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Disclaimer: This
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Traffic Tickets in the Las Vegas Valley
Anthony
M. Wright, Juris Doctor
Copyright: August 2007
The
Las Vegas Valley has four jurisdictions within which to get a moving
violation: Clark
County (Justice Court Jurisdiction), Las Vegas (Las Vegas Municipal
Court Jurisdiction), Henderson (Henderson Municipal Court
Jurisdiction), and North Las Vegas (North Las Vegas Municipal Court
Jurisdiction).
Thus, our little metropolis has four parts
patrolled by police that belong to each jurisdiction. Las Vegas
Metro cruises around Las Vegas and Clark County, however the cops in
Henderson stick to Henderson and the cops in North Las Vegas stick
to North Las Vegas.
When
you get a citation, one of the first things to look for on the
citation is which jurisdiction you are in. It is possible that the
cop cited you outside of his jurisdiction. If so, do not argue with the
"peace" officer because it could ruin your day, if not your
life. Instead, smile warmly, thank him
for protecting public safety, and take the ticket to an attorney who
will argue the jurisdiction issue before a judge or district
attorney who will likely dismiss the citation or greatly reduce the
severity--say reducing it from speeding 25 mph over the limit to a
parking ticket.
You
should consider a few things when you receive a ticket. Yes, you are
probably guilty. If you
are guilty, you committed a crime. The crime is a misdemeanor,
which is the least severe crime to be charged with. Even though a fine is
usually the punishment, jail time and community service are also at
the Judge's disposal, along with requiring traffic school, and
points on your driving record--which can result increased insurance
premiums.
If
it makes you feel better, consider it not a punishment but a user
tax. If you use your
vehicle a certain way, expect to pay a tax for doing so. The jurisdictions raise
revenue through these user taxes. We live in a state that has
no personal income tax, so be grateful about that. However, do not ignore the
court appearance date or you could be faced with a "bench warrant"
for your arrest. This
is not fun because you will likely go to jail if stopped again. In addition, an attorney
will charge extra to quash the warrant.
Please
note, the worst thing you can do is act upset with the police
officer who stopped you. They may treat you very poorly, they may search your person
(it's called a "Terry Pat Down Search") to look for a weapon or
drugs...likewise they may search the passenger compartment of your
car all in the name of officer safety. They may do these things on
their own initiative, but if they ask to search, politely refuse to
consent. If they have to ask, then they probably do not have the
requisite reasonable suspicion or probable cause to do it without
your consent. It is not
wise to consent to a search because cops can literally tear your car
apart as part of the search. And then there is the possibility that
someone left contraband in your car that you were never aware of-try
denying it is yours-I dare you. Cops, district attorneys,
and judges have heard that argument a hundred billion times. The
best thing to do is to not consent to a search no matter how
innocent you believe you are.
Officers are sometimes known to violate Civil
Rights and the law, but they have the guns and their buddies in blue
to back them up, therefore it is in your interest to be on their
best side. The best revenge for a traffic ticket is to hire a lawyer
to represent your interest at the courthouse.
Usually
lawyers can settle the ticket and you'll end up only having to pay a
fine. If you are the
type of person to get tickets all over the valley, you should note
that some jurisdictions have much heftier fines than others do. I will
not tell you which because I want you to be on your best behavior
while driving at all times, but just know that a ticket in one part
of town may be 5 times more expensive than in another part of
town--even after the ticket has been reduced.
My
public service message to you is to treat the ticket like a user
tax, smile at the officer politely so that you can live to pay the
fine. Most importantly,
hire my firm to represent you for your traffic citation. By doing so, you will not
have to appear in court-which could be an all day affair for you and
I think you probably have better things to do. Call me and ask us what we charge, I firmly believe that when
you know what you get from an attorney for the money you pay, you
will deem it worthwhile to hire an attorney for your tickets.
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Arguing in the Alternative: Spirit vs. Letter of the
Law
Anthony
M. Wright, Juris Doctor
Copyright May 2007
In law, judges often face the issue of whether
to follow the letter of the law or to follow the spirit. This issue
is by no means a new one and has probably been around since
humankind first learned to write. It is one of the major reasons to
have lawyers.
Judges are supposed to interpret laws; this is
their primary function. Judges generally are not supposed to create
law; that is the job of the legislature. However, sometimes
legislatures draft laws without really thinking about all of the
potential problems with interpretation. Savvy lawyers will use these
loopholes created by confusing language to influence a judge's
decision.
Lawyers
who say that a law is black and white do not want judges to
interpret beyond the "four corners" of the statute. They will argue that if the legislature wanted the law to be
different, then they should revise the wording. Until then, the
judge should apply the law in the strictest sense.
Lawyers who want the spirit enforced wish to
make the judge consider why the law was enacted in the first place.
They argue that the motivation for the law is more important than
the actual language.
By way of example [1], let us say a statute
declares, "Any person caught drinking and driving is guilty of a
misdemeanor, for a first offence, punishable of up to a year in
jail, or for a second offense, is guilty of a felony, punishable of
not less than one year and not more than 5 years."
Willy is pulled over by a police officer and is
cited for drinking while driving. Willy was in fact drinking water
out of a plastic bottle while stopped at a red light.
Willy hires me because the prosecutor wants to
make an example out of him and send a message that violators will be
punished. I read the statute and laugh at how stupid the legislators
were in drafting the statute.
I decide that I want to influence the judge by
making the judge consider the spirit of the law. The legislature
wanted to punish people for drinking alcoholic beverages while
driving the vehicle, but the legislature neglected to clarify this
in the statute.
The prosecutor does not care about the motive.
He wants a conviction because he believes that drinking anything
while driving is dangerous. He tells the judge that if the
legislature meant "alcoholic" beverage then it should revise the
law, in the meantime Willy must go to jail.
The judge appears to believe the prosecutor's
viewpoint. I can see it in the glint of his eye. The judge has been
embarrassed in the past because he did not follow the statutory
language to the letter and a higher judge overturned his decision.
Now, I am beginning to feel like I am losing.
So I might say, "Your honor, I fully understand
that the letter of the law should be applied even if the intent was
to curtail alcohol consumption while driving. If we are going to
look at the plain meaning of the statute and not consider the
motivations of the legislature, then it is important to consider
that Willy was not in fact driving when he drank. The statute
clearly states that a person must be driving, however Willy was
stopped at a stop light. Thus, by the very language of the statute,
he is not guilty of violating the law."
The
judge's grimace lightens, his face softens. He never wanted to agree
with the prosecutor but felt he had to because the statute seemed
clear. My argument, however weak, would be enough to get Willy
off.
The prosecutor might argue that Willy simply
being in the car with the motor running was "driving" but because
the statute did not define the word "driving" the judge is free to
interpret the word. The judge could say "driving" meant only the
condition of being in motion.
So, in this example, I might have lost on the
strong argument that the spirit of the law was more important than
the letter of the law, however I won on a much weaker argument. This
is sometimes the case. [2]
There
was a time about 2000 years ago when a group of legal interpreters
focused so much on the letter of the law that challengers were
killed. These scholars went through hundreds of scenarios to
determine if people were guilty of violating the word of the
law. Now, the really
interesting thing about the words of these laws were that they were
considered holy, direct from the mouth of God. Thus, the scholars
wanted to make sure that they interpreted correctly. How better to
make sure the word of God was followed than to strictly construe the
meanings of the words?
Therefore, according to their interpretation, a
person who saved his work camel from drowning in pouring rain on
Saturday was guilty of working on the Sabbath and punishable.
Then
came a guy who said that the spirit of the laws was more important
then the literal meaning of the writing. He explained that the
motive behind the laws was to create a happy life for the adherents
and give believers hope and joy. The scholarly interpreters (aka
"the Pharisees") did not like this obnoxious trouble maker who
thought he understood better than they, so they called the police
and had him arrested. Then they told the judge that he was causing
too many problems with his ideas. If the government wanted peace,
they would have to silence this interloper. So they did. They killed him.
Whether this story about Jesus and the Pharisees
is literally true does not matter. The spirit of the story tells us
that lawyers, like Jesus, can get in a lot of trouble for upsetting
the time-honored ways of doing things.
Lawyers
know that whether you argue for letter or for spirit, you must be
prepared to suffer the consequences, so, they argue for both. You
will note that in my example about drinking and driving, I explained
how I would use both tactics. I argued spirit first and word second
because my goal in this one instance was not to change the stupidly
drafted law. Nope--my
goal was to free Willy.
Lawyers are often accused of speaking out of
both sides of their mouths. Incidentally, most politicians are
lawyers too. There is a reason for it. We want to cover all of our
bases. If one argument won't win, try another even if it seems
contradictory. Its called, "arguing in the alternative". Have a nice
day!
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[1]
This example is fictional and is not intended to dramatize legal
abilities for advertising purposes. It is intended only to
facilitate comprehension. This law is not an actual law and any
similarity is merely coincidental.
[2] I love fictional examples;
they make me look so smart!
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Child Support in Las Vegas,
Nevada
Anthony
M. Wright, Juris Doctor
Copyright: December 2006
Child
support is a State mandated expense that parents must pay or risk
going to jail. Thus, it
is important for a parent to consider several options when there is
fallout with the other parent. Failure to prudently assess your
situation could result in a parent unexpectedly being fully burdened
with child support while the other parent lives on the monthly
check.
Child
support is determined by the number of children you have, a
percentage of your income, and adjustments made for such benefits as
health insurance. It is
very formulaic and leaves little discretion to the judges.
One
of the biggest effects on child support is the amount of physical
time you spend with your child. Three
options are available in Nevada and this article will briefly
explore each.
Option 1:Terminate parental rights.
If
you have no desire to raise your child or even visit your child, you
may be able to completely relinquish all of your rights as well as
all of your duties. Few
people consider this option because they love their children and
because it would be unfair to the other parent. The judicial system frowns
upon parents who give up their kids without a very good reason. If you made a human being,
you are responsible for its welfare. However, if you can relinquish
your rights, you will also not have to pay child support.
Option 2: Primary custody
If you take full responsibility for your child
so the other parent only has visitation, then the other parent will
have to pay you child support--no ifs, ands, or buts. Sometimes this is the best alternative because one parent is
clearly in a better position to raise a child than the other.
I always recommend to my divorcing clients that
they seek primary custody because it shows an earnest desire to
raise one's child and the other parent may even consent to it. If the
other parent fights it, then my clients can always negotiate a
settlement for joint custody.
Option 3:Joint Custody (splitting the baby)
Joint custody is favored because it gives equal
physical time to both parents. However, the parent who makes
more money may have to pay child support to the other parent. The
rationale for this is that a child should not spend half its week in
a mansion and the other half in a cardboard box. However, if both parents make the same income then child
support is not awarded to either party. If both parents should be making
nearly the same amount of money, but one is not working but living
off child support, then the paying parent can ask the court to
adjust the child support based on "willful" unemployment.
Conclusion
It is crucially important to your relationship
with your child and the other parent that you consider each of the
above-listed alternatives. The option you choose will affect
the time you spend with your child and the amount of child support
you have to pay or that will be paid to you.
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Las
Vegas Divorce in Two Months
Anthony M. Wright, Juris Doctor
Copyright: January 2007
Las Vegas is the town of quick marriages and
quick divorces. Many states in the United States
require a person to have resided in the state anywhere from six
months to several years before a divorce court will exercise
jurisdiction over a divorce. Not so in Nevada. You need
only have lived here for six weeks before you can file a Petition
for Divorce. Once the petition is filed, the
actual divorce date will depend on several factors including whether
the spouse will cooperate, the court's calendar, and amount of
property in dispute, and disputes over child custody. However,
if both spouses can agree on everything, then a divorce decree could
be filed within a couple of month.
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Were you
lying then or are you lying now?
Anthony M. Wright, Juris Doctor
Copyright: April 2006
Whether you committed a crime or not, you have
the right to remain silent when being questioned by an authority
figure. The right against self-incrimination is a constitutionally
protected fundamental right. This article will point out a few of
the reasons you should keep your mouth shut.
Reason 1.
The police are not there to help you. They are
there to gather evidence against you. Officers will play the good cop by
acting like they want to understand you and will be on your
side. Then, if you are less than forthcoming, the same cop or
another one will become angry and attempt to threaten you into
confessing. Do not fall into these traps.
The officers might act like they are just
conversing with you. The fact is that they want to
gather sufficient evidence so that they have probable cause to
arrest you, at which point they will read you your rights-but it
could be too late already if you confessed. The
officers will say that you confessed voluntarily, even if they
manipulated you long before they arrested you. Who are
you to then stand up in court and call our fine peacekeepers liars?
Reason 2.
Officers can purposefully or negligently
miswrite on their reports what you told them. Police
reports are considered to be pretty good evidence in court. When you
take the stand and recount under oath the events leading up to your
arrest and what you say does not match up with the police report,
the District Attorney can then ask you the damning rhetorical
question of, "Were you lying then or are you lying now?"
Reason 3.
If you told the police anything, whether you are
innocent or not, you have just made it much more difficult for your
attorney later on to present a theory of the case that could show
you are not guilty. By speaking to the officers, you
are reducing your possible defenses.
Conclusion
A wise man once said something to the effect of
"a person is not condemned by what is put in the mouth but by what
comes out of." Therefore,
when approached by an officer, be polite, courteous, and quiet.
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Relocating with your child from Nevada
Anthony M. Wright, Juris Doctor
Copyright: June 2006
If you have primary custody of your child and
wish to move out of Nevada, you must first give notice to the other
parent of your intention to move. If the other parent consents, then you may move without court
intervention.
However, if the other parent does not consent,
Nevada law requires the moving parent to file a "Petition for
Removal". The non-moving
parent can then file an answer arguing the moving is not in the best
interest of the child and a difficult court battle will ensue.
The moving parent will have to prove that there
is a "good faith reason" for the move. Nevada Supreme Court cases have
declared that moving to pursue a romantic relationship is a good
faith reason, so is moving to better one's occupation. The moving parent should also
present evidence to show the following:
(1) The extent to which the move is
likely to improve the quality of life for both the child and the
custodial parent;
(2) Whether the custodial parent's motives are honorable, and
designed to frustrate or defeat visitation rights accorded to the
non-custodial parent;
(3) whether, if permission to remove is
granted, the custodial parent will comply with any substitute
visitation orders issued by the court;
(4) whether the noncustodian's motives are
honorable in resisting the motion for permission to remove, or to
what extent, if any, the opposition is intended to secure a
financial advantage in the form of ongoing support obligations or
otherwise;
(5) whether, if removal is allowed, there will
be a realistic opportunity for the noncustodial parent to maintain a
visitation schedule that will adequately foster and preserve the
parental relationship with the noncustodial parent. Schwartz v. Schwartz, 107 Nev.378,
383 (1991).
Once the moving parent has proven a good faith
reason to move, the objecting parent must prove that the move is not
in the best interest of the child, otherwise the court will grant
the move.
Conclusion
It is advised that a contested removal should be
handled by an attorney because if the petition is not completed
correctly and the evidence not presented adequately, the
constitutionally protected right to move can be hampered when
balanced against the other parent's constitution right to raise his
or her child.
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Sealing
or Expunging a Federal Criminal Record
Anthony M. Wright, Juris Doctor
Copyright: April 2007
You want to be an upright citizen with
opportunities for a good career, however you have a criminal record
which you feel will bar you from advancement in life. In State
courts you can often seal a State record after a certain length of
time and depending on the crime. An attorney can aid you through the
procedure.
However, if your crime happened to be a federal
offence, be prepared to spend enormous amounts of money just at the
chance to seal your record. The odds are against you because the
federal courts have ruled that only in rare situations will the
court seal a record-and I mean rare.
Your crime could have been minor, it does not
matter. A less expensive and perhaps even better gamble would be to
write a personal letter to the President of the United States asking
for a presidential pardon.
Sorry folks. Once you are branded by the federal
system it is likely a lifetime stain. It reminds me of the novel Les
Miserable in which the hero was thrown into prison for many years
for stealing a loaf of bread to feed his family. Once he served his
time, no one wanted to help an ex-convict and the police were always
suspicious of him. He eventually changed his identity in order to
get some semblance of a good life. However, even then he eventually
ended up dying at the hands of an overzealous cop.
My advice to you is to fight any federal charges
from the beginning and not to plead guilty, unless you truly believe
that the deal offered by the US Attorney's office is good and your
chance of a conviction and severe punishment is high.
If you find yourself in the unenviable position
of having a federal criminal record, all I can suggest would be to
do your best to explain the circumstances in a light favorable to
you when a nosy employer asks. Write a summary of the incident
explaining it from your point of view and attach it to your job
application. If it is well written, it may even improve your chances
of getting the job.
As our government churns out more and more
criminals with its arbitrary enforcement of arbitrary laws, more and
more employers will become more and more understanding of your
plight. Good luck.
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Riding
your Bicycle, and Other Arrestable Crimes
Anthony M. Wright, Juris Doctor
Copyright: January 2006
Crimes in the United States are generally
classified as misdemeanors, gross misdemeanors, and felonies.
Misdemeanors generally are crimes that are not very serious such as
speeding. Gross misdemeanors are crimes that we consider more
dangerous or more serious, and felonies are the crimes that
generally involve evil intent and victims.
The Supreme Court of the United States has held
that police officers may arrest any person if there is probable
cause of a crime. It is within the cops' discretion to arrest you if
you were speeding in your car, throwing a cigarette on the ground,
loitering, and riding your bicycle without using proper hand
signals. The probable cause comes from the officer witnessing you
committing the crime.
Some cops will arrest you and justify the arrest
in the police report by claiming you were belligerent and they did
not believe you would sign the citation in which you promise that
you will show up in court. This could be a lie on the part of the
officer, but without video footage of the arrest, it is your word
against the police.
Law-abiding citizens are often arrested on minor
offenses because they are shocked by the attitude they are given by
police who stop them. Surprised at being stopped and at the
condescension of the officer, the misdemeanant will say something to
the effect of "I know my rights."
If you argue with the cop or offer an excuse for
you behavior, you could be doing yourself a grave disservice. I can
tell you of a cop who stopped this fellow for speeding. The fellow
said that he had not seen the speed limit sign, hoping the cop would
understand and let him go with a warning. Instead, the cop wrote him
the citation for speeding and added another citation for inattentive
driving.
Cops do not like to hear any lip and can arrest
you. Cops do not care that you already feel humiliated that you are
being charged with a crime when you believed you were adhering to
the law. They do not care that you are a law-abiding taxpayer and
you pay for their salary.
Some of the slickest criminals are ex-felons.
They understand the cop psychology and act with the utmost respect
toward the officer, saying "Yes sir" and "No sir" and "thank you for
informing sir". Even though these ex-felons probably do not pay much
by way of taxes and are not responsible for contributing to police
salaries, police treat them much nicer sometimes.
If you act like the boot-kissing sycophant with
a cop, the Cop may think you are a convicted criminal, however
generally the cop will treat you better than if you act like a
law-abiding citizen who knows his rights.
Conclusion
Be calm, courteous, and quiet with police
officers when stopped. If they harass you, keep your cool or you
will fuel their adrenaline and make them more apt to treat you
worse.
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'I didn't
know': What Young Thugs Should Know But Aren't Taught
Anthony M. Wright, Juris Doctor
Copyright: January 2006
"I didn't know." This is the excuse many
criminals give when they did something that violated the law. The
excuse is most often used when a misdemeanor occurred and the
misdemeanant did not know what he did was wrong.
An example would be not coming to a complete
stop at a stop sign, which is a crime in Las Vegas, Nevada . A
person from California , where rolling stops are legal, might not
know that they are illegal here. It does not matter, however, that
the person did not know because ignorance of the law is no
excuse.
Most often people feel that their lack of
knowledge ought to be an excuse to pardon them from their behavior
when the crime was what we in the legal profession call "malum
prohibitum", which is Latin for "bad because its prohibited".
Malum prohibitum laws come about when our law
makers have, in their infinite wisdom, decided that some actions or
inactions should be unlawful because they harm or have the potential
to harm society in someway. An action or inaction is deemed wrong
for public order even it there is no discernable victim.
A rolling stop in Nevada could be dangerous, so
it is prohibited and you are a criminal if you violate this law
whether you knew better or not and whether an accident occurred or
not. The problem is that there are so many laws created by so many
law makers, that no one can really knows them all and many otherwise
law-abiding citizens become criminals.
Most often, malum prohibitum crimes are also
classified as "strict liability" crimes in which the criminal's
intention does not matter. It does not matter that you knew that you
were committing a crime, all that matters is that a crime was
committed. You did not see the speed limit was 25 miles an hour when
you were flying by at 75 miles an hour. Too bad, reckless driving-no
defense.
Another common example of malum prohibit crimes
would be statutory rape. States set age limit on who can have sex
with whom. If an adult has sex with a 13 year old and the age of
consent is 16, like in Nevada , then the adult is guilty of
statutory rape even though the adult thought the minor was 18. A
mistake of fact is not an excuse for a strict liability
crime.
On the other hand, we have another category of
crime which is called "malum in se." Malum in se means "evil in and
of itself". These crimes are crimes that people should know are
wrong because their conscience tells them so. Our lawmakers have
codified these crimes, but even if they hadn't, we would still know
the crime to be wrong based on our morality. Such crimes include
murder, rape, mayhem, robbery, arson, and others. One problem is
that many of our young are not taught morality-anywhere.
Malum in se crimes are generally not strict
liability crimes because we want to make sure that the person who
did the act had the intent of committing it. In the case of murder,
a person is found dead and another person is charged with the
murder. The charged person says that the death was accidental and
that he did not intend for the person do die. Because murderers have
done the ultimate human atrocity, we want to punish them severely;
however, we want first to make sure they were in fact
responsible.
Therefore, the prosecutor must prove beyond a
reasonable doubt that in fact the death was the result of an
intentional act and that the desired result was death. The
prosecutor has the burden of proving the criminal elements of "mens
rea," "actus reus", and a concurrence of actus reus and mens rea.
(aka: mental intent, physical act, and the coming together of the
mental intent and physical act.)
The above is the background for the lesson of
this article, which is that our public schools do not teach our
students to know the basics of the law of the land. As a result,
young hoodlums go too far in carrying out their little crimes
because they do not know the full ramifications of their actions.
Many criminal lawyers believe that there is one
crime where the excuse of "I didn't know" really ought to be taken
seriously, and that is the crime of felony murder. Unless you are a
crime buff or have gone to law school, you probably do not have the
first clue of what felony murder is. And yet, many young thugs who
are just high on the idea of doing a minor, yet forbidden, crime end
up guilty of felony murder which carries, in many jurisdictions, the
same punishment as cold blooded, first degree murder.
You see, even though the word "murder" is in the
name and murder is ordinarily characterized as a "malum in se" crime
requiring mental intent, in the United States we treat felony murder
like a strict liability crime.
The best way to describe felony murder is by way
of example:
Three eighteen year old high school seniors on
Spring break decide they want to have fun and do what they've seen
in the movies. They decide to go hold up a convenience store with a
gun one of them "borrowed" from his father. The kids figure if they
get caught the worst time they would do is maybe five years, but the
chances of them getting caught are slim if they keep quiet about the
crime. They make a pact that it would be their little
secret.
They enter the convenience store with masks.
Three other people are in the store: the clerk, a customer in the
isle, and a gambler at a slot machine. One of the boys whips out the
gun and demands that the clerk give them all the money in the cash
register.
The gambler immediately has a heart attack from
fear of the hold up. The gambler dies.
The customer in the isle whips out her gun and
shoots one of the gangsta boys. The hoodlum dies.
The boy holding the gun panics and fires,
striking the clerk. The clerk dies.
The two remaining hoodlums flee but are later
identified when the bullet from the clerk's body is identified as
belonging to the gun owned by the boy's father.
Question: How many murders can the two boys be
charged with? The answer is three. Even though the gun toting
hoodlum actually only killed the clerk, both boys can be charged
with three murders because three deaths occurred during the felony
of armed robbery.
The gambler died of a heart attack that he would
not have died of but for the robbery-felony murder.
The hoodlum died when the customer shot him and
this would not have happened if the boys hadn't held up the
store-felony murder.
The clerk was accidentally killed by the hoodlum
who panicked, but it does not matter because the death occurred
during the commission of a felony, thus felony murder. The boy who
did not fire the gun is still guilty of felony murder just as if he
was the one holding it.
The two surviving hoodlums could be locked up
for the rest of their lives for an indiscretion they did at 18 years
old due in part because of the negligence of our education system.
Our educators failed to inform our youth that even a crime where no
one was supposed to get hurt could end up being felony murder. Our
prisons are crowded with some of these wrong-headed kids who might
have otherwise been good citizens.
As a nation, we punish our criminals as a
deterrent to prevent other would be criminals from committing the
crimes. How can we expect to deter would-be criminals if we do not
educate our young people? Some of what is taught in law school
should definitely be taught in junior high and again in high
school.
Conclusion
Do not commit a felony such as robbery or rape
because if a death results, you are a murderer whether that was your
intent or not. Felony murder is tried by the prosecutors like a
malum prohibitum traffic citation, but punished severely just like
malum in se murder. The excuse of "I didn't know" will not help you
even if you are justified in believing it would because of the
failure of our education system. Felony murder is an example of what
happens when our government's justice system meets up with our
government's education system-tragedy!
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Cruel and
Unusual: How District Attorneys Punish Criminals
Anthony M. Wright, Juris Doctor
Copyright: March 2006
Our United States Constitution tells us that we
citizens cannot be tried for the same crime twice. For example, if
we are charged with murder and a jury finds us not guilty, we cannot
again be brought to trial for the same murder later. Double jeopardy
is against the law of the land.
We can, however, be sued. For those who remember
the OJ Simpson trials, you will recall that he was first tried for
the crime of Murder and was acquitted because the glove did not fit.
The murder victims' families later sued OJ for "wrongful death" and
he lost millions of dollars. This is not an example of double
jeopardy because one trial was for crimes and the other was a civil
lawsuit. The constitution only applies to criminal cases.
However, lawyers who become legislatures have
created laws, which are interpreted by other lawyers called District
Attorneys, which can cause a person to be punished more than once
for the same crime. These laws include "enhancement" statutes and
"strikes" laws. Oftentimes the enhancement statutes are interpreted
together with the strikes laws to really punish a person. Punishment
twice for the same crime is not double jeopardy and does not offend
the constitution.
Case in point, Mr. Leandro Andrade of
California, was tried and convicted on two counts of shoplifting
from K-mart some years ago. Shortly before Christmas, this father
with a drug habit, went to K-Mart and stuffed several children's
videos down his pants but was caught when leaving the store. He was
given a written citation to appear in court. Two weeks later he
attempted the same petit larceny at another K-mart and was again
caught and cited.
Mr. Andrade had prior convictions for minor
non-violent offenses and had served time behind bars for them. Most
of his offenses were petty and involved his addiction to
drugs.
What Mr. Andrade did not know and what most of
California did not know, was that the new three strikes law would be
applied to Andrade's case and Mr. Andrade would spend the rest of
his life in prison. Ignorance of the law is no excuse, right? Who
knew that two laws in different parts of the criminal code would
come together for this result. District Attorneys, that's
who.
You see, California had enhancement statutes,
which say that if a person has had prior convictions and commits a
new crime, the prior convictions are upgraded to felonies, and so
are the new crimes. Thus, in the case of Mr. Andrade, who had had
misdemeanors in his past and his newest crimes were also
misdemeanors, the enhancement statutes upgraded his prior
misdemeanors and his current ones to felony status.
Next, the District Attorney decided to apply the
new Three Strikes Law. Under this law, once a person has a third
felony conviction, the person will receive a minimum stay in prison
of 25 years and a maximum stay of life. Do-gooder legislatures and
angry parents created the Three Strikes Law which was intended to
put away violent repeat offenders. By violent, the angry parents of
dead children meant killers and rapists.
Nevertheless, Leandro Andrade, a Veteran of the
Armed Forces, a father, and a non-violent drug addict suffered the
Three Strikes Law because the District Attorney, Judge, and even the
Supreme Court of the United States believed that although his
offenses were not violent, they could have been. They declared that
the act of shoplifting could have become violent because any crime
shows a disregard for the common welfare and has the potential of
becoming dangerous. Besides, an example should be made of Andrade to
deter other recidivist from continuing to thumb their noses at the
law.
Thus, Mr. Andrade's last two unsuccessful
attempts at shoplifting constituted his third and forth felony which
became his third and fourth strikes. Now you must be thinking that
he received a minimum of 25 years and a maximum of life in prison.
Not so.
The District Attorney and Judge declared that
each count deserved its own sentence and that the sentences should
run consecutively, not concurrently. Therefore, Andrade received a
minimum of fifty years in prison and will not be eligible for parole
until he is in his late 80s. His children will grow up, go to
college, get married, have children of their own and will only get
to visit their father occasionally for limited time periods at a
prison. No grandpa Leo visiting on Holidays.
Several parents who lost children to murders
were outraged when they learned that their efforts were being used
to put away people like Andrade. It was a slap in the face to folks
who had lost children to killers. They worked so hard for a law that
would prevent killers and rapist from committing sixth, seventh,
eight, and more crimes, and now the "justice" system was putting
away a father who tried to steal less than $500.00 worth of
children's videos shortly before Christmas.
This application of an otherwise well-intended
law in California should tell us why California went bankrupt.
California shelters and feeds petty offenders for the rest of their
natural lives. Meanwhile, real murderers and rapists will be out of
prison long before Mr. Andrade so long as their crimes were only the
first or second offense.
The Constitution of the United States guarantees
that we Americans shall not suffer "cruel and unusual" punishment.
Some of the Supreme Court Justices had said in the past that even
prison terms could be cruel and unusual if the time given was
excessive when compared to the offence. However, the very same
Justices who had said this in the past declared that Mr. Andrade's
punishment fit his crime.
Noteworthy for you readers is that if you are
accused of a crime you did not commit but you accept a plea bargain
because you cannot afford to take a chance at trial, you will be a
convicted criminal in the eyes of our "justice" system. Later on
this conviction could be used against you when you are charged with
another crime and your punishment can be much more severe.
And if you think that you will not be charged
again with another crime in the future, remember that your prior
crime is on the books and any police officer who thinks you are a
suspicious person can access your record. If you committed a crime
in the past, it is likely that you committed this one too, right?
Innocent people on death row have been
exonerated after spending decades behind bars because new DNA
evidence proved that they did not commit the crime.
Why were they found guilty? A combination of
prior arrests and convictions, overzealous cops, tainted witnesses
and evidence, overburdened public defenders, bored sleeping judges,
apathetic juries, and mean-spirited or power hungry district
attorneys contributed to the convictions.
The best thing to do is to never get a
conviction, ever! This means you should plead not guilty if you are
innocent and you should have an attorney go to the bat for you. If
you have been arrested or convicted, at your earliest possible time,
work to have the record sealed or expunged.
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Parental Alienation
Anthony M. Wright, Juris Doctor
Copyright: February 2007
Some parents are just crazy. They are
unreasonable and will use their children to further their venomous
attacks on the other parent. They will accuse the other parent of
child abuse. They may even manufacture evidence to hurt the other
parent. The scary thing is, these hostile parents often come off as
credible in the courtroom.
They can be believable by keeping journals of
fictional accounts where they claim the other parent yelled at them
in front of the child, or threatened them, etc. They will have
family members vouch for them in court and lie on the stand.
This all being said, the court is faced with a
serious dilemma, whom to believe. It is therefore recommended that both parents keep journals
detailing the raising of the children so that memories cannot fade.
One reason people appear to lie on the stand is that they have
forgotten something from the past. I also strongly encourage parents
to video tape all exchanges and activities.
Parental alienation, however, is even more
insidious than accusations of abuse or neglect. It is a form of conscious or
unconscious mental and emotional coercion where one parent will
cause the child to believe certain things about the other parent,
causing the child not to want to be with the other parent.
A few examples include:
--Spoiling the child with material possessions
with full knowledge that the other parent does not wish to spoil the
child. The child will then favor the parent who gives in to all the
material demands of the child and will dislike the parent who is
trying to teach patience and humility.
--Speaking badly of the other parent. Suggesting the other parent does
not really love the child or that the other parent is very immoral
or evil human being.
--Undermining the other parent's efforts to
teach morality by teaching a counter-morality.
Conclusion
A parent who has to deal with another parent who
alienates their child should take steps early on to prepare for
court battle. The more
evidence presented at court by one parent will cause the court to
believe the presenting parent. A child should not be a pawn in a
battle for vengeance and the parent who clearly has the child's best
interest at heart should win with the proper presentation.
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