Showing posts with label criminal law. Show all posts
Showing posts with label criminal law. Show all posts

Wednesday, April 21, 2021

Life taking a cue from Art

In this case Nancy Pelosi doing her version of the Q&A in the Black Church segment from the film Bulworth.



The clip from the film


The movie clip is actually closer to how the "Democratic" party uses identity politics to try and drum up votes. The irony is that the Creepy Joe-Horrible Harris ticket was a major fuck you to the people who they claim to support. Briahna Joy Gray to explain this.


Nothing like a nice show trial instead of actual political action and discussion.

More thoughts on the Derek Chauvin verdict

OK, the popular line is that "I support the police, but Derek Chauvin was a rogue cop."

I'm not sure if they watched the entire video of the arrest since George Floyd was actively resisting arrest. And there's an interesting take that none of the bystanders tried to step in to protect Floyd's life.

And there was Fetanyl and other drugs in Floyd's system. People ignore that this is a dangerous drug. The RAND think tank calls it the most dangerous drug in the US. Fetanyl is a highly lethal drug, which was one of the many things that the defence should have pointed out. Especially since the amount in Floyd's body was well into lethal levels from what I heard.

That's what "reasonable doubt" is about. Is there enough of a doubt that Chauvin's actions were the cause for Floyd's death? Maybe the defence didn't want to chance it, but perhaps pursuing that line of inquiry would have resulted in a different outcome.

On the other hand, the climate was such that the Judge commented that Chauvin might have a good chance of winning on appeal. That's the outcome I expect to see to this. Chauvin's conviction will be overturned on appeal and he will be quietly acquitted.

The real place where this should be tried is in the criminal justice system, not the court of public opinion. The fact that this was a political football surrounded by riots removed any objectivity from the matter. In fact, the politics surrounding this will make this a travesty if people want to see any sense of "order".

Police forces were already seeing officers leaving and having problems with recruitment. It's going to get harder and harder to find decent people who will want to do the job for the salary they get.

I'd rather have a Derek Chauvin doing his job than someone like a Kyle Rittenhouse stepping in because there is no police. The US may learn the lesson of the Murray Hill Riot the hard way.

Tuesday, April 20, 2021

The Verdict is in

 And it's bad.

I wonder if the people cheering that Derek Chauvin was found guilty will be happy if police forces start having problems with recruiting and retention. Will cops move on to forces that are more supportive, or just go to different jobs. What will be the future of policing?

They need to look to the North and Montreal to learn the lesson of the 1969 Police Strike, otherwise known as the Murray Hill Riot. 

I would also add that regulating firearms has taken a major strike since people will be even more prone to buying guns for protection. 

The gun control crowd should have had a serious think before they started supporting people who carry guns and threaten people over the police. I know the law and I know when one can use deadly force if threatened, but cops put their lives on the line on a regular basis. Case in point this video:


The issue is that the police put their lives on the line to protect people. Their motto is to protect and serve.

Yes, they should be put on trial if they use excessive force, but remember that there are people out there who would kill the police for doing their jobs.

So, temper your joy in the outcome of this verdict.

And for the "Gun Violence Prevention" types, you either want to get guns off the streets and out of the hands of people who shouldn't have them, or realise that you are acting against your interests by supporting the gun carriers, such as Daunte Wright, Adam Toledo, Breonna Taylor, Alton Sterling, Tony McDade, Philando Castile, and other people who are alleged to have been in possession of firearms when stopped by the police.

You either want the guns off the street or need to shut the fuck up when people feel the need to own guns for personal defence.

I want the guns off the street and out of the hands of criminals.

Maybe I'm wrong, but...


This is coloured by the fact that I have practised criminal law for over 30 years now.

Most of the riots, er "peaceful protests", have related to people resisting arrest. Maybe excessive force was involved, but I see active resistance happening.

I don't care who you are or where you are, but the cops do not take that lightly. A little "blackplanin'" here:


The example that comes to mind was when I was a student at University of Exeter in England. Exeter is a nice little town in the Southwest of England. The place I was at, Gandy Street, is supposedly the inspiration for Diagon Alley in the Harry Potter books.

But one night in that lillywhite setting, a drunken white guy decided to resist arrest. Literally about six cops were fighting with him to try and subdue him. And he was a skinny little guy.

What people miss is that one person who is fighting arrest can create a lot of disruption.

Yeah, the amount of force used needs to be the minimum to stop the threat, but when exactly does the threat stop. Anyway, whether the force was reasonable is a question for the jury: not the general public.

Especially not a general public which is highly polarised to the extent they can't see straight.

You can't go around saying you support "first responders" and "essential workers" and then try to second guess them when they do their job. You either want them to run into that building with an active shooter, or live with the fact that they don't want the liability.

Which gets to my next point. Daunte Wright had an open warrant for a firearms offence where he threatened a woman.

Should the people who want to regulate guns and get them out of the hands of people who shouldn't have them support someone like that? Isn't there a serious amount of hypocrisy going on here? Or is this a case of blinders being so blinding that the people who blindly support Daunte Wright neglect that he is someone they should hate more than Donald Trump?

OK, maybe we should say he is alleged to have done these things. Likewise, Derek Chauvin is alleged to have killed George Floyd until he is found guilty if we are going down that road.

The bottom line is that if you run around saying no one is above the law, maybe you shouldn't be giving support to people who are videotaped resisting arrest and have long criminal records.

Especially if the result of that silliness is that you end up supporting someone who is what you claim to want to see ended: a man who beats women and carries guns which are used in crimes.

Bottom line, there is a legal system, which is where the question of whether the arrest was legal, especially if there was resistance, should be decided. I know that the outcomes would have been vastly different if the legal system had been where this was decided instead of the street.

Friday, September 28, 2018

How Kavanaugh (and the legal community) flubbed the Sexual Assault Accusations.

Note: this was written close to when the first post was, but posted later for a few reasons.

Let's start with the facts as stated by the accuser, which I will take as being true ad argumentum:
According to the Post, Ford described how Kavanaugh and a friend – both “stumbling drunk” – corralled her into a bedroom at a house in Montgomery county, Maryland.
The Post reported: “While his friend watched, she said, Kavanaugh pinned her to a bed on her back and groped her over her clothes, grinding his body against hers and clumsily attempting to pull off her one-piece bathing suit and the clothing she wore over it. When she tried to scream, she said, he put his hand over her mouth.”
Ford, now a 51-year-old research psychologist in northern California, told the Post: “I thought he might inadvertently kill me.”
She added: “He was trying to attack me and remove my clothing.”
Aside from the fact that Kavanaugh was under the age of majority, which leads to questions about criminal responsibility in this matter. Various issues regarding juvenile justice had there been an adjudication of delinquency and its ability to be used in this matter. There wasn't any sort of formal process in this matter, which is another problem.

Next, Maryland changed its laws regarding rape in 2017, this incident occurred in the early 1980s. Should Maryland apply the law in effect when this incident occurred or would that make Maryland's current rape statute an ex post facto law, and unconstitutional? Toss in Maryland rape laws require actual penetration, which there wasn't according to the above statement. This might be a fourth degree Sexual Offense (MD code 3-308), but I am not sure there would be proof if I were trying to prosecute the case. It would definitely be some kind of assault (unlawful touching). I would make an offer for assault if I were a prosecutor in this case.

Unlawful sexual contact is one of the most commonly charged sex crimes in Maryland. There are two basic elements to this crime — sexual contact and lack of consent. Under Maryland law, sexual contact includes touching the genitals or some other intimate area, which is often interpreted to include the buttocks and the female breasts. If an individual’s hand, body part or extension of a hand touches a person in any of these areas, that may be classified as sexual contact.

The law is unclear whether the contact needs to be direct to those parts or whether one could make sexual contact with a clothed person. I am of the opinion that the statute requires direct contact. This would be a question of law. But the rape sections of Maryland law require actual penetration.

Saying this is assault is more serious due to the fear of harm or actual harm being inflicted on the victim even if this is not a sexual offence in my opinion. But I do not see any of the specific penetration or other element that would cause this to rise to the level of being specifically a sex crime.

The statute of limitations applies in this case since it wasn't any form of rape because there was no penetration. There is a one year statute of limitations for fourth degree sexual offences (Md. Code, Cts. & Jud. Proc. § 5-106; In re Anthony R., 362 Md. 51, 73, 763 A.2d 136, 148 [2000]) if one wants to continue with an allegation of criminal sexual conduct that might stick.

Maryland does not have a statute of limitation on assault according to Lawrence Tribe (however Maryland lawyers say it is one year. Remember we need to use the law that was in effect when the crime was committed), but the next question if there is no limit to prosecution would be which court would have jurisdiction: juvenile or adult? Again, even if one wants to say that there is no statute of limitation on this case, then does this issue of criminal responsibility based upon age come into the play. After all, the alleged incident happened when Kavanaugh was a juvenile according to the law.

Sorry Prof. Tribe, but Maryland's juvenile act would have been the proper standard to have been used at this time: not adult law. Something about ex post facto laws being an issue, which is a mistake that a noted Constitutional law prof should not be making. Especially since competence to stand trial is a constitutional issue.

That means there would be a statute of limitation based on Maryland's Juvenile Act due to this? The real issue isn't as much a statute of limitations as it is that this incident occurred when Kavanaugh was a juvenile. Juvenile court can retain jurisdiction over youth until age 21, provided that the offense alleged to have been committed occurred before the youth turned 18. (Md. Code Ann., Cts. & Jud. Proc. § 3-8A-01(d) and Md. Code Ann., Cts. & Jud. Proc. §§ 3-8A-07(a), (b))

One of reason for statutes of limitation is the fairness of the prosecution in regard to finding evidence, witnesses, and so on. That is important given this would be and 35+ year old allegation. Can she offer proof which would go beyond a reasonable doubt?

Mark Judge, the alleged partner to this, does not remember the event ever happening. So, we have evidentiary problems.

Also, this is one incident. I would be hesitant to use an isolated incident this old as an indicator of Kavanaugh's personality. I would be less hesitant if there were incidents which were more recent to show he has not changed.

Bottom line, there are Constitutional due process issues a plenty here which make this line of attack highly problematic for me. I would have hoped that a judge with a staff would have enumerated them, but he has failed to address this highly important issue.

I feel sorry for the accuser, but legally this shouldn't see the light of day given the length of time from the incident to any public accusation. She wouldn't get a day in court based upon the facts, yet this has shown up in the political arena for whatever reason.

I doubt there is a person who hasn't committed a crime whether intentionally or unintentionally which may or may not have been prosecuted. Likewise, there are defences and mitigations to crimes which must be taken into account. Not to mention constitutionality of this. These matters need to be considered by Kavanaugh's accusers.

Even more importantly, I see the facts of this case being twisted into partisan fodder to try and thwart the confirmation of someone who doesn't have the legal acumen of a first year law student. The lack of legal knowledge to provide a defence to this, especially from a judge with a staff, is troubling to me.

As I said before, this accusation demonstrates that Brett Kavanaugh is not worthy of a seat on the highest court because he lacks a basic knowledge of the law, of which this an exposition. I could probably come up with far more constitutional and criminal defences to this accusation, but that would be more nails in the coffin to his lack of basic legal knowledge.

Sources:

See also:

Tuesday, September 18, 2018

The accusations against Kavanaugh show he shouldn't be a justice, but not for the harassment aspect.

OK, there was a question using a similar scenario to what Kavanaugh is facing given on a test during my legal education, which means that the legal issues here the should be obvious to a first year law student let alone someone who wants to be a supreme court justice.

The fact that Kavanaugh was 17 when this happened should be sending out shitloads of objections to this, but that would only be the beginning. I am amazed that all the profs who blog on this topic aren't going on about them. Clarence Thomas was Anita Hill's supervisor at the Department of Education and the EEOC, not a teenager: major difference.

I am not going to say what they are, but at least one of them is a constitutional issue. The fact that Kavanaugh isn't talking about it makes me worry about how good of a justice he would be.

The fact that this line of questioning Kavanaugh's ability to be a justice was allowed to see the light of day has me worried about the legal fraternity in the US.

So, while these allegations are serious, I don't think this is a fair line of questioning even if they are true. In fact, it makes me wonder how much of a case Kavanaugh's opponents have against him (other than his not having a basic knowledge of the law).

I think Kavanaugh's inability to address this basic issue of the law along with his poor knowledge of the law would be more than enough to deny him the nomination. But dragging an incident that happened 36 years ago is questionable even if true (hint hint).

This incident makes me worry about how far back opponents might go to destroy someone's political career. No one is going to be without some taint, but there may be a dearth of qualified candidates if the nomination process goes over someone's record with an electron microscope.

But the legal aspects and the defences they afford Kavanaugh in this situation are far more troubling to me in this process. The fact that a supreme court justice is unable to articulate them is even more troubling.