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 www.wvfpc.org. 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 nominee....to 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.

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.

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

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.

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

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, www.etymonline.com 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.

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

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.

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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.

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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.

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

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.

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

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.

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

Still a Nation of Men

Q: What does it mean that we are a nation “of laws not men?”

A: This sound bite is taken from one of the earliest cases in American jurisprudence: Marbury v. Madison, a case held out as justifying the doctrine of judicial review. It was Chief Justice John Marshall who authored the now infamous phrase, saying: “The government of the United States has been emphatically termed a government of laws and not men.” Marshall’s infamous one-liner has resounded through the ages finding voice in Presidential addresses and protest marches alike.

To be a nation “of laws and not men,” removes the subjectivity of fool-hearted men and imposes the objective independence of the law. In an ideal sense, the phrase suggests that each citizen of this fair country – the poor, the rich, the farmer, the broker, the Senator, the dog catcher – is under the law. Stated another way, no one is above the law.

In a certain sense, this has remained true. We have seen presidencies toppled because the Chief Executive broke the very laws he was charged with executing. Judges, Senators, and Congressmen alike have all been brought from lofty positions of power to none at all by the sword of Lady Justice. Indeed, it is Lady Justice that embodies Marshall’s words: she wields her sword blindly, caring not for whom it strikes, but only for justice.

But is this the case today? Are we truly a nation “of laws not men?”

Some may point to the perceived illegalities of wars or covert activities of government. Some may suggest the actions of certain judges liken them more to subjective legislators, rather than dispassionate arbiters. Some may even suggest that laws can have no objective basis for what is right for one might be wrong for the next. In so doing, each is implicitly attempting to debunk the wisdom that was Marshall’s mantra.

Marshall appears not even to agree with himself. He went on in Marbury to say, “It is emphatically the province and duty of the judicial department to say what the law is.” In so stating, he seemingly elevated to a position above the law his brethren of the black robe.

But the seeming dichotomy is explained by understanding, as Marshall did, the three interconnected sources of law. There is a fundamental law. This is what is referred to in our Declaration of Independence as “the Law of Nature, and of Nature’s God.” It is a transcendent law, inescapable in its universal application. But there is also constitutional law, which establishes the order and form of our civil government.

Finally, there is the legislative law, as written by legislators. Interestingly, the word “legislator” means, literally, “to carry the law.” A legislator, then, is to carry the law that exists at the fundamental level and apply it to the constitutional framework. Apart from that, law lacks meaning and is contrary to the very fabric of nature. That duty of a legislator is what is meant by another famous phrase: “law is found, not made.”

The law of the legislator must agree with the “Law of Nature, and of Nature’s God” lest our rights be weakened at the fundamental level and we become a nation of men and not law.

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

Juries Are All About the Facts

Q: What is the role of the jury in a criminal trial?

A: Trials follow arraignments, which follow indictment, which are produced by grand juries, which are assembled after criminal charges are filed against an alleged criminal. There are four essential roles in a criminal trial: the prosecutor, the defendant, the judge, and the jury. The prosecutor, as you might have guessed, prosecutes the defendant, who defends himself as necessary. The judge presides over all matters of law in the trial. It is the unique province of the jury to determine the facts of the case.

Juries are picked from a random sampling of the defendant’s peers, as the Sixth Amendment to the U.S. Constitution requires. In felony cases, twelve jurors are required to constitute a petit (as opposed to a “grand”) jury. The West Virginia Code requires that a qualified panel of at least twenty jurors be presented in order for a jury of twelve to be picked.

When twenty random names are picked from the list, the process of voire dire (pronounced, “vwah-deer”) begins. Voire dire literally means, “to speak the truth” and is used to produce a jury whose minds, as one court has said, “wholly free from bias or prejudice.” Typically, the judge begins the voire dire process by asking a litany of general questions: “Do you know the lawers?”, “Do you know the defendant?”, etc. Once the judge has determined that there are twenty qualified, prospective jurors, he allows each attorney to voire dire the jurors.

The attorney might ask if the jurors have heard anything about the case, if they have a prejudice against particular crimes, if their work gives them special knowledge about the matter to be tried, etc. Attorneys have even been known to ask about whether jurors listen to talk radio in an attempt to peg one’s political persuasion. The goal of each attorney is, superficially, to obtain an impartial jury. In reality, each is attempting to determine which jurors are more likely to be sympathetic to their position.

Once the attorneys are finished, they are permitted to exercise their “strikes.” Strikes come in two forms: “peremptory” and “for cause.” Each gets four peremptory strikes, meaning, they can cut a juror for any reason they want. Strikes “for cause” are limitless, but can only be exercised when true instances of bias or prejudice are shown. For instance, if an Elbonian is the defendant in the criminal case, and a potential juror is the sworn enemy of the Elbonian people, that juror might be stricken “for cause.” But, if that same juror’s dislike of the Elbonians is based solely upon the way Elbonians are described in the comic “Dilbert,” it is likely that the juror could be rehabilitated and the prejudice dissipated.

When the panel of twenty prospective jurors is complete, eight must be stricken. The prosecution and defense take turns striking jurors, until the number remaining is twelve. Exactly why jurors are struck peremptorily is largely unknown – even to most attorneys. Many have theories about the ideal jury, but if you asked most attorneys, they would probably tell you that certain jurors are struck mostly on “gut instinct.”

It may be an imprecise science, but it is remarkable how often well-balanced juries are chosen. It is not uncommon for juries to have a coal miner sitting beside an executive sitting beside a homemaker. The greater the cross-section of society that juries represent, the more objective the jury becomes.

It is its objective nature that makes trial by jury such a hallmark of our democracy.

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

The Waiting Game

Q: Why does it take so long to get from arraignment to trial?

A: When last we left our alleged criminal, he had just posted bail. We assume, then, that he is out and about under a variety of conditions. Meanwhile, attorneys are busy prepping the case for trial.

Quick review: Our alleged criminal was arrested, indicted by a large and in charge grand jury, which produced an indictment, that invited him to an arraignment, where he entered a plea, and the court secured his continued participation by attaching him to a hefty bond. The next step, you would think, would be the trial. But, in a weird way, you would be wrong. The next step is actually what we call the “pre-trial period.”

Dear Sidebar, You went to four years of college, three years of law school, studied for and passed the bar exam all to prepare you to come up with a fancy term like “pre-trial period?” Isn’t there a Latin phrase that you could use to make us actually think you are smart? Signed, the Anti-Hyphen Defamation League.

Dear Anti-Hyphenites, Absolutimus notus. Signed, Sidebar.

The pre-trial period is simply a period of time for both side of the case to investigate the charges, develop trial theories, make pre-trial motions, and, generally, get to know the ins-and-outs of the case. It is a period of time that can be quite lengthy. For instance, if the crime requires collaboration with the scientific community (e.g. coroner, crime lab, forensics, DNA, handwriting expert, etc.), those tests or experiments may take some time to complete – especially if there is a backlog of cases preceding yours.

Actually, criminal trials usually come to trial quite quickly. Most criminal cases go from arraignment to trial (or plea agreement) in under a year, at most, two years. Civil cases are usually much longer, going from complaint to trial (or settlement) anywhere from one to ten years.

The answer to why criminal cases go to trial more quickly is found in the Sixth Amendment of our U.S. Constitution: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . ..” Although, I am not sure any “accused” is going to actually “enjoy” the speedy trial, we understand what is meant. The further and further you get away from the alleged crime, the more witnesses disappear, memories fade, and evidence becomes unavailable. In short, the case becomes much more difficult to try and defend.

In West Virginia, our Constitution terms “speedy trial” as one conducted “without unreasonable delay.” What is more, the Legislature has passed a law that entitles a criminal defendant to have his or her case tried within three terms of court following the indictment. Since, in the calendar year, there are three terms of court in West Virginia, this means that a criminal defendant has the right to have his or her case tried one year from being indicted. Of course, there may be strategic reasons for the criminal defendant to continue or delay the start of a trial beyond the three-term rule. Nonetheless, a speedy or un-delayed trial, is a constitutional and legislative right for the criminal defendant.

In reality, the answer to the question requires the asking of another question: why does it not take longer? Considering the amount of investigation, research, and planning that is required, a year or two is not so bad.

Next week, we begin the trial.

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

Sometimes Law Not Enough

Q: Will more gun laws prevent another Virginia Tech tragedy?

A: Before beginning to offer critical comment and opinion on the thought of gun laws, Sidebar wishes convey its deepest condolences to the families of the victims in Blacksburg. Little can pacify the pain that unmasked evil has wrought upon you. May God comfort you as you grieve.

“We are a nation of laws and not of men,” said the scholar. Yet, when a lunatic stands at the opposite end of the barrel, laws seem to have little meaning. Men, meaning mankind, seem to make the nation in that moment; not the laws being flouted by the merciless.

Ever since there have been guns, the debate has swirled: who should have them and how should they be used? As our country was founded, those who kept the power wielded the weapon. The Patriots of old were oppressed by the firearms of the British Regulars. In adopting our Constitution, it became evident that sometimes it is necessary for civilians to bear arms. More than that, it was obvious that sometimes it is necessary for civilians to bear arms against the intrusion of government. Hence, our Second Amendment.

Less than a century ago, the fully automatic rifle was not yet even a dream. Black powder had given way to Remington’s cartridges, muzzleloaders to Winchester’s rapid repeater. In the last few decades, as guns became ever more efficient at their task, it was apparent that this experiment in democracy needed to take steps to regulate guns. In the recent past, bills like the Brady Bill and others have imposed stiff waiting periods upon prospective gun owners, forcing gun sellers to do extensive background checks. Gun laws have done about everything possible to prevent good guns from falling into bad hands.

And yet, we have Columbine and, now, Virginia Tech, not to mention the untold thousands of murders carried out by the pull of a trigger.

More gun laws will not prevent more murders, just as more training with guns will only increase the efficiency of loons with bullets. Pop psychologists and political pundits have been quick to call for more gun legislation, more restrictions, as if statutes, codes, or regulations could bring evil to a halt. Through it all Archie Bunker’s words to his daughter’s lament about guns killing people give voice to our internal irony, “Would it make you feel better if they was all killed by knives?” Inanimate objects, no matter how deadly, do not cause mayhem unless acted upon by the animate.

Our society has lost the concept of personal responsibility. We have, for too long, said, “It is someone else’s problem!” or “Let the government handle it.” Meanwhile, our sense of community – a guardrail against extremity – has faded. Along with it, we have become egocentric to a fault. More than that, we shift the blame. Murderers murder because they were not hugged enough as children. Juvenile criminals no longer commit crimes, they “act out.” Politicians do not lie, they “spin the truth.” All the while, the real problem is right under our nose and we refuse to smell it: evil is real, palpable, and prevalent.

Perhaps the Virginia Tech shooter exhibited signs of insanity before his inexplicable rampage, but what did his community do about it? The parents blame the school, the school blames the professors, the professors blame the judge, the judge the hospital, the hospital the government – and round and round we go shifting the blame until we exasperatingly give up and call for the easy resolution with no real lasting effect: more laws.

Sometimes this “nation of laws” needs to remember that laws are written by, and for, the governed, but laws are only as good as the humans that agree to be bound by them.

Perhaps we ought to outlaw ourselves.

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

Politics Not Above the Law

Q: Was Speaker Pelosi’s trip to Syria legal?

A: This column does not do politics. Thus, we must approach this thorny political issue as dispassionately as possible. Whether it was the right thing, politically, for Speaker Pelosi to visit Syria recently is of no concern to Sidebar. The legality of her trip, however, is highly relevant to this column.

A very brief review of the facts: A week or so ago, the Speaker of the House, while on “Spring Break,” took the opportunity to meet with the head of state of Syria. Unless you have been under a rock for the last decade, you know that Syria has been rather naughty, as geopolitics go. While visiting with the dignitaries there, Speaker Pelosi clearly discussed how Syria and the U.S. could cooperate in bringing peace to the beleaguered Middle East. She announced that, not only is Syria ready to talk peace – something the current, official U.S. foreign policy does not agree with – and wrongly informed Syria that Israel is ready too. Both sides of the political aisle have roundly criticized her jaunt overseas.

The legal analysis of her trip requires us to consider at least two legal constructs. First, as usual is the Constitution of the U.S.: does the Constitution validate Speaker Pelosi’s outing? Short answer: no. The Constitution has exactly one sentence regarding the Speaker of the House: he/she is to be elected by the rest of the members of the House of Representatives. That is about her entire Constitutional role. Matters of foreign policy come in to play only when legislation is introduced touching upon it, usually (in the House of Representatives) in the form of an appropriations bill or War declaration. The Senate has slightly more foreign policy forays, but are themselves Constitutionally limited to giving advice and consent to the President when treaties are to be ratified. Still, no one within the legislative branch is authorized to meet, greet, negotiate, or communicate with foreign heads of state. Article II, Section 3 requires that the President “receive ambassadors and other public Ministers.” In other words, the President is the official head of state, the one to whom all other nations are to officially communicate to the United States. Not a member of Congress.

The second area of analysis is the United State Code: is there any law that makes her trip illegal? Maybe. Members of Congress are permitted to travel on “junkets,” or fact-gathering missions, paid for with tax dollars, designed to inform the legislator about a given topic. In that sense, if Madam Speaker had some legislation pending that could be informed by this trip, then it is most certainly legal. But, that is not what appears to have happened here. Instead of researching a particular bill, it appears that Ms. Pelosi was actively teaching a foreign head of state about U.S. foreign policy.

Perhaps most stark is the language of “The Logan Act” (18 U.S.C. § 953). The Logan Act makes it a crime, punishable by fine or three-year imprisonment, for any citizen, absent the authority of the U.S., to interact with a foreign government, “with [the] intent to influence the measures or conduct of any foreign government . . . in relation to any disputes or controversies with the United States.” Ms. Pelosi met with representatives of the Secretary of State who briefed her on her trip, but there is no report that her meetings with the foreign head of state were expressly authorized to represent the U.S. Whether Ms. Pelosi had the actual intent to “influence the measures or conduct of any foreign government” may be impossible to prove. Nonetheless, what is clear is that the Speaker of the House – a legislative, predominantly domestic, representative member of government – acts extra-constitutionally by meeting with a foreign head of state. Discussing points of foreign policy comes mere millimeters from potentially felonious conduct.

Of course, it is unlikely that Patrick Fitzgerald or any other independent prosecutor will investigate Ms. Pelosi’s trip. Still, whether or not our government is split politically, it is of paramount importance that the unique roles assigned to our branches of government be honored. The Union suffers when politics trump the Constitution.

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

Bond, Bail Bond

Q: What is “bond?”

A: Aside from describing a beefed up, aging home run hitter or a perennial, super-slick spy, the word “bond” has a unique meaning in the legal realm.

Last week we left our alleged criminal standing in front of a judge, having entered a plea of “not guilty” at his arraignment. That, of course, followed the indictment, which was produced by the independent and sizeable grand jury. Now, having made it through the arraignment, the judge has to determine what to do with the alleged perp until his or her case can come to trial.

There are a couple of options. The easiest might be just slapping the cuffs on the defendant and packing him away in jail until he can be tried. Certainly, for some severe cases that is the only appropriate method of detention. For criminal defendants who have committed vicious felonies, jail is the best method of protection – for the community and the alleged criminal. Besides, if the state is housing him, then his presence at trial and/or hearings is guaranteed.

But, for most criminal defendants, jail is excessive; for the rest, it is simply undesirable. For those situations, the most common solution is “bond.” You may know it as “bail.” Bond ensures the presence of the criminal defendant at all future legal proceedings to which he is required to be present by threatening to forfeit something of value should he fail to honor his obligation.

For instance, an alleged criminal might be imprisoned and, under the law, could stay there until the trial of his case occurs. Of course, most people do not want to be in jail, so in exchange for their release, the formerly incarcerated will agree that the authorities can claim the rights to a large sum of money or a parcel of property should he fail to honor the conditions of his bond. In some sense, bond is a lot like collateral for a loan. If the bonded person fails to honor the conditions of bond, consequences follow, such as forfeiting the money, property, or some good surety he leveraged against his freedom.

Perhaps the easiest way to think about most monetary bond agreements is to think of it as an insurance policy. Say someone was released on $50,000 bond. Most people do not have $50K to just fork over. So, a bondsman (a person that administers the bond – think Dog the Bounty Hunter) agrees to vouch for the alleged criminal in exchange for the accused paying a percentage of the total bond and/or a monthly payment. This secures the presence of the person to be tried because if the potential perp fails to appear at court when he is supposed to, the court will require the bondsman to either present the bonded person or forfeit the dough. Not wanting to fork over fifty large, a bondsman quickly locates the accused and brings him before the court.

There is another type of bond called, “personal recognizance” or, in shorthand, “PR bond.” Those given PR bond usually have committed a relatively minor (I.e., non-violent) offense and are generally trustworthy enough to make all required court appearances. Those on PR bond are insuring their court appearances against their freedom. If a person on PR bond misses a court date, a warrant is issued, and the Sheriff begins to hunt you down.

So answers the big mystery about bond. It is simply the court’s way of making sure you are present to answer for the charges arrayed against you.

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

How Do You Plead?

Q: What is an “arraignment?”

A: As we continue our look into the court procedures governing the criminal process, our next step takes us to the arraignment. We have already learned that a grand jury is big, independent, and the producers of indictments. What comes next is called, the “arraignment.”

We can, of course, look to my Sidebar secret weapon, aka, Black’s Law Dictionary, for some assistance in defining the term, but BLD is not much help: an arraignment is “the initial step in a criminal prosecution whereby the defendant is brought before the court to hear the charges and to enter a plea.” Well, that makes sense.

Remember last week I told you that the indictment puts you on notice that you have been formally charged with a crime. The arraignment is where that notice becomes quite visible. You are compelled to come to court, sit in front of a judge, and hear the charges that have been alleged against you. Usually, the judge will call your name, your case number, verify that you are the person listed in the indictment, and ask you a few preliminary questions (Can you understand the language? Are you intoxicated? Etc.). With that out of the way, you get to choose whether to have the judge read the indictment or if you would like to waive the reading thereof. Since most people have a copy of the indictment already (usually, that is their invitation to the arraignment), most everyone waives the reading of it.

Now that everyone is on board with what you are being charged with you are asked those ominous words: “How do you plea?” There are many different kinds of pleas in this world, but at this stage, the options are only three: Guilty, Not Guilty, and No Lo Contendere. If you say, “guilty,” then things are pretty well over before they begin. Very rare. No lo contendere, or “I’m not saying I did it and I’m not saying I didn’t do it, I just don’t contest the charges,” is likewise seldom used and, if at all, usually just for misdemeanor crimes.

More often, the response “not guilty” comes from the mouths of the accused. By declaring yourself to be “not guilty” you preserve your presumption of innocence.

Sidebar:

Did you realize that this presumption of innocence is not explicitly stated in our U.S. Constitution? It’s kind of like the misnomer that the doctrine, “God helps those who help themselves” is found in the Bible. Actually, the presumption of innocence has been determined to be such a fundamental right that it’s expression in our Constitution was not needed. While Amendments V, VI, and XIV to the Constitution implicitly support the doctrine, it was not until the 1895 case of Coffin v. United States that the Supreme Court wrote: “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” So fundamental is the right that in 1948, the UN even adopted the presumption in drafting Article 11 of the Universal Declaration of Human Rights. The question remains: if this idea is so “fundamental,” where did it begin? Ah! Send that question to opinion@dominionpost.com….

End Sidebar.

With the plea entered, the judge the is required to make a determination of what to do with you until your trial starts.

That is where we will pick up next week. Same bat time….

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

Notice: You're a Criminal

Q: What is an “indictment?”

A: Last week we discussed the role, function, and importance of a grand jury. Specifically, we learned that not only is a grand jury much bigger than a petit jury and that it served as a go-between, ensuring that the sovereign’s allegations are done in public and with sufficient cause.

Sidebar: “Petit Jury,” for those of you wondering, was not a typographical error. I did not mean to type “petite” as in “small,” but left off the “e.” In fact, I meant what I wrote: petit – which is pronounced like “pet-it.” I am not entirely sure why it is spelled this way, but it seems to have derived its name from “petty jury” or a jury that hears common, or “petty,” issues. Thus, the “petit jury,” by definition is one empanelled in the trial of a specific case and which requires no special assemblage of jurors. That it is a small and, hence, petite jury is purely coincidental. End sidebar.

We also learned that what a grand jury produces is called an “indictment.” Let us start with the Black’s Law Dictionary definition of the term: “the formal written accusation of a crime, made by a grand jury and presented to a court for prosecution against the accused person.” Now you see why I get paid the big bucks to answer these questions. I own a dictionary.

But knowing the definition of what an indictment is and understanding its function and import are two very different things. While we understand that an indictment is a formal document – usually a type written piece of paper signed by the foreperson of the grand jury – bearing the name of the person charged, what crime the person is charged with violating, and where the law that has allegedly been violated can be located. And, though we understand that the indictment kicks-off the prosecution process, we do not quite grasp yet why we have an indictment.

Imagine, if you will, you are sleeping cozily in your bed. Around three in the morning, someone blasts through your front door and throws in a stun grenade. When your senses return, you find yourself in handcuffs, lying in the back of a police cruiser, surrounded by men wearing black assault gear and carrying imposing weapons. When you ask what is going on, you are simply told that you have been charged with a crime and are being whisked away for the swift prosecution thereof.

Sure, the example may be hyperbole, but the point is clear: an indictment puts you on notice that you have violated the law and are now to stand trial for it. What is contained on the bill of indictment is what you can expect to be tried for – nothing more, nothing less. It is yet one more guarantee that your life and liberty are not deprived from you without due process of law.

An indictment, then, is not unlike a plane ticket. On its face, it tells you where you have been (alleged crime), where you are going (trial), and what it might cost you to get there (legal consequences). Of course, there are no rapid rewards or frequent flyer miles available with an indictment.

The importance of the indictment, then, is clear: the indictment clears up any confusion about what an alleged criminal has or has not been charged with doing. It keeps the prosecution on track and prevents excessive and secretive allegations.

In short, it ensures your Sixth Amendment guaranty to a speedy, public trial by an impartial jury. Which we all know by now is petit, not petite. Which suggests nothing about the gravitational challenge some petit jurors may present.

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

Grand Jury Not All About the Numbers

Q: What is a “grand jury?”

A: Before I went to law school, I often wondered what was so “grand” about a jury anyway. The talking heads on TV often said smart things about, “the grand jury did this” or “he was brought before the grand jury.” It all sounded so secretive, so filled with intrigue. It really irked me that I did not know the first ting about the grand jury.

In law school, I finally got to peak behind the veil of secrecy that is the grand jury. You know what I saw? I learned that a grand jury is a really big jury. Hardly the stirring answer I wager you expected.

Okay, that is only part of the answer. It is true that a grand jury is bigger than a petit jury by at least four people. A grand jury, in West Virginia, is made up of sixteen persons, whereas a petit jury – the typical jury that you normally think of – consists of six (for civil trials) or twelve (for criminal trials) persons. In some U.S. jurisdictions, grand juries can be made up of as many as twenty-three persons.

But size is not all that matters when it comes to defining a grand jury. Function is of prime importance. A grand jury decides whether the facts of a given situation are sufficient to issue an indictment and, in so doing, begin the criminal trial process. Prosecutors spend hours presenting the grand jury with facts and law in an attempt to demonstrate why so-and-so should be tried for such-and-such crime. If at least twelve of the grand jurors agree that there exists probable cause that a person should be tried for the crime charged, an indictment is issued and the criminal process begins.

Grand juries are required before any American can be tried for the commission of a felony. That is a guarantee secured for us by the Bill of Rights of both the U.S. Constitution (Amendment 5) and the Constitution of West Virginia (Article III, Section 4). Why is a grand jury among the foundational rights of the American system of governance?

To answer that, we must go back to the year 1215 and a field called Runnymede when King John signed the Magna Carta guaranteeing the first grand jury. Up to that point, if the King charged someone with a crime – justly or not – the person stood charged and, often, summarily tried, convicted, and sentenced. The grand jury interposed an objective and independent group of peers into the process. They effectively required the sovereign to give good evidence and just cause before someone was sent to trial. Our founding fathers noted that this idea was in keeping with the core principles of freedom and fairness and adopted the concept, as now embodied in the Fith Amendment.

Today, the U.S. is one of the only countries to still use the grand jury system. Other countries have similar procedures in place to make sure the government does not unjustly try innocents for crimes they did not commit, but few are like the grand jury system we employ. And, of course, some countries are still ruled by the whim and fancy of the despot.

Without such a stopgap, a government’s reach could do silently what its citizenry would never permit it to do, if done publicly. The grand jury, therefore, is yet one more hallmark of freedom in the governance of, by, and for the people.

Copyright: Jeremiah G. Dys, 2007. May not be used absent the express, written permission of the author. For permission to reprint, please contact the author.

Beware the Implications

Q: Does “caveat emptor” still hold any meaning in modern business?

A: How many of you took Latin at some point in your education and actually remember what this term means? Okay, the three of you in the back row can put your hands down. Now, how many of you actually work this term into conversation on a routine basis? Anybody? Anybody? Bueler? Bueler? I thought not.

For the benefit of the rest of us who do not have our Latin-Modern English dictionary at the ready, “caveat emptor” is a phrase that literally means, “let the buyer beware.” It is an axiom used to encourage buyers to use caution in what they purchase. If the buyer is truly being aware, he will know his rights in relationship to the product he is purchasing. It further implies the buyer does a certain amount of “due diligence” before he buys the thing, just to be sure that the product is what is advertised.

Conversely, the maxim is a phrase just as widely bandied about by merchants. By saying, “let the buyer beware,” the seller is attempting to disclaim responsibility for a faulty product. “Hey,” the angered purchaser snaps to the merchant, “this widget you sold me fell into a million pieces the moment I got it home. I want a refund.” How will the merchant respond? You guessed it: “Caveat emptor.”

Today’s marketplace is certainly a far cry from the bazaars of old, where this phrase, no doubt, had its origination. Does caveat emptor still hold sway in today’s business scheme? Say it with me class: “It depends.”

In days of old, it was difficult, if not impossible, for buyers to truly know if what they were buying was filled with so many defects that the product would be rendered useless as soon as it was sold. Today, the savvy buyer has the advantage of being able to research the product and company before buying their product. The Internet, Consumer Reports, and the Better Business Bureaus allow a buyer to determine whether the seller and his product is as reputable as the infomercial claims. Thus, in a certain sense caveat emptor is still of some effect. As the buyer, you have a limited duty to make sure the seller is trustworthy.

But, that duty does not absolve all sellers. Today, the idea of caveat emptor has been replaced with the doctrine of “implied warranty.” An implied warranty basically asserts that the given product will work as it is advertised to work, absent negligence. This a seller cannot disclaim. In other words, if a seller claims that the widget he has for sale will slice and dice, but actually explodes into tiny bits of shrapnel, the seller may be liable based on the implied warranty of fitness for a particular purpose.

You will remember from a previous column that waivers and disclaimers that attempt to bar liability are permissible, unless they run afoul of public policy. To disclaim a harmful product by saying, “caveat emptor” is as vacuous as putting a license plate on one’s car that says, “Not responsible for injury or death as a result of this vehicle.”

Being an aware buyer, regardless of what warranty is (or is not) implied, is probably the best method for staving off a lawsuit.

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

Judicial Numbers Tough to Predict

Q: Should the West Virginia Legislature give Monongalia County another judge?

A: As it stands right now, the West Viginia Legislature is considering adding another judge to the 17th Judicial Circuit of West Virginia, or Monongalia County. It is appropriate that Legislature consider doing this for a variety of reasons.

The first reason that pops to mind is that it is constitutionally mandated to align the circuits once every eight years. That is, it is the unique province of the Legislature – not the Supreme Court, not the Governor – to determine whether or not the circuit courts ought to be realigned or whether more (or less) judges should occupy such circuits. Thus, it falls to the Senate and House of Delegates to consider wisely what it will do.

There are, essentially, two options. The Legislature could suggest that the circuits be realigned. Presently, there are 31 circuits throughout the State. Obviously, there are more counties than circuits, so it stands to reason that some circuits cover more than one county. Realignment suggests that one county may not have as busy of a docket as another and, so, the counties are combined to make one circuit. This involves a lot of redistricting that, for historical and political reasons, is not a favored method management.

The other option, therefore, is to add or subtract judges within the presently existing circuits. To do this, our legislators consider the circuit’s population to judge ratio, the size of the docket within the circuit (what we call, “caseload”), and other intangibles. The goal is to have enough work to keep a judge good and busy, but not so much that justice is delayed.

That brings us to Senate Bill 400. Having already passed the West Virginia Senate and now pending in a House of Delegates committee, SB 400 provides for five new judges to be added to five judicial circuits: the 24th (Wayne), the 30th (Mingo), the 9th (Mercer), the 22nd (Hampshire/Hardy/Pendleton), and the 17th (Monongalia). The House of Delegates ought to affirm the bill as presented by the Senate. Although, that is a bit more difficult now since, as of Friday, the House Judiciary Committee added another judge to Kanawha County’s present roster of seven judges.

Monongalia County is among only a few counties whose general population is trending upwards, rather than downwards. That is, more people are moving and staying in Monongalia County than anywhere else in this state, with the possible exception of the eastern panhandle. With more people, comes increased litigation. Without adding another judge to the two that already sit on the bench here, justice will be often delayed. Justice delayed is justice denied.

The numbers agree with the bill. Looking at the population to judge ratio, Monongalia County has over 41,000 people per judge. That is currently the third highest ratio. If a judge is added, as proposed by SB 400, then Monongalia County becomes the first in population per judge with almost 28,000 people per judge. With population, caseloads, and crimes trending up, it is quite clear: Monongalia County ought to receive another judge.

But, there is perhaps one consideration that is often overlooked in the arguments about judicial realignment. The West Virginia Constitution mandates that this realignment process take place every eight years. In other words, should the Legislature fail to act this year, it might not be until 2015 that this question would even be considered again.

Better forecasting than the weather channel is absolutely imperative. By 2015, which is more likely to have more people: Monongalia County or a southern West Virginia county? By 2015, whose caseload is more likely to be spiked by an increase of business disputes and criminal complaints that an increasing population brings: Monongalia County or one of some fifty counties shown to be generally declining in population? The question, therefore, becomes how good is the Legislature at forecasting?

Can Monongalia County get along without another judge? Perhaps for now it can, but now is not the timeframe to be judged. Tomorrow is. With that timeframe in mind the answer to the question is an emphatic, “yes!"

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

When Worlds Collide

Q: What is a “force-majeure” clause?

A: There is really no pithy way to start to answer that question. I thought of making a wise-crack that this is a word used to describe powerful attorneys (they are a “major force”), but thought the pun was too much to take, even for me. Then, it occurred to me to reference the French film of the same title made in 1989, starring B-class actors and F-class plot, but that certainly does not aid in our understanding of the term.

The only way to answer the question, it would seem, is to tell you what it literally means, then illustrate by means of a hypothetical, and make some profound insight as to its importance. All of this, of course, is done in the hopes that you can sound oh-so-smart when your cable Internet company calls to confirm your contract.

According to Black’s Law Dictionary, a “force majeure” is, literally, “a superior force.” The word is of French origination and is properly pronounced, “fors ma-zhur.” (Actually, that “u” should be a schwa, but I am an attorney, not a phoneticist.) The term describes an unanticipated event that cannot be controlled. When used in the confines of a contract, the “force-majeure clause” not only becomes hyphenated, it arrives at a precise meaning: a clause that allocates the risk if the performance upon the contract becomes impossible, impractical, or improbable because of unforeseen, unanticipated, and uncontrollable forces.

Now isn’t that clear as mud?

Ok, time for the example. Say you contract with my shipping company to ship your Yugo to your winter home in Iceland. We agree that I will package and ship via container ship your Yugo and you agree to pay me a bazillion dollars to do so.

Sidebar: Like you, I thought the word “bazillion” was just a word made up and used by five year olds to describe a lot of money. Actually, it is a real word meaning, “an infinite number.” Aha! My goal of earning a bazillion dollars is still viable! End sidebar.

Of course, being an astute attorney and businessman, I insist on having a “force-majeure clause” included on one of the bazillion pages of our contract. We sign it, you pay me, I package your Yugo in one of my containers, and put it on my ship. Unfortunately, midway to Iceland, the perfect storm hits my ship. Of course, with George Clooney at the helm, my ship steers directly into a wave, is swamped, and your subcompact Yugo sinks and becomes the newest, and smallest, reef on the floor of the Atlantic Ocean.

Luckily, the “force-majeure clause” is going to protect me. You see, neither of us could have possibly conceived at the time of contract that the perfect storm, causing a Empire State Building-sized storm to swamp my well-steered ship, was going to hit my ship and sink your Zastava Koral. Such an event was unforeseeable, unanticipated, and uncontrollable and, because I am not going to swim to the bottom of the North Atlantic and drive your Yugo to Iceland, performance upon the contract has become impossible. How either of us is compensated for the loss (you of the Yugo, me of the money to ship said Yugo) will be determined upon the verbage of the “force-majeure clause.”

A “force-majeure clause” protects both parties from the unpredictable. It acknowledges that God often sticks his finger into His creation and prevents the performance of a contract. Even if the chances are just one in a bazillion!

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

A Truly Precedential Column

Q: What is “precedent” and what affect does it have?

A: Any dictionary will tell you that a “precedent” is a legal decision that has an authoritative impact on cases of a similar nature. But, if you want to really be fancy and impress the neighbors, you should call it stare decisis, pronounced “STAHR-ee di-SIGH-sis,” literally meaning, “to stand by things decided.”

A decision becomes “precedent” when the highest court in the given jurisdiction gives final interpretation to the law. Recall from high school civics that, as our first Chief Justice of the Supreme Court of the United States said, “It is emphatically the province and duty of the judicial department [the courts] to say what the law is.” What Chief Justice Marshall wrote simply echoed Alexander Hamilton’s words in The Federalist Papers, No. 78, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.” Ultimately, this notion became known as “judicial review.”

What we have then, are two basic sources for our laws, each based upon a fundamental, legal building block. One source is legislative. The Legislative body determines the “will of the people,” writes laws to provide for our collective goodwill, and ask that they be implemented by the Executive. But, the Judiciary acts to ensure that the rights of the people are not trampled by the acts of government. As Hamilton put it No. 78, “the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

That is, we as a society have consented to be governed and put that governing trust in the hands of a government. That consent has taken the form of our Constitution, the foundation for our laws. If that government acts contrary to what we have consented in the Constitution, then the government (our agents) must give way to the constitution (our intent).

That brings us to the second source for our laws: common law. Common law is a fancy way of saying judicial decisions. The significance of why it is called, “common law” we will leave for later. Suffice for the present to say that common law has equal effect as legislative law. Judicial decisions “say what the law is,” so to speak. Where it crosses our consent by actions of our agents, it is unconstitutional.

But, once written, the judicial opinion becomes authoritative even over the piece of legislation is has then ruled upon. The Legislative branch would, therefore, have to write a law that would not conflict with that decision. If it legislates afoul of that judicial opinion, it will be invalidated by that governmental watchdog: the Judiciary.

Not only must subsequent legislation conform to that decision of the court, subsequent courts must also “stand by things decided.” In other words, the decision has “set a precedent.”

Setting precedent is a very serious matter. In order to overcome it, a court must essentially admit that it was wrong and change its mind – an act seldom undertaken. And, because our consent – in the form of the Constitution – is so fundamental to the foundation of our government, the importance of wisely reviewing our laws cannot be understated. Nor can the importance of placing the wisest and most prudent jurists on the bench.

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