Wow, what a sad story. Here the guy survived Viet Nam only to decades later get murdered at home. What's really heart-wrenching, tho heroic, is the fact that it was all for his granddaughter. And his poor son, Michael. How can you know or think of exactly what to say or do in time of crisis. The family will all have a memory of a true loving husband/fathergrandfather & hero.



TIS

I usually relied on the State Constitution protection against unreasonable search and seizure. It offered more protection than the IV Amendment. But whenever this issue was raised in pretrial motions, the judges proceeded from the standpoint that the search or seizure violated the constitution, placing the burden on the State to show otherwise. In actual practice it was difficult for a defendant to win a suppression motion at the trial court level though. The State Superior and Supreme Courts would use strict scrutiny on appeal.

Thanks Kly. I'm surprised that judges would start from that premise.

doctor waterboarded 11 y/o daughter as punishment...

http://www.cbsnews.com/8301-201_162-5749...rding-daughter/

I saw this yesterday. It's another instance where you shake your head and say, "What the hell was he thinking?"

I know! What happened to good old electrodes???

Kly, the federal judge hearing Vilma's petition regarding his NFL suspension by Roger Goodell has encouraged both sides to try and come to a compromise. However, she stated that if she could find a way to rule in the Saints favor, she would.

Aren't such words, coming from any judge rather prejudicial if not alarming? Her words seems totally out of line and, it seems, lay the basis for an appeal should she rule in the Saints favor.

I agree. The NFL should ask for a recusal if they can't work this out. I know that judges often privately suggest how they intend to rule, but this judge has apparently transcended impartiality.

Olivant, I have a Constitutional question for you and your class.

The Fifth Amendment gives everyone the right against self-incrimination. The Sixth Amendment guarantees the right of criminal defendants to cross-examine witnesses, and have compulsory process to present witnesses in trial. How should courts resolve issues when these two rights clash. Specifically, what should happen when a defendant subpoenas a witness for the purpose of exculpating him, and that witness asserts his Fifth Amendment privilege when questioned by the defense? Or if a prosecution witness takes the Fifth on cross-examination?

An excellent question and delemma Kly. I usually confine my class's constitutional discussions to conflicts arising from the provisions of the 1st amendment. However, your's is one that I will definitely present to class.

Wouldn't the remedy be use immunity? If memory serves me right, I think the courts have generally sided with compelling such testimony, but with limitations. Is that correct?

Yes. Some federal courts rely on use immunity, which isn't always an option in state courts. This is one issue I've never encountered, but it puts a judge (instead of the prosecutor)in the uncomfortable position of granting immunity.

There is a good chance that the Drew Peterson murder trial will end in mistrial. The prosecutor had been instructed by the judge that references to whether the victim considered or obtained a protection from abuse order against the defendant were inadmissible.

Yesterday the prosecutor asked a witness whether the victim sought a protection order (apparently for the third time in the trial). The judge ordered that the jury leave the court room and lashed out against the prosecutor.

In rare instances a mistrial may be declared with prejudice, meaning that the State is barred from retrying the defendant. Repeatedly ignoring a pretrial ruling could very well place this matter on the threshold of a mistrial with prejudice.

If the case continues, Peterson has an argument for reversible error.

Here's another interesting local case:

A man driving with a younger woman and her child suddenly veered off the road into a ditch. He and the woman were wearing seatbelts, and weren't hurt. The child wasn't belted, was thrown from the car and died immediately. Bystanders said the driver was abusive at the scene and warned them not to call police. When told that police had been notified, he fled the scene. He was arrested the next day.

Police said that "much of his blood alcohol content had metabolized the next day," But they believed he and the woman "had been drinking similar amounts." Her BAC at the scene of the accident "was astronomical."

The guy rejected a plea offer and will stand trial for manslaugher, aggravated assault, DUI, etc. County Attorney said the reason is that he "thinks he has only three or four years to live." I think his lawyer told him that he couldn't be convicted because the prosecution had no hard evidence that he'd been DUI at the time of the accident. The most he could be convicted of was leaving the scene of an accident.

But I wonder: Can someone be convicted of DUI and manslaugher ex post facto when there was no BAC test at the scene of the crime, and the police are going only on hearsay about his "drinking the same amount" as his passenger?

Yes. A BAC is not required to charge someone with DUI. The police will have to rely on witness testimony of erratic driving as well as the defendant's appearance, including smell of alcohol and slurred speech, and actions following the accident. Evidence of flight after the accident and warning bystanders not to call police, especially when there is a fatality of a child, gan support a finding of consciousness of guilt. If the circumstantial evidence is viewed strongly enough, a jury can return a guilty verdict on DUI. These DUI cases are not easy for the prosecution to win.

The State may have a better chance winning on manslaughter if the reckless driving can be objectively established by witnesses.

Thanks, Kly.

I think the remedy here IS use immunity, however that's somewhat tricky. What it means is thewitness can incriminate himself, but that single act of self incrimination can never be used against him or her in a subsequent proceeding. The problem is that if the person is a suspect, or of the authorities have narrowed it down to two individuals, the admission may lead to an arrest anyway.

I'm no legal expert, but I think when the government throws immunity at an uncooperative witness it just isn't fair. Now being that this is a mafia related board, I'll give an appropriate example.

Say some poor schmuck gets in deep debt to shylocks. His name then gets picked up on a wiretap, so the feds show up at his door asking questions. They're sure to point out to him that "he hasn't done anything wrong and that he's not a 'target' of any investigation." He then tells them he doesn't know what they're talking about. The feds then make a veiled threat and leave.

A year later, the same poor bastard gets a Grand Jury subpoena. When he shows up, he's again told that he's "not a 'target' of this investigation, but that his cooperation is expected." He then goes on the stand and tries to "take the fifth." The feds then come back at him with an immunity order.

Now the guy is REALLY stuck between a rock and a hard place. He either lies out of fear of the mob and risks being charged with perjury, tells the truth and risks the consequences, or goes to jail for contempt. And all this when he wasn't even a "target" of the investigation. It just doesn't seem fair to me.

And correct me if I'm wrong, but didn't England---who we got the system from in the first place---do away with Grand Juries?

PB, the scenario you describe probably happens enough of the time. However, the purpose of a grand jury is to keep government on the federal and state level from just plucking people off the street and prosecuting them. The grand jury is sort of a gatekeeper or filter although, truth be told, all the resources are on the state's side (as they say, a district attorney can get a grand jury to indict a ham sandwich). So, on balance, the pejoratives that may affect "innocent" parties are outweighed by society's need for order and the rule of law.

I've never had a a client offered use immunity to testify. I'd be very suspicious if confronted with it for the reason you mention. Use immunity never appeared equal in scope to the privilege it seeks to replace.

If a witness, refusing to testify on Fifth Amendment grounds, is offered use immunity, as opposed to transaction immunity, you can infer that the government is looking to prosecute him or her. The government may also already have an independent basis, on which to bring charges, and therefore a witness is compelled to incriminate himself.

I'm wondering if you have any specific experience with use immunity. If so, before the court or the prosecutor offers it, is there an in camera proceeding to define the basis and extent of the immunity. Where I practiced, transactional immunity was the only type of immunity offered.

I was on the other side of it years ago when a co-conspirator flipped and got use immunity. But then another co-conspirator flipped on her to get a lighter sentence, and she was prosecuted.

The big money quiz show scandals of 1958-59 ($64,000 Question, 21, etc.),when contestants like Herb Stempel and Charles Van Doren given the answers to questions to make them look like geniuses,made a big impression on me when I was a youngster. The NY County DA started investigating them via grand juries, but was quickly eclipsed by an obscure House of Representatives subcommittee, which had televised hearings and made global headlines.

Years later, I wondered: On what grounds did the NY DA call a grand jury investigation? It wasn't against the law to present "fiction" on TV--if it were, Hal Holbrook could have been arrested for impersonating Abe Lincoln on one drama. And TV was pervasively regulated by Congress and the FCC. I tried for years to find an answer.

Finally got it in an obscure book, "Prime Time Misdemeanors," by Joe Stone the assistant DA who launched the investigation. I thought NY grand juries were empowered only to return "true bills" (indictments). Turns out the DA also could call grand juries to investigate "any matter or situation that might require new regulations or legislations." Pretty broad charter, IMO. I wonder if other states or counties grant such broad leeway to grand juries?

Kly and DT: Do ya'll find that most plea bargains involve a reduced sentence for the imnitial charge or a plea to a lesser charge?

I have very little experience with grand juries as they are rarely used in PA. But when they're used, it is done for a limited, defined purpose.

Sometimes the consideration for a plea agreement is merely to have the prosecutor stand mute for purposes of sentencing. Most plea agreements in my practice involved a reduction of charges or dismissal of charges if multiple crimes are charged. I probably had more types of this agreement than agreements for specific sentences.

Another question Kly: when would you expect a directed verdict of acquittal to be issued?

As soon as the prosecution rests, the defense may make a motion at sidebar for a directed verdict. If the judge deems that the prosecution's evidence, even if believed completely by the jury, does not satisfy all the elements of the charge, a directed verdict will issue.

I had it happen only once. A 21-year old man, Jamie, was charged with burglary for allegedly breaking into a closed bar and stealing bottles of booze. A week after the bottles were missing, a woman told the owner that Jamie hosted a party where the owner's missing alcohol was served. The owner checked out Jamie's trash, which was set on the curb for garbage collection, and discovered a dozen or so of his bottles.

At trial the woman testified that Jamie had told her that there was alcohol, stolen from the owner, being served. On cross she said there were at least 100 people at the party and that most of the guests brought bottles. The house was filled with many guests when she arrived, and she was unable to identify which bottles had actually belonged to the bar. The owner testified he identified them in the trash because they bore a unique stamp belonging to the bar.

After the prosecution rested, I asked to approach sidebar, and the judge said to make my motion from the counsel table. I paused because this type of motion is to be made outside of the jury, but the judge said, "You want a directed verdict, don't you?"

At that point I knew he was going to grant it, so I made the motion in open court.

Judges typically don't like taking cases from the jury, but the facts justified this instance.

Also, the defense may make a motion for judgment notwithstanding the verdict after a jury returns a guilty verdict. If the judge determines that the evidence (viewed in a light most favorable to the prosecution)did not satisfy the elements of the offense, the verdict may be set aside. In order to make this motion the defense would have to have first asked for a directed verdict when the prosecution rested his or her case in chief.

As you can imagine, these motions are rarely successful.

well I am a well know federal whistleblower, Vicki McLean whose federal false claim suit in New Orleans federal court that was sealed illegally and dismissed by ERic Holder is the reason for the shooting in Arizona main target Federal Judge John Ralls to threaten any judge to get the most recent filing on 1/28/2011, then we have the Aurora, Colorado shooting whose main targets were the military lured to the
theatre to muzzle the military leader in the US for the communists, then we have the murder of director Tony Scott to muzzle everyone tied to the movie Rock Of Ages that has a dominate monkey in the movie which stands for the book "Dr. Mary's Monkey" which is the research exposing the biological take out of American by the communists with Chemo and Radiation therapy which is a focal point of McLean' federal whistleblower case and much more. in the move we have the women's group which represents Vickii McLean President and founder of Women Helping Men Glorify God, Then on 8/16/2012 we have the shooitng at the Valero Plant(EXXon) in Norco, La to muszzle the St John the Baptist Parih police in regards to the cover up of the murder of Priest John Puch from destrehan, La St. Borremeo Church due to muzzle family members of Vicki Fanning McLean who knew aboaut the murder of James McLean for his deep water drilling technology stolen by Exxon-Mobil and illegally patented in US patent 6715341 with James McLean name without his knowledge while being murdered with parasites and radiation therapy but said to be frontal lobe glioblastoma like Senator Ted Kennedy and US Representative Mike Synar who went after the tobacco industry.Elect Romney who is interested in doing what John and bobby Kennedy was trying to do which is take back America from communist and facist(mob) control!

Appeals court grants George Zimmerman's request for new judge

By NBCMiami.com and The Associated Press

A Florida appeals court on Wednesday granted George Zimmerman's request for a new judge. Zimmerman, the former neighborhood watch volunteer charged in the fatal shooting of Trayvon Martin, had said the judge presiding over his case has made disparaging remarks about him.

A federal appeals court has struck down Texas Voter ID law as racially discriminatory.

http://www.cnn.com/2012/08/30/politics/texas-voter-id-law/index.html?hpt=hp_t3

Student arrested for fake racism.

http://www.post-gazette.com/stories/loca...-blacks-459700/