Introducing Spot, the WonderDog. Next time I might intro ya'll to Fred, my Lab.
Only a couple errors this time. For some reason, the text I tried to put in didn't show so you get to stare at a frozen picture of me for about 30 seconds. And, yes, I realize the sound level for that section could have been better. Some graphics errors also which I'll try to fix next time.
Hopefully, the content will be enough to get ya'll.
[I]f you charged [a woman who gave one story on the night of the offense and a different one on the stand] with both [filing a false police report and perjury], then wouldn't you be charging her with a crime you know she did not commit? I mean if she is guilty of one or the other then that means that she is innocent of the other? Is that not prosecutorial misconduct to charge someone with a crime you know that was not committed?
I think that's an interesting question and I'm going to expand it even further to ask if this is a violation of legal ethics.
Let's start with if this by defining, as best possible, prosecutorial misconduct. Prosecutorial misconduct is some sort of purposeful or reckless disregard of the law or the judge's rulings in a case. This can involve not disclosing exculpatory evidence or lying to a judge or mentioning a defendant's refusal to testify during closing argument (among many other things). It's a throwaway claim that seems to make it into most capital appeals - and get summarily dismissed by the courts. It's more effective use is in double jeopardy cases wherein a mistrial has been declared because of a prosecutor's act. For instance, I'm caught up in the passion of a closing argument and I turn around and point at the defendant, "If John Smith was innocent, we all know he'd have testified today!" That's clearly unconstitutional and after the judge declared a mistrial defense counsel would have a field day stomping any subsequent charge I was to file because the mistrial was my fault.
The ethics of this would be found in Virginia under Rule 3.8(a) (I'm sure other States have similar rules):
A lawyer engaged in a prosecutorial function shall: (a) not file or maintain a charge that the prosecutor knows is not supported by probable cause;
So, the ethical standard is not whether a prosecutor can get a conviction, it's whether there is probable cause. Probable cause is
1 : a reasonable ground in fact and circumstance for a belief in the existence of certain circumstances (as that an offense has been or is being committed, that a person is guilty of an offense, that a particular search will uncover contraband, that an item to be seized is in a particular place, or that a specific fact or cause of action exists)
So now we've set the parameters. By filing the two charges would I be violating any laws? None that I'm aware of. There's a due process argument, but I don't think it's a strong one. That argument would be, "if she's guilty of one she is innocent of the other and therefore cannot be tried for both." However, this is not true. The two charges require separate elements to be proven. One requires proof that a lie occurred in the report to the officer. The other requires that a material fact be lied about under oath. In fact, if she told the officer X and testified in court Y, but I can prove the truth to be Z, I can convict her of both charges. With all this in mind, I think I'm safely outside the prosecutorial misconduct zone.
The question then becomes one of ethics. This is a more interesting question. Is it ethical to prosecute two charges when I think the facts of the case require that a conviction of one will preclude a conviction in the other? Yes, it is. Remember, the standard is whether the charge is sustained by probable cause. Is there a reasonable ground in fact and circumstance to believe perjury has occurred? You bet. She reported an entirely different story to the police previously. Is there reasonable ground in fact and circumstance to believe a false report was filed? Sure, considering the statements she made to the prosecutor out in the hall.
So, it would be neither misconduct nor unethical to go forward with these charges. Do I think she should be convicted of both? No; considering the facts in this particular case it would not be just to convict her of both charges. I'd even be amenable to a jury instruction telling the jury that they have 3 choices: perjury, false report, or not guilty.
This sort of thing happens more often than you'd think. There are a couple of examples which spring into mind. In Virginia it is, by statute, illegal to convict a person of both general reckless driving and DUI. Defendants are often charged with both; the judge/jury just can't convict them of both. As well, it's almost universal to give manslaughter instructions in murder cases. Murder requires intent to kill or knowledge that killing is likely (the theory behind felony murder and depraved indifference murder). Manslaughter requires either heat of passion (voluntary) or gross negligence / failure to perform a legal duty (involuntary). They both have exclusive elements not found in the other charge, yet they are offered in the alternative. I'm sure the collected minds out there reading this can think of any number of other situations wherein this happens under the law.
REALITY -------
Now, let's look at the reality of what's going to happen here. The lady is probably going to plea down to the misdemeanor and I'm not likely to force the issue. The only time I'd really push the issue is if I looked at her record and she had a history of this sort of thing. Everyone who has worked in a domestic courtroom has seen the woman who brings charges against her man 3-4 times a year and wants to drop charges each and every time she comes to court. I'm not predisposed to be sympathetic to her the way I might be to other women who have been thrown under the bus by their men. However, most of the defendants in this sort of situation aren't going to be that woman, so they'll get a break (pleading to a misdemeanor instead of going forward on the technically stronger felony perjury) and most likely get a fine and probation from the judge.
Here we go again. Yes, I still know this is not criminal law in nature. And, yes, you will have to keep suffering these periodic updates as long as my schools, Centre College and Bryan Station High School, continue to excel.
On Friday Centre let Trinity University whomp on it for most of the game, but with 5 minutes left staged a steady comeback to tie the game with 20 seconds left on the clock and win in overtime. Gotta stop that pretty soon 'cuz I'm pretty sure some teams Centre will face in the tournament are teams Centre shouldn't let get a lead. On top of which, if they keep this up too often I'm liable to have a heart attack.
On Saturday Centre took on a game Southwestern University and, while Southwestern refused to fold, took and kept a solid lead for much of the game, winning by 10 points.
Thanks to Trinity for doing an audiocast of the Friday game and Southwestern for a videocast. Sadly, because Centre offers neither of these and I live 3 hours from the campus, I'm better able to follow Centre when it plays away games.
Meanwhile, my high school, Bryan Station, remains number one in the Commonwealth of Kentucky, with wins over two Lexington schools this weekend: 83-64 over 16th ranked Paul Dunbar on Friday and 83-57 over Lafayette on Saturday.
On Tuesday Bryan Station will play 4th ranked Scott County, at Bryan Station. It's hard to tell whether Scott should be ranked where it is because its record is not good (14-9), but most of its losses have been traveling out of the Commonwealth against teams from other States. Bryan Station beat Scott County earlier on its court, but Scott has beaten Mason County, the only team to beat Bryan Station this year. It promises to be a good game; I urge you all to throw on something green and gold (and blue if you absolutely must) and head to Bryan Station Tuesday at 7:30.
Well, it's finally up, and I shan't be using Adobe Premiere Pro (trial version) in the future. LE, which I own, does everything I need. Not as many spiffy bells and whistles and Pro handles adding animated backgrounds better, but LE doesn't screw up my vid when it compiles like Pro seems to. With LE I can also compile in Xvid, which I can't do with Pro Temp (which means it takes a loooonnngggg time and is a massive file).
Hopefully, next week I shouldn't have a mid-week jury trial and compilation problems. I should be able to get the vids up in a timely manner.
A. It shall be unlawful for any person involuntarily committed pursuant to [a temporary detention order] to purchase, possess or transport a firearm during the period of such person's commitment. A violation of this subsection shall be punishable as a Class 1 misdemeanor.
Let's do a plain reading analysis on that. You can't buy or have a firearm while you are being temporarily detained in order to check your mental state.
Personally, I am very hopeful that my friendly local mental health clinic isn't allowing arms dealers to come in and hand out free samples. This does not make much sense.
The key word here is "during", which sets out a clear time period within which it is illegal to buy or possess a firearm.
B. Any person prohibited from purchasing, possessing or transporting firearms under this section may, at any time following his release from commitment, petition the circuit court in the city or county in which he resides to restore his right to purchase, possess or transport a firearm. The court may, in its discretion and for good cause shown, grant the petition.
BUT AFTER HE HAS FINISHED HIS COMMITMENT HE'S NOT FORBIDDEN TO BUY OR HAVE A FIREARM.
Y'know, I get that the members of the General Assembly probably don't have the time to read every statute they vote on. But what the heck are they paying their staffers for? Somebody had to advise the Delegates and Senators that this law made sense and they should vote for it.
Filmed and edited it last night. Left computer on for Adobe Premire Pro to compile it over night. Woke up at 6 and it had stopped for some unknown reason which could range from a Windows break down to my cat walking across the keyboard. Started recompiling at 6:10 and it's been telling me that it will be done in about 57 minutes ever since. It's 6:50 and it's now telling me 58 minutes (so far 50% compiled).
Sorry folks, but it looks as though CLTV won't be done in time to go up this morn since I have to upload it after it compiles and then add tags. That means it'll be up sometime around 6 p.m. tonight.
Of course, all these problems would be solved if anybody out there knows Steve Jobs and could convince him to donate to me a totally pimped out worked up Mac Pro (I figure that a Mac Pro with everything is probably only $25K; that's pocket change for Jobs). Then compiling would probably take about 3 minutes and this problem would never occur again. Heck, I'd even be willing to put up a $500 a week ad for Apple on my site to pay it off.
As I see it the driving force here isn't theological. It's a failed attempt to insert vengeance (or retributive justice, if you want to dress vengeance up in nice words) into a bureaucratic criminal justice system.
In other words, when Prosecutor Smith, Defense Attorney Jones, and Judge Greene have seen the same sort of cases time after time after time there will be a "normal" sentence. In many, if not most, criminal courtrooms this is furthered by legislatively imposed guidelines which are meant to punish like crimes in like manners, whether they occur in rural, conservative Pitcairn County or the massive, liberal City of Wardhaven. We have encouraged this in the name of equal justice for all.
Let's assume an embezzlement of $12,000 with sentencing guidelines that call for a year in jail. Acme, Inc., a large, multi-State corporation with a store in Windhaven City is mostly concerned about its bottom line and doesn't care all that much about the jail sentence. However, to the local florist in Pitcairn County, who was betrayed by the woman he trusted to manage his shop for the last 6 years and almost went out of business because of the embezzlement, a year in jail seems a pittance.
Eventually, the number of complaints from people who feel they've been wronged rises to a level that States end up with legislatures passing "Victims' Rights" laws. These generally guarantee the victim a right of "exhortation" not a right of determination (example: Virginia's Constitutional Victim Rights). They do not, at least not that I've ever seen, allow the relatives of a victim to choose alternative sentences. This is different than the Muslim system.
The Muslim system could be described as Lex Talionis minus. The punishment is pure "eye for an eye" stuff but allows the family of victims to reduce the punishment - at least in murder cases:
The Journey: 33. Nor take life - which Allah has made sacred - except for just cause. And if anyone is slain wrongfully, we have given his heir authority (to demand the equal or to forgive): but let him nor exceed bounds in the matter of taking life; for he is helped (by the Law).
The Cow: 178. O ye who believe! the law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty.
179. In the Law of Equality there is (saving of) Life to you, o ye men of understanding; that ye may restrain yourselves.
The Table: 45. We ordained therein for them: "Life for life, eye for eye, nose or nose, ear for ear, tooth for tooth, and wounds equal for equal." But if any one remits the retaliation by way of charity, it is an act of atonement for himself. And if any fail to judge by (the light of) what Allah hath revealed, they are (No better than) wrong-doers.
As far as I can tell, the Quran does not, in and of itself, sanction blood money. The interpretations above seem to equate remission with a charitable act. However, I have not done a translation myself (don't have time this morning) and I wonder at the "compensate him with handsome gratitude" language.
In any event, the system as laid out in the Quran is different from our system of victim interaction.
As you will all recall, I started a discussion about witnesses asserting the 5th Amendment for reasons which are not valid by putting forth a domestic battery situation. Why did I choose this? Because this is the place, by far, wherein I've seen the most people decide they don't want the charge to go forward and refuse to testify. This was meant to set up a discussion of 5th Amendment issues in a scenario with which every trial lawyer is familiar with and which lay persons could easily understand. I avoided all the peripheral issues because I was discussing the 5th Amendment. Somehow, this morphed into me, and prosecutors in general, being insensitive to issues and reasons that a woman might want to withdraw the domestic abuse charges. Let me try to set the record straight.
The General Assembly of Virginia has left us with statutes seeming to evince differing intents: Va. Code sec. 19.2-81.3, requiring arrests, and 18.2-57.3, allowing a non-conviction resolution.
Apparently concerned that law enforcement didn't give these cases sufficient consideration, the General Assembly passed a law in 1991 requiring arrests:
B. A law-enforcement officer having probable cause to believe that a violation of § 18.2-57.2 or § 16.1-253.2 has occurred shall arrest and take into custody the person he has probable cause to believe, based on the totality of the circumstances, was the predominant physical aggressor unless there are special circumstances which would dictate a course of action other than an arrest. The standards for determining who is the predominant physical aggressor shall be based on the following considerations: (i) who was the first aggressor, (ii) the protection of the health and safety of family and household members, (iii) prior complaints of family abuse by the allegedly abusing person involving the family or household members, (iv) the relative severity of the injuries inflicted on persons involved in the incident, (v) whether any injuries were inflicted in self-defense, (vi) witness statements, and (vii) other observations.
The shall arrest language has left the officers/deputies few options outside arrest. Some police forces I have known have even adopted a 1 response = 1 arrest policy, bringing a lot of cases to court with little evidence (although none I work with now do this). Even in law enforcement agencies where this policy has not been adopted the deputy is going to make an arrest if there is any indicia of a physical altercation. Quite often these arrests are required and will be made over the protests of the victim (if I only had a dime for each time an officer has told me "She told me X, Y, and Z, but refused to talk to me anymore when she realized I was going to arrest John").
What happens when things get to court? Well, sorry to disappoint all of you who think that prosecutors are bloodthirsty, but I'd say most cases get handled by deferment after which the charge is dismissed, per 18.2-57.3:
When a person who is no younger than 18 years of age or who is considered an adult at the time of the proceeding and who has not previously been convicted of any offense under this article or under any statute of the United States or of any state or any ordinance of any local government relating to assault and battery against a family or household member or has not previously had a proceeding against him for violation of such an offense dismissed as provided in this section, pleads guilty to or enters a plea of not guilty to a violation of § 18.2-57.2, the court, upon such plea if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him on local community-based probation upon terms and conditions.
Why would the General Assembly give us seemingly contradictory statutes? Well, my personal reading on this is that the General Assembly is requiring that no chances be taken when police are called to the scene and that the wheat is supposed to be threshed from the chaff at a later date, in court, when things have cooled down.
While it may not hold for all of Virginia, here are fairly typical outcomes as I've experienced them. Most of the time the first time offender is allowed deferment, unless there are aggravating factors. Among these factors would be the deputy/officer assessment, prior record, witness cooperation, &cetera; I won't try to make an exhaustive list because humans are infinitely creative and sure as I'd list everything I'd think of something else will pop up. A second offender will be convicted as a first time offender and get probation or a short jail sentence. Even then, a prosecutor will often work with the defense counsel to allow the defendant work release or weekends, so he can keep supporting the family (often a determining factor in subsequent offenses will be how long it has been since the prior). A third offender gets convicted of a second offense and, unless there are mitigating factors, the gloves tend to come off at this point. A fourth offender gets a felony charge of Domestic Assault, 3d or subsequent.
Now, to address the wrongness of a prosecutor's attempt to make a woman in a domestic abuse case testify. Have I done this? Yes, every prosecutor in the world has dealt with unhappy, uncooperative witnesses. Do I like to do this? No. What kind of sadist wants to force a woman who has been beaten by that guy to relive it, much less to do so against her will? Unless the case is very bad, an unwilling witness usually means a lower offer and that is usually snapped up by the defense (at least after I make it clear that I will call her if need be). However, there are the occasions when the case is too awful to deal or Scumbag, with a snicker and snide remark, will turn down any offer with supreme confidence that "she hasn't got the guts to testify against me." In these cases I have to call her and I have to try to provide the backbone she lacks.
**Here, I'm going to lapse into a cleaned-up version of a semi-canned explanation I've developed over the last year plus I've been a prosecutor; it isn't perfect, but it seems to get the idea across to members of the general public.**
I'm not a surgeon with a scalpel; I'm a guy with a hammer playing whack-a-mole. I don't have perfect individually crafted, subtle solutions; I can't solve many problems; I can only punish those who did what our society has deemed so wrong as to be illegal and (hopefully), through that punishment, deter others from doing the same. My three blunt instruments are fines, incarceration, and suspended time/probation (and that's really one tool: conviction). These do not often cure people of what ails them nor do they solve society's ills (at least not in the short term). Nevertheless, these are the tools I have in hand and I will wield them to the best of my ability.
With this in mind, if I think the guy over there is a scumbag who beats on women and children, who needs to see the inside of the jail, and needs to be on supervised probation so we can try to keep him from doing it in the future, I'm going to call the victim. She's scared or worried about the paycheck or so submissive she'd never freely turn on him (neighbors called in the beating). I get it. I don't want to call her. I have to call her to convict Scumbag.
I strongly warn her beforehand that if she lies on the stand perjury is against the law. I call her. She takes the 5th. I grant use immunity. She tells a story which contradicts the report she gave the deputies. The case is lost. I immediately, in court, in front of God, the Judge and the gallery tell a deputy to arrest her for perjury.
Is this an optimal outcome? No. I don't want her; I want Scumbag. Then why arrest her? Two reasons. First, she has broken the law and if I don't prosecute her, or anyone else who does what she's done, word will get around. Those of you who are defense attorneys can testify better than most prosecutors about how reputations, rumors,and stories spread among people likely to be in court. Next thing I know the number of women who come to court and do this grows and becomes an endemic problem.
Second, I want Dirtbag, Dipwad, and Slimeball and their women (all in the gallery) to see it. I already know DD&S could care less about the women they are in court for beating. I want DD&S to worry that their women might not be willing to take a felony fall for them. I want the women to think about the consequences of not telling the truth on the stand. With my imprecise tools, I hope to change the atmosphere in the courtroom so that more just outcomes occur.
AND, before everyone starts berating me in the comments, I ask one thing. When you criticize me, please suggest a better solution to the courtroom situation using the tools I have available.
Insufferable: (1) Unendurable (2) What Ken's going to become if his basketball teams keep winning.
On Friday the #14 Centre Colonels hosted the #18 Millsaps Majors (NCAA III). Centre fell behind in the first half by 14, but surged back by halftime to go into the locker room down by 1. In the second half there was a little bit of give and take and then Millsaps took control taking a lead which fluctuated from 6 to 8 points. Edrick Montgomery was a dominating force for the Majors, scoring 34 points. And it was enough - until Centre's Thomas Britt took the game in hand with 46 seconds left in the game. First, he hit a 3 pointer. Then, he hit a 3 pointer. Finally, (are you kidding me!?!) he tied the game with a 3 pointer at .3 seconds on the clock. He hit 2 more at the beginning of the overtime and Centre went on to win 90-80.
This is by far the most despicable and shameless Nigerian scam email:
HOW ARE YOU AND YOUR FAMILY? HOPE ALL IS WELL. MY NAME IS (SGT 1ST CLASS) NICHOLAS ADAMS. ESS; I AM AN AMERICAN SOLDIER, SERVING IN THE MILITARY WITH THE ARMY’S 3RD INFANTRYDIVISION. WITH A VERY DESPERATE NEED FOR ASSISTANCE, I HAVE SUMMED UP COURAGE TO CONTACT YOU. I FOUND YOUR CONTACT PARTICULARS IN AN ADDRESS JOURNAL. I AM SEEKING YOUR KIND ASSISTANCE TO MOVE THE SUM OF ($8 MILLION U.S. DOLLARS) EIGHT MILLION UNITED STATES DOLLARS TO YOU IN UNITED STATES, AS FAR AS I CAN BE ASSURED THAT MY SHARE WILL BE SAFE IN YOUR CARE UNTIL I COMPLETE MY SERVICE HERE. SOURCE OF MONEY: SOME MONEY IN VARIOUS CURRENCIES WERE DISCOVERED IN BARRELS AT A FARMHOUSE NEAR ONE OF SADDAM’S OLD PALACES IN TIKRIT-IRAQ DURING A RESCUE OPERATION, AND IT WAS AGREED BY STAFF SGT KENNETH BUFF AND I THAT SOME PART OF THIS MONEY BE SHARED AMONG BOTH OF US BEFORE INFORMING ANYBODY ABOUT IT SINCE BOTH OF US SAW THE MONEY FIRST.
THIS WAS QUITE AN ILLEGAL THING TO DO, BUT I TELL YOU WHAT? NO COMPENSATION CAN MAKE UP FOR THE RISK WE HAVE TAKEN WITH OUR LIVES IN THIS HELL HOLE. OF WHICH MY BROTHER IN-LAW WAS KILLED BY A ROAD SIDE BOMB LAST TIME.
YOU WILL FIND THE STORY OF THIS MONEY ON THE WEB ADDRESS BELOW; http://www.washingtonpost.com/ac2/wp-dyn/A35080-2003Apr24 THE ABOVE FIGURE WAS GIVEN TO ME AS MY SHARE, AND TO CONCEAL THIS KIND OF MONEY BECAME A PROBLEM FOR ME, SO WITH THE HELP OF A BRITHISH CONTACT WORKING HERE, AND HIS OFFICE ENJOY SOME IMMUNITY, I WAS ABLE TO GET THE PACKAGE OUT TO A SAFE LOCATION ENTIRELY OUT OF TROUBLE SPOT. HE DOES NOT KNOW THE REAL CONTENTS OF THE PACKAGE, AND BELIEVES THAT IT BELONGS TO A BRITHISH/AMERICAN MEDICAL DOCTOR WHO DIED IN A RAID HERE IN IRAQ, AND BEFORE GIVING UP, TRUSTED ME TO HAND OVER THE PACKAGE TO HIS FAMILY IN UNITED STATES.
I HAVE NOW FOUND A VERY SECURED WAY OF GETTING THE PACKAGE OUT OF IRAQ TO YOUR COUNTRY FOR YOU TO PICK UP, AND I WILL DISCUSS THIS WITH YOU WHEN I AM SURE THAT YOU ARE WILLING TO ASSIST ME, AND I BELIEVE THAT MY MONEY WILL BE WELL SECURED IN YOUR HAND BECAUSE YOU HAVE FEAR OF GOD.
I WANT YOU TO TELL ME HOW MUCH YOU WILL TAKE FROM THIS MONEY FOR THE ASSISTANCE YOU WILL GIVE TO ME. ONE PASSIONATE APPEAL I WILL MAKE TO YOU IS NOT TO DISCUSS THIS MATTER WITH ANYBODY, SHOULD YOU HAVE REASONS TO REJECT THIS OFFER, PLEASE AND PLEASE DESTROY THIS MESSAGE AS ANY LEAKAGE OF THIS INFORMATION WILL BE TOO BAD FOR US SOLDIER’S HERE IN IRAQ.
I DO NOT KNOW HOW LONG WE WILL REMAIN HERE, AND I HAVE BEEN SHOT, WOUNDED AND SURVIVED TWO SUICIDE BOMB ATTACKS BY THE SPECIAL GRACE OF GOD, THIS AND OTHER REASONS I WILL MENTION LATER HAS PROMPTED ME TO REACH OUT FOR HELP, I HONESTLY WANT THIS MATTER TO BE RESOLVED IMMEDIATELY, PLEASE CONTACT ME AS SOON AS POSSIBLE .
Theory: First, let's look at some of the theory behind the 5th Amendment and testimony in general. The clause which pertains to all this is "No person . . . shall be compelled in any criminal case to be a witness against himself." This is an affirmation of the adversarial judicial system we lifted off the British and a rejection of the inquisitorial system, under which the defendant was traditionally required to confess. We have carried this beyond star chambers and ecclesiastical courts; we extend it to any time a law enforcement agent has someone in a situation where a reasonable person would feel free to leave.
On the other hand, a person cannot invoke the 5th in order to avoid breaking the law. Specifically, a witness cannot invoke the 5th in order to keep from committing perjury. She also cannot take the 5th because she does not want to testify or any reason except that what she would say would incriminate her. Any attorney appointed to or hired by her would be unable to advise her to take the 5th except in a case where it would incriminate her because were he to do otherwise he would be in breach of his ethical requirement, as an officer of the court, not to perpetrate a fraud on the court.
Reality: An extra-constitutional invocation of the 5th Amendment looks exactly the same as a valid invocation of the 5th Amendment. If the witness is smart enough to figure this out on her own, or even just bull-headed ("I seen it on TV. I don't have to testify no matter what.") she can game the system.
Possible Prosecutor Reactions: Going back to the last post, Jane has just told Prosecutor that she is going to invoke the 5th amendment. What can poor helpless Prosecutor do?
1) The Lecture - "YOU. CANNOT. TAKE. THE. 5TH. JUST. BECAUSE. YOU DO. NOT. WANT. TO. TESTIFY. That man beat you. I won't drop charges when a man chokes and beats someone. I'm going to call you and you should tell the truth."
Any number of times that will be all that is necessary. Often, shortly after she has returned and told boyfriend the prosecutor's going to call her, even though she doesn't want to testify, he'll send Defense Counsel over to actually finalize the plea. However, for our example we'll assume that doesn't happen and she does take the 5th when called.
2) Try the case without her. This can be difficult, although not as hard as it used to be. It has been my experience that a lot of deputies/officers have started carrying inexpensive digital cameras and taking pictures of domestics - not all of them, but it seems to be spreading. Prosecutor can show the picture, put forth any statement by Defendant, and maybe even play the 911 tape of Jane calling for help. If Jane testifies for Defendant the prosecutor even has built in, and fairly devastating impeachment evidence from her statement to the police that night.
However, in the facts I put forth Defendant made no statement and, unless he knew there was going to be trouble ahead of time, Prosecutor probably won't have the 911 tape. So, that leaves option 3.
3) Give Jane use immunity (or actually what Virginia cases call "use derivative immunity"). Ask the judge to instruct Jane that, "Use immunity means that nothing that you say today and no evidence that is developed from what you say can be used in a trial against you. There is only one exception to this. Immunity does not protect you if you commit perjury. Once you have been granted immunity you cannot invoke your 5th Amendment right and you must now testify to the best of your knowledge and ability." Then require her to testify.
This is the most likely outcome. Why use "use immunity?" Lets assume Jane tells the new story to the judge and remember she made inculpatory statements to the prosecutor. She has either made a false report to an officer or committed perjury. If the new story is a true then the report to the police on the night of the incident is a lie. This is a "Making a False Statement" misdemeanor. If the new story is a lie and the report to the police is true then she has committed perjury, a felony. If Prosecutor has given her transactional immunity he's going to face an argument that she can't be prosecuted for her actions on that night.1 This paints him into the a corner which requires him to charge Jane with the felony.
Or, if you want to view this from the perspective of a totally unsympathetic, hard core prosecutor, it gives Prosecutor the option of indicting her on both charges and letting a jury figure out which one it will convict her on.
1 I say "an argument" because the counter argument would be that she was not a "transactor" but a victim in the thing about which she is testifying. The report to the police is collateral and post-event. And before anyone screams at me, no, I have not looked at case law relevant to this argument - it just hit me as I was typing.
My Undergrad 16-1 (16 straight wins) Ranked 20th in Nation (last week - awaiting this week's rankings) This Friday: Your Centre College Colonels (#20 D3) host the Millsaps Majors (#23 D3) These teams are tied for the lead in the SCAC. It should be a good game and it's a D3 gym so there ain't a bad seat in the house. If you're in Kentucky there aren't any better college teams to watch. 8 p.m. Danville, Kentucky.
That's right, Bryan Station is ranked #1 in Kentucky after it stomped Scott County. Lex Cath got beat by Mason County, which was beat by Scott County last week. You do the math.
I know it's not crimlaw folks, but I grew up in Kentucky and suddenly my College and my High School are much more fun to watch than that State school down the road.
Are you a prosecutor who's worried because the local Jamaadaar has taken an interest in your well being? Are you a defense attorney concerned because your client with a last name that ends in a vowel has just gotten 25 to life after he ordered you to "make this thing go away"? Have I got a solution for you:
The JL421 Badonkadonk Land Cruiser/Tank
Well, okay, it's really more of an armored personnel carrier than a tank. Still, wouldn't you feel safer driving it back and forth rather than your Toyota Celica? You don't even have to give up your creature comforts; it comes fully equipped with stereo and carpeting.
And it's only $19,999.95. A steal.
You think I'm joking. I'm not (well, maybe a little). Read the customer reviews.
Looks like I either went blind, stupid, or my web browser popped up an earlier version of Defending People, 'cuz Mark did have a post up about the prosecutor and the Justice. mea culpa
"Maybe someone else can shed some light on how [Head Prosecutor] might benefit from dismissing Medina's case."
Well, I don't think the prosecutor can benefit from the dismissal. It's probably damage control. Let's think about how this probably went to the Grand Jury.
P1: "HP, this case is terrible. No real evidence, but if we don't prosecute nobody will believe us. They'll say it's politics over justice."
HP: "Take it to the grand jury. Show them the evidence and be honest with them about how bad a case it is. Let them not true bill the charge and it won't be about politics anymore. We'll be able to point to a decision by the grand jury to ward off any claims of wrongdoing."
So off goes Prosecutor One to the grand jury. He lays it all out for them and tells them that it's a bad case which the evidence just won't support. However, the grand jury decides to true bill the case anyway.
P1: "OMG! HP, the grand jury true billed even after I told them the evidence was garbage. What do we do now? A judge would laugh at the evidence we have and a decent defense attorney would destroy us at trial."
HP: "Well, we aren't going to sit on this thing and get destroyed like the guy in North Carolina. We're going to have to move for dismissal. If we do it quickly no one can accuse us of being unethical."
The next day the charge is dropped and the mini-furor begins.
I don't think the conversations were quite as succinct as supra, but I'd bet they had the general themes I laid out.
The politically adept way to handle this would have been to wait 3 days to a week while actually reviewing the file and/or talking to key witnesses again. Then, assuming the prosecutors still believed the case unwinnable, dismissing it with a statement something like this:
"We at the Pitcairn Prosecutor's Office are great believers in the grand jury system. We believed this case teetered on that line between a valid prosecution and a case requiring dismissal. Therefore, we submitted it to the grand jury to see if there was probable cause. The grand jury found that there was probable cause.
After probable cause was found, our office engaged, as it always does, in it's required duty of checking to see if the case could rise above probable cause to the actual standard of conviction: beyond a reasonable doubt. This is a much higher standard than that to which the grand jury is held.
Unfortunately, after this review our office has concluded that the evidence, while sufficient for an indictment, and therefore sufficient for a prosecution, is insufficient for a conviction. Based on this finding our office is asking the court to dismiss this charge. Should more evidence be discovered in the future we shall reopen the case.
A dismissal is not something this office takes lightly. This dismissal is being done because of legal ethics requirements. It is being done to save the taxpayers the expense of a trial which cannot be won. It is also being done so that if solid evidence is developed in the future the guilty party can be brought to justice.
I'm not sure why it wasn't handled this way. I'd guess because of all the other problems Mark's been talking about on his blawg the office is gun-shy and wanted to dump this as quickly as possible to avoid any possible entanglements. It's also possible that the head prosecutor is already a lame duck and doesn't really care about the niceties the way he did when the case went to the grand jury. He's just going to straight-up dump it because he knows there's no conviction possible and who cares about the fallout?
Like sands through an hourglass, so are the Days of Harris County's Lives
Mark gets me hooked on the ongoing soap opera in Harris County, Texas.1 So, naturally, when I read about the prosecutor and the Justice I turned to Mark's blawg for the 411.
And there's Nothing.
Daggumit. Now I have to keep checking my rss reader to see if/when he comments. I may not be able to sleep tonight for all the anticipation.
1 Snarky comment about Texas as a province (referring back to Mark's comment on my 5th post) deleted 'cuz I don't want Texans flooding my email pointing out how big and important their State is. About the only thing I've run into which makes Texans madder than implying their State is small and unimportant is to ask them why Texas copied Puerto Rico's flag. Of course, we here at CrimLaw would never have the bad taste to actually ask that question.
Apparently, Hawaii gives defendants the right to have video tapes of their criminal proceedings and one defendant took full advantage of that to post various portions of his trial.
Here's the portion where the PD withdraws:
Here the judge, at prosecution's request, informs the defendant that he's not allowed to personally tape the proceedings:
Here are two videos of the motion for dismissal on procedural grounds (speedy trial):
16 straight wins (16-1) - Ranked 3d in Kentucky (by more than one poll) - Big game Friday against Scott County which is either 7th or 2d in the Commonwealth depending on which poll you believe.
BTW: Yes, I know I promised a substantive post today, but I spent the day with a detective tracking down witnesses for a trial. Got home exhausted and my brain refused to think. I'll probably get the post I promised up after the 4 day weekend.
In between Mark going onandonandonand (ahem) on about local politics and the evil (perceived or real) at his local prosecutor's office, he had a couple interesting posts up about how a witness can take the 5th: The Fifth and More on the Fifth. Rather than going directly into argument, I thought I'd set out the typical kind of case (usually in Domestic Court) where this comes up.
John Smith and Jane Jones live together in a trailer. They call each other "fiance" but there hasn't been any real talk about a wedding for the last 2 years they've been living together. They have a child in common who is 8 months old.
Saturday night rolls around and the deputies are dispatched to the trailer. They arrive and find John and Jane both inebriated. Separated, John says nothing, but Jane tells the officers that John grabbed her by the neck, slammed her into the wall and slapped her twice. She has a swelling eye, split lip and some redness around her neck. John gets hauled off and charged with Assault & Battery of a Family Member (living together qualifies).
6 weeks later comes the court date. Jane flags down the Assistant Prosecutor in the courtroom that day and they go out in the hall to start the dance. Jane's opening gambit: "I want to drop the case."1
Prosecutor, who has had at least one call a day from a lady who wants to drop a charge against husband/fiance/baby's daddy/brother/father/&cetera, isn't dissuaded quite so easily, "Why?"
"He didn't mean it. He was drunk and we were arguing. It would have never happened if I hadn't yelled at him. Anyway, he's in AA now and he's really sorry. He ain't hit me since. And if he goes to jail he'll lose his job and I need his check to feed the baby."
Prosecutor takes all this in and tells the lady to sit back down in the gallery. Then he goes to look at John's record and talk to the deputies. The record isn't too bad: 2 petit larcenies, 1 possession of marijuana, and 1 simple assault and battery from 3 years back (all misdemeanors - nothing domestic - longest time in jail is 10 days for the second larceny). He then turns and asks the deputies what the situation is.
Deputy: "They spend their time drunk and arguing with each other. We get called up there about once a month to separate them. This time there was physical evidence of an attack so (per policy) we arrested John."
Prosecutor: "Any trouble since? Think anything we do here can help the situation?"
Deputy: (shrugs) We haven't been called to the trailer since this incident. We've dealt with John and Jane for years; they aren't going to change. Still, a man oughtn't do that and not get punished." Deputy pulls out his digital camera and shows Prosecutor pictures of Jane with red marks the size of a hand on her neck and a swollen right eye and a split lower lip.
Prosecutor weighs everything and decides that realistically he should offer 5 weekends in jail or 10 days with work release. A suspended sentence of 6 months. Probation of 12 months. He forwards that offer to John's attorney and turns around to try a case the judge has called.
By the time Prosecutor finishes the case and turns around Jane is frantically waving at him. They go back out in the hall. Jane is beside herself: "I told you I want to drop the charges."
Prosecutor: "He has a prior assault and battery and he choked you and hit you twice. I'm offering him a better deal than he ought to get. And he won't lose his job."
Jane: "I won't testify. He didn't hit me."
Prosecutor: "Ma'am, we have pictures of the injuries he inflicted on you."
Jane: "I fell down."
Prosecutor: "Both sides of your face were injured."
Jane: "I hit the door with my eye and doorknob with my lip."
Prosecutor: "And the red marks on your neck?"
Jane: "I was wearing a necklace and it caught on the doorknob as I fell and almost choked me."
Prosecutor: "Ma'am, I don't believe a word of that. In ten minutes I'm going to call you to testify. It's perjury to lie under oath - you need to tell the truth."
Jane: "I don't wanna testify and John don't need to go to jail. You call me to the stand and I'll take the 5th."
---------- ---------- ----------
So now we are about where Mark's posts begin. Of course, people being as creative and diverse as they are, there are infinite variations on the theme laid out above. However, I think it's fairly representative of what happens.
Tomorrow I'll try to talk some about the theories and realities of the courtroom and Commonwealth v. John Smith.
---------- ---------- ----------
1 Implicit in this instruction is the belief that the prosecutor is her attorney. My experience has been pretty much the exact opposite of what Mark talks about. I spend a fair amount of time telling people, as delicately as possible, that I am not their attorney.
Moore bothers me quite a bit. It's basically the Commonwealth of Virginia saying "Even if we pass laws to specifically limit the powers of our police we are not going to apply these laws to our police and you should not force us to do so." That's just plain disturbing.
Okay, I've added some new twists. Over the right two columns is a shared feed of various blogs and news agencies which have caught my eye. Now, when a post catches my eye I can put it straight out there. Previously, I'd note the post so I could include it in a "Best of the Blawgs" list or reply to it. I'd say about 20% of those actually made it on CrimLaw because I wouldn't get to them in a timely manner or I'd lose the post. Now, I can put them right up for all of you to go check out.
I've got a Twitter account running and invite you all to join. My posts are sporadic, but a lot of them are about basic court life. For those of you who don't know, Twitter is a way that people publish short messages to each other using cell phones, wireless devices (eg the new iPod), or computer. Most of the time it is about things going on at the moment in a person's life. It's addictive for some reason.
I've started doing more of my personal stuff online at my Facebook page and if you ask I will put you on it. I use the Myspace page more as a place to post funny videos I run across and to store pics, but you're welcome to ask to be added there as well.
The video: I've had some ask if they can embed the CLTV video. Yes. I have no problem with that. After the video has finished there is an icon of a page with a turned corner - this is what you click on to get the embed code. It will be much larger than what I have on CrimLaw or CLTV (smaller size fits better and hides flaws). If you post it you will probably want to change the size. I change the dimensions to width=280 / height=256.
I had a statute come up today and had to read it 3 times before I felt comfortable giving an opinion as to what it means:
§ 43-13. Funds paid to general contractor or subcontractor must be used to pay persons performing labor or furnishing material.
Any contractor or subcontractor or any officer, director or employee of such contractor or subcontractor who shall, with intent to defraud, retain or use the funds, or any part thereof, paid by the owner or his agent, the contractor or lender to such contractor or by the owner or his agent, the contractor or lender to a subcontractor under any contract for the construction, removal, repair or improvement of any building or structure permanently annexed to the freehold, for any other purpose than to pay persons performing labor upon or furnishing material for such construction, repair, removal or improvement, shall be guilty of larceny in appropriating such funds for any other use while any amount for which the contractor or subcontractor may be liable or become liable under his contract for such labor or materials remains unpaid, and may be prosecuted upon complaint of any person or persons who have not been fully paid any amount due them.
The use by any such contractor or subcontractor or any officer, director or employee of such contractor or subcontractor of any moneys paid under the contract, before paying all amounts due or to become due for labor performed or material furnished for such building or structure, for any other purpose than paying such amounts, shall be prima facie evidence of intent to defraud.
Look, I know this is an obscure statute put on the books in 1932. I know old statutes can be labyrinthine. Still, it's been 75 years; can't somebody fix this?
BTW: While checking thru case law on this statute I ran across this in Overstreet v. Commonwealth, 1951, 193 Va. 104:
On the day of his trial Overstreet had not completed his contract with Horne, but the latter had paid him a total of $2,400 thereon, leaving a balance of $200 due when all of the work was completed according to the contract. Defendant, however, has never made any payment on the Broaddus account, and the latter has reduced the debt to judgment.
. . .
On cross-examination, the defendant, when asked with reference to specific items on his material account, and whether or not he had any receipted bill, any memorandum, other writing, or record showing the payment of them, replied that he had nothing with him. He said he did not have an account book, but did have at his home accounts or memoranda which would support his testimony. Asked why he did not bring the books or accounts, receipts or other evidence with him, he replied that he did not think it was necessary because he was a man of honor and did not propose to tell anything but the truth.
The trial judge tells us that the defendant's manner of testifying 'was arrogant, elusive and evasive.'
If any defense attorneys out there find yourself here in Wise to defend someone in a case I'm prosecuting, I urge you to adopt the "honorable man" defense. ;-)
So, yesterday I discover banishment. Guess what happens today? Yep, I had to deal with a banishment. Well, almost.
I got called up to the Circuit Court to deal with a probation violation. Supposedly, it's one of the people I prosecuted. However, we quickly figure out that unless I was prosecuting back in the 90's it wasn't mine. I start handling it anyway and, whatdoyaknow, one of his violations is for ignoring his banishment from the county.
Of course, I never got to try it. I spent an hour talking to probation officers and the defense attorney. Finally, we're ready to try it. Then the judge looks at the court file and looks up: "Mr. Defense Attorney, I was Commonwealth Attorney when your client had his last probation violation. I don't even remember him, but I wanted to let you know."
You guessed it, after 10 minutes of intense whispering over at the defense table the defendant decides not to waive conflict and the case gets carried out a month to be put in front of another judge.
OK. Just did a bit of a search and found Loving v. Commonwealth, 1966, 206 Va. 924. Once you get past the fact that it's a case about "miscegenetic marriages" it provides what seems to be the standard for the use of banishment in Virginia.
Apparently, banishment is allowed in Virginia. However, "the defendant's background or the circumstances of the case [must] indicate that [banishment is] necessary to secure the defendant's rehabilitation and to accomplish the purposes [of the statute]." If it isn't necessary the banishment is unreasonable. Such unreasonableness renders the sentence void and [it] will, accordingly, be vacated and set aside."
Hmmmm . . . That's a standard applicable to judicially imposed banishment. If banishment was part of a plea agreement the defendant could stipulate the need. It would be an interesting option. Instead of 3 months in jail an agreement to banishment for 3 years. That might be a win-win for all sides.
Well, here's my vidcast lauding the posts which caught my eye over the last week.
The video's not as good as last week. I think I don't look quite as much like a pale ghost as I did in the last one, but the bleed is worse. I think I've figure a way to fix that. You'll have to tune in next week to see if I got it right.
Never seen that before. Never thought I'd see anything like that. In fact, I defy anyone to come up with a case with similar facts and circumstances in any of the 46 States and 3 other Commonwealths.
Imagine the possibilities. Assuming this could be done with multiple drugs there could be a wide spread innoculations against heroin, cocaine, meth, and a whole range of other illegal drugs.
Yesterday, I pointed out a story on how law enforcement isn't going along with attempts to make marijuana possession a citation offense. Apparently, in the U.K. and Australia they have adopted systems like this for minor law breaking (shoplifting, car theft, &cetera) and they are failing miserably.
"California's pot shops have admittedly become an easy source of supply for people who just want to get high. According to 60 Minutes, the California law was originally intended to provide access only to the most needy, but in an attempt not to exclude any category of illness, it wound up with language so broad that it covers ever the vaguest complaint of pain. Now anyone with a note from their doctor can buy medical marijuana, and some doctors even advertise for patients in alternative papers.
One longtime supporter of medical marijuana, Methodist minister Scott Imler, says, 'It's just ridiculous ...The purpose of Proposition 215 was not to create a new industry.' Although the centers are supposedly collectives which buy marijuana grown by members and redistribute it, it is clear that large amounts of marijuana are also entering the system from the black market, putting money into the pockets of organized crime and terrorists."
Still working out the bugs. The comments don't show up completely if I type much in, but if you click on them the whole thing shows up.
BTW: If you really want to watch some fun games and you live in Kentucky, going to watch Centre play this year and last has been fun (and there ain't a bad seat in the place). It's a 3 hour drive each way for me, so I can't get there as often as I'd like.
In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts probably don't even operate as described herein. In fact - just in case someone is stoned enough to start quoting this blawg as authority to a judge - It is hereby stated that everything in this blog is pure fiction.
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