Thursday, November 08, 2007

A Presidential Review

I realize that it has been some time since I last posted on this blog. Forgive the absence, with the start of a new position, most all my time and energies are being directed there. If you are sincerely curious about what I am doing these days, feel free to visit If you like what you see, you may make a tax deductible donation on that same page.

But, to return to blogging. I will endeavor to do this more often and will probably change the format of the blog to so reflect. Do, please, forgive the irregularity of the posts. That is, after all, the hallmark that distinguishes a blog from a "cyber column."

I recently offered some thoughts on a particular Presidential candidate, which prompted my friend to ask me for further thoughts. Not being slow to offer an opinion, I thought I would take a few minutes to offer my personal (not professional) analysis. What follows are solely the thoughts of Jeremiah G. Dys, Esq., and not that of any organization:

The GOP:

First things first, nearly any candidate in this field is capable of, in an even battle, defeating nearly any candidate the DNC has to offer. But, we are not talking about the general election. We are first talking about a primary. That is a subtle, though important, distinction to make. Still, we have here a field of fiscal conservatives with a mixed bag of social conservative positions.

This primary, as well as the election that follows, is a watershed moment for the GOP. Since Reagan's departure, the GOP has been slouching towards liberalism, with a few bright spots around the 1994 Contract with America. The reason for this is simple: many in the GOP lack a spine and honestly believe it is best to compromise than to possess political (and moral) conviction.

The party nominee in '08 must unite the social, economic, and philosophic conservatives or the GOP will no longer be the GOP. I believe Dobson will make good on his threat to form a third party if the social conservative is sacrificed in the name of electability. That could be a travesty or the bravest rhetoric ever spoken.

Now, the field:

Sam Brownback. Sure, I know he's not in it anymore, but what Brownback did was elevate the discussion on values voting. Even now, as a non-candidate, he is speaking volumes. Rumor had him as a possible VP candidate with Giuliani, only to find him yesterday endorsing McCain. Either of those comes as a major, "huh?" to people who know the dyed-in-the-wool prof-lifer that is Sam Brownback. I appreciated his candidacy and look forward to, in some way, bolstering his rumored run for governor in Kansas.

John McCain. Whenever I watch John McCain speak, I recall the line from a song in Steven Soundheim's, "Into the Woods," when the princes sing, "Agony! Beyond power of speech, When the one thing you want, Is the only thing out of your reach." Mainly, I stop at, "Agony!" McCain stopped being a conservative years ago and now seems bent on making this the Grand Moderate Party. The problem is, he knows he cannot win that way. The conflict between appeasing the base and doing his own thing evidences itself as, well, "Agony!"

Ron Paul. George Soros' favorite candidate. I think Paul is downright hilarious to listen and watch. He has quite the impassioned delivery and believes what he believes quite forcibly, if erroneously. Still, the Libertarian office is down the hall. Thanks for playing. Paul is doing so well, from what I understand, because left-wing interests are pushing his support as the potential straw man for Hillary....I mean, the DNC knock down.

Tom Tancredo.
I was more impressed in person with Tancredo than I thought I would be. He is more conservative than he's appeared in some of the debates I've watched. Still, whether it is the "look" or "charisma" he lacks, he's not Presidential fodder.

Duncan Hunter. If I was impressed with Tancredo, I was blown away by Duncan Hunter! Hunter shows stripes of a former conservative California politician that revolutionized the GOP almost 30 years ago. His military service, and his son's current military service, makes him unassailable in the War on Terror. Socially, he nails the issues that are key to values voters. Economically, his tax plan is satisfactory. Sadly, however, he will remain the b-list Presidential candidate, but perhaps a fair pick for a veep nod.

Alan Keyes. Yeah, I forgot he was running too. Ambassador Keyes dramatically shifted the debates of the Dole/Clinton election, but is perhaps left to tending his think tank, Renew America.

Mike Huckabee. "I come from among you," said Huck to a crowd of 2500+ values voters. This former Baptist minister and governor of Arkansas has defied all odds and malevolent opinions of Presidential candidates from Hope, Arkansas. As social conservatives go, Huckabee is the poster boy. His years in the pulpit make him a crowd favorite and, among churchgoers, Huckabee can hardly be questioned. Perhaps the best line from any debate was his response to Ron Paul, "Sir, we may lose elections, but we must never lose our honor." He is the social/philosophic conservative candidate with a lovely economic plan (fair tax). Sadly, with all the tacit support being lobbed upon him, he's failed to make the next jump, though he's steadily rising. Questions abound as to his stomach for foreign policy and the war on terror. The log house republicans certainly don't care for his social absolutism. And the left is shaking at the prospect of having a Baptist minister in office. The question is why hasn't he received more tracking in the polls? Everyone you talk to loves the guy, but, invariably, the next sentence is, "But I just don't think he can win." Let's wait until after Super Tuesday to see where he ends up, but perhaps his best bet (and the best for the GOP, frankly) is to see him and Romney get together, Huckabee as Romney's running mate. That would be a dynamic duo indeed.

Mitt Romney. Conservative turned liberal turned conservative. Romney's been all things to all people, but none have felt he's been insincere. He possesses some liberal baggage from up in Kennedy-land, but when I heard him in person, I was grandly impressed. He has the look and swagger of a presidential candidate. If Jon Edwards wasn't in the race, he'd have the best hair too! He has courted some very high-profile names for endorsement: Jay Sekulow, Dennis Hastert, Paul Weyrich, and Wayne Grudem. His overtures to the evangelical right has also not been missed and has been equally successful, if a bit bought off. Still, the stumbling blocks for Romney are these: his flip-flop-flip on political ideology and his Mormonism. His Mormonism can be overcome, but it will take a LOT of convincing in the Bible belt. The flipping and flopping, however, may not - especially after the '04 chants of the GOP toward Kerry! I think he is genuine in his conservatism and he is possessed of the professionalism that we expect of our chief executive - which is how he is running his campaign: the CEO in chief. Still, if he wants to wrest this away from the field, make a deal with Huckabee. He's the only candidate Huckabee will not be able to upstage. He needs Huckabee's evangelical cred. Together, it would be a two headed monster of gloom for Hillary....I mean, the DNC nominee.

Rudy Giuliani. Rudy's triumph has been two-fold: Notre Dame football lore and being "America's Mayor." Greatly disliking Notre Dame football, I have to like him or not on his record in NYC. Strategically, his handler's best move has been to make this primary about the general election. That has forced everyone, news media and candidate, to say, "I can beat Hillary....I mean, the DNC nominee....too!" That is the true politics of fear: Hillary or Giuliani. Socially, Giuliani is a liberal. Let's face it, he favors homosexual "marriage," abortion, and doesn't have a great personal record on those values roughly 57 million evangelical voters hold dear. Clearly, when Dobson said he'd form a third party if a non-pro-life candidate was nominated, he had Rudy in mind. That could be his death-knell. When I heard him speak, it really bothered me that he said, "Christianity is a religion of inclusion...." Huh?! I'd expect something like that out of the left, that's how liberal theologians and agnostics explain us, but not a person seeking my vote! Bad move, Rudy. Despite the media's tacit nomination of Rudy, I am not convinced he has this thing sown up.

Fred Thompson. Anyone else disenchanted by "Rear Admiral Painter?" Fred has put me to sleep several times while watching him. And yet, I'm mesmorized by him. A friend described him well when he said, "He might be the last man standing." Thompson has his baggage, no doubt. But, he quotes the Federalist Papers. You can't fault him on that. He's a tried and true prosecutor and analyzes everything, like my other friend said, like a Federal judge. Yet, he speaks in a commonplace manner, which is offputting and comfortable in a political world that is often intimidating and annoying. Thompson lags in the polls in IA, MI, and NH, but is doing well in the states with big votes, FL, CA, PA. The question is why? There's almost a mystique about Fred, as if he's the great unknown that everyone loves if for no other reason than they just don't know him yet. January will be a decisive month for Fred. Or maybe February, or whenever he gets around to it. What is sure is this: at some point, he has got to communicate that he enthusiastically wants the position of President of the United States. This "dark horse" mystique will eventually wear off and whatever is underneath will have to be exposed. Just what that will do to his chances remains to be seen.

So, that's the GOP field. I'll do the DNC if and when I feel like it. I think my thoughts are easily summarized: yikes!!

Until next time, enjoy your Dysfunction.

Wednesday, July 18, 2007

Power to the People

Q: Do the Bill of Rights apply to Congress and Congress alone?

A: This is a difficult question to answer in 500 or 600 words. The short version of the answer is “yes” and “yes,” but maybe not for the reasons you are thinking.

To explain a bit further, let us dip into some governmental philosophy. Governments, much like corporations, are non-entities. That is, they are the creations of legal documents and the coalescence of ideas, as proposed (of course) by humans. In the creation of a government, like our Democratic Republic, we as citizens effectively say, “Look, we recognize that we are, by birth and nature, free and ought to be permitted to live as such. But, we recognize that there is a need for some parameters to be set in our society. We recognize that even nature has rules that are so deep, so pervasive, so ingrained in we the created that we must codify them. Therefore, we will place that freedom in the stewardship of something we will call government.”

That is a simplistic summary, indeed, but the main point is very important: citizens possess the rights and freedoms as – coining the words of the Declaration of Independence – inalienably endowed to them by their Creator. Whatever power our government has, therefore, is subject to approval or disapproval by we the governed. Thus, the Constitution establishes the form necessary to govern the collective whole.

Are you with me still? Good. Back to the question.

The Bill of Rights applies to all citizens. That is, it secures the inalienable rights our Declaration of Independence suggests we posses in written form. Hence, we the citizenry can invoke any one of the provisions of the constitution and subsequent amendments. For instance, the Second Amendment permits us to possess and bear arms – even, in extraordinary circumstances, against the government itself. Essentially, the Bill of Rights functions to say to government, “We the people say this far you may go and no farther.”

Yet, what of the Bill of Rights as it concerns Congress? As originally designed, the Bill of Rights is the written consent of the governed; it is the margin to government. It works to say that government – as Thomas Paine once suggested, “In its best state, is but a necessary evil; in its worst, an intolerable one” – must be restrained.

And this makes sense. Why would we the governed allow a non-entity, of our own creation and management, to go beyond our inalienable rights? While there is a need to provide for an ordered society, that ordering must be subject to those it governs and, borrowing again, “to the Laws of Nature and Nature’s God.”

If this all sounds vaguely familiar, pull out your pocket Constitution and turn with me to the Ninth Amendment where it states, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” And, as if to underscore the point, the Founding Fathers added the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In answer to the question, yes, the whole of the Constitution applies against Congress as a boundary, guaranteeing the application of the freedoms secured therein to the people. Where government overreaches, the Bill of Rights freely applies to the people as a shield against an invasive government, guaranteeing the survival of the freedoms inalienably endowed to them by their Creator.

Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Tuesday, July 10, 2007

Pardon Me?

Q: What gives the President the right to commute Scooter Libby’s sentence?

A: Last week, the big news was the President George W. Bush “commuted” the sentence of one Lewis “Scooter” Libby, a former aide to the Vice-President. For those of you fresh from hiding under your rock for the last two years, here’s a brief review of the facts.

Joe Wilson and Valerie Plame were husband and wife. Plame was the type of Federal agent whose secret identity as a Federal agent is not supposed to be revealed to anyone. She was the person who’s identity they disavowed any knowledge of at Mission Impossible headquarters. At some point, Wilson got involved in some political stuff, took a trip overseas that he probably should not have taken and, when he got back, said some things that made the current administration none too happy. Somehow, his wife’s name came up in the whole thing, a Washington Post journalist began sniffing around for a story, winding up at the desk of Lewis Libby, whose nickname has been “Scooter” since scooting about his crib. In the midst of that conversation he, allegedly, revealed Plame’s secret identity.

Scooter was brought in front of a grand jury, asked to testify, and put under the gun by Independent Prosecutor Patrick Fitzgerald who managed to keep Scooter busy running through enough circles that he eventually contradicted himself and, intentionally or not, committed perjury. Hence, he was brought up on charges of perjury and obstructing justice and some other counts. Interestingly, Scooter was not convicted of revealing the secret identity of a covert agent, which was how this whole thing started. And, as of today, no one has been prosecuted for that crime, vis-à-vis Plame. Scooter was then convicted of perjury, obstruction, and making false statements to a federal investigator.
Sidebar: If you told a federal investigator that his mullet was “a nice haircut,” could you be charged with making false statements to a federal investigator? Sorry. Bad lawyer humor. End sidebar.
So, under the Federal Sentencing Guidelines, which allow for about as much spontaneity as the Robert’s Rules of Order, Scooter was sentenced to thirty months in jail. All appeals, thus far, have failed. But, on Monday of last week, President Bush “commuted” Scooter’s sentence, leaving him with no jail time, a felony conviction, a $250,000 fine, and probation. How so?

Well, according to Article II, Section 2, the President has the power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” A commutation, meaning literally “to change altogether,” falls under the category of a “Reprieve.” Thus, POTUS has the hyperbolic, “get out of jail free card” that you probably thought only belonged to Milton Bradley. Still, Scooter has not passed go and will not collect $200. He’s still a felon, subject to the terms of probation, and has to pay a hefty fine.

Presidents throughout history have wielded the gracious sword of pardons and reprieves. Clinton pardoned some 140 persons on his last day in office, H.W. Bush pardoned Reagan-era Iran-Contra officials, Carter granted amnesty to all draft dodgers, and George Washington even pardoned the leaders of the Whiskey Rebellion.

Is it a political weapon or a tool for the equalization of social justice? Is it used for high-paying former guests of the Lincoln Bedroom, or notorious felons wrongly convicted? No one is really sure. But, what is certain is that it is a unique tool given only to the President. It is one of very few areas in which there are no checks and balances. Reprieves and Pardons are, quite simply, the unique perks of Presidential power.

Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Monday, July 09, 2007

How Long Does It Take?

Q: How long does a criminal trial typically take?

A: Returning to our ongoing serial look at the criminal trial process, my answer to the question should be obvious for those who have been reading this column these several months: it depends. What are the charges? Who are the witnesses? How many witnesses? How much evidence has to be presented? How long winded are the attorneys?

A trial consists of only a few basic parts: opening statements, presentation of the evidence, closing arguments, instructions, and deliberation. Opening statements we have already discussed. And, to an extent we have talked about the presentation of evidence too. What you may not know is how the parties take turns presenting the evidence.

Since the accused is always “innocent until proven guilty,” the State has the burden of proof. So, it is the State who puts on evidence first during what is called their, “case-in-chief.” Witnesses are called and asked questions to introduce evidence into the trial. This is called a “direct examination” because they are asking them “direct” questions to elicit evidence by way of a narrative. A textbook case of direct examination will involve questions that begin with “who,” “what,” “where,” and “when.” The goal of the questioner is to elicit a story, directed only by the questions asked.

When the prosecutor is done asking direct examination questions, the witness is “tendered” (I.e., offered for further examination) to the Defendant for what is called “cross examination.” It is unknown exactly why they use the term “cross” other than to speculate that it is an examination from the party across the room. (Although, suggests dates the phrase “cross-examine” back to 1664. Impress your friends with that at your next dinner party!) Nonetheless, the goal of cross examination is altogether different from direct. During cross, the goal is to insert reasonable doubt into the evidence presented on direct. The type of question used also differs from direct. On cross, the Defendant is entitled to use “leading” questions, meaning questions that propose the answer and are typically answered “yes” or “no.” For instance, “Isn’t it true that you stole all the money and not the Defendant?”

After the Defendant finishes, the State gets another crack at the witness and can ask questions on “re-direct” examination. Then, when finished, the Defendant may opt to ask “re-cross” questions on those topics inquired into during “re-direct.” This back and forth usually does not go past this point and the witness is excused.

When the State is done presenting all of its evidence, it “rests” its case-in-chief, thus allowing the Defendant to put on his defense, if any, during his case-in-chief. A Defendant has a Constitutional right to present no evidence whatsoever and may choose to be silent, forcing the State to present evidence “beyond a reasonable doubt.” Sometimes, if the State has presented a weak case, and the Defendant has managed to poke holes in the State’s case-in-chief during cross, further presentation of defensive evidence is simply not needed. But, for the most part, at least some evidence is presented by the Defendant so as to give the jury a reason to find the existence of “reasonable doubt.”

So, how long does all of this take? That is the $64,000 question. Sometimes it takes a day, two days, a week, a month – it just depends on who is saying what about the where, when, how, who, and why, and what the other party’s response, if any, will be to it. Justice takes time.

Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Tuesday, June 19, 2007

Conspiracies: More Than Just Who is Watching

Q: What constitutes a conspiracy?

A: Whenever we hear the term “conspiracy,” images of dark rooms or back alleys, filled with smoke and unshaven henchmen usually come to mind. Perhaps you envision a scene not unlike something witnessed in the Godfather or on the Sopranos where two or more bad guys are deciding how someone is going to get “whacked.”

Your understanding of conspiracies, it is safe to say, comes largely from what Hollywood attempts to teach us. One of my favorite movies is Mel Gibson’s “Conspiracy Theory.” In that movie, Gibson plays a man who was programmed by the government to do its naughty bidding. Somehow, he gets away, but whatever deprogramming he was given failed to take. Thus, Gibson is a paranoid taxi driver, obsessed with a woman portrayed by Julia Roberts. No, Sidebar will not spoil the intrigue that results when the super-secret agency seeks to redeem Gibson and permanently deprogram him with the business end of a bullet. Suffice to say, despite its promising title, it is a horrible example of what is meant by a conspiracy.

A conspiracy, simply stated, is an agreement by two or more person to commit an unlawful act. With that definition, we hearken back to the dimly lit room filled with wayward ne’r-do-wells. A better understanding of what is meant by a criminal conspiracy is portrayed in the cheeky movies about Danny Ocean and gang – 11, 12, or 13 of them (take your pick). In each of the “Ocean’s” movies, we have a number of bad guys who, for some sick reason, greatly enjoy criminal activity, nearly lauding it to be as much of a calling in life as the priesthood might be.

The gang of 11, 12, or 13 get together, lay out plans of a casino, bank, house, or museum that plays host to an inordinate sum of money, and develop a plan to covertly relieve said edifice of all wealth stored therein. That is a conspiracy. Two or more people (in this case 11, 12, or 13) have agreed (with snarky dialogue) to commit an unlawful act (robbery, breaking and entering, wearing white after Labor Day, etc.).

But, as usual, Hollywood disappoints when it comes to truth in fiction. What the Silver Screen always displays as a long, drawn out, intricately planned conspiracy is usually not what happens. The law says that an agreement to commit an unlawful act need only exist for a mere moment in order to constitute a conspiracy. So, Jack could be walking down the street with Joe, see a car and say, “Hey, let’s steal this car.” If Joe say, “Ok, let’s,” a conspiracy has been created.

Importantly, co-conspirators share in the totality of the crime. Just because Joe did nothing more than ride in the passenger seat, while Jack picked the lock, hotwired the engine, and drove it to the docks, such passivity in conspiracy does not absolve Joe from being tried for the crime of conspiracy to commit grand theft auto.

Furthermore, conspiracy itself is a separate crime from the actual criminal activity. Thus, Jack and Joe can be tried for conspiracy to commit grand theft auto even if Patsy the Policeman catches them before they successfully execute the entire conspiracy.

Oh, sure, there is a whole lot more to the doctrine of conspiracy. But at least now you know that conspiracy is a whole lot more than something that involves big brothers, black helicopters, and super-secret spy agencies.


Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Objectionable Objection

Q: What does it mean when a lawyer says, “I object!”?

A: We have all seen some courtroom drama where things are sailing along keenly, the key witness is on the stand, and, as the music builds, the questioning gets more and more intense. You sense that a confession is just about to explode from the mouth of the confused witness. The lawyer asking the questions is hovering over the witness, who cowers in the corner of the witness stand, shirking away from the shrill barrister. Suddenly, from the other side of the room, the opposing jurist, erupts to his feet, pounds the table with his fist bellowing, “Your honor, I object!!” As the whole courtroom gasps and fills the air with chatter, the judge brings all to a silence simply by saying, “On what grounds?!”

While most objections are something less dramatic than that, objections serve several useful purposes in the trial. The verb “object” means, “to bring forward in opposition.” That definition summarizes things nicely. An objection is used as a means of one attorney saying, “I disagree that the piece of evidence (or particular procedure) at issue is being appropriately introduced (or used).” Why is that important?

Remember that the jury decides all questions of fact and the judge governs all matters of law. In order for the judge to make a ruling on a matter of law, an attorney must make such a request known to the gavel jockey. This process is called, raising an “objection.” An objection stops all the presentation of factual evidence and allows a discussion of the law to be had. There is a grand variety of objections to be made – too many to be listed in this column.

Once an objection is lodged, the ground for the objection is made, the opposing counsel is given a chance to disagree with the objection, and the judge pronounces judgment as to that issue. If the objection is successful and the jury heard something they should not have heard, the attorney can ask that the forbidden issue be stricken from the jury’s review. If granted, the judge instructs the jury to forget what they just heard, which is often as effective as someone trying to un-ring a bell.

What is perhaps more important is the preserving effect objecting has. When trials conclude, appeals to a higher court may follow. The only issues that may be heard on appeal are errors of law. Such errors of law are preserved by the making of objections. Failure “to bring forward in opposition” is tantamount to saying, “I see nothing wrong with that issue.”

Objections, therefore, enforce the orderliness of courtroom proceedings and preserve the contentious issues for any subsequent appeals.

P.S. Have you ever wondered why attorneys use the term “object?” It probably has something to do with the definition, but there are other words that mean the same thing and could have been used. But, then again, can you really hear Perry Mason leaping to his feet saying, “Your Honor, I demur!!”? Can you hear Matlock saying, “Expostulation, your Honor!”? “I object,” seems to encompass all that needs to be said in one nice, neat package. Besides, that’s what Rule 103 of the Rules of Evidence says you are supposed to call it.


Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Evidently the Right Stuff

Q: How is evidence introduced at trial?

A: In our ongoing, and ever interrupted, series on the criminal trial, we have gone through arrest, grand jury, indictment, voire dire, and even opening statements. The trial has begun, but now what?

Much can be said about the topic of evidence. There is direct evidence, circumstantial evidence, hearsay evidence (not all of which is forbidden at trial), character evidence, etc. But we are concerned with the question of precisely how that evidence makes it into the trial process.

To answer the question, we need to back up a step. Recall from our discussion of the aptly named, “pre-trial period” that one of the things done during that time was the exchange of motions. Typically, the aim of these motions is to permit or exclude various pieces of evidence. One of my favorite motions is called, the Motion in Limine (prounounced, “lieh-mn-ee”). Literally, that is a motion “at the outset.”

I will probably catch it from some of my colleagues of the Bar for being so mundane with this explanation, but a Motion in Limine is essentially a catch-all, last minute, just-before-the-gavel-slams motion that does not fit any other category of motions. You see, during the pre-trial period, there are dates certain by which parties are to make various types of motions. Attorneys can file “Motions to Suppress Evidence” in order to prevent evidence from gaining admission at trial. A “Motion to Compel” asks the court to….well, compel one party to give the other a particular piece of information or evidence.

But, Motions in Limine are typically made late in the game, just before trial starts, and have a number of issues that need to be addressed before a jury starts hearing things that might corrupt their unprejudiced minds. A Motion in Limine can be made to press or guard against the admission of a particular piece of evidence.

Once the Motions in Limine are decided, evidence comes in from two main sources: testimony and “stuff.” Testimonial evidence is exactly what it sounds like. Someone is sworn to tell the truth, the whole truth, and nothing but the truth and asked a series of questions designed to elicit the evidence that the questioner wants relayed to the jury.

The highly technical term of art, “stuff” I have made up to describe evidence in the form of documents, materials, physical objects (bullets, axes, clothing, etc.), or photographs. Unfortunately, “stuff” evidence is not typically self-authenticating. Thus, the use of testimonial evidence to authenticate (i.e., vouch that the thing is what it purports to be) the “stuff” must be used.

To explain how this is done would be to reveal one of the tricks of the trade we lawyers learn in law school. Since I do not want to take business away from our nation’s law schools, suffice to say, an attorney asks a variety of questions about the “stuff,” moves for its admission, and, if within the parameters of the super secret Rules of Evidence (which are available for your review at your local public law library), the court will admit the “stuff” into evidence.

Once the evidence is introduced, the jury can consider it – both during the trial, as well as when deliberating. That is all that they can consider. Now you can probably see why attorneys work so diligently to ensure that just the right “stuff” is presented to the jury.


Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Wednesday, May 30, 2007

I Forbid ALL of it

Q: What is the “line-item veto” and why is it unconstitutional?

A: To understand what a “line-item” veto is, we should probably start with understanding what a “veto” is. According to Sidebar’s handy-dandy Black’s Law Dictionary (BLD), the word “veto” is a noun of Latin descent meaning, “I forbid.” The BLD goes on to explain that the word means, “ a power of one governmental branch to prohibit an action by another branch.” The line-item veto, then, means, “the executive’s power to veto some provision in a legislative bill without affecting other provisions.”

Let’s review the high school civics lesson, “How a Bill Becomes Law,” once again. Remember, a bill is introduced in either house, it is debated and crafted in committee and floor debates. Once it passes both houses, it is whisked up Pennsylvania Avenue to the Oval Office (or, in WV, downstairs to the Governor’s office) for the Executive’s signature. When the Executive receives the bill, he has a choice: sign it into law or veto it outright. What many Executives have wanted, but cannot have, is called the “line-item” veto.

Let’s take a recent bill as an example: the Iraq Spending Bill (ISB). The ISB has taken a variety of iterations and, clearly, the White House and the Democrat-led Congress are at odds with the spending priorities and timelines governing a less than popular fight in Iraq. The White House has made abundantly clear that the President will refuse to enact anything requiring “timelines” for the withdrawal of troops. Congress has, at least twice, sent a version of the ISB that has timelines connected to the funding of the troops. The President has, at least twice, vetoed such legislation.

The first ISB that traveled sixteen blocks down Pennsylvania Avenue carried a host of “riders,” or attachments, to the bill having little or no connection to the stated purpose of the piece of legislation. Most of these riders were pet projects that simply secured the positive vote of various undecided Legislators.

Had the President had the use of he “line-item” veto, he could have simply crossed through the riders and the timeline for troop withdrawal, and enacted the remaining funding bill. But, he could not because, in the case of Clinton v. City of New York, the Supreme Court of the United States has deemed such a practice unconstitutional.

SCOTUS reasoned that the “line-item” veto violated the “Presentment Clause” of the U.S. Constitution, which reads, “Every Bill which shall have passed [Congress], shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections.” (Article I, Section 7, Clause 2.)

Essentially, SCOTUS said that the “line-item” veto would interject the Executive into the Legislative experience, upturning what one court has termed the, “finely wrought and exhaustively considered procedure.” The “line-item” veto would essentially bleed the distinct duties of the Legislature and the Executive, blurring what should be sharply different.

What would be the point of Legislative debate if a single person could simply strike through an entire portion of proposed law that he or she did not like? Such is simply anathema to the representative democracy in which we live.


Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Wednesday, May 23, 2007

And So It Begins

Q: What is an opening statement?

A: Our ongoing series on the criminal trial has worked itself through indictment and arraignment, and discussed most of the players of the criminal trial, including the jury itself. It appears, therefore, that all the players are in place. How does the trial begin?

Once the jury is assembled and in place, the judge calls the case on for trial. Usually that is done much less dramatically than what we used to see Judge Wapner and his bailiff do. Judges may, but rarely do, bang the gavel to quiet the courtroom, but usually, the bailiff’s demand that, “All rise! The Court of [Insert county name] is now in session, the Honorable [Insert full name of judge] presiding,” usually gets the attention of the gallery.

Sidebar: You may recall from Perry Mason, or other courtroom dramas, hearing the bailiff say, “Oyez! Oyez! Oyez!” and going on to call the trial to order. This is true. In fact, many courts still use the crying of “Oyez!” to open the court proceedings. The Supreme Court of the United States still does, as does the Supreme Court of Appeals of West Virginia. “Oyez!” is of Latin-Old French origin meaning, “Hear Ye.” The practice of using this interjection at the beginning of a trial dates back to the days when the Town Crier would wander the community using the exclamatory statement to secure the attention of his countrymen. Since the uttering of the phrase both gets the attention and signals that a serious matter follows, “Oyez” has become as much of a staple of courtroom tradition as the gavel has. End sidebar.

With the courtroom’s attention fixed, the Judge calls the name of the case, State v. John Doe, and the case number, 07-F-1. He then notes the presence of the prosecuting attorney, the attorney for the defendant, and that the defendant is present, in person. All of this, of course, is being dutifully recorded by the court reporter.

What happens next is most adequately described as a procedural roadmap. Remember juries are made up of ordinary folk who have little or no experience with the legal process. There is no required course in high school civics called, “Juries 101,” nor is the book, “Juries for Dummies” readily available, so most jurors are come to the adjudicatory process not knowing what to expect.

The judge welcomes the jury and begins his portion of the roadmap. He instructs them as to their duty as triers of fact and distinguishes that duty from his own duty as all matters legal. He informs them that objections and private discussions may arise that they need not concern themselves with; that’s the judge’s job. The judge sounds much like a bad episode of Dragnet during his monologue: “Only the facts, jurors.”

He then affords the attorneys the opportunity to make an opening statement. An opening statement serves the purpose of presenting to the jury what each attorney thinks the facts will prove. The ideal opening argument is less persuasive and more informative, less of a legal argument and more of a factual presentation. It is the first step of the old adage, “Tell them what you are going to tell them, tell them, and tell them what you told them.” It alerts the jury to the theory of the case that the attorney has chosen, providing markers for the jury to remember throughout the trial. In short, it gives, in the form of an outline, the jury a sneak peak at the attorney’s game plan.

Once each side has made their opening statement, the trial is officially underway.
Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.