School vs. Prison

Some wag posted this comparison of schools vs prisons.

First I laughed, then I didn’t:

It’s ridiculous of course. In prison the inmates are forced to be there, while in school the inmates students are there vol u n t a r i l y . . . oh never mind. But in schools you can open and close the windows . . . well you could back in the sixties.



Come back with a warrant

Motorcycle Stunt Driving may soon be a crime in Missouri

Jefferson City Criminal Lawyer

Representative Jeff Roorda, A Democrat from the St. Louis area is back again with a bill to protect us from ourselves. His House Bill 1332 creates the crime of Motorcycle Stunt Driving.

Most new criminal laws are unnecessary and this one is especially so. But considering all the possible crimes we could commit, how cool would it be to have a conviction for Motorcycle Stunt Driving? To quote Will Smith’s character in the movie Independence Day: “I have got to get me one of these!”

To get one, you have to complete one or more of the following “dangerous stunts” while riding a motorcycle on a public road (presumably in front of a police officer):

  1. Standing on the seat, frame, or handlebars;
  2. Performing handstands on the seat, frame, or handlebars;
  3. Operating a motorcycle on one tire;
  4. Removing both hands from the handlebars

It’s kind of like taking your driver’s test, except there is no requirement that you do it very well.  (Keep in mind–however–it could be embarrassing to get a conviction for attempted Motorcycle Stunt Driving). Afterwards, you pay your fine and tell everyone you know that you have a conviction for motorcycle stunt driving.

You could become famous. There are web sites on how to break into the Hollywood Movie Stunt business.

If you’re really ambitious, move to Hollywood. When the movie producer wants to know your motorcycle stunt driving experience, you can whip out a certified copy and tell him, “Experience, hell, I’ve got a conviction.”

Even if you don’t want to get into the movies, a conviction for motorcycle stunt driving can only bolster your image. Everybody knows the ladies go for the bad boys. If you already have tattoos, then this is the next step. If you don’t have one, get your conviction record tattooed on your chest!


Come back with a warrant







New law would make Missouri drug dealers easier to find

Randy England- criminal defense lawyerSuppose someone is not an illegal drug user, but would like to become one. None of his friends sell drugs. Perhaps none of them can recommend a reliable drug dealer. Where can he turn?

Missouri House Bill 1242, prefiled by Cassville Representative David Sater, would direct the Highway patrol to create and maintain a public database of drug dealers. Since selling illegal drugs is … well … illegal, Missouri has no licensing scheme to assure consumers that they are patronizing knowledgeable, experienced drug dealers. Under HB 1242, consumers would finally have some assurance that they are not dealing with inexperienced providers.

In fact, only sellers who have at least one conviction (or finding of guilty) for distributing illegal drugs will be placed on the approved list of drug dealers. The Highway patrol will provide the dealer’s name, date of birth, what drug offenses they committed along with any other information the patrol determines is necessary to be able to identify the person.

With such information at hand, consumers should find it easier to find a drug dealer in their area.

Drug dealers wishing to stay on the official list will have to get a new conviction for drug dealing at least every seven years, which should not present any undue hardship.


Come back with a warrant

Driving a La-Z-Boy While Intoxicated. Is that OK?

Sometimes the question comes up: Can you get a DWI for driving a golf cart? A tractor? How about a riding mower? Or a mini-bike? The short answer is yes. If it moves by motor power it is a motor vehicle under the DWI law.

Even so, this guy in Minnesota gets the prize for creativity:

Man pleads guilty to DWI in motorized La-Z-Boy

This chair has a lawn mower engine, headlights, stereo and cupholder. Unfortunately, the guy was on his way home from a bar when he crashed into a parked car.




 

OK. Slowly. Step AWAY from the taco.

A friend  sent me this great example of the 4th amendment in action. The article, titled: “Yo quiero a search warrant: Lawyer succeeds in suppressing evidence found in taco” was originally published in the Missouri Lawyers Weekly.

It seems that Branson police were investigating a fight and were told that someone involved in the fight had gone to the Taco Bell. Police decided it was time to make a run for the border. When they arrived, they found  Johnnie Hoover and a female companion were the only customers.  

The officer asked Hoover if he had any drugs or weapons. At this point–the officer testified–Hoover “looked furtively at a taco lying on the table in front of him”.

Thinking outside the bun, the officer immediately asked Hoover to move away from the table.  He then searched the taco, finding methamphetamine and a glass pipe pipe within.

Mr. Hoover’s lawyer explained that he was able to have the evidence thrown out on the grounds that the taco seemed unlikely to contain a deadly weapon. Nor did the officer have probable cause to search the taco on other grounds.  [See Search warrants in MIssouri, Parts 1-4]

It sounds like the judge was dead on with that decision, the key being that a “furtive look” by itself is not going to be enough for the police to get into your taco. On the other hand, if the officer had sufficient grounds for a search of the taco, he most likely would not have needed a search warrant because the taco–being so “good to go”–might otherwise disappear in the meanwhile.


Illegal photography of a police officer.

Hey fellas, I’m just getting your picture.”

Then he snapped the photo. Deputy McCloud – who has been on the force only 18 months – told him that photographing him was illegal.

“I asked, ‘what planet are you from?’,” Conover said.

That was the response of Scott Conover who appeared to take a photo of an on-duty sheriff’s deputy.  The whole story is a good read. Click here. The deputy was not entirely unreasonable. He offered to forget the whole thing if Conover would erase the picture. Conover said no dice. The deputy arrested him. So Conover tossed the camera iPhone to his 12-year-old daughter who took more pictures.

Goofy incidents like this are proof that not every police officer has yet heard the message:  Camera phones & video & sound recorders are everywhere and there is no escaping them.

It is long past time for anyone–including police officers–to get all bent out of shape over it.

  • Note: I realize this depends on the assumption that that using your badge and handcuffs to imprison someone who does something you don’t like qualifies as getting “bent out of shape.” I think it does.

I’m not a fan of having surveillance everywhere, but if I’m in a public place, I have no right to complain if someone takes my picture. Neither does the misguided Deputy McCloud. I am curious to learn if the deputy was able to find a prosecutor who was willing to file the charges.

Here’s an earlier post on the subject of videotaping the police. This videotaped incident cost the officer his job.

and here is another . . .

The time is ripe for Missouri to record police interrogations

How will we explain this to the chief?

bank robberyWe once had a case of a bank robbery case in Audrain County where the bank robbers got away clean, except that some guy in the parking lot nearby saw them drive off and copied down their license number. That ID got them caught a short time later. Not that unusual, right?  Not until we noticed that the same thing had happened more than twenty years before in the same town. Same bank. Same witness.

I wonder if he was around when this video was made?

That was one angle of the scene. Here is another.

Thomas Aquinas on the criminal law

Now, as the governor makes weekly news by signing bills from the recent legislative session, we have a slate of new laws and punishments we shall be living under.

Unfortunately, the new stuff is often reactionary tinkering. By that, I mean two things:

making crimes of every human vice; and

punishing small crimes as if they were big ones.

This blog has posted numerous examples of such efforts:

While not all these bills make it into the books, we clearly have an itch to make society perfect, to make everyone be nice. And if we have to make not-being-nice a felony, well–by heaven–we will.

We often hear the charge that Christians try to impose their morality on everyone else. But the Christian tradition is one of restraint; in punishing only serious evils that harm others.

St. Thomas Aquinas, in his Treatise on Law in the Summa Theologica, answers the question of whether human law should repress all vices. He taught that demanding too much of people did not make them better, and would likely make them worse:

“[L]aw should be ‘possible both according to nature, and according to the customs of the country.’ Now possibility or faculty of action is due to an interior habit or disposition: since the same thing is not possible to one who has not a virtuous habit, as is possible to one who has. Thus the same is not possible to a child as to a full-grown man: for which reason the law for children is not the same as for adults, since many things are permitted to children, which in an adult are punished by law or at any rate are open to blame. In like manner many things are permissible to men not perfect in virtue, which would be intolerable in a virtuous man.

Reply to Objection 1: Audacity seems to refer to the assailing of others. Consequently it belongs to those sins chiefly whereby one’s neighbor is injured: and these sins are forbidden by human law, as stated.

Reply to Objection 2: The purpose of human law is to lead men to virtue, not suddenly, but gradually. Wherefore it does not lay upon the multitude of imperfect men the burdens of those who are already virtuous, viz. that they should abstain from all evil. Otherwise these imperfect ones, being unable to bear such precepts, would break out into yet greater evils: thus it is written (Pr. 30:33): “He that violently bloweth his nose, bringeth out blood”; and (Mt. 9:17) that if “new wine,” i.e. precepts of a perfect life, “is put into old bottles,” i.e. into imperfect men, “the bottles break, and the wine runneth out,” i.e. the precepts are despised, and those men, from contempt, break into evils worse still.

Reply to Objection 3: The natural law is a participation in us of the eternal law: while human law falls short of the eternal law. Now Augustine says (De Lib. Arb. i, 5): “The law which is framed for the government of states, allows and leaves unpunished many things that are punished by Divine providence. Nor, if this law does not attempt to do everything, is this a reason why it should be blamed for what it does.” Wherefore, too, human law does not prohibit everything that is forbidden by the natural law.

Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like.”

Jury Nullification – The power to do what is right. Part 3

Jefferson City Criminal lawyerWe 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