Some issues come up over and over:

• The police want to search my car. Should I agree?
  

• Are the police allowed to lie to me?

• The police didn’t read me my rights. Will they drop the charge?

• Police Interrogation: No lawyer will save you; you must save yourself.

• I’m stopped for a DWI. Do I blow into the breathalyzer?

• Top Ten (10) Things NOT to Do If You Are Arrested.

• Search Warrants in Missouri: How it’s done. Part One.

• Search Warrants in Missouri: Part Two. The exceptions.

• Search Warrants in Missouri: Part Three. More exceptions.

• Search Warrants in Missouri: Part Four. The automobile exception.

Perhaps I complain too much about the criminalization of trivial offenses. Sometimes the law is questionable. Other times the police and prosecutor get over-zealous.

One of the kinds of cases I came to dislike as a prosecutor were those dealing with animals. This is one of those areas where people get very upset, often out of proportion to the actual harm done.

A man may forgive you for kicking him, but he will never forgive you for kicking his dog.

Cases involving animals are often brought by in conservation agents. And that brings me to another kind of case I learned to dislike.

Conservation agents are mostly nice guys who belong to what you might call a “niche area” of law enforcement. Real cops deal with everything from traffic tickets to murder and usually are able to put things in perspective. But niche cops–that is, conservation agents, meter maids, dogcatchers, liquor inspectors, and the like—sometimes lack the larger view that enables them to view small cases as . . . small.

When I was a new prosecutor I was given a case about a fellow who had been caught possessing an illegal raccoon. My boss said it would need to be tried and that it would be good practice for me. I read all of these reports and met with the conservation agent, who was very interested in the public chastening of this particular lawbreaker.

The defendant was apparently unrepentant and refused to accept that he was a criminal who deserved to be punished (in this case by up to one year in jail).

So I went into court and masterfully laid out my case for the judge. The conservation agent was serious and professional; the evidence was ironclad, proving beyond all doubt that this stubborn lawbreaker had defiantly possessed an illegal raccoon and had been caught red-handed.

Then the defendant took the stand. The fool admitted everything! He explained how he had discovered this weakened & starving baby raccoon alone in his garbage can on a cold winter night. He took it in. Fed it. Raised it.

His children turned it into a family pet.

All of this in blatent violation of the law, § 252.040, RSMO.

And if that is not shocking enough, when summer came, the animal was pressed into service as mascot for the defendant’s softball team. He claimed that the raccoon was a big hit in his little uniform and tiny cap.

I gave an eloquent closing argument, exposing the defendant’s contempt for the law and heartless exploitation of this motherless creature. I suggested that the court make an example of him.

The judge found him guilty and sentenced him to a $5.00 fine. The example, apparently, was for me.

I’m a criminal defense lawyer. I don’t do family law. I’ll be glad to refer someone to a good lawyer who can handle a divorce or custody/child support case, but I don’t do them myself.

When I started in practice everybody told me: “You have to do family law. Or else give up a lot of business when you need it most.” The funny thing was that the same people who told me I should practice family law would quickly admit that all their biggest headaches flow from family law practice.

If I walk by another lawyer’s door and overhear angry words, it’s probably a family law case.

I am sure there must be a study out there proving that 87% of lawyer swearing is caused by family law.

Family law mostly involves unhappiness and trouble of some kind.

Yeah, OK. OK. Adoptions are happy.

The irony is that as a criminal lawyer, my clients have just as much (or more) reason to be unhappy, troubled (and troublesome), but mostly they are not. People accused of a crime tend to retain a remarkable degree of common sense when it comes their case.

Perhaps the prospect of a prison sentence focuses the mind.

They understand that only certain issues are important and that they will not be able to avenge a lifetime of complaints in one case.

When I was a new prosecutor, I expected that defendants–seeing me as their adversary– would really hate me, but most of them seemed to understand that I was just doing my job. I appreciated that. I still do.

But there is just something about divorce/custody cases that turns normally nice, reasonable couples into a couple of lunatics. Mostly, I think it’s the kids.

Like I said, I know some highly-skilled divorce lawyers. A tip of my criminal lawyer hat to them. They perform a particular, necessary service, so I don’t have to.

We have seen that juries can render a “not guilty” verdict even where the evidence clearly shows the defendant did what he is accused of doing. Missouri cases have seldom spoken of this issue. Thirty years ago, the Missouri Supreme Court acknowledged jury nullification: “While courts recognize that jury nullification may occur from time to time, the practice is not encouraged.” State v. Hunter (Mo. banc 1979).

This, however, misses the point. No one suggests that juries should be encouraged to render verdicts inconsistent with the law. The question is whether they should be informed of this power and instructed in its use. Such independent juries have been the leading edge of political change.

Before the American civil war, it was the refusal of northern juries to enforce the Fugitive Slave Act of 1850 that moved the nation toward war and the abolition of slavery. Later, refusal of juries to enforce Prohibition led to the 21st Amendment. Whenever the government gets out of step with the people, the citizens have the power to fight back from the safety of the jury box.

Still, the courts are uncomfortable with the idea. Some will acknowledge that acquittal by jury nullification can be beneficial in certain situations, but they pretend to be terrified by the prospect of the jury going the other way. What if the jury doesn’t like the defendant and convicts him when he didn’t actually break the law? There are a couple reasons why this would not be a problem in actual practice:

1. The courts would only instruct the jury about their right to judge the law (as well as facts) if the defendant requested that instruction. That way it would not be used by the state to falsely convict a defendant; and
   
2. Unlike an acquittal (which can neither be reversed, nor the case re-tried) an illegal conviction could be set aside by the trial judge, and if not by the judge, then by the court of appeals.

With such protections in place, jury nullification is not the double-edged sword as some would suggest. It could only be used to acquit when a jury believed that the law–as given by the court–would cause an unjust, unfair result.

Another problem with the current system is that it sometimes creates an intolerable dilemma for jurors who must decide between following orders and following their conscience. Some argue that a juror—in taking his oath—commits perjury when he later delivers a “not guilty” verdict in spite of proof beyond a reasonable doubt. This is untrue for two reasons:

• First of all, the jurors’ oath says nothing about following the court’s instructions. The oath states that the juror will “truly try the issues in this case and render a true verdict according to the law and the evidence.” The juror would probably believe this to be the equivalent of promising: “I’ll do the best I can.”

• Second, even if the oath clearly demanded that the jurors follow the court’s instructions to the letter, any reasonable juror would assume that the law (as given by the court) will be fair, and would be applied in a fair way.

No juror imagines that his government would put him in a position where his oath cannot be fulfilled in good conscience. If the juror intended to follow the law at the time he took his oath—and later discovered that he could not—there can be no perjury.

The idea of an independent jury goes back before the Magna Carta. When government crosses the line, it is a great thing that twelve fellow citizens can step in and tell the state it has gone too far. If it happens just once, it saves just one person. If it happens over and over, even bigger things happen.

For more information on the importance of informed, independent juries:

Verdicts Of Conscience: Nullification And The Modern Jury Trial

Fully Informed Jury Association

This thing they call “jury nullification” means that the jury can acquit a defendant if they think a strict application of the law–as given to them by the judge–would be unfair. It means that the jury is judging both the facts AND the law.

How exactly can a jury get away with giving a “not guilty” verdict when the facts clearly show that the defendant ACTUALLY DID what he was accused of doing?

The chief factor is the 5th amendment prohibition against double jeopardy. The defendant–once acquitted–cannot be tried a second time (this also means the state cannot appeal a “not guilty” verdict).

In addition to the fact that “not guilty” verdicts are binding and unappealable, the second factor is almost as important: no juror can be punished for rendering a “not guilty” verdict, even if they apparently failed to follow the court’s instructions. Unless they commit a crime like taking a bribe, they are untouchable.

When I was a prosecutor, the idea that a jury was free to acquit any defendant, was very distressing to me. Reasonably enough, prosecutors expect juries to render guilty verdicts when the prosecutor proves his case.

They can understand losing a case that turns out to be weaker than they expected. Things sometimes go badly at trial. But, on the other hand, nothing is more frustrating than seeing jurors acquit an obviously guilty person.

This is ironic because prosecutors typically exercise their own discretion in refusing to file 15% to 20% of all the cases the police send to them.

Just as prosecutors are annoyed by juries who disagree with them, the police are often rankled when the prosecutor won’t file every case submitted to them. Yet the police themselves will give a lawbreaker a second chance when they issue a warning or let a friend drive a troublemaker home, instead of arresting him.

It seems that nobody wants to convict a person who cannot or should not be prosecuted, but once THEY decide to punish the accused, THEY expect their decision to be the final word on the subject.

This raises the question: Who should have this power? Who should we trust with this sort of discretion? Who is more likely to bring the mind and values of the community to the decision-making process?

I’d welcome any comments on this. More in my next post.

–> Read part 3

The Missouri Supreme Court has created some new ethical rules that take effect on July 1, 2007. New Rule 4-1.8(j) seems to be attempting to avoid conflicts, but raises novel issues.

The new rules states: “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”

I can appreciate the problem this rule addresses, but sometimes you just can’t solve every problem with a new rule. (At least it’s not the legislature this time.) Anyway, try out this imaginary exchange between a lawyer (trying to do the right thing) and the Office of Disciplinary Counsel:

Dear Legal Ethics Counsel:

I am a lawyer in a small law firm. My fiancé and I are getting married in a few months. We have agreed that we will not have sex until we are married. My fiancé is starting a business and wants to hire me to represent him in the business. If he hires me to do the legal work, would it be an ethical violation for me to have sex with him on our wedding night?

Sincerely,
Confused Boone County Bride

Dear Confused in Boone:

It is good that you come to us first before you create a mess for yourself. The short answer is yes: under your circumstances, to have sexual relations with your husband on your wedding night would be highly unethical. The ethical thing would be to jump his bones tonight, before you form a client-lawyer relationship. Hope that helps.

Ethically yours,
Legal Ethics Counsel

Someone asked me why it takes time for comments to show on the blog. That’s because I have to read them first because most of them–let’s say 95%–are spam.

These stupid ads are annoying and irrelevant, and worse, insulting. Some English-as-a-third-language copyrighter imagines that you are dumb enough to click one of these ads :

• Prepare to women day NOW Viagra try its the best. Happiness can be you most soon. You read now. (link removed)
• I had tried ViARGA and that was really cool… Now I know everything’s gonna be ok. I look for here: (link removed)
• I found FLOWER for WOMEN Deliver flower (link removed)
• Hi guys! You be many-sided. Very important message. Everyone must to read. (link removed)

Either Borat is spamming my blog or a web bot is leaving comments from the script of “The Russians Are Coming! The Russians Are Coming!” ? (Emeergency! Everyone to get from street!).

Anyhow, that’s why the comments are delayed a few minutes or hours. Real comments are–of course–welcome.

If you are familiar with internet “feeds” as a way of receiving articles automatically without having to visit numerous websites and weblogs, then just ignore this post. But you are not using a feed reader, I invite you to take a look at RSS and how it can help you keep up with the news you want:

RSS - news you choose

How to explain RSS the Oprah way

How to read RSS feeds

RSS Quickstart guide

An RSS reader is so simple you will never again bother to visit blogs and websites to check for new content. To subscribe to the RSS feed from the Jeff City Law Blog click on the “Entries RSS” link.