Archive for the 'Criminal Law' CategoryPage 9 of 57

Defendant Appointed 3 Different Lawyers, Stabs Each in Court

Many people undervalue the Sixth Amendment, the right to an attorney, until they’re arrested and accused of a crime. One man, however, does not seem to appreciate the work his attorneys did on his behalf. On January 2nd, 2012, Joshua Monson killed Brian Jones over a sale of methamphetamine. Monson was subsequently arrested and charged with possession of methamphetamine and second degree murder.

Attorney Tom Cox was assigned to represent Monson before Judge David Kurtz at the Everett Courthouse in Washington State.  Monson borrowed a pencil while he waited in county jail. During the trial though, Cox was stabbed in the head by Monson with the pencil Monson had borrowed. Although Cox was not greatly wounded, Cox withdrew from the case and Judge Kurtz declared a mistrial. Gurjit Pundhar replaced Cox as Monson’s lawyer – and Monson also stabbed her in the head with a pencil. Judge Kurtz declared another mistrial and appointed a third attorney, Jesse Cantor, to represent Monson.

To ensure that the trial would proceed without another attorney stabbing, Kurtz ordered that an electrical cuff be trapped to Monson’s leg. Monson was always deprived of his weapon of choice, the county jail pencil. Although the state wanted Monson strapped down to a chair for good measure, Cantor argued against it, saying that the jury might be biased against Monson if they saw the defendant tied down to a chair like a mad man during the trial. Judge Kurtz agreed with the defense counsel.

During the prosecutor’s opening statement though, Monson obtained Cantor’s pen and stabbed Cantor in the head with the attorney’s own pen. Although Cantor wasn’t serious injured, Judge Kurtz declared that Monson had forfeited his right to an attorney and that Monson would be representing himself for the remainder of the trial – while tied down to a chair.

joshua monsonI think many readers will have one of two reactions to this story: “Monson deserves it,” and/or “well duh he’s guilty.” Although it is true that Monson’s own conduct is the reason Monson can’t have an attorney, the law in Washington State leaves it to the trial judge’s own discretion. Judge Kurtz did not have to deprive the defendant of his right to an attorney.  Although appointing Monson a new lawyer again is still an option, at this point it seems that Monson is playing games with the court. However, Judge Kurtz could have saved time by denying one of Monson’s previous attorney’s requests to withdraw from the case.

Indeed, the case Judge Kurtz cited in support of his decision, State v. Fualaau, had the trial judge deny an attorney’s request to withdraw from the case despite the fact the attorney had been assaulted by his own client. The Fualaau judge had ruled that there were no conflicts of interest in having a lawyer represent a client who had just attacked the lawyer. Although the law did leave the decision up to Judge Kurtz, his decision could have gone the other way.

Before Monson’s final attorney was stabbed, that attorney had argued that Monson should not be restrained to his chair since the restraints themselves might cause the jury to believe that Monson was guilty. Readers might be tempted to conclude that Monson is guilty based on his behavior in court, and that the trial is just a formality at this point. Please dispense yourselves of this belief. The legal system serves two functions, functions which are undermined by false assumptions of guilt based on behavior outside of the crimes the defendant is charged with.

The first function served by the legal system is the discovery of whether the defendant committed a specific crime. This might sound extremely obvious, but many people will look at a trial and ask “is the defendant guilty?” That question, however, is not the proper one. The real question behind a criminal trial should be “is defendant guilty of the crimes he (or she) is charged with?” Yes, Mr. Monson is very likely guilty of assault, but the actual charges are possession of meth and second-degree murder. Possession of an illegal drug and murder are separate crimes from assault; neither the jury nor the public should conclude that Monson is guilty of murder or possession of an illegal substance based on a trio of assaults.

The second, and lesser known, function of the legal system is assigning the proper punishment to the proper crime.  Punishment in order to give retribution for the victims, i.e. “an eye for an eye,” only works if the defendant loses the same amount the defendant deprived from the victims. If Monson is convicted of murder because of the assaults on the three attorneys, than the trial will not be a proper recognition of the loss of Brian Jones. The murder will be overshadowed and the victim’s sense that their loss is being corrected will be eroded. The rights of the victim are also deprived when the defendant loses his right to an attorney.  Although criminal law is about the authority of the state and the defendant’s crime, it is important that the judge’s decision reflects the interests of all parties involved.

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Washington Man Sentenced To 6-Months Jail For Murdering Ex’s Parrot With Fork

Relationships can be messy affairs. Generally people get together hoping that their romance will end in storybook fashion. However, for many that’s usually not the case. One day, you’re trying to sneak as many kisses from each other as possible, the next you’re stabbing your ex-girlfriend’s parrot to death with a serving fork.

Hopefully, most of you will have sense enough to end your union before it gets to this point. Unfortunately, for some even a relationship’s conclusion may not be enough to stop the craziness. Case in point, take Richard J. Atkinson, the man featured in the story in the link above. The 63-year-old Washington man recently pled guilty to first-degree animal cruelty and second-degree domestic-violence malicious mischief. Two fancy ways of saying he’s now slated to spend six months in jail.

So far details are sparse regarding what led to Atkinson killing his former girlfriend’s parrot. But apparently, Atkinson was in their former home when the incident took place. He claims he can’t remember the details due to blacking out from whiskey and his anti-anxiety medication. However, somewhere in this haze Atkinson found a fork to stab his ex’s parrot and then trash the house itself.

Atkinson’s former girlfriend had the parrot for 18 years. For her troubles, the court has ordered him to pay for the dead bird and the other property he destroyed. Atkinson will also be required to undergo a psychiatric evaluation and has been forbidden from owning any animal for five years – which makes sense given the circumstances.

Seems like the end of the story, right? After all, Atkinson’s been put away and his ex will get compensated for her losses. Well, dear readers, in the legal world most cases rarely end so cleanly. There haven’t been any reports of intentions by the ex to file a civil lawsuit against Atkinson, but if (and probably when) she does, she could be in for quite a payday.

Now, as most of you probably already know, in our civil legal system pets are considered a form of property, or chattel if you prefer lawyer-speak. As such, the typical award for destroyed property is generally its fair market value at the time of destruction. And in this case, depending on the breed, parrots can live anywhere from five to 100 years. So considering that Atkinson ex’s bird was at least 18 years old, she may not get too much in terms of its fair market value. Fortunately, there’s more than one form of damages available to her. In this case it’s emotional distress and it’s likely to yield much more than a couple of hundred bucks.

Those who own pets know how attached one can become to an animal. After a while the little critters become a part of the family and losing it can be just as traumatic as losing a close human relative. Our civil legal system understands the distinct emotional value a beloved pet can hold for people. After all, they are no different than a unique family heirloom and can have the same irreplaceable sentimental qualities attached to them.

In Atkinson ex’s case, because Atkinson likely killed the parrot intentionally, she could recover damages for intentional infliction of emotional distress. To prevail in such cases, the plaintiff must prove that the defendant’s conduct was intentional or reckless, extreme or outrageous, and result in severe emotional distress for the plaintiff.

Here, Atkinson’s guilty plea has already done most of the legal work for his ex. His admission likely shows that his killing of the parrot was intentional and most reasonable people would likely see it as outrageous conduct. All his ex would have to do is show that she suffered some sort of emotional distress. And that’s probably not too hard to prove considering she had the bird for 18 years. If the judge or jury is a pet-lover, Atkinson could be really screwed and end up paying through the nose if his ex can prove she sustained severe mental and physical anguish following her parrot’s killing.

But for now, Atkinson appears to be off the hook. Just don’t be surprised if you see a civil lawsuit pop up later.

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Ohio Man Jailed For Mocking 10-Year-Old Disabled Girl

The United States has come a long way as a society. Our country has not only grown economically, but also morally as well. While discrimination and prejudice still plague our nation today, these issues are nowhere near what they used to be during America’s early years. It seems that most modern citizens understand the importance of tolerance. Except, of course, those that still think it’s okay to mock little girls with cerebral palsy.

It’s hard not to read that sentence twice. But yes, it’s true. A 43-year-old Ohio man by the name of William Bailey was caught on tape derisively mimicking the physical symptoms of cerebral palsy. His actions were allegedly meant to make fun of Hope Holcomb-Knight, 10, who has the condition. Hope’s mother recorded the incident on her iPod camera. Bailey was at a school bus stop at the time picking up his son and can be seen in the video walking with a limp while pounding his chest, physical symptoms typical in those afflicted with cerebral palsy.

As you can probably imagine, Bailey’s alleged antics didn’t sit very well with Hope’s family. Her mother posted the video online, viewable here. It soon went viral and a public outcry followed. Hope’s mother then filed a complaint with city prosecutors who, surprisingly, pressed charges against Bailey. And even more surprising is that Bailey was actually convicted and sentenced to a month in jail, ostensibly for taunting Hope.

In Bailey’s defense, he claims that he was only reacting to name-calling directed toward his 9-year-old son. The incident was apparently the result of a culmination of rising tensions between the two families. Regardless, the more interesting aspect of this story is how a person can be criminally prosecuted for taunting another person. Well, prosecutors figured out a way. They charged Bailey with disorderly conduct and aggravated menacing, both misdemeanors in Ohio.

We’ve talked about disorderly conduct many times before. It’s basically a catch-all law that prohibits any conduct that’s likely to cause public alarm and/or annoyance. In Bailey’s case, his alleged cerebral palsy mocking was sufficient to secure a conviction under the state’s statue. However, what’s odd here is that in Ohio a disorderly conduct conviction doesn’t allow for any jail time. Bailey was actually put behind bars because of his aggravated menacing conviction.

Aggravated menacing is basically a form of assault where a defendant causes another to believe that they will cause serious physical harm to that person or their family. Hope’s mother claimed Bailey threatened to choke her with a chain on the same day of the original incident. And this was actually the charge that landed Bailey a jail sentence.

Now you may be thinking that we pulled a switcheroo on you, what with our attention-grabbing headline. “Wait, Bailey was jailed for menacing, not taunting a cerebral palsy girl. You sneaky blogger, stop trying to drive traffic to your website!” However, before you jump to conclusions, the chief assistant city prosecutor for the case actually admitted that Bailey’s alleged mockery was a major factor in securing his jail sentence. Have a little faith in us, geez.

Of course, what this also means is that a somewhat disturbing precedent has been set against the rights of Ohioans. While Bailey’s alleged actions were no doubt heinous and he should be reprimanded in some way for them, jail isn’t necessarily the best way. After all, people make fun of others every day. People also curse each other out and do all manner of rude things to each other, too. What of these people?

Theoretically, Bailey’s conviction could serve as a basis to help justify disorderly conduct and/or menacing convictions for these folks as well. In which case, where does the line get drawn? Certainly, no rational person would agree that making fun of a child with cerebral palsy is acceptable behavior, but how about an overly sensitive person with irritable bowel syndrome or a bad haircut? Such a person could undergo a similar level of trauma as Hope, but should they be able to secure convictions against their mockers, too?

Probably not, but as you can see, the line is murky at best. While there is no word yet on whether Bailey plans to appeal his sentence, as it stands, his conviction sets an uneasy justification against the basic rights of citizens. Certainly, our world would be much better without jerks. But much like our eventual robot overlords will surmise, everyone can be considered a jerk.

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Illinois’ Anti-Eavesdropping Law Overturned: The Price of Preventing Police Misconduct

Police misconduct is a legal problem which can be difficult to prove. Part of the reason it is laws often restrict the kinds of evidence which can be collected. Many states, for example, prohibit private citizens from recording police activity on electronic devices without consent. One of the harshest of these laws can be found in Illinois’s anti-eavesdropping law, which gives a fifteen year prison sentence to anyone who records police conservations or statements without police consent. This law, however, has been deemed unconstitutional by a U.S. Appeals Court on First Amendment grounds. Since the United States Supreme Court has declined to hear an appeal from Illinois, the anti-eavesdropping law has been overturned, a victory for the American Civil Liberties Union (ACLU), the plaintiff in the case.

The Illinois anti-eavesdropping law contained two exceptions when recording the police was allowed, although neither exception helped the statute survives judicial scrutiny. The first exception made the law a one-way street: although private citizens received a fifteen year sentence for using their cell phone to record police conversations, police were free to make audio recordings without fear of punishment.

The second exception was for media who used the recordings for live or future broadcasts on TV or radio that was meant for the general public. The second exception looked like a First Amendment accommodation, but the exception fails to take into account printed media which might want to make use of recorded statements of police misconduct victims who want to use the recordings as evidence of misconduct or excessive force. These types of activities were hindered by the Illinois statute and the ACLU rightfully exposed these loopholes in getting the law overturned.

The anti-eavesdropping statute isn’t without merit though, despite being an obstacle to proving police misconduct. Contrary to some views on the internet, the police shouldn’t be subject to a “if they have nothing to hide, they have nothing to fear” inspection. This kind of thinking hides a presumption of “guilty until proven innocent”, a perversion of the current criminal justice assumption of “innocent until proven guilty.” Police have rights as well, and if privacy is a right for private citizens who are wiretapped, the same values should be enforced for the police as well. Equality does not mean much if the rules do not apply to everyone. The anti-eavesdropping law might not reflect the equality principle, but that is partly why that the statute was unconstitutional, not why the police should be treated less than the average citizen.

Of course, the police have more power and responsibility than the average citizen. Police abuse of power must also be kept in check. But what about the victims? Crime victims, who speak with the police about, for example, rape, deserve privacy as well. Although keeping the media out of a criminal proceeding is often beneficial for a fair trial for the defendant, victims should not be pressured to speak about what happened until they are ready to talk about the crimes. An amateur journalist who whips out the cell phone to record a police interview with victims violates the privacy of the victims as much as the privacy of the police officer.

These dissenting arguments are far from bulletproof; its arguable police abuse is more common than the need for victim privacy, but the point is that there is a legitimate state interest in privacy. Cell phones and Apple products have increased scrutiny of government wrongdoing, but privacy must be universal if it’s to have any meaning. Although government should be transparent, government cannot always help those in need without a degree of privacy as well.

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“Cleaning Fairy” Clips Her Own Wings, Pleads Guilty to Attempted Burglary

In these unstable economic times, business owners will go to great lengths to increase business. Susan Warren, owner of Sue Warren Cleaning, decided to go beyond advertising though and give potential consumers a sample of her services. The problem, however, is that Warren rarely bothers to get the consumer’s permission first.

Warren entered the home of Sherry Bush on May 22, 2012 in order to clean the dishes, vacuum the floor and take out the trash. She didn’t take anything. Mallory Bush, the homeowner’s eighteen year old daughter, was asleep upstairs and assumed it was her mother when she heard all the noise. But when Mallory came downstairs, she found a napkin with Warren’s phone number, address and a bill for seventy-five dollars. Sherry told Mallory no cleaning lady had been hired, so Mallory called the police.

Ohio police called Warren, who insisted she hadn’t cleaned the Bush house by mistake, but that Warren randomly cleaned people’s houses all the time. Warren was arrested and charged with burglary and criminal trespass. She recently pled guilty to attempted burglary.

Some readers might be confused why Warren was charged with burglary if she didn’t take anything from the Bush household. However, the crime of burglary is not trespassing to steal; burglary is trespassing to commit a crime. Most burglaries are done to commit a robbery, rape or murder, but cleaning a house is not a crime in any state, so the underlying crime for burglary is absent in this case.

The prosecution could have argued the un-consented billing of seventy-five dollars was a claim of ownership over the money. Since the Bush family never consented to the job, Warren’s expectation of being paid could be viewed as theft by trickery. However, it is highly doubtful most judges would believe that “theft” should be stretched to include unwanted work. The guilty plea to attempted burglary might have been unnecessary given that the prosecution would have a difficult time proving actual burglary.

More importantly though, Warren’s story is a textbook example of why the right to remain silent is so important. In one phone conversation, Warren wavered her strongest defense and multiplied the number of possible charges the District Attorney could bring against her. If a criminal defense attorney had been present with Warren when she spoke with the police, the attorney would have advised Warren not to disclose she had the correct house or that she often went into people’s homes to perform un-consented cleanings.

Although neither the defendant nor the attorney can lie, the burden is on the prosecution to raise charges and disprove defenses. By saying she had the correct house, Warren shot down any mistake of fact defense she could have made. Mistake of fact means that the defendant meant to do the right thing, but got confused about how to follow the law. In this case, Warren could have said she meant to do a legal job, but mixed up the addresses instead. Of course the police could have asked for Warren’s business records to see if she actually had a legal job that day, but it’s doubtful the police would have pursued a nonviolent crime this closely if Warren hadn’t been so defiant about what she made done.

However, not only did Warren kill one of her best defenses, she also gave the police more ammunition to give a harsher sentence. If a defendant says she has done a supposed crime before, that statement doesn’t excuse the defendant from committing the crime. Instead, the police will investigate other burglary reports so that they can hold Warren responsible for those crimes as well.

So remember, if you are ever charged with a crime and the police are speaking with you, ask for an attorney and then be quite until that attorney arrives. Doing otherwise might result in your case becoming a wash.

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