Archive for the 'Criminal Law' CategoryPage 9 of 71

49ers’ Player Stops Shoplifter with Punches – Could He Be Liable for Excessive Force?

On Thursday, January 8th, the 49ers offensive lineman Jonathan A. Martin, stopped a shoplifter by leveling him with multiple punches.

Jonathan MartinThere were two men involved in the shop lifting spree at a Versace Collection Store. The security guard tried to stop one while the other almost escaped. Martin saw the crime taking place and ran over. He punched the shoplifter “five to eight” times, according to Martin, who said in an interview that he wanted to do enough to subdue the suspect until the security officer could arrest him. Right after the incident, Martin tweeted: “Just took a dude out trying to rob a Versace store #CivicDuty”.

Was This Martin’s Civic Duty? Or Could He Face Assault Charges?

Police officers and private citizens do have the right to use force when arresting a suspect. However, private citizens have far less protections than police officers. For example, a police officer can use deadly force if he has probable reason to believe the suspect committed or will commit a dangerous felony.

Private citizens can only use deadly force if the suspect already committed a dangerous felony. Citizens are not protected in the justice system if they use deadly force on a suspect based on reasonable belief they committed a felony.

How to Protect Yourself When Making a Citizen’s Arrest

Every private citizen has the right to make an arrest on a suspect if the suspect has indeed committed a felony. The citizen must have a reasonable suspicion that a crime is taking place in order to legally make the arrest. If the suspect was innocent or only committed a misdemeanor, then the citizen making the arrest could be liable for criminal or civil charges.

Citizen’s arrests do not require the same constitutional requirements as law enforcement arrests do. But when an officer asks a citizen to make an arrest, the citizen must uphold the same constitutional standards as a police officer.

When making an arrest, a citizen must only use the minimal amount of force needed to stop the suspect from committing the crime. Each state has different requirements for the use of deadly force. Overall, deadly force may only be used on a suspect if there is immediate physical danger to the arresting citizen or those around the area. If deadly force is used and does not meet the state’s requirements, the citizen may face manslaughter charges, murder charges, or a wrongful death lawsuit.

What about Breach of the Peace?

If Martin is charged with assault or battery, he could defend himself with the common law notion of “breach of the peace”. A citizen may use non-deadly force in arresting a suspect to prevent a crime from taking place or stop a crime that is taking place. Martin’s citizen’s arrest can be protected by breach of the peace, even if the crime was a misdemeanor, because he witnessed it taking place, and it would’ve ensued if he did not stop it.

His use of force, however, is not protected. If this incident went to trial, Martin’s use of force could easily be deemed unnecessary and too rough. The use of force in making a citizen’s arrest must be the minimum amount in order to stop the citizen from making the crime or getting away.

Since the price amount of the attempted stolen merchandise is unknown, we do not know if the suspect was committing a felony. Versace purses tend to be expensive, as everyone knows. The minimum price of stolen merchandise to be considered a felony is $500. The purses could have exceeded this number. If the purses were between $500 and $50,000, the suspect could face third-degree grand theft charges. But if the merchandise was under the minimum amount, the suspect did not commit a felony and Martin’s use of force will not be as protected.

Did Martin Use Deadly Force?

Martin is a trained professional athlete who could cause serious physical damage. Was his use of force necessary to stop a shop lifter at a retail store? At the moment, it looks like Martin will not be facing any charges, and his citizen’s arrest is legally justified based on the breach of the peace clause.

Should Cursing around a Child Constitute Child Neglect?

In New Jersey, there exists a 70-year-old law that states “a parent, guardian, or person in charge of a minor could be guilty of a fourth-degree crime of child neglect if he or she habitually uses profane, indecent, or obscene language in front of the minor because it could be detrimental to the minor’s morals.” N.J.S.A 9:6-3.

profanity child neglectThe New Jersey Supreme Court is rethinking whether the law should be upheld or struck down, in light of the recent case of a man who was found guilty of violating the law, which is part of the state’s child abuse statutes. In 2009, the man faced an accusation of committing the crime of sexual assault on his foster son, who was 13 years old at the time. He was charged with a number of crimes, but accepted a plea bargain to a less serious offense.

Prior to accepting the plea bargain, he had served three years, and he completed his prison term. He made previous attempts to have his plea withdrawn, and now, he and the American Civil Liberties Union (ACLU) are filing a lawsuit to withdraw his plea. Their lawsuit is based on the First Amendment.

The issue before the judges is: “Did defendant’s admission during his plea allocution to cursing and using off-color language in such a way as to debauch a child’s morals provide an adequate factual basis to establish child neglect under N.J.S.A. 9:6-3?”

His attorneys maintain that the statute was unconstitutional in that the use of profane words does not amount to a crime. In response, one of the jurists said that acceptance of such an argument would be the equivalent of the court stating that it’s allowable for parents or guardians to curse frequently in front of minors.

The prosecutor mentioned to the court that the defendant’s guilty plea should be considered within the context of the charges from which he plea bargained. Those charges could have caused him to be in prison for 20 years.

Another issue noted by one of the jurists is that the defendant didn’t specify the type of offensive language he used when he pleaded guilty to the less serious offense. According to the statute, you have violated the law if you use “profane, indecent, or obscene language” in front of children. If the obscenities appeal to “prurient interests,” then they are not protected by the First Amendment.

Profane language, however, is protected by the First Amendment. But it cannot include “fighting words” that incite someone to violence, or that instigates a riot. Profane language can include words that are believed to be offensive, including those that have vulgar, racist, or sexual overtones. Indecent language is also protected by the First Amendment because not everyone finds such language to be offensive.

I am inclined to agree with the court when it says that making the statute unconstitutional would be tantamount to stating that it is permissible for parents to curse often in front of children. Although profanity may seem harmless, overexposure to vulgarities could have an adverse effect on a child’s morals, ethics, and behavior.

Extreme Child Abuse Leads to Murder in Florida

Two Florida minors are accused of premeditated murder of their older brother. Misty “Ariel” Renee Kornegay, 15, and Nicole Kornegay, 11, are facing charges of the murder of their 16 year old brother, Damien Kornegay.

MISTY RENEE KORNEGAYDamien was sleeping on the couch when Ariel took an unloaded handgun from a locked room, while Nicole kept watch. Renee loaded the gun herself, and shot Damien one time. He was pronounced dead when the police showed up.

The murder was a shock to the small town of White Springs, with the population being only 800. So many questions are still unanswered in this case. Not only how could this happen, but why?

The parents were also arrested based on child neglect causing great bodily harm, and failing to properly supervise their children. Misty Kornegay, 33, had gone on a long work trip with her trucker husband, Keith Kornegay. They had been gone for over 24 hours before the shooting happened Monday, January 5th. The parents were arrested Tuesday.

A three year old boy was also found alone with Damien’s dead body in the home. He was immediately put in the custody of the Florida Department of Children and Families by police.

With each day that passes, an unraveling of past abuse has risen. Ariel has suffered physical and sexual abuse by her uncle over the years. He was convicted of molesting her in 2010. Also in 2010, police were called to the home for “inappropriate behavior” involving Damien and Ariel. Allegedly, the mother found the two having sex. Also, Ariel told investigators that for periods of years she would be locked in a room with just a blanket and bucket. Ariel said earlier that Monday, Damien had beat her up. Authorities have not yet commented on a possible motive in the shooting.

Could years of abuse and neglect drive a child to have murderous intentions?

Right now, Ariel and Nicole are being held at Columbia County Detention Facility without bond. It is not yet clear what Nicole’s role was in the shooting, but Ariel did admit to pulling the trigger to shoot her brother.

Prosecutor Jeff Siegmeister has stated that he has not made a decision in trying them as adults or children. In the state of Florida, juveniles can be held in a detention center for a maximum of 21 days. The judge has ordered an extra nine days in this case. In some juvenile cases, the children may be sent home after the allotted amount of days. But in this case, there is no home to return to. The parents are in jail with a $20,000 bond, and are not allowed unsupervised communication or visits with their children.

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NFL Star Goes to Trial for Murder

Aaron Hernandez, former New England Patriot’s football player, is being accused of three murders. He is currently serving time in jail, awaiting trial for the death of Odin Lloyd. The trial starts this month, and Hernandez is charged with the first degree murder of Lloyd, and has plead not guilty to the charge. Trial has not yet been set for the two other murders of Daniel de Abreu and Safiro Furtado.

aaron hernandez nfl serial killerHow does a star football player, who landed a $40 million contract, end up behind bars with such serious charges? Hernandez was a prominent football player at his high school in Bristol Connecticut, and left halfway through his senior year in 2007 to join the University of Florida football team. Soon after he joined the University, he was causing trouble. In his first semester, a police report states that Hernandez punched a manager of an off campus bar and ruptured his eardrum. The next fall, there was a shooting at a club Hernandez was at. Another police report states Hernandez and other football players were involved in an argument outside, that might have led to the shooting.

Less than a year after his second season with the Patriots, Hernandez was charged with the first degree murder of Lloyd. The Patriots immediately dropped him. Lloyd was dating Hernandez’s fiance’s sister, Shavanna Jenkins. Lloyd was last seen in a rented silver Nissan Altima, along with Hernandez and his two associates, Carlos Ortiz and Ernest Wallace. Surveillance footage shows the car heading towards an isolated area at 3:22 a.m. at an industrial park. Nearby workers reported gun shots between 3:23 and 3:27 a.m., and an Altima pulled into Hernandez’s driveway at 3:29. His house was a half mile from the crime scene. Just nine days later, Hernandez was arrested and charged with first degree murder, along with weapon related charges.

Since Hernandez was in the car with Ortiz and Wallace, the prosecutors are trying them in a joint venture. This means it is not crucial to know who pulled the trigger, just as long as there’s enough evidence that each man played a part in the murder.

The upcoming trial is only for the death of Lloyd. The jury will hear no information regarding the two other murders Hernandez is charged for. This could lead to presumption and preconceived judgment of Hernandez’s innocence.

The trial is expected to last six to ten weeks, and multiple witnesses will be called along the way. Some of these witnesses may include the Patriots coach Bill Belichick, and team owner Robert Kraft.

Boston Marathon Bombing Trial: The Challenge of Selecting a Jury

The process has begun for the selection of a jury for the Boston bombing trial. Dzhokhar Tsarnaev has pleaded not guilty to 30 felony charges, 17 of which include the death penalty. He is the 21-year-old accused of the Boston bombing on April 15, 2013, along with his brother who died in a police shoot-out days later. The bombing killed three people and injured 260 others. Finding a non-biased jury is going to be extremely difficult for this case.

boston marathon bombingTsarnaev’s legal team has requested from U.S. District Judge George A. O’Toole Jr. that the trial be moved to another city. Their reasoning is that Tsarnaev cannot receive a fair trial in a city that is still suffering and mourning the loss of its citizens. O’Toole has rejected the request every time.

Selecting the Jury

There will be 1,200 potential jurors interviewed and asked to fill out questionnaires. Forty will be questioned each day. Such a large amount is necessary to eliminate people who are influenced by heavy news coverage and those affected by the bombings. Few of them will resemble Tsarnaev and almost all are older.

O’Toole made it clear the jury needs to set aside any judgment and let Tsarnaev have a fair trial. Also, since 17 of the charges include the death penalty, jurors will be disqualified if they are against the death penalty.

Boston discontinued the death penalty in 1984 and attempts to reinstate it have been dismissed. This presumably means that most Boston citizens are against the death penalty and so the jury will consist of a political minority of citizens.

The governments witnesses will consist most likely of F.B.I. agents and police officers. The defense witnesses will consist of friends, neighbors, family and experts. The defense is planning to argue that Tsarnaev’s difficult childhood and loyalty to his brother affected his mental ability. Trial testimony is set to begin January 26th, and will last about three to four months. If convicted, Tsarnaev will either face the death penalty, or will serve life in prison without possibility of parole.

The Boston Bombing is the worst terrorist attack on the U.S. since 9/11. It will be a closely watched trial over the next several months. The final jury will be faced with one question: does this man deserve to live, or die?