Y is for Youthful Offender

Youthful Offender.

 

Today is officially the last day of the monumental A to Z blogging challenge. I had an unfortunate (all is okay) incident with my thirteen year old daughter over the weekend. Nothing major happened, but it required my attention. She is young and was extremely upset about something and I was not able to attend to my blog. Family must always come first. So today I will be posting my letter Y and then this evening letter Z.

Youthful Offender. 

 

The law varies from state to state, but every state has a provision that allows a juvenile to be tried as an adult and upon conviction of a violent offense, sentenced as as an adult.

The Louisiana Children's Code, Article 305 states that when a child is fifteen (15) years of age or older, at the time of the commission of first degree murder, second degree murder, aggravated rape or aggravated kidnapping he is subject to the exclusive jurisdiction of the juvenile court until either one of two events occur, and I am paraphrasing.

A. (1) An indictment charging one of those offenses is returned.
     (2) The juvenile court holds a hearing and it is determined that the child should be transferred to adult court.

If The child is charged with one of many other enumerated felonies that include attempted murder, armed robbery, simple rape, aggravated burglary, among other violent offenses, the district attorney shall have the option of filing a petition to transfer the child to adult court or to keep the child in juvenile court.

This is a controversial topic. With the number of kids committing adult crimes on the rise, many people are in favor of and support treating the offender as an adult. Others, believe that it is much too harsh and that they are still kids and should be treated accordingly.

The difference being that a child who commits the act of murder and is tried and convicted as an adult would receive a life sentence. The child would be remanded to the custody of the juvenile department of corrections until the child's eighteenth birthday and then the child would be transferred to an adult prison to serve the remainder of their sentence.

If the child is tried and convicted as a youthful offended and receives a life sentence, the child will remain in a juvenile facility until their eighteenth birthday and then transferred to an adult prison to serve the remainder of their sentence, but must be released no later than their twenty fifth birthday.

Where do you stand on this sensitive and controversial topic?

X is for Xanax- Possession of Xanax without a valid Prescription is a Crime

X~~ Xanax to the Rescue or Xanax to a Jail Cell

Xanax abuse is becoming more common as the drug is available through illegal means via the internet, doc in a box pharmacies and pill mill doctors.

Xanax is also known as alprazolam, a benzodiazepine that belongs to the group of medicines called central nervous system (CNS) depressants. These medicines slow down the nervous system in your body. Benzodiazepines may be used to help keep you from being anxious or nervous, control seizures, or prevent or help panic attacks.

Xanax is listed as a scheduled IV drug, with schedule I drugs being the most addictive and potentially the most addictive and schedule V being the least likely to be addictive or harmful.

Possession of Xanax without a prescription is a felony that carries a sentence of up to five years in prison. Possession with intent to distribute or distribution of  Xanax, is a more severe penalty that carries a sentence of up to ten years in prison.

As a prosecutor, the distribution or possession with intent to distribute Xanax almost always involved the 2mg tablets, referred to as "bars". Xanax comes in dosages ranging from .25mg - to the 2mg bars.

The 2mg Xanax bars have a street value of seven dollars ($7.00) per pill

W is for Wagering on Cockfighting

Cockfighting is a Blood Sport Between Two Roosters Held in a Ring Called a Cockpit:

As of 2008, Louisiana became the last state to ban the sport of cockfighting. Wow, that's embarrassing. To live in a state that fought so hard to hold on to the right to watch roosters fight to their death.

Read This: Legislature Finally Votes to Ban Cockfighting in La.  But even then, our state debated for nearly a year on how to put an end to this neanderthal sport. There was talk of making it illegal to wager on the fights, but to let the show go on. Now it doesn't take a legal scholar to deduce that the the actual wagering (betting money on which rooster would kill the other first) was the primary enticement.  Then there was talk of spending another year to phase out the sport of cockfighting.

Excuse me, what the hell needs phasing out? 

You just say, "Yo, toothless man over there, listen up. Put your cock back where it belongs. We ain't playing games with your cock no more, ya hear?  If your cock needs tending to and the only way to get a rise outta  you is to bet money on your cock, well then I reckon that's something you and the misses need be doing in the privacy of your home."

Phase out- that's crap.

On Friday, August 15, 2008,  Louisiana  finally agreed to join the rest of the United States, making cockfighting illegal in all 50 states. The ban on gambling or wagering on cockfights took effect immediately thus reducing the number of spectators and fights. The law completely eliminating the sport took some more time, but eventually we made it, joining the rest of the nation, most states outlawed this barbaric sport in the 19th century. You can read the animal rights story here, Cockfighting Illegal in Louisiana: It's About Time


In a cockfight, roosters have sharp blades or spikes attached to their feet, and then are released in a pit where they battle each other to the death or until they can no longer fight. In this barbaric bloodsport, spectators place bets on the roosters, so banning the betting a year ago has already greatly reduced the number of cockfights and participants.


This is a short video clip and not one of the graphic ones, but warning: Do Not Watch if you have a weak stomach or if animal cruelty gets to you like it does me. This is not a cockfight in La., but I didn't see one one you tube. Then again, I didn't look long either. This sort of thing makes me ill.


How is everyone feeling? Are you ready for the month of April to end? Will you miss the A to Z blogging challenge?  I am ready to put more time in all that I have neglected this month, but I will miss the challenge and camaraderie.  Unfortunately I did not have an opportunity to visit as many blogs as I hoped to, but I intend to keep going through the list of A to Z participants even after the challenge ends. I would like to visit each entry at least once.

Voir Dire- The Process of Deselecting a Jury

Voir Dire: A French Term Meaning "To speak the Truth."

 Deselecting a jury

                    " Never forget, almost every case has been won or lost when the jury is sworn."

                                                                                                           ~  Clarence Darrow 1936

 John Adams described it as "the heart and lungs of liberty." Our legal process entrusts the most difficult disputes to a group of people who are strangers to one another and strangers to the parties to the lawsuit. We submit crucial questions involving property, liberty and life itself to a random slice of the community's population. We call that group a "jury."

What is Jury Selection?

Jury selection is the process whereby lawyers exercise their prejudices to prevent jurors from exercising theirs.

It should really be called "Jury Deselection" as the primary function for the attorneys on both sides is to identify the ones who are leaning against their side and through a series of exercising peremptory or cause strikes, remove them from the jury.

Through voir dire (jury selection), an attorney can challenge a prospective juror "for cause" if that person says or otherwise expresses a bias against the defendant or the judicial process.
A "for cause" strike is exercised when a juror is disqualified as a matter of law. Any person who is too young, not a citizen, is a felon, is insane, or fits a small number of other disqualifying points, is disqualified as a matter of law and cannot serve. Primary among these would be any juror who is so biased against one party or the other that they could not put that bias aside and judge the case on the merits.
  Each side also has a limited number of "peremptory" challenges for which no reason to strike is required, with the exception of striking a potential juror solely because of their race. The peremptory challenge is the primary tool for jury selection that lawyers have. Generally, we do not "select" jurors -- we de-select them. The first twelve people in the box will be the jury unless the Prosecution or the Defendant strikes one - either through a peremptory challenge or "for cause." Those individuals who are accepted by both sides are impaneled and sworn in as the jury. Jury selection in a like a game of chess whereby each side hopes to outwit the other before running out of play pieces.
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  Lawyers must master the skills of knowing how to read a jury.  I am in the group of attorneys that believe that jury selection is the most important part of the trial. I believe you win or lose your case during voir dire because if you select or rather, "de-select" the wrong jurors you have lost or have an up hill battle.  Hands on training-actually trying cases is the best way to improve the people reading skills necessary to pick a jury that will favor your side, but lawyers also attend numerous classes and training seminars designed to teach the art of jury selection


And,While still using the letter V, I would like to share with you a clip from one of my all time favorite movies, one I am sure you have all seen. My Cousin Vinny has to be one of the funniest films I have ever seen. I loved it.


We are just days and letters away from the finish line. Be sure to visit as many bloggers as possible who are participating in the 2012, A to Z blogging challenge

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Undercover Law Enforcement Agents: Should There be Limits?

U/C: In the legal community stands for Undercover Agent.

Should there be limits to what undercover agents can do in order to infiltrate the organization they are investigating?

Undercover work, especially long term and what is referred to as "deep cover" agents are always in great danger. I was very close to a D.E.A. undercover agent, we worked together for many years before and after his "deep cover" assignment . He had what I consider one of the most deadly assignments. He worked undercover for over four years before he was able to infiltrate the Hell's Angels gang. I am certain that if his cover had been compromised, they would have killed him.  I remember the looks his so called 'brothers' gave him as they watched from the defendants' seats in the Federal Courthouse, Florida as he took the stand, cleaned up, with his short cropped hair and neatly shaven face. It was a far cry from his undercover appearance.

Before my friend went undercover, the United States government created a completely new identity for him. He had a new name, drivers license, credit cards, social security card, a criminal rap sheet that falsified several convictions, a falsified credit history and much more. He had his "cover address" which is where he resided for most of the four years. He was permitted time to go home and be with family, but it was difficult to arrange. Needles to say his marriage did not survive.

Undercover work (especially for prolonged periods) can be hazardous to an officer's psychological and physical well being. To begin, for an undercover cop to pass for and be accepted as a criminal, he or she has to think and act like a habitual offender. The U/C is always on stage and must perform accordingly as one mistake could jeopardize the operation and/or place the officer in grave physical danger.

But what happens when they (and it is a given that they will) witness heinous crimes being committed in front of their eyes? They can't just jump up and intervene, can they? Loss of credibility leading to a blown identity while investigating violent criminals can be life threatening. My friend had no doubt that if the Angels had discovered he was a cop they would have killed him on the spot.

U/C's will find themselves witnessing offenses committed by members of criminal organizations, a scenario that can trigger a serious moral dilemma. Should they attempt to intervene and stop the crime, or remain passive and protect their undercover identity? In Dallas, a U/C feigned sickness (so as not to participate) and watched as gang members raped a woman in the course of a violent physical attack. The officer justified his inaction afterward, noting that he didn't want to ruin his credibility. 

Another sensitive moral issue is that of U/C's having sexual relations (to gain information) with individuals they are investigating. During the course of an undercover operation, a federal agent impregnated a member of the radical Weather Underground. The agent talked her into having an abortion, and the relationship ended when he was sent on another assignment. The woman never learned his true identity. Read about it here.

I understand the need for undercover police work. Without it, we would be unable to combat prostitution rings, drug cartels, street gangs, outlaw motorcycle gangs (OMGs) and extremist groups on both the political left and right including the Ku Klux Klan, neo-Nazis, skinheads, and militant separatist groups.

Here are my questions:

1. How far should law enforcement be permitted to go undercover in order to bring down dangerous and violent criminals.  Law enforcement can deny that undercover officers actually participate in any of the illegal acts of the groups they have infiltrated. You be the judge. Do you think the Hells Angels would allow a man to remain a member if he refused their initiation ritual of having sex with the hogs' women? If he said, "I'll pass", every time drugs were offered? I know that agents are trained to assimilate the use of drugs, but folks, if your life depends on it, are you going to try and fool a Colombian drug lord or the head of the Hell's Angels or the Outlaws?

So how far should they be permitted to go? Should they have to stick to the law just like your average Joe Q. Citizen? Should there be limits to what criminal activity they can and cannot participate in or observe? Should their behavior be excused (up to an extent-I mean we cannot justify a murder just so a cop can join an organized crime group)? Do you feel like we should just look the other way and leave it up to the trained law enforcement agent to use his years of training, education and experience to determine what is and is not necessary?  Do the means (undercover officers participating in criminal activity) justify the end (putting the dirt bags behind bars)?

2. Do you think there should be a time limit for deep undercover work? Should an agent be required to come out from deep cover after a period of time? Is it inevitable that an U/C will eventually begin to merge with his cover after pretending to be someone else for so long?

3. Could you be married to or in a serious relationship with a law enforcement officer who will spend months and even years in deep undercover situations?  These officers are necessary. They are however, trained to lie. They become exceptionally deceptive or else they would not make it in their line of work. Would you have a difficult time trusting someone whose life is living a lie and making others believe that lie?


The end of April is near. Make an effort to give it a final push and continue to visit as any new bloggers who are participating in the A to Z blogging challenge.

Theft of an Alligator and Theft of Crawfish

Keep Your Thieving Paws off My Alligator:

Back off Boudreax, that's my alligator. Yup, she's mine and her name is Annie.

And just so you know, in Louisiana, theft of an alligator is a crime.

LSA-R.S. 14:67.13 Theft of an Alligator

A. Theft of an alligator is the misappropriation or taking of an alligator, whether dead or alive, belonging to another, either without the consent of the other, or by fraudulent conduct, practices or representations with the intent to permanently deprive the other of their alligator.

B. Whoever commits the crime of theft of an alligator when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned with or without hard labor, for not more than ten years, or fined not more than three thousand dollars, or both

Now, some of us in Louisiana don't have a pet alligator in our backyard, but we won't put up with you thieves, taking our crawfish. If you haven't eaten crawfish you are missing out. I'm from Louisiana and I always look forward to crawfish season (cause I like to have crawfish boils ~big parties) and eat them mud-bugs.

I am not as crazy as some of my neighbors who do get offended when their crawfish are stolen. Why would they get so upset, you ask?  Well, because you might take their best, favorite or fastest crawfish thus depriving them of the time honored tradition of wagering on crawfish racing.

And if you think I am joking, watch the video below. The actual crawfish race begins at about 50 seconds into the video.

LSA-R.S.  14.67.5 Theft of Crawfish

The definition and penalty is the same as the above Theft of an alligator

And don't forget to check out as many other blogs in the A to Z blogging Challenge as you can. We are getting close to the end.

Sentencing in Criminal Cases

S is For Sentencing in Criminal Cases

 

I intended to write about something different for the letter S, but I noticed in the comment section of my previous A to Z themed post (Criminal law & Procedure) that many of you had questions about the sentences for various crimes. In an effort to keep this short, I know it will not answer all questions, but hopefully it will expound on the topic.

The La. Code of Criminal Procedure Article 871 provides that a sentence is the penalty imposed by the court on a defendant, upon a plea of guilty, upon a verdict of guilty or upon a judgement of guilty and shall be pronounced orally in court and recorded in the minutes of the court.

A Misdemeanor is any crime that is not a felony. A felony is any crime in which the offender may be sentenced to death or imprisoned at hard labor. Put another way: A misdemeanor sentence cannot exceed a period of incarceration of 364 days in the county, or in my case (Louisiana) the parish jail. A felony sentence is a sentence of one year or greater and is served in prison as opposed to the county or parish jail.

I hope this helps with some of the questions a few of you had from my earlier post.

Have you visited the other A to Z participants, the link to the left will take you to the sign up list.

Reasonable Doubt: What is Reasonable?

Burden of Proof in a criminal case is Beyond a Reasonable Doubt.

Unfortunately that is about as far as the law goes in explaining the complicated concept.
 La. Code of Criminal Procedure Article 804 states:
     (A) In all cases the court shall charge the jury that:
       (1) A person accused of a crime is presumed by law to be innocent until each element of the crime, necessary to constitute his guilt, is proven beyond a reasonable doubt.
       (2) It is the duty of the jury, in considering the evidence and in applying to that evidence the law as given by the court, to give the defendant the benefit of every reasonable doubt arising out of the evidence or  out of the lack of evidence in the case; and
       (3) It is the duty of the jury if not convinced of the guilt of a defendant beyond a reasonable doubt, to find him not guilty.

Sounds easy enough, right?  Surely we all understand the the difference between innocent and guilty. It's as easy as recognizing the difference between black and white.

None of us seem to have a problem differentiating innocent from guilty. It is the concept of not guilty that stumps us. Very few lawyer or judges understand it, yet we attempt to explain it to a jury. What does it mean? What does it imply? How easily is is misunderstood, misconstrued or distorted?
                                                                    
Beyond a Reasonable Doubt
The highest burden of proof in any court proceeding is proof "beyond a reasonable doubt." When a person stands trial, the jury must begin with the assumption that the accusations against defendant are false. A juror can only find in favor for the government at the end of the trial if the prosecution has erased all reasonable doubts about the defendant's innocence from the juror's mind. 

Here is the chart that the defense attorney used as demonstrative evidence during closing arguments  in the Casey Anthony trial to explain the concept of reasonable doubt to the jury.

 and here is another chart that is routinely used by defense attorneys in criminal case to explain the concept of reasonable doubt to a jury.

Would you recognize it if you saw it? What is a reasonable doubt? We know it does not mean all doubt, but how much doubt can a jury have and still in good faith vote to convict?

Today's letter in the A to Z challenge is R.  Reasonable Doubt.  Click on the link to visit all of the 2012 A to Z challenge participants.

Motion to Quash an Indictment

What is a Motion to Quash? 

First of all, yes, the correct word is "quash", not "squash" as many people believe.

The La. Code of Criminal Procedure (all states have their own similar code of criminal procedure),  Article 531 states that all pleas or defenses raised before trial, other than mental incapacity to proceed or pleas of "not guilty" and of "not guilty and not guilty by reason of insanity," shall be urged by a motion to quash.

 The defense challenges all other pretrial issues such as a flawed  indictment or an improper subpoena of a person or of specific business records or personal files by filing a motion to quash.

 I found this humorous article about a motion to quash a subpoena issued to Twitter by the Manhattan District Attorney's office seeking all of the tweets of a single occupy Wall Street protester who was arrested during the Brooklyn Bridge protest. Apparently the arrested individual protester, while waiting inside the police van, wondering where he was being taken and when he would be released, tweeted the following: "Help, I am being kidnapped by armed thugs." It seems the NYPD was not nearly as amused as I was

What I found amusing was what the judge asked the prosecutor on the morning of the hearing for the motion to quash the subpoena issued to Twitter. The judge turned to the prosecutor and asked, "Where is Twitter?" He asked as if under the impression that a person named Mr. Twitter failed to appear in court.


This resulted in a loud outburst of laughter in the courtroom followed by a round of applause and a moderate outburst of anger from the courtroom deputies and ultimately a couple of spectators being removed from the courtroom.

"New York County Criminal Court Judge, asked the prosecutor, Where is Twitter?"

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  The legal definition of quash:




quash v. to annul or set aside. In law, a motion to quash asks the judge for an order setting aside or nullifying an action, such as "quashing" service of a summons when the wrong person was served.

Microsoft asks the Court to Quash Samsung Subpoena

In a motion filed with the court late Tuesday, we find that Microsoft is trying to quash a subpoena served by Samsung.

 As you can see, a motion to quash is often filed by a corporation in attempt to keep from having to turn over sensitive business documents to a competitor. It is also filed in criminal cases to challenge indictments & other charging instruments.

 Have you checked out the other participants in the 2002 A to Z blogging Challenge?

Peeping Tom is a Crime in Louisiana

Peeping Tom:

LSA- R.S. 14:284

No person shall perform such acts as will make him a "Peeping Tom" on or about the premises of another, or go upon the premises of another for the purpose of becoming a "Peeping Tom."

"Peeping Tom" as used in this section means one who peeps through windows or doors, or other like places, situated on or about the premises of another for the purpose of spying upon or invading the privacy of persons spied upon without the consent of the persons spied upon. It is not an element of the offense that the "Peeping Tom" be upon the premises of the person being spied upon.

Whoever violates this section shall be fined not more than five hundred dollars, or imprisoned not more than six months or both.

The above penalty means this crime is a misdemeanor.  I did not choose this crime because "voyeurism" is an unusual crime. I am sure that every state has a provision of the penal code providing that "voyeurism" is a crime. 

The reason I chose this particular crime is to demonstrate how odd or backwards some of the Louisiana laws and crimes are.

This crime, which is basically, voyeurism, is still called the "Peeping Tom" crime. It is written that way in the criminal code and the statutes. I always thought of the word "Peeping Tom" as slang for voyeurism. 

Don't forget to visit the other bloggers participating in the 2012, A to Z blogging challenge

Objections in a Criminal Trial

"I object, Your Honor. This trial is a travesty of a mockery of a sham of a travesty of two mockeries of a sham! "
                          Woody Allen as Fielding Mellish (Bananas 1971)    

I object. The exhibit is confusing, unfairly prejudicial, misleading, irrelevant, barred by the exclusionary rule, and not a fair and accurate representation of what it purports to represent.

I don't make the rules. I just play by 'em.

If you want to play the game, you had better know the rules of the game.

And if you want your opponent to play by the rules, you'll not only have to recognize the infraction, you'll have to complain to the referee and tell him/her exactly which rule was violated by the opposition.

In a trial, if the opposing counsel ask an improper question or a question that calls for an improper answer, you must object before the witness answers the question.

There will be no ruling by the court excluding or admitting evidence unless you or opposing counsel objects. The only consequence for the prosecutor's failure to object is that the jury will hear the evidence that may or may not be admissible. Just because one side objects does not mean they are right. The judge acts as a referee and makes a determination. It goes something like this.


Prosecutor to Witness on the stand: Who killed Valerie Victim?
Witness: Danny defendant, I know because my b/f/f told me that her baby daddy's cousin said someone in the neighborhood told her they saw him do it.

Defense attorney: Objection, your honor. This is triple hearsay . This witness cannot testify to what someone else said or what she may have heard. She can only testify to acts that she actually witnessed.

Judge: Madame Prosecutor, do you have a response.
Madame Prosecutor: Yes judge, each of the acts of hearsay falls within one of the exceptions.

Judge: Okay, I can see that we are going to need to discuss this outside of the presence of the jury and perhaps proffer testimony and hold an evidentiary  hearing, so Mr. Bailiff would you please escort the jury out of the courtroom and at this time we will take a 30 minute break.  (jury rolls eyes & shuffle around, sighs, moans and groans can be heard because this is like the third time they have had to leave the courtroom and it is not even noon)

The judge will then hear argument by both sides. This is obviously done outside the presence of the jury so they will not hear evidence that may be inadmissible.

 

The judge will then make a ruling.  If he agrees with the side making the objection (the side opposing the question asked) he will say on the record:  "The objection is sustained" 

 this means that the lawyer who asked the question may not ask the question.  That lawyer will object to the court's ruling.  Most of the time, because the judge knows that the losing party must object to his ruling in order to preserve the right to appeal the issue (this applies mostly to the defense attorney because the prosecutor cannot appeal a loss~ a not guilty verdict), the judge will just say , "your objection to the court's ruling is noted". This saves time and the court reporter knows to put it in the official trial transcript.

If the judge does not agree with the side who makes the objection, the he will state on the record, "Objection overruled". 

The prosecutor does not have any real consequences for failure to object or failure to object to the court's ruling.


Objections are a much more delicate issue for defense attorneys.  They are often faced with a situation of whether they even want to object or not. An attorney who continues to object to everything (especially if they lose) risk appearing to the the jury that they are trying to hide information or evidence from the jury.  For this reason, a seasoned attorney will make a tactical decision not to object to the prosecutor's improper question if the answer does not hurt his client or the case.


The problem arises when a defense attorney fails to make a contemporaneous objection. The objection must be made as the objectionable issue is happening. Attorneys have a good idea how a particular judge will rule and can tell beforehand when the judge is likely to rule against them. The attorney, however, must object anyway, if they want the judge's erroneous ruling to be one of the issues of the appeal if their client is found guilty and convicted.

             Be sure to visit the other bloggers who are participating in the A to Z blogging challenge.

Nolle Prosequi or Not Guilty: What is the Difference

Is There a Difference Between a Nolle Prosequi of Criminal Charges and Being Found Not Guilty?

Yes. There is a big difference. The effect of a Nolle Prosequi is not the same as the effect of a not guilty verdict.

What is a Nolle Prosequi?   

A Nolle Prosequi, the Latin term meaning, "be unwilling to pursue", is a formal motion or entry made on the record by the prosecutor in a criminal case that he will not prosecute the case further, but it does not prevent the charge from being brought up at a future time.
The effect of the nolle prosequi, is to put the defendant without day. In some jurisdictions, after the nolle prosequie has been granted, you will hear the judge say to the defendant, "Go hence without day."  It does not operate as an acquittal.

Why would the prosecutor enter a Nolle Prosequi?

The motion is often made because the prosecutor does not believe that he can prove the charges because the evidence is too weak to carry the burden of proof (beyond a reasonable doubt). This does not mean that the prosecutor believes the accused is not guilty, only that he cannot prove it.

How Does a Not Guilty Verdict Differ From a Nolle Prosequi?

"We the jury find the defendant not guilty of_____...."

Once a jury has returned a verdict of "not guilty" the person standing trial is free to go and all charges pertaining to that trial are forever dismissed. The 5th amendment of the U.S. Constitution provides, "No person shall...be subject for the same offence to be twice put in jeopardy of life or limb." This provision is known as The Double Jeopardy Clause.

A number of high profile cases in the last year have shaken the average citizen's core belief in the judicial system, none more so than the case of the State of Florida verses Casey Anthony. This compels me to point out that a jury does not find a defendant innocent. That is not their job, nor is it within their power. The jury has only two options in most cases (in some cases they have the option of returning what is called a "lesser or responsive verdict"-still a guilty verdict).

     1.  Guilty as charged

     2.  Guilty of a lesser included charge

     3.  Not Guilty

A verdict of "Not Guilty" can mean two completely different things

A not guilty verdict can mean that the jury truly believes that the defendant is not guilty of the crime for which he is charged. The jury can believe that the person charged, did, in fact, not commit the crime for which he stands accused of.
It can, of course, mean something entirely different. A verdict of not guilty can mean "not proven" as in the prosecutor has failed to meet the burden of proving the defendant guilty, beyond a reasonable doubt.  Even in cases where the jury is sure that the defendant is guilty, but the state has failed to prove it beyond a reasonable doubt, then by law it is their sworn duty to return a verdict of "not guilty".

The jury's job has absolutely nothing to do with the concept of innocence. The sole purpose of a jury in a criminal trial is to weigh and analyze the evidence (or lack of evidence) that the state has presented and determine whether or not it is enough to satisfy the very high burden of "proof beyond a reasonable doubt".

I believe this is concept that so many horrified spectators had with the jury's verdict in the Casey Anthony trial.  I watched the trial on television. There was no way I could watch every single minute of it so I, like so many others, did not view the trial in the same way that the jury did. The public, including me, had the added commentary of the talk shows and other media hype. We saw evidence on television and on the Internet that was inadmissible and therefore not presented to the jury.

I felt certain that Casey Anthony was guilty-of something. Was it first degree murder? I don't know. Did she intentionally plan to kill her baby and carry out that plan?  I don't think that is what happened, but remember, I don't know all of the facts of the case.  In my opinion (and that is all it is and it is worth nothing here), I think that Casey Anthony sedated her child so she could go out and party and her child died as a result.  Is this criminal behavior- hell yes. Should she have been held accountable and punished? Hell Yes-if the state of Florida proved it beyond a reasonable doubt.

I remember telling my family that she would be found not guilty. They were irate, they acted as if I had just told them I believed she was innocent. We were talking about two completely different concepts. I believed that the state would not be able to proved beyond a reasonable doubt that Casey Anthony murdered her child. One of the reasons for the lack of evidence was the badly decomposed body and the amount of time that lapsed between the death and the discovery of the body.  Enough about Casey Anthony-I could write a mini series on what I think about that case.

I share in the outrage of so many that she was allowed to go free, but like it or not-our judicial system worked that day. If it is to ever work for an innocent person (yes, there are cases of people who are wrongfully accused) then it must also work for a guilty person. Regardless of how much we want someone to pay for the crime we believe they committed, we must hold the government to their burden or our system would never work.

     "Each time a member of the media or other citizen states that William Kennedy Smith or one of the officers accused of beating Rodney King was found "innocent," they are not only incorrect, but are also ingraining within potential jurors a misconception about their role. They enhance the risk that enough jurors on a panel will retire into a jury room believing that it is their task to determine whether there is enough evidence to find a defendant innocent." 


 Attorney, Hugh Duvall, has an excellent and informative article explaining the difference between not guilty and innocent on his website.

Criminal trials should not be equated with a search for the truth. They are merely a process for testing the evidence. Can the state prove the charges against the defendant beyond a reasonable doubt?

"Not guilty means nothing more than making the prosecutor prove his case. To assign any other meaning would turn the system on its head." Visit the Waco Criminal Law Blog, or more information on "What Does Not Guilty Really Mean".

Nolle Prosequie~ we don't think we have enough evidence to win our case at trial and we don't want to chance it because if we lose at trial and the jury returns a not guilty verdict then we are prohibited from ever bringing charges against you in the future-even if new evidence comes to light that conclusively shows that you are guilty.  With a  nolle prosequi, we reserve the right to bring these charges against you in the future.

Not Guilty~ game over, defendant goes free.

Visit the official 2012 A to Z Challenge sign up list, for links to all of the bloggers participating.

Do you have your 2012 A to Z blogging challenge navigation button?

Maryland, Massachussetts, & Illinois: Illegal to Record Police Officer, Face life in Prison

M-  Murder and Illegality of Recording Police Officers

My original topic choice for the letter M was murder, but after viewing this video clip, I decided to go with the illegality of video recording a police officer in public.  How does this fit the letter M requirement? 

The first video I watched occurred in Maryland, the second in Massachusetts and the third in Miami. HmmMMMM. I saw a pattern of M's. What sealed the deal, was the video of an Illinois man who faces 75 year for the crime of "eavesdropping", because he recorded the police in public. When the judge in that case announced the severity of the sentence is equal to a sentence for Murder, I felt drawn to the story and compelled to share it. Lastly, the man who provided me much of the footage I viewed and used from Miami, is named Carlos Miller. 

So I think I have covered the reason why this story fits under the category or letter M 

 

In Maryland, Massachusetts and Illinois  it is illegal to record an on-duty police officer even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists.

Video kind of long, but the first 60 seconds tells enough: Man faces 75 years in prison for recording a police officer without consent.  That is as long or longer than most sentences in that state for murder.

Matt Lutton & Scott Brauer share news and pictures that they find interesting on their Photojournalist Blog

For further reading and to keep updated on the laws against recording police officers, read Carlos Miller's blog Photography is not a Crime.  

Carlos Miller is a Miami Multimedia journalist who has been arrested three times for recording police officers in public. He was beaten by the police during two of those arrest, including one charge and subsequent conviction for Resisting Arrest, a conviction that was later reversed by a higher court.

Miller is in the process of fighting a third arrest, in which the Miami Dade police deleted his footage. The full uncensored video clip can be viewed on his blog.

Below is the raw and uninterrupted five minute clip of Carlos Miller's arrest. It is shocking. The police covered by shields in platoons look like Stormtroopers charging a bomber or terrorist, not a man  they want to arrest for videotaping a police officer in public. What a waste of money, I mean look at the number of  officers used to arrest one non violent, unarmed man. No wonder they deleted this clip from his camera. It is an embarrassment to the Miami Dade Police force.

 

Here is an update on the arrest of one Maryland man for recording the police. A judge ruled that the police and prosecutors were wrong to arrest and charge a man for taping his own traffic stop and posting it on the internet. 

Thank god, this judge recognized the absurdity and illegal interference with a man's 1st amendment rights.

Click on the link to be directed to the sign up list of all the participants in the 2012 A to Z blogging challenge.

Have you added the official A to Z blogging challenge navigation button to your blog. The navigation button code can be found on Marcus's fiction writing blog and one of the many benefits is the ability to quickly navigate the challenge without having to scroll up and down a really long page.
Just remember when you look at the button on my sidebar that that it is not indicative of the actual number of blogs I have visited during the challenge.  I just installed it a day or so ago so it does not reflect the number of blogs visited prior to April 12th.  It is still really cool.

So, back to you... What is your opinion on whether or not is should be illegal for a citizen to video record a police officer in public.  It you stumbled upon a clear incident of police brutality and you had your phone with you would you attempt to record it as it could later be offered as evidence in a court of law?

I was a prosecutor for twenty years and I worked very closely with a number of law enforcement agencies from the city and parish level to the state and federal levels and I have the utmost respect and admiration for law enforcement. They have a difficult job to do and their job is becoming increasingly more dangerous all the time. They risk their own lives to get criminals off the streets and they put their lives on the line every day in an effort to make our cities and towns, safer places to live.

Having said that, I also agree that you will find bad apples in every line of work and profession from school teachers to plumbers, to elected officials and law enforcement officers are not excluded or exempt from this statement.  One bad apple does not make a rotten tree.  On one hand, I can see how citizens shouting and thrusting video cameras in police officers' faces as they try to work a case can cause a disturbance. On the other hand, if not for the private recordings made by ordinary citizens then many cases of severe police brutality would go unnoticed, unreported and those police officers would continue to run rampant while administering their own kind of street justice.

What's your take?

L~ Libel and Slander: Understanding Internet Defamation

Libel and Slander: Internet Defamation

With the advent of the internet , defamation of character is as easy to perpetuate as a blogpost.

The average person now has the ability to publish a statement, article or news item across the globe in a nano second, without an editor checking the facts. From that moment on, the statement whether it is good or bad, right or wrong, true or false, will linger in cyber space for months or even years, impossible to recover and correct, if the facts are erroneous.

Do you see the inevitable problems that must be on the rise?

As liberating as the cloak of anonymity must feel to some people, it is not a license to write negative comments about another person or a business with the intent to hurt or destroy them.  People still have their basic legal rights intact on the net, and ~likewise~ the internet is not as completely anonymous as the typical person presumes.

Is internet anonymity a license for libel and hatred?

What is defamation?

Here is a very basic and simple definition that does not cover all the details, privileges or acts or per se defamation

1.  A false statement of fact: if written it is libel, if spoken it is slander

2.  Must be made publicly or made to at least one third party- published to someone other than the one defamed

3. Made negligently -malice required if the injured party is a public official

4. That causes damages - tending to harm the reputation of the person defamed

On line slander can ruin a person's life. It is the equivalent of digital poisoning.

Blogs and forums

Blogs can damage your reputations as severely as any other type of on line commenting section. Just google the term “Dell Hell” or The Psycho Ex Wife Blog,  to see what I mean. Actually, The Psycho ex wife blog has been removed by the owner (the girlfriend of the ex-husband involved in a bitter custody battle) by order of the judge presiding over the child custody case. There was some hype a while back about the ex husband and girlfriend appealing the court’s order as an intrusion of their 1^st amendment rights, but I have not read anything lately about the status of the case.  Was the judge wrong? Did her order to take down the offensive web site violate the free speech rights of the ex husband and his current girlfriend to post horrible, mean, negative, derogatory remarks about the ex-wife? I don’t know the answer to that.

It is a close call. But in my opinion it is not the right “test case” to take all the way to the Supreme Court.  However, I see here that the husband and girlfriend are seeking help from the public to save his blog and the right to degrade his ex wife. Check it out, Save the Psycho Ex Wife Blog

 Why? Because it would subject the minor children to years of exposure to the horrible things daddy and g/f wrote about mommy and they were already struggling at home and school after discovering the site’s content. 

In addition, if the remarks were false- and the judge who was presiding over this lengthy and complex custody case for several years, believed they were then the content of the site would not fall under speech that is protected by the first amendment. 

Here is a short clip about the subject.

Have you or anyone you know been the victim/target of internet libel?

I have and I can tell you that it is like living hell.

From sibling rivalry to animosity between former spouses, the trend is toward people moving their disputes and disagreements to a World Stage- The Internet.

A man named Ben, whose story is told in Violated Online a book written by Steven Myar

 

 Steven Myar's book Violated Online has an interesting perspective to share. To purchase the book, click on the link and it will take you to Amazon.com

     "Our founding fathers could not have foreseen the global ramifications that such freedom has. Unlimited technology, spontaneous broadcast, no civil decorum and the constitution have combined to unleash a very real weapon of mass destruction on an unprepared population."

Remember the movie, Fatal Attraction? Who could forget the frightening terror that the antagonist (played by Glenn Close), after a fling with a very married, Michael Douglas, launched on her bed buddy after he rejected her and told her that their fling meant nothing to him- he loved his wife and only is wife.  I bet that film scared plenty of married people whoever considered having a one night stand, seriously reconsider the idea.

Like the old saying goes, " Hell hath no furry..." Well, I have my own saying to add. "Scorn quickly escalates to rage."

My personal experience with an internet stalker on a crusade to destroy my life started with a woman who mistakenly believed I wanted an ex back in my life. She has since written a formal apology to my daughter and me for the hurt and pain she caused us by posting crazy, untrue and cruel comments about me on line. She had admitted to making the comments under the veil of anonymity, but not until after my teenage daughter stumbled across the grotesque remarks, such as I didn't love my children, I had confessed to her that I was going to kill my entire family including my children, that my children hated me and begged for strangers to take them home, that I was a prostitute who engaged in sexual activities with my clients in exchange for drugs, and many more. I just got nauseated reliving the terror of that woman and how much she made my children cry.  I didn't think I would ever write about that horrific experience, but I hope that people can see how much damage we have the power to cause if we let our emotions dance with our keyboard when we are angry, hurt, or not thinking clearly.

Gone are the days of gossiping about someone in the restroom and when we come to our senses we apologize and people move on to the next topic of gossip withing a couple of days.  We live in a a time where whatever we write on the internet will be with us forever. It can come back to haunt you.

This woman wrote her outlandish comments either as "anonymous" or often she took on a fictitious role of someone like a friend of the family, a swim coach, a neighbor, She pretended to be anyone from a former next door neighbor to my son's school teacher. Unbeknown to her, I was the room parent for my son's classroom at the time and the teacher was livid when I showed it to her.  This woman's comments were so scary that I began to question her mental stability and I feared for the safety of my kids. I was afraid she my pose as a friend and try and take them from a sports practice or something.  I was a nervous wreck, walking on eggshells.

As I said, she finally took responsibility for what she did. She admitted writing all of the mean, untrue and malicious comments about me. But not before

(1) My teenage daughter read the horrific remarks

(2) Not until after I paid a boat load of money to hire an internet defamation attorney and a "cyber detective" to track her IP addresses and other digital data he referred to as the digital fingerprint or digital  D.N.A.  and I had concrete proof that she was the lone commenter who left dozens of comments all designed to destroy me.

It is a sick and hopeless feeling to have someone on the prowl attacking you like this.  The woman did admit in her apology letter that she finally realized that I was not then nor had I ever been a threat to her relationship (I was happily married with a family). She stated that it was her own insecurity of losing her partner that prompted her to  act impulsively late at night when she was drinking, vulnerable and alone.  I actually felt sorry for her- a little

Does she know the damage she caused me? My family? My business? Doubtful

Does she care? I don't know-Doubtful.

I brought this up for a few reasons.

1.     Be careful when you allow anonymous comments on your blog. Check to make sure the person is not using your blog to spread her hate. While you are protected, that protection is not absolute. Once you know that someone has posted libel on your blog and you have been asked to remove it, you could possible open yourself up to liability. The current law is designed, however to protect the blog owner from this.

2.     Be careful what you write about someone in a moment of heated anger.

3.     If you are the victim or target of an online defamation slam campaign, think twice before you react and respond to the comment. Your added rebuttal comment on a complaint site may cause the negative content to rank even higher on google and other search engines

4.     Learn the internet defamation laws and how they apply to you as a blog owner so you don’t find yourself unnecessarily in the middle of a heated court case that does not even concern you

I realize this is a super long post. I apologize. I got carried away because this a subject that still causes me a great deal of anxiety.  I won't include the rest of what I have for today. I will leave you with a few tips and then when the A to Z challenge is over I will do a series of articles on this because it is important for everyone to protect their online reputation. There are ways you can arm yourself against future slam attacks. I will share all if it in my May, blog series on internet defamation and protecting your online reputation against haters, competitors, etc.

I will end with this tidbit of information:

Top three bullies who launch false, vicious and negative slam campaigns against innocent victims on the internet

       1.     Competitors for jobs

2.    Competitors for customers

3.     Competitors for love

Online anonymity empowers lonely troubled and spiteful attackers to say things they would never say in person. It allows an attacker to smear a victim (or even impersonate a victim) and then retreat into the shadows without any consequences for their actions.

I support free speech, but false, cruel, defamatory statements on the internet have nothing to do with promoting the “marketplace of ideas” envisioned by the drafters of the United States Constitution

Don't forget to check out the other entries in the A to Z blogging challenge

Click here for the bizarre story of a stalker who sues his victim for defamation of character