Must we punish irrational acts which violate a criminal law?
If we don't punish irrational acts which violate criminal law are we then encouraging more rational actors to violate the law?
Example: I've both represented and prosecuted the 40 year old lady who has never broken a law in her life and has plenty of money in her pocket, but follows the impulse to try to get out of a store with a cart full of items. She has foolishly followed an irrational impulse. However, if the next lady comes along and gets a similar impulse and knows that nothing happened to her friend Mary when Mary did it there is less rational push-back against the irrational impulse.
Impulse (irrational) < Concern about being caught (rational)
Impulse > Concern about being caught - Knowledge that previous people caught were not punished (rational)
I had spent a good bit of time typing up a blog post about why criminal actors are rational. It was insightful, thought provoking, brilliantly analytical, and so well written it could bring an English Studies grad student to tears.
And then my dog decided to lay down under the table my computer is on and pulled the plug.
There are two reasons Scott's correct. The first is that most of the time nobody, outside of some legislators and lawyers, knows when laws are changed. There won't be multiple news stories splashed across TV, Drudge, and the local paper if the first of July comes around and Virginia changes larceny of a dog from a class 6 felony (up to 5 years) to a class 5 felony (up to 10 years) - along with the 500 other major and minor changes made to the law. If no one knows that the law has changed it can't be factored into a cost-benefit analysis and shan't be a deterrent.
The second reason is that often knowledge works against the intended effect. Those with familiarity with the system will know that changing stealing a cat from a misdemeanor to a felony will probably result in less actual jail time. A district court judge would probably give a little time in jail for stealing Tigger. In circuit court this case will be seen as less important than drug dealers, murderers, bank robbers, etc. and, at least in Virginia, the judge will have sentencing guidelines telling him the defendant should get probation. I'm not saying that the offenders know all the intricacies of sentencing, just that they know that low level felonies usually end up with probation (at least the first and maybe second conviction) and aren't concerned if a misdemeanor changes to a low level felony.
On the other hand, Scott is wrong in that changes in the law do make their ways into the consciousness of the community. Sometimes this rise in awareness can be fast; sometimes it can be slow. In Virginia an example of the fast rise would be Exile, gun control laws. The government saturated the market with well done, well placed, effective commercials and continues to follow up with reminder commercials. This effort penetrated the minds of those whom it was supposed to effect and they all know that felon+firearm or drugs+firearm is bad and will result in mandatory prison time. Slower penetration happens when the law changes and the community comes into contact with that law fairly regularly. An example of this was when Virginia overhauled its DUI statutes a few years back. Offenders did not know the law had changed, but they went back and told other members of the community; it took about two years, but the changes finally penetrated to the point I didn't have to argue over the state of DUI law with people anymore.
Personally, I think that offenders do a cost-benefit analysis. They wouldn't phrase it like that, but they do consider what they know and what they think they know. Scott's correct in his assertion that they sometimes have the wrong idea about what the law actually is: "I can't be convicted of shoplifting. He put the stuff in my purse; I didn't touch anything." That statement gets the law wrong, but it implies a cost-benefit analysis: I can't go to jail if he's the only one who touches the stuff so I'll let him put stuff in my purse because (multiple choice) 1. I luv him, or 2. I'll get my cut later, or 3. He'll give me drugs if I let him.
Of course, there will always be entirely irrational actors; however, I think these are few. And, of course, Scott is correct in his assertion that crimes committed in the heat of the moment will not be effected by the costs, no matter how great (nothing will effect these until pre-crime units are deployed). In the end, we must act to influence rational actors and be prepared to deal with those so far outside the norm as to be uneffectable.
How do we do this? Well, moving things up the maximum potential punishment scale isn't really going to accomplish anything. Two things need to happen. To begin with, any increase should be in the actual punishment scale. In other words changing something from a misdemeanor to a felony doesn't accomplish much. However, changing a misdemeanor from 0-12 months to 3-12 months does something which will impact the sensibilities of the community: it mandates more actual punishment. Personally, I'd be in favor of returning a lot of felonies to misdemeanors as long as the misdemeanors are misdemeanors with teeth. I think that 3 months in jail on a misdemeanor has more of a deterrent effect than felony probation.
Then, punishment needs to be consistent. Yes, yes, I have read some Emerson, but I'd remind you that he is talking about "foolish consistency." I'm talking about a considered consistency. Punishment needs to be consistent over a long period of time, otherwise it does not have the desired impact. If the punishment does not remain consistent it doesn't sink in to the community. For instance, if felony petit larceny (3d conviction) were changed back to a misdemeanor with 6-12 months after a couple years to sink in it could impact the thoughts and acts of the community. However, if the typical disposition were to reduce every 3d to a plain old petit larceny and give a weekend in jail it wouldn't work. This, IMO, is the reason that the massive federal drug sentences haven't made a dent in drug trade. 98% of offenders were getting State sentences of a year, maybe two, perhaps four if they were really bad (yes I know your State had much worse punishment - this is just an example) while 2% were getting 10 years or 20 in the federal system. Let's imagine the equation here (all numbers pulled out of my imagination):
Federal $3,000 per week * 52 weeks [<=>] 25% chance of being caught (2% * 10 years in prison)
State $3,000 per week * 52 weeks [<=>] 25% chance of being caught (98% * 2 years in prison)
Now, let's imagine a world in which the punishment in both was equal and set at the higher level.
$3,000 per week * 52 weeks [<=>] 25% chance of being caught (100% * 10 years in prison)
The risk is higher when the punishment is consistently higher and this will sink into the community. Will higher consistent minimums stop all crime? No. The best you can ever hope to do is raise the entry threshold. If 40% of the community is willing to enter into illegal activities under the first set of equations and 15% are willing to enter into illegal activities under the last equation that's moving things in the right direction.
It's been a basketball filled weekend for yours truly, with the best part being the trip to Lexington to watch Bryan Station put a good old fashioned wuppin' on Scott County in the District Championship. Both the first and second place teams go on to the regionals, but the loser was going to be on the same side of the bracket as Lexington Catholic and, as the lady next to me cheerfully informed me "I don't want to have to beat both of them to get to the Sweet Sixteen." Lexington Catholic, Bryan Station, and Scott County are ranked 1, 2, 3 in Kentucky and only one team from the region goes to Kentucky's basketballfest (The Sweet Sixteen), the 16 team tournament for bragging rights in the Commonwealth.
If you are a Defender fan the second quarter was amazing, 2 back-to-back 3 pointers built Station's momentum and the Fort (what they're now calling the basketball auditorium) went nuts when #30, Terrell Combs (going to Minnesotta on a football scholarship), leapt ten feet into the air and smashed a Scott County shot into the stands. Then the Scott County coach got a T and finally, with time running out Station's big time star, Shelvin Mack (going to Baylor) hit a three. From then on the Defenders just kept pushing until they beat the Cardinals 94-75. Now on to the Regionals where just about everybody is ranked in the top 20. It should be a good tournament. Sadly, because apparently they wanted the regional championship to be poorly attended they scheduled it for a Tuesday night.
Sadly, the news for my Centre College Colonels wasn't quite so good. The SCAC tournament was this weekend and Centre breezed through the first couple games.
Unfortunately, in the championship game none of this did Centre any good. I'd like to say they were beaten by a superior Millsaps team, but I'd not be telling the truth. Centre played the worst I've seen them play this year. They were missing 3 pointers, free throws, and lay-ups (and lay-ups & lay-ups & lay-ups . . .); Centre only shot 20% in the first half. Millsaps won by 9 and it wasn't that close. Now Centre will probably get a Pool C bid to the NCAA tournament and I think this might scuttle Centre's hopes to host a round in the tournament (and my hopes to go watch a round).
Okay, who spilled the beans? Who told a defense attorney that I actually have 150 felony files and that I don't spend all my time - every single second of my day - trying to make his particular client's life miserable? How am I supposed to maintain my veneer of pure, unadulterated, power-mad megalomania if defense attorneys (and, by extension, their clients) start understanding that I don't know the defendant from Adam and I'm just trying to make an appropriate offer. Oh! The Humanity!
Well, if we're going to go down this route, there is one note I'd like to make for defense counsel. Let's call it CrimLaw Prosecutorial Corollary #1.
CrimLaw Prosecutorial Corollary #1: Catching me in the hall to talk to me about a case more than 3 days in the future is a useless endeavor. I've got about 150 files with cases constantly coming in and going out. I've prepped for the 5 felonies I have today. I've probably prepped for the 7 felonies I have for tomorrow. The Greene case is 45 days down the road. Unless I have the file in front of me, or your client is Harold "Gory" Greene (the Bank of Pitcairn axe murderer), I don't have the Greene case anywhere near the thinking part of my brain. In any event, I'm not going to agree to anything without looking at the file. Even if I did, without the file there to write notes in I wouldn't remember any agreement. So, just stop. Please. And this goes double for those out there who think it's a good idea to stop by my table during lunch and ask me about a couple cases. I'm a simple man; my brain disengages during lunch. I'm of no use to anyone at that time. Honest.
Woke up this morning and the world was white (whatdoyaknow, the weatherguys got it right). Boss blackberried me just before I left to tell me not to come to work. And it's still coming down.
It's a little hard to see the snow above, but you can clearly see it all over Spot (great dog, but not necessarily smart enough to get out of the weather).
Bryan Station now starts its post season by playing Sayre, which should be a fairly easy win. However, even though ranked 4th (or maybe higher now), the odds are against the Defenders making it to the Sweet Sixteen because Kentucky pulls 16 teams from 16 regions to play these games (16 teams come to Lexington and spend a week determining who is best). Considering that almost all of the top 25 teams in Kentucky are in Lexington and Louisville and counties nearby, most of the top ranked teams don't make it. Bryan Station will have to defeat both Scott County, also ranked in the top 5, and Lexington Catholic, ranked #1 in Kentucky. Bryan Station and Scott County traded games this year, but the Defenders haven't played the Knights. Somebody isn't going to make it.
Centre College, ranked #2 in NCAA III, finished out its season 23-1. Its only loss was an inexplicable loss to Rust, 11-13, in the very first game of the year. Now they head into the SCAC tournament. Even though they've won every game in the SCAC in the regular season there are teams who are capable of pulling the upset: definitely Millsaps and Depauw, maybe Oglethorpe or Trinity. Still, it looks like Centre is a lock for the NCAA tournament.
Just imagine what life would be like for the officer. All day long his phone is going off every three minutes as people from all over text him about a stray dog or panhandler.
The guy whom I rent from puts out food for stray cats twice a day, every day. I don't mean a plate. He must go through 20 pound bags every two days. Which is fine as far as I'm concerned, but my dogs aren't quite so happy about it. The problem is that it ain't only cats coming down the hollow to get food, there are possums and all the stray dogs for miles and who knows what else at night. Oh, and let's not forget the guy who is raising chickens up on the mountain across from my house (which seem to come down the mountain at least once a week to hunt worms in my yard).
Obviously, this has made Fred paranoid. No matter how much food I give him the first thing he does is dump the bowl and bury it in the gravel of my driveway. It may not be the best protection in the world, but it seems to work.
Of course, that might also be because there's better tasting cat food just 250 feet down the road without the three (40, 40, and 80 lb.) dogs which bark at anything that comes near my house.
(That's right, it's now up to 3. A neighbor moved in with some sort of hound. The dog adopted mine. The neighbor moved on. He left his dog behind.)
Centre is 21-1, with 2 games left. The former #2 team, the UW-Whitewater Warhawks, got massacred by the UW-Stevens Point Pointers. So, Centre moved up from #3 to #2.
Conventional wisdom is that Centre is over-ranked and, with their propensity for comeback wins, I wonder how far they will go in the tournament (there are some teams you just can't let get a significant lead). Of course, convential wisdom is created by the Northophiles and the SCAC seems to me to be a pretty strong conference (Centre and Millsaps in the tournament and Depauw on the bubble). It'll be interesting to see how things play out in the tournament.
From the Social Services Fraud section of Virginia's code:
§ 63.2-522 - Whoever obtains, or attempts to obtain . . . public assistance or benefits . . . to which he is not entitled . . . is guilty of larceny.
So, this preempts attempt under both § 18.2-26 (felony attempts) and § 18.2-27 (misdemeanor attempts). The only problem here is that if the attempt convicts a person of larceny he can't be punished. Larceny under both § 18.2-95 (felony larceny) and § 18.2-96 (misdemeanor larceny) requires that a certain amount of money be stolen in order to punish.
Hmmm . . . Not sure how Mark figured out I was blogging back in 1973, but I was. It was tough back in those days since I had to build my computer and modem out of my Radio Shack electronics kit. Eventually, things got much better when I got ahold of, and hacked, an Atari 2600 (the folkes thought I was wasting all that time playing Missile Command). Eventually things got ridiculously easy once I got a Commodore 64, tape drive, and 300 baud modem. And the rest is history as we know it.
I know. I know. You're astounded. "But, Ken, won't they throw you out of the Prosecutor's Club if you don't swoop in like a vulture over the defenseless corpse of an unrepresented defendant?"
Not really. Whether ya'll like to hear it or not, most of the time you defense attorneys make things run much smoother in a courtroom (oh, great, I just sent all the true believers off to burn their Bar cards and withdraw from all their criminal cases). Sure, ya'll can be pesky with your constitutional arguments and insistence that I provide proof that your client is guilty. However, therein also lies the great advantage of having a defense attorney present. You know the law; you know procedure; you know the judge; you know a good deal when it's offered. Even if we can't agree on a disposition, I know that when I try a 30 minute reckless driving bench trial with you it will be a 30 minute reckless driving bench trial.
What do I gain if there's no defense attorney? Not much. Most of the time my case has been investigated by officers and investigators who were at the scene. My evidence isn't going to change much whether the defendant is represented or not. That's not to say there aren't any possible issues. Maybe ProSe doesn't raise a constitutional issue. Maybe ProSe will miss a statutory right, like Virginia's speedy trial statute. Maybe ProSe won't object if I break an evidentiary rule.
Of course, experience teaches that none of these things happen (at least not for me).
Pro se defendants, particularly those in jail/prison, raise all sorts of constitutional arguments. The problem is that often they are asserting constitutional rights which you, I, the judge, and even the Founding Fathers never heard of. They'll raise constitutional arguments which were fought over and well settled 25 years ago (against their position). Of course, sometimes the 40 page, hand-written diatribe "motion" has something in it which looks like it might be an actual issue. What, you missed it? It's on page 17, sandwiched in between his objection over the judge's denial of his subpoena duces tecum to have an entire physical cell brought to court on his day of trial and his assertion that he has the right to subpoena the Governor of Kansas because he was wrongly convicted of gambling there in 1991. So, the prosecutor and judge have to spend time trying to figure out what exact issue the defendant is raising. Meanwhile, ProSe doesn't want to talk about the sole actual constitutional issue he may have raised; he wants to re-argue his motion to subpoena Governor Kathleen Sebelius (despite having lost this argument 4 times already).
The same sort of thing happens with statutory rights. It's not uncommon to receive painstakingly hand written motions asserting that 18 USC 1234 gives defendant this procedural right or that, per State v. Smith, 2011 WY 12, ¶44-45 (explaining Wyo. Stat. Ann. § 99-01-2009), he enjoys that substantive right. Of course, none of this is relevant in Virginia. Even when they do argue Virginia law they're usually off somewhere in left field, trying to assert something which got changed in the law 5 years ago.
So, we've slogged through all that (or perhaps it's a misdemeanor and we haven't had to go through all of it). Comes now the day of trial. I brace myself for a trial that's going to take 3 times longer than it should. I call Officer Smith and he gives his testimony. Then Judge lets ProSe cross. Of course, ProSe doesn't cross - he starts telling his story. Judge corrects him, telling him he'll get a chance to do that later. ProSe asks a couple questions and, when he gets an answer he doesn't like, turns to the Judge: "Now, that just isn't right, Judge. It happened like this . . ." Judge has to keep reminding him to ask questions - not testify. This scene is repeated several times before the prosecution completes it's case in chief.
Next, Defendant calls his witnesses. I stand there trying to keep my peace, because I know objections will just prolong the torture and the judge is going to give ProSe a good deal of latitude anyway. Finally, it's too much and I just have to object. Usually, it's a question like, "Didn't you hear Bobby say May told him that on November 5th at 3:45 p.m. Mike used an extension ladder to climb to a second story window, in the back of the house, break the window, and go downstairs and steal the jewelry from the right middle drawer in the guest bedroom of Joe's house, so I couldn't possibly have been the one who stole them?" It's either object or have my brain explode in the middle of court. The judge tries to explain to ProSe why he can't ask that question, but ProSe doesn't get it and tries to ask the same question 4 more times, each with a slight variation.
Finally, the case is over. It took forever, clogged a docket, got where it would have a long time ago if there'd been a defense attorney, and frustrated the living daylights out of me. Give me a regular old trial with a defense attorney any day.
I Was the State has a post which shows a form used in one Texas jurisdiction for waiving representation in a criminal trial. I thought I'd put up the Virginia form.
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WAIVER OF RIGHT TO BE REPRESENTED BY A LAWYER (CRIMINAL CASE)
I have been advised by a judge of this court of the nature of the charges in the cases pending against me and the potential punishment for the offenses, which includes imprisonment in the penitentiary or confinement in jail. I understand the nature of these charges and the potential punishment for them if I am found to be guilty.
I have been further advised by a judge of this court that I have the following rights to be represented by a lawyer in these cases:
a. I have a right to be represented by a lawyer.
b. If I choose to hire my own lawyer, I will be given a reasonable opportunity to hire, at my expense, a lawyer selected by me. The judge will decide what is a reasonable opportunity to hire a lawyer. If I have not hired a lawyer after such reasonable opportunity, the judge may try the case even though I do not have a lawyer to represent me.
c. If I ask the judge for a lawyer to represent me and the judge decides, after reviewing my sworn financial statement that I am indigent, the judge will select and appoint a lawyer to represent me. However, if I am found to be guilty of an offense, the lawyer’s fee as set by the judge within statutory limits will be assessed against me as court costs and I will be required to pay it.
I understand these rights to be represented by a lawyer. I understand the manner in which a lawyer can be of assistance and I understand that, in proceeding without a lawyer, I may be confronted with complicated legal issues. I also understand that I may waive (give up) my rights to be represented by a lawyer.
Understanding my rights to be represented by a lawyer as described above and further understanding the nature of the case and the potential punishment if I am found to be guilty, I waive all of my rights to be represented by a lawyer in these cases, with the further understanding that the cases will be tried without a lawyer either being hired by me or being appointed by the judge for me. I waive these rights of my own choice, voluntarily, of my own free will, without any threats, promises, force or coercion.
___________________________________________ ADULT
Upon oral examination, the undersigned judge of this Court finds that the Adult, having been advised of the rights and matters stated above and having understood these rights and matters, thereafter has knowingly, voluntarily and intelligently waived his rights to be represented by a lawyer.
I rate The Bluegrass Conspiracy a 3.7.1 It's an intriguing look at a lot of things that were going wrong in the Commonwealth of Kentucky during the early days of large scale illegal drug importation in the 70's and 80's.
The book's anchor is a man named Ralph Ross, a Kentucky State Trooper involved in drug interdiction who was eventually thrown out of law enforcement and convicted for wiretapping. While Ross is just one of the primary characters in the book it is obvious that he is a major (if not the major) source of information and that the book strongly reflects his point of view.
The book implies a number of things without resolving the truth behind them. The Lexington, Kentucky police are strongly implied to be corrupt from the narcotics division all the way to the Chief of Police. Many of the criminals portrayed began their careers in the Lexington Narcotics Division. The book raises serious doubts about a Lexington Investigator John Bizzack; it never quite says he is corrupt and covering up crimes (including murder) for his former-police-now-criminal buddies, but it comes as close to the line as it can. BTW: Bizzack went on to be rather successful, publishing several police manuals and serving the last three governors as Commissioner of the Kentucky Department of Criminal Justice Training.
There is also an interwoven, but never proven, theme of CIA involvement. This is the only point where the author and Mr. Ross seem to part ways. More than once she writes dubiously about how Ross isn't buying the connection. Nevertheless, she lays out a number of questions as to how the Kentucky organization was able to thrive and why it took the feds so long to crack it (if they ever actually did).
The hook here is the involvement of Kentucky Blue-Bloods. It's made more interesting by strong ties between Kentucky criminals and Las Vegas Mob types (an interesting thing to consider now that the new Kentucky governor is trying to legalize casinos). Peripherally, there is also the destruction of Governor John Y Brown Jr.'s presidential aspirations as his good friends are taken down and he's never quite proven to be involved in anything.
I was growing up in Lexington during the time that all this was taking place. I remember my Father's abiding belief that Lexington and, by implication, all of Kentucky was extremely corrupt. I remember my Grandfather sitting on an investigative grand-jury until his death. Grandpa was a taciturn man, who took his duty not discuss the investigation seriously. However, word in the family was that he'd said something to Grandma to the effect of "They may not have broken any laws, but they're all dirty." So, I'm not terribly surprised to read any of this.
Still, reading this book was like entering a Bizzaro World Kentucky. Concerned that the book is one-sided, I went looking for critiques and counter-points. I didn't find much. Barnes & Noble and Amazon had the normal gushing reviews, with only one dissent in Amazon:
Don't believe everything you read, April 17, 2005 By anon "anon"
Though some people might find this book to be exciting and sexy and intriguing, please don't consider it as truth. This book should have been labeled as Fictional, which is what it is. Sally should have interviewed people who really knew the details-maybe spoken to members of the families involved, instead of spouting lies and touting them as truths. As a member of one of the families in the book, I know what I am talking about, and it hurts me deeply the lies that were told, which I can verify, matter of factly, were false.
And that's all I could find, even after doing separate searches on both Yahoo! and Google.
I did find one other thing that indicated the PD had been "cleaned up":
In 1990 . . . Walsh became Chief of Police. Walsh had never been involved in undercover work or narcotics investigations. He’d been a beat cop throughout his career, and was appointed Chief of Police to clean up the corruption within the department. After Walsh took office, many officers either retired or took jobs elsewhere, including David Shade and John Bizzack.
So, hopefully, any problems there were at LexPD have been squared away. Although, I wonder if the State Police are still exiled from Lexington.
-- 1 Book rating scale:
5: Touched by God - a work which makes Shakespeare look infantile 4: Amazing - Instantly began rereading it and quoting it to friends 3: Worth Every Penny - a solid, interesting read, inspiring some thought and discussion with people who share similar interests 2: I Paid For It So I Finished Reading It - Some interesting parts but if I lose the book I'm not buying another copy 1: Couldn't Force My Way Thru and Burnt the Book in order to consign it to the Hell it deserves.
The irony is that a grandstanding Judge Delahanty accused prosecutors of -- you guessed it -- grandstanding, and of wasting the court's time. He could, of course, save even more time if he simply dispensed with having prosecutors involved at all. Justice might not be served, but there would be more opportunities for everybody involved to enjoy an afternoon round of golf.
I see two possibilites here. The first is that the local prosecutors are being extremely aggresive in their pressing of technically correct, but unneeded objections. We've all seen (usually young) lawyers who object to things like the opposing attorney asking "You're John Smith?" Technically, the objection is proper because the question is leading. However, it accomplishes nothing good because all the opposing attorney is doing is confirming the witness' ID to the court.
The second possibility is that the judge, because of the need to speed through a docket (or similar reasons), is violating the rules of evidence for a purpose he thinks more valuable.
Of course, there's always a third possible reason: the judge just doesn't like prosecutors. However, there'd have to be more evidence to credibly assert that.
Centre College is ranked 5th in D3 Basketball and has a 19-1 record. The #2 team Mass-Dartmouth lost to Keene State (which only has a 13-8 record), so there's a chance that Centre moves into the top 4 if it can beat Rhodes (8-13) today. It's the last scheduled home game of the season and starts at 3 pm (after the last home women's game at 1 pm).
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.
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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