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.