m., law enforcement called during the execution of another arrest warrant where the druggie admitted to certain contraband on the premises, but then refused to give consent for the search. Did they have probable cause to search, or would they need a warrant? Immediately, the finest legal minds in the room, honed to a razor edge by the constant opposition of pro se traffic court defendants and that nasty corner on the end of the stair railing, fired out the quick and precise answer, "Uh, is it in plain sight? What else did the druggie say? I think we better get a warrant, and some fries would be nice too." Unlike the earlier warrant, where we had a knowledgable officer with completed paperwork, in this case we had nothing. We got some information over the phone and cobbled the paperwork together and rushed to get the warrant before the judge had to leave. The officer who showed up is among the nicest of gentleman, but he didn't happen to know didley about what the court was going to require for the warrant - and neither did the prosecutors. Laurel & Hardy or Tweedle-dumb and Tweedle dumber were the show. At one point the judge (a patient and helpful soul) suggested that we might just want to get our act together and then get the warrant later at his house. That nice offer was declined and a warrant was finally issued. Unfortunately, the judge was probably late for his appointment and the red badge of idiocy blazed brightly on our side of the bench. As one might expect, a good portion of today was devoted to remedial measures so that future appearances might fare better.
Later, at 4:45 p.m., law enforcement called during the execution of another arrest warrant where the druggie admitted to certain contraband on the premises, but then refused to give consent for the search. Did they have probable cause to search, or would they need a warrant? Immediately, the finest legal minds in the room, honed to a razor edge by the constant opposition of pro se traffic court defendants and that nasty corner on the end of the stair railing, fired out the quick and precise answer, "Uh, is it in plain sight? What else did the druggie say? I think we better get a warrant, and some fries would be nice too." Unlike the earlier warrant, where we had a knowledgable officer with completed paperwork, in this case we had nothing. We got some information over the phone and cobbled the paperwork together and rushed to get the warrant before the judge had to leave. The officer who showed up is among the nicest of gentleman, but he didn't happen to know didley about what the court was going to require for the warrant - and neither did the prosecutors. Laurel & Hardy or Tweedle-dumb and Tweedle dumber were the show. At one point the judge (a patient and helpful soul) suggested that we might just want to get our act together and then get the warrant later at his house. That nice offer was declined and a warrant was finally issued. Unfortunately, the judge was probably late for his appointment and the red badge of idiocy blazed brightly on our side of the bench. As one might expect, a good portion of today was devoted to remedial measures so that future appearances might fare better.
Tuesday, March 10, 2009
Judge v. Defendant - and the luxury of watching and thinking
Here
http://www.nbc-2.com/Articles/readarticle.asp?articleid=26732&z=69
is a video of a defendant irritating a judge. You've really got to envy the defense attorney whose client tells the judge, "Come on, you're smarter than that" at his sentencing.
I think I would have requested the gag to go with the manacles and chains.
Here at the county of cattle and crimes, I observed an interesting court trial yesterday. The defendant was a former local police officer. He claimed denial of due process because the citation that he received had his first court appearance approximately 25 days after the day he received the citation. He pointed out that the infraction rule (come on, who reads those) clearly stated that the first appearance had to be not less than 5 days nor more than 21 days from the date of the citation. The prosecutor had not much to say with regard to the novel argument. The court took the matter under advisement as it was a question that had never arisen and some research would be needed to answer the question. It did give me an opportunity to consider what I would have said in that prosecutor's place; I would have said the following:
"Due process means ample or sufficient process to protect the defendant's rights. In this case, the procedural rule provides for a specific window of time for the defendant's first appearance and that window was missed in this case. However, the defendant has still had his day in court and the extra time that he was allowed to have has not in anyway harmed him. He has presented no witnesses whose memories might have lapsed in the short extension of time allowed in this case. He has not demonstrated or claimed any harm because of procedural irregularity. The rule provides no specific remedy for this particular irregularity, but typically, procedural irregularities do not equate to a "get our of jail free card." (Inspite of what some jailhouse lawyers will profess.) Therefore, the proper course is to determine whether there has been any prejudice because of the irregularity, and in this case there has been none. The defendant has had sufficient and ample process." - Of course, had I actually been in the prosecutor's chair, I would have likely babbled incoherently, but without the spotlight trained on me, I was free to come up with the above while the man actually in the arena did the babbling.
In speaking with the judge later, he indicated his research indicated that the question was whether the defendant was prejudiced by the procedure, and since he wasn't, no problem. Of course, then it occurred to me that even with the time to think about it, I had still missed the magic word, "prejudice." But at least my ramblings would have been in the right neighborhood, even if I had missed the correct legal term.
UPDATE: Two items, 1) I see that my rambling did include the word "prejudice" and 2) there is actually a criminal rule that says no dismissals if the error is harmless - it's amazing what you can find in that mysterious rule book.
http://www.nbc-2.com/Articles/readarticle.asp?articleid=26732&z=69
is a video of a defendant irritating a judge. You've really got to envy the defense attorney whose client tells the judge, "Come on, you're smarter than that" at his sentencing.
I think I would have requested the gag to go with the manacles and chains.
Here at the county of cattle and crimes, I observed an interesting court trial yesterday. The defendant was a former local police officer. He claimed denial of due process because the citation that he received had his first court appearance approximately 25 days after the day he received the citation. He pointed out that the infraction rule (come on, who reads those) clearly stated that the first appearance had to be not less than 5 days nor more than 21 days from the date of the citation. The prosecutor had not much to say with regard to the novel argument. The court took the matter under advisement as it was a question that had never arisen and some research would be needed to answer the question. It did give me an opportunity to consider what I would have said in that prosecutor's place; I would have said the following:
"Due process means ample or sufficient process to protect the defendant's rights. In this case, the procedural rule provides for a specific window of time for the defendant's first appearance and that window was missed in this case. However, the defendant has still had his day in court and the extra time that he was allowed to have has not in anyway harmed him. He has presented no witnesses whose memories might have lapsed in the short extension of time allowed in this case. He has not demonstrated or claimed any harm because of procedural irregularity. The rule provides no specific remedy for this particular irregularity, but typically, procedural irregularities do not equate to a "get our of jail free card." (Inspite of what some jailhouse lawyers will profess.) Therefore, the proper course is to determine whether there has been any prejudice because of the irregularity, and in this case there has been none. The defendant has had sufficient and ample process." - Of course, had I actually been in the prosecutor's chair, I would have likely babbled incoherently, but without the spotlight trained on me, I was free to come up with the above while the man actually in the arena did the babbling.
In speaking with the judge later, he indicated his research indicated that the question was whether the defendant was prejudiced by the procedure, and since he wasn't, no problem. Of course, then it occurred to me that even with the time to think about it, I had still missed the magic word, "prejudice." But at least my ramblings would have been in the right neighborhood, even if I had missed the correct legal term.
UPDATE: Two items, 1) I see that my rambling did include the word "prejudice" and 2) there is actually a criminal rule that says no dismissals if the error is harmless - it's amazing what you can find in that mysterious rule book.
Saturday, March 07, 2009
Books: Good and Bad; Jury Train Wreck Averted
As long as I'm on a book review rant, here are two things:
I ditched Turow's book and exchanged it at the library for Brad Thor's The First Commandment. This is a very good book that is difficult to put down. I didn't get any thrilling courtroom drama, but I did get an exciting read that kept me up late. I give it 4 bandoliers out of 5. I can see that I need to read the rest of Thor's Scot Harvath books.
I also note that this blogger http://bamber.blogspot.com/ has a review of Twilight that I can agree with, "[this book] is evil." However, I could only bring myself to read a few pages from the middle of the book before I made the call that it was without redeeming features.
In the prosecutorial zone (which I believe is just north of New Guinea and some what south of harmless error) a train wreck was narrowly averted. A case that went from a felony to a misdemeanor to "he's going to plead so don't worry about preparing for trial" and then to "you're star witness has memory problems so we'll be going to trial" (plus the influence of the new United States Supreme Court case dealing with the loss of the right to firearms for any conviction where the underlying facts involved violence against a household member) did not go to trial. We used a little imagination and the guy agreed to a conditional dismissal with voluntary probation for year, including some specific treatment and counseling.
On another case that is just starting, as we go in for the probable cause hearing, the officer informs me that we can't actually tie the guy we're charging to the crime, other than by some weak hearsay - which is probably enough to get us through the PC hearing. 1st I have to thank the officer for clarifying that point for me as I had not recognized the tenousness (if that's even a word) of the link. 2nd I had to let the court know that we would not be proceeding with the PC hearing as there was some additional information I felt we required. 3rd I instructed the officer to continue the investigation, including talking to the other 2 people who were supposed to be present when the crime was committed. I'm trying to put to use the thinking that was presented to us at the prosecutor training about getting the case built and made certain before we even charge the guys - to avoid wrongful convictions or wrongful acquittals.
I ditched Turow's book and exchanged it at the library for Brad Thor's The First Commandment. This is a very good book that is difficult to put down. I didn't get any thrilling courtroom drama, but I did get an exciting read that kept me up late. I give it 4 bandoliers out of 5. I can see that I need to read the rest of Thor's Scot Harvath books.
I also note that this blogger http://bamber.blogspot.com/ has a review of Twilight that I can agree with, "[this book] is evil." However, I could only bring myself to read a few pages from the middle of the book before I made the call that it was without redeeming features.
In the prosecutorial zone (which I believe is just north of New Guinea and some what south of harmless error) a train wreck was narrowly averted. A case that went from a felony to a misdemeanor to "he's going to plead so don't worry about preparing for trial" and then to "you're star witness has memory problems so we'll be going to trial" (plus the influence of the new United States Supreme Court case dealing with the loss of the right to firearms for any conviction where the underlying facts involved violence against a household member) did not go to trial. We used a little imagination and the guy agreed to a conditional dismissal with voluntary probation for year, including some specific treatment and counseling.
On another case that is just starting, as we go in for the probable cause hearing, the officer informs me that we can't actually tie the guy we're charging to the crime, other than by some weak hearsay - which is probably enough to get us through the PC hearing. 1st I have to thank the officer for clarifying that point for me as I had not recognized the tenousness (if that's even a word) of the link. 2nd I had to let the court know that we would not be proceeding with the PC hearing as there was some additional information I felt we required. 3rd I instructed the officer to continue the investigation, including talking to the other 2 people who were supposed to be present when the crime was committed. I'm trying to put to use the thinking that was presented to us at the prosecutor training about getting the case built and made certain before we even charge the guys - to avoid wrongful convictions or wrongful acquittals.
