This is MY Country

Web exclusive: The following was declined publication by my editor, but has been made available for your review here. I am not entirely sure why the editor declined to print the article. The only reason offered was that it was not related to my typical subject matter. Media bias?

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A few years back, I was touring through the National Museum of the United States Air Force in Dayton, OH. Underneath the largest hanger, there sat the SR-71 Blackbird, a piece of Cold War era, cutting-edge technology largely unknown until just before its retirement. Standing in front of the sleek, radar-dodging behemoth was an old man wearing a hat indicating his soldierly service. I first noticed him when he was proudly having his picture taken in front of the bird. As I approached, I kept an eye on him. He must have noticed my attention. With a tear in his eye and a slight tremble in his voice, this octogenarian – and obviously proud veteran – though bent over by the weight of his many years, puffed out his chest as if at attention and exclaimed as he pointed to the retired plane, “That is the best damn plane ever built.”

The old soldier’s words are a far cry from the headline I saw earlier this week, “Americans Somber About Bush, U.S., Iraq.” Somber? What in the world do we have to be somber about? We live in the best country ever built. Ever.

Sure, our country has had its share of black eyes. We have committed our share of abuses in the name of freedom. We have made innumerable mistakes and looked awfully foolhardy at times. But, for goodness sake, this is the country that epitomizes freedom in our world today. It is America that has stood up for the downtrodden, whether they land on their shores or whether we need to go to theirs. Grit, guts, and glory ought not be viewed pejoratively; rather, they ought to reflect the dogged determination that is part of the humble fabric of this fine nation.

This is the country of apple pie and Grape Nuts. It is the country that birthed the sky-scraper and popularized the Frisbee. This nation made electricity a common commodity and gave rise to the mass production of the automobile. Visionaries here took flight – literally – on a whacky notion that man need not be bound by gravity. Pilgrims braved treacherous seas and starvation to found a place where people can freely exercise their religion without one being established upon them.

I am plain sick and tired of the poor-mouthing that has been going on in this nation for the better part of the last decade. One side of the political spectrum accuses the other of destroying a thriving economy; the other decries their opponent’s policies as laying a brick road to eternal poverty. Some base their power on a war, others create power by undermining one. Morality is defined by the expedient and ethics by the putrid breeze of popular culture. Even the poorest among us live lavishly in comparison to the orphan on the streets of Calcutta. Somber? Give me a break!

In 1940, Don Raye penned the lyrics to the folk song, “This is My Country.” In the second chorus, Raye emphatically recites, “This is my country! Land of my choice! This is my country! Hear my proud voice! I pledge thee my allegiance, America, the bold, For this is my country to have and to hold.”

It really comes down to that: will you have and hold your country? Is this land your choice? Can you sing, “What difference if I hail from North or South, Or from East or West, My heart is full of love for all of these. I only know I swell with pride and deep within my breast, I thrill to see old glory paint the breeze?”

The choice is yours. Go somber or go proud. This is MY country.

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

Venues: They are a Changin'

Q: What is a “change of venue?”

A: Before an answer to this question can be properly understood, you must understand that the Sixth Amendment to the Constitution of the United States guarantees an alleged criminal the right to a “speedy and public trial, by an impartial jury of the State and district” where the crime allegedly occurred. Key in on that word “impartial;” its importance will be shown shortly.

Here’s what normally happens. A criminal is arrested and indicted for the commission of a crime. Ultimately, the criminal defendant will get the opportunity to defend the charges brought against him in an appropriate court of law. That defense takes place in the form of a trial. Criminal trials are presided over by a judge and a jury. The judge governs matters of law, while the jury is the determiner of facts. That jury, for a criminal trial, consists of twelve individuals who are residents of that county.

Most of the time, we are blissfully unaware of all the sordid details of the crimes that happen within our community on a routine basis. But what happens when a “high-profile” case comes to trial? Trials for cases that have already been tried in the court of public opinion present an especially difficult issue when it comes time to make payment on that Constitutional guarantee of an impartial jury.

Sometimes, the projected jury pool could be so vastly biased that it is necessary to find another jury pool. Enter “change of venue.” Venue is simply the place where the trial will occur. When we speak of changing venue, lawyers mean that the trial needs to change location. So, if the case is pending in County X, but County X is determined to be frightfully biased, the trial of the case is moved to County Y, using all the lawyers, witnesses, and even judges that would have been used in County X, but jurors from County Y in an effort to ensure impartiality.

Changes of venue are few and far between. One reason for that is the law, which requires a defendant to prove “the existence of a locally extensive present hostile sentiment against him,” as one court put it. The Rules of Criminal Procedure require the existence of “so great a prejudice against the defendant” that no “fair and impartial trial” can be had in the place the law demands trial. Proof of such a pervasive bias is undeniably difficult.

Why? Well, say there are 80,000 people residing in the current venue. The jury only needs to be twelve people. We all know that you, dear readers, keep well-informed of the goings-on of this county, but not all of our fine residents do – by this paper, radio, or television. It is safe to say, frankly, that most of our neighbors have no idea what is going on down at the courthouse. Only twelve people who know nothing of the criminal defendant or alleged crime need to be found to secure impartiality. Finding those twelve can be surprisingly less difficult than you may think.

The reason the burden is so heavy upon a criminal defendant is that there are great costs to changing venue. Where do you go to be free of the bias? What does it cost to transport the entire trial to the new place of venue? What evidence must make the trip?
Our system of justice functions well to ensure impartiality. It depends upon the honesty of prospective jurors to confess bias, should they have any. Empanelling “an impartial jury of the State and district” where the crime allegedly occurred happens far more often than not.

Impartial juries: just one more indication of your importance to the assuaging of injustice in this fine country.

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

Who Pulls the Trigger on War Power?

Q: President Bush wants to send more troops to Iraq. The Democrats majority in Congress does not want more troops sent. What branch of government holds the power of war?

A: Power is all the rage lately. The out-of-shape, take “power walks.” The sleep-deprived take “power naps.” The leisurely lunch, has been replaced with “power lunches,” where “power bars” are the main course. Even, or perhaps especially, in politics, the grab for power often leaves those who matter most in a lurch. Such seems to be the state of this week’s affairs.

On Wednesday, President Bush announced his plan to send more troops to Iraq. The day before, Sen. Ted Kennedy gave a “pre-buttal” to the President’s speech. The day after the presidential prime time address, Congressmen and Senators were wagging their tongues in a flurry of speeches that say only enough to get them airtime on the major news networks. All the hullabaloo is about who has the power over the troops.

The President has laid out a plan to increase troop presence and action in Baghdad. The Democratic halls of Congress, still full of vim and vigor from November, are making empty threats to prevent such a malefaction. Sen. Harry Reid is proposing a “non-binding” Senate resolution that expresses disapproval of the President’s newest plan. Speaker Pelosi will no doubt follow suit. But who wins the power war? More importantly, who loses?

I am not going to argue the merits or detractions of the President’s plan. But, in order to sift through the rhetoric of both sides of the aisle, let me give you some power of your own; a “separation of powers,” to be precise.

The President is the Commander-in-Chief of the Armed Forces, according to Article II, Section 2 of our U.S. Constitution. Thus, he has the authority to position – without any branch of government’s approval or permission – the finest military in the world. As one of his chief duties as President, it falls to him to organize, prepare, and strategically place our military so as “to provide for the common defense.”

That brings us to Article I, Section 8 of our Constitution, which bestows the power to fund such a common defense upon the Legislative branch. What is more, if there is war to be declared, that too falls to the Legislature, as does the very raising, supporting, equipping, and regulating of the army, navy, and militia.

Hence the two seemed locked in an un-ending struggle. While the President sets the course, turns the wheel, and aims the barrel, it is the Congress that buys the gas and turns the key of the military machine that drives us into battle. Unless the two work in concert, war is not possible. Unless the two ends of Pennsylvania Avenue act in complementarity, military actions will fail before they begin.

As you listen to Senators and Congressmen huff and puff as they try to blow the White House down, remember that the side you disagree with must also be complicit in that with which you lodge your agreement. That is, if you like the idea of more troops, then you need the Legislature to adequately fund them. If you prefer fewer boots on the ground in the Green Zone, only the Executive can order them home. They may be bitter bedfellows, but for the American military to be at its most powerful, the power we often refer to as separate, must work in tandem.

In the final analysis, the most powerful weapons in our current conflict are the grunts, flyboys, leathernecks, and mates of the U.S. Armed Forces. May God bless their mission and bring them home safely. And soon.

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

Was that Lying or Laying in State?

Q: What does it mean when a body is “lying in state?”

A: At first blush, this may seem out of the ordinary for this column – a column routinely dedicated to answering your legal curiosities. But, with the recent passing and “lying in state” of President Ford, this question piqued my curiosity, when posed by my overly inquisitive friend.

It appears that there are at least three variations on the theme of “lying in state.” At its heart, “lying in state” refers to that honor given to the body of an esteemed individual wherein the person’s body is laid in a place of prominence so that others can pay their respects. In that sense, it is often referred to as, “lying in repose” – meaning, literally, to lie (or rest) “in peace.” Thus, any deceased person can “lie in repose” and often do at the funeral home or place of worship of his or her family’s choosing.

What we are more familiar with, however, is the idea of “lying in state” where the person is a person of prominence and the pedestal is the rotunda of the United States Capitol. By regulation and custom, only those due an official, or “state,” burial are entitled to the honor of “lying in state.” That same regulation and custom usually only permits U.S. Presidents, Congressmen, and military commanders to be “laid in state.”

You may remember that in 2004, we witnessed Ronald Reagan’s “lying in state,” which was preceded by his “lying in repose” at the Ronald Reagan Library. But, when Chief Justice William Rehnquist passed away, his family chose to have his body “laid in repose” within the Supreme Court building, even though President Bush offered to authorize his “lying in state.”

Since the building of the US Capitol, thirty bodies have placed upon the Lincoln catafalque – the bier (or stand) made of hewn pine boards, roughly nailed together to support Lincoln’s casket – at the center of our legislature. Eleven Presidents, a variety of congressmen, Generals such as MacArthur and Eisenhower, and unknown soldiers from American wars have been granted this traditional honor. Other notables include, Pierre L’Enfant – the planner of the District of Columbia, J. Edgar Hoover – the colorful director of the FBI, Henry Wilson – the only Vice-President to have been given the honor, as well as one (and the only) woman, who did not fill any of the traditional offices, yet was indisputably deserving of the honor: Rosa Parks.

The third level of this postmortem honor is called, “lying in honor.” After a 1998 assassination attempt by a lunatic claimed the lives of two Capitol Police officers, the US Congress provided a way in which heroic individuals, like Officer Jacob Chestnut and Detective John Gibson, could be honored.

“Lying in state” is a distinct honor of national significance and is used only in the most unique of circumstances, thus maintaining its regal significance. While it is not a legal right, it is a tribute that often requires laws to permit it, as in the case of Rosa Parks and “lying in honor.” Thus, Sidebar’s mission to answer questions involving the law or legal process is satisfied.

And, if your mind is like mine, there is one question swirling around your mind right now: What is the difference between “lying” and “laying,” “lie” and “lay,” and “laid” and “lain?”

I’m an attorney. Go ask your English teacher.

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

On Government and the Tenth Amendment

In explaining the virtues of the U.S. Constitution, Patrick Henry once said, “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government – lest it come to dominate our lives and interests.”

Henry lived in an age where what the king proclaimed was law. The king was the sovereign and, befitting of such a title, his rule was not to be questioned. Thus, the government conducted at the hands of the king often followed the whims and fancy of the monarch. His rule was not unlike the dictatorial styles of many tyrants today. Few typified this more than King George III, the monarch from whom we as Americans declared our independence in 1776.

Throwing over a despot may be rather simple. The devil is in the details of providing sufficient freedom through accountability. As the patriots of old threw off the chains of a monarchy, a government needed to be installed, lest anarchy become the rule of the day. Our founding fathers chose to install a democracy within a republic, by means of a Constitution.

A constitution is simply a founding document for an organization. Within its words are laid the rights and responsibilities of the institution and its members. With the U.S. Constitution, we see express powers given to the Executive, Legislative, and Judicial branches of our government. But not every power is expressly surrendered to our government.

In fact, the Tenth Amendment recognizes that fact when it says, “The powers not delegated to the United States . . .are reserved . . . to the people.” Thus, Henry’s explanation comes into focus.

Our freedom is at its greatest when government is most restrained. Our government, unique among a variety of forms, does not act upon the whim and fancy of a sovereign. Ours is a government instituted by its people. Our citizenry determines how far the government will reach. Our government is one of accountability.

One of Patrick Henry’s contemporaries, Thomas Paine, made the observation, “Government at its best is a necessary evil, and at its worst, an intolerable one.” We need government to maintain order, to provide for the common defense; however, only in a limited, accountable fashion do we provide for a government to use some of those rights corporately to do that which we cannot do individually. The rights remain our own. Government is not the panacea for a world of trouble.

The more we relinquish our rights to government – expressly or by silent inaction – the more it will come to “dominate our lives and interests.” Exercise your freedom. Restrain your government.

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

Doctor, Doctor...Mister...JD?

Q: A law degree is known as a juris doctor. Is it appropriate, then, to call a lawyer, “Doctor?”

A: This is a funny little question that polemics often engage in, it would seem, for shear sport. Those two little letters preceding one’s name bespeaks authority, intellect, and honor.

Lawyers get gypped on that front, I suppose. After all, attorneys put in three years to get a J.D., and follow that up with one of the hardest, quite masochistic, tests known to mankind. What is more, the very degree that we attorneys possess suggests that it would be appropriate to call us, “Dr. Attorney.” After all, M.D. stands for “Medical Doctor” and we call our physicians doctor, do we not?

Surprisingly, the reason why attorneys do not bear this titular prefix is rooted in a notion professional humility.

Dear Sidebar, Please tells us you are starting to tell a joke. Lawyers humble? Seriously, what’s the punch line? Signed, The Society for Protection of the Falsely Humble.

It is no joke. In the earlier part of the twentieth century, the American Bar Association (ABA) considered passing a resolution that would permit us to be titled, “doctor.” But, the committee exploring the idea determined that such a reference would be inappropriate, misleading, and grounded only in “self-laudation.” Still, about a year later, that same ABA committee determined it might be ok, provided the attorney was not using the title to mislead.

Dear Sidebar, We knew it! Signed, the SPFH again.

And that is the crux of the problem. When someone is referred to as “doctor,” generally we do ascribe a certain level of intellectualism or heightened professionalism to the person (whether they deserve it or not). Medical doctors are specialists in health. Ph.D.’s are purported masters within a very narrow realm of academia. Doctor’s of Theology are respected as experts in all things God. But, a juris doctor really is just an attorney.

Now that does not imply that attorneys are lacking in academic ability. It just means that the profession of law is much more a practical profession than it is an academic one. We are counselors, advisors, and advocators, for the most part. What we are “expert” in is the law and how it is to be applied. Because the law is so general, even our title must indicate our professional diversity. To call us doctors –because of cultural norms, historical tradition, or pure arrogance – could be misleading and detract from our representation.

While the title, “doctor” is a rather generic one in professional or academic circles, only one profession is uniquely and ubiquitously known as, “Esquire.” And, yes, I am quite proud of that.

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

You Couldn't Pay Me Enough

Q: Is a lawyer’s fee limited to a percentage of the ultimate resolution he achieves for his client, or is it limited just to the hours that he actually works on the case?

A: This is kind of like asking if an orthodontist is paid just for the hardware he puts in your mouth, or the skill and expertise required to make sure your teeth are straight. In other words, lawyers – like every other professional – is in business to make a living. To support themselves, attorneys need to make money.

Sure, there is a certain satisfaction to doing one’s work. There is fulfillment in winning a case or settling a dispute out of court. Some attorneys even find excitement just in the arguing. Other lawyers would rather work for no money and crusade against injustice. But, I would venture to guess that most attorneys are attorneys because (a) they like most of the work they do and (b) it pays the bills.

Lawyers are usually paid in a couple of different ways. The “contingency fee arrangement” suggests that the attorney will take the client’s case and front all the expenses until the case is resolved. In exchange for this, the client agrees to reimburse the attorney out of the settlement, if any, that the he is able to negotiate for the client. That is, the client reimburses those actual costs (e.g., filing fees, postage, travel, overhead, etc.) that the attorney fronted, plus a percentage (traditionally, one-third of the total settlement).

If a contingency is impractical or undesirable, an attorney may agree to be paid based upon the hours he actually works. In such a situation, an attorney becomes an hourly worker, though he is hardly making minimum wage. Most attorneys in private practice today are able to charge between $100 and $300 per hour that they work. Thus, if an attorney billing at an hourly rate works one hour for a client, he will make $100. If that same attorney does some work for a client, but it only takes one-half of an hour, then the attorney only makes $50 for that effort. Once the attorney concludes his representation, the attorney will then bill the client for the total hours he worked on the case.

Interestingly, these two most widely used types of fees are most often used by opposite sides of the bar. Attorneys that usually represent plaintiffs will more often utilize a contingency fee arrangement. Working in that relationship, the attorney does not get paid unless he achieves a resolution for the client. The benefit here is that the attorney will, in theory, work harder, since his paycheck is in direct proportion to the client’s.

On the other hand, defense attorneys usually bill by the hour. Hourly arrangements promote more work for defense attorneys who are working to avoid having their client pay anything (other than the attorney’s bill) in a lawsuit. Billing by the hour encourages the defense attorney to be very thorough in his work.

Of course the natural reaction to all of this is to suggest that attorneys are greedy and make too much money. However, I urge you to look at what you get for your money. Attorneys solve tremendously complex issues and are, in some regards, why we have put to rest the notion of settling disputes with pistols at ten paces.

Plus, attorney fees are quite reasonable, if you really think about it. After all, when was the last time your orthodontist, dentist, or doctor offered to forgo payment unless you got paid for wearing braces, filling a cavity, or drawing blood?


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

Did O.J. Really Do It?

Q: How can O.J. be “not-guilty” in a criminal trial, but found “liable” in a civil trial?

A: Believe it or not, it was a “Calvin and Hobbes” cartoon that I saw earlier this week that reminded me to answer this question. Precocious Calvin is at his desk penning his annual Christmas letter to Santa. In the first frame, Calvin begins, “Dear Santa, This year, please bear in mind that I should be presumed innocent until proven guilty.” He continues in the next bar, “Also, I would encourage you to interpret ‘reasonable doubt’ as broadly as possible.” Tossing the crumpled letter over his shoulder, Calvin ends the comic by remarking, “That’s probably a bad way to start.” Indeed.

Calvin’s colloquy with Santa reminded me of O.J. Simpson because of the burden of proof he hoped that Santa would interpret as “broadly as possible” in determining whether Calvin was good or bad this past year. Likewise, when jurors were faced with determining whether “The Juice” had been naughty or nice, they unwittingly had to undergo a similar analysis to Calvin’s request.

Trials are all about proof. We are al probably quite familiar that in a criminal trial, the prosecutor must prove a case, “beyond a reasonable doubt.” A doubt is deemed “reasonable” if it is of “such convincing character that a reasonable person would not hesitate to rely and act upon it,” or so says the Supreme Court of Appeals of WV. Were we to assign a percentage to this level of proof, it would be pretty close to 99%. On the other hand, there is proof by a “preponderance of the evidence” meaning that the evidence proves that the given action is “more likely so than not so.” This means that to overcome this standard, in a civil (non-criminal) trial, proof of 50.00000001% is sufficient.

This is how O.J. can be found “not-guilty” in a criminal case, though “liable,” or “guilty,” in a civil trial. In the former, the jury apparently found that they had to acquit because the glove did not fit. That is, the prosecutors failed to remove that “reasonable doubt.” Like it or not, the jurors followed Calvin’s lead and interpreted “reasonable doubt” as broadly as possible.

However, in Orenthal’s civil case, the plaintiffs only needed to prove that the glove more likely fit than did not fit, so to speak. If the plaintiff’s evidence said that it was 50.00000001% likely that O.J. did it, than he was liable.

SIDEBAR: Let’s be sure of one thing – just because a criminal defendant is deemed, “not-guilty” does not mean that he or she is actually “innocent.” O.J. is a good example: does anyone really think he was “innocent?” IF he did it?

These levels or proof are quite important. We demand that proof “beyond a reasonable doubt” be provided because we are talking about someone’s life in a criminal trial. But, in civil cases, the proof can be less because we are merely speaking of money.

Our constitution guarantees us that criminals are presumed innocent, until any reasonable doubt of their innocence is removed. Were it any other way, I suppose Calvin would be right, it would probably be, “a bad way to start.”

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

Quick Hits

Many of the questions I receive from my fine readers provide ample fodder for my weekly articles. However, I have come to notice that some questions just need a quick answer. Some of the questions can be entirely answered just that quickly. Some of the questions provide great background material to the rest of our discussions. Others do not. So, I thought I would take time this week to just tick off a couple of quickly answered questions that I have accumulated. Enjoy.

Q: What is a “scofflaw”?

A: Quite literally, a scofflaw is someone who “scoffs” at the “law.” Usually it is a term (not widely used) that describes the person who, recognizing the law, gives it no regard. For instance, a scofflaw would be the guy who blows up an inflatable toy resembling a person and sticks that person in the passenger seat in order to qualify for the carpool lane. Perhaps someone should be scoffing at him.

Q: What is the difference between “libel” and “slander”?

A: Libel and slander each fall under the broader category of defamation. When someone defames another, usually something derogatory and untrue is said of the other, published to a third party, and with the specific intent of causing that other person harm. This is much more than playful joking. “Libel” refers to that category of defamation that is done by the written word. “Slander” is defamation done by the spoken word. Hence, I could libel someone in this column, but I could never slander that person here.

Q: What is a “tort”?

A: Lest we be confused: A “torte” is a delicious cake made up of many delightfully different layers. But, a “tort” (sans “e”) is a civil wrong for which the law provides a remedy. The latter term encompasses many causes of action, but is broadly described as that area of the law that does not deal with crimes, contracts, or real estate (although there is some overlap). Most can understand “torts” as simply the civil side of a court – though that is an incomplete definition, indeed.

Q: When one commits a “tort,” are their actions “tortuous” or “tortious”?

A: Attorneys: Listen up! I have read enough briefs written by attorneys to know that even the most senior partners often confuse these terms. To have engaged in “tortious” conduct means that the person has committed a “tort.” That is a far cry different from “tortuous” conduct which denotes that the actor has engaged in the act of torture. You can see why using precise terms would be important by the following sentence: “The Defendant tortuously/tortiously touched the Plaintiff.” Following the definitions, if the Defendant “tortuously” touched the Plaintiff, the Plaintiff has been tortured by the hands of the Plaintiff. If touched only “tortiously,” the Plaintiff has sustained only a civil battery (an unwanted touching). Big difference!

Q: Why do attorneys always use yellow legal pads?

A: Because they do not make pink medical pads and, if they did, using them just seems wrong.

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

A Lot of Hot Air

I have had a lot of thoughts regarding two particular topics: Iraq and Global Warming. There's a connection, I swear.

Of late, Katie Couric - aka, "The Perky Katie Couric" - and much of the mainstream media has been quick to begin declaring that the situation in Iraq has become, "A Civil War." I guess words like "quagmire" were used up with Vietnam and no longer grab the attention in the headlines. There is one positive side to this classification: the media finally recognizes that this is a War, something that has been heretofore unacknowledged.

These media wags must be reading the most broad of definitions to conclude that this is, indeed, a war that is civil. A "civil war," loosely defined, is a war between factions of the same country. In truth, I guess Iraq has been in a civil war since the early 1980's considering that during the entire reign of Saddam factions opposed one another, though the Fedayeen always seemed to muster the upper hand. Yes, in this broad definition, there is a civil war.

But, who is the enemy here? The factions opposing one another are really Iraq/Coalition Forces v. Al Qaida/Iran/Syria/Hezbollah. That seems more like a mini-world war to me than it is a civil war. But, again, there's hope: we now know that this is a war.

New Topic: The 2006 hurricane season has just ended. If you recall, pundits were fainting and foaming at the mouth, apoplectic at the potential for apocalyptic type hurricanes that were about to rain down upon the United States. Weather prognosticators predicted 13 to 18 named storms, 6 of which would be massive.

Well, despite all the breathless hand wringing, the hurricane season truly disappointed: only 9 named storms, 5 hurricanes, 2 major, and 0 that walloped U.S. soil. And Steve Cantori's heart broke.

So did Al Gore's.

It is becoming more and more apparent that global warming is a bunch of bunk. Snow in Florida earlier this month, 0 hurricanes threatening our way of life, a rather mild summer - it looks like it is an inconvenient truth: global warming is the stuff of bigfoot legends, not immutable science.

Civil wars and hurricanes usually do not relate to one another, but in this sense they do. In each, the media was more than willing to glom onto the stories. With genuinely disturbed excitement, the media has hammered away these points. Their reporting has been such that the media itself has become the story.

It appears that the only hot air of any real consequence is usually captured on tape, or published on the front page of the NY Times.

Too bad the Kyoto protocols do not include regulations of punditry.

The Source of Our Thanksgiving

Most of us can probably recite the rudimentary elements of the story surrounding the “First Thanksgiving.” Still others can perhaps recollect that it was President Abraham Lincoln on October 3, 1863 that signed a proclamation establishing that national holiday we now enjoy as “Thanksgiving Day.” However, I imagine few of us have stopped to actually read Lincoln’s proclamation.

A copy of this presidential proclamation can be quickly found on the internet, and I urge your review of it. As I read it, I was struck by the introspection recorded amidst the formality. In considering the timing of the proclamation – while the Civil War yet waged on – I was taken aback by how it recognized goodness even in the midst of such division.

Lincoln first noted why his proclamation was necessary. He proclaimed, “To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come. . ..” Have you ever done that? We are surrounded by such wealth, prosperity, and, oft-times, overindulgence that we find ourselves complaining about such things that - were we to be deprived of them - our life would yet carry on unimpeded. Lincoln was right: “we are prone to forget the source.”

What had Lincoln and the nation he led at that time to be thankful for anyway? After all, we understand the Civil War to be the epitome of divisiveness in our country. Brothers battered brothers, neighbors warred against neighbors, kin killed kin. Yet, in his decree, Lincoln notes how the country has had peace with other countries, order yet existed, laws still controlled, and harmony lived on – save for those areas of military conflict. Though war was abundantly present, Lincoln was quick to note that the population had increased, industry was alive and in excellent production, and the Union had a certain future. In short, despite division, the nation had been truly blessed.

But what was the “source” of these blessings that Lincoln urged us to not forget? His Thanksgiving Day Proclamation answers for us: “No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy.”

Lincoln recognized that the efforts by the politicos of his day had worked only woe and destruction upon the nation, yet peace and prosperity remained. Thus, if indeed the country did enjoy such blessings, something beyond human control, beyond our fathoming, beyond our ken, must have been working within the human framework to provide abundance, blessing, and a hope for a peaceful future.

Thanksgiving Day has now passed for this year. Our electoral season also has passed, for the moment. Tomorrow we return to our desks to mete out the labor before us. We live today as citizens in a country, by all political accounts, divided, yet one, by all economic accounts, profusely blessed.

There must be something more to our world that makes things good than the politics that produce the laws governing our society. I suspect that President George Washington might have agreed with Lincoln when, in his Farewell Address, Washington noted, “Of all the dispositions and habits which lead to political prosperity, Religion and Morality are indispensable supports.”

Our laws, like our blessings, must be derived from something beyond our humanity, from something truly able to bestow upon us “unalienable rights,” lest our laws coincide with whatever fancy occupies the moment. And that is something for which to be truly thankful.

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

Waiving Goodbye to Liability

Q: Does signing a “waiver” really work to absolve someone from liability?

A: For a good answer to this question, I must relate to you some of the words of wisdom pounded into my head by Professor Tom Cady, the guru of Torts at the WVU College of Law. Every first year law student who has had the pleasure of sitting under the tutelage of Professor Cady can recite – in their sleep – the phrase: “All liability is based on fault.”

It is a short maxim, but one filled with significant meaning. You see, in order for someone to be found liable for a wrongful act they may have committed, “fault” must exist. The discussion about whether or not something is, or is not, a tort, we will leave for another day. Today, we address the issue of whether a signed piece of paper can stop the rushing onslaught of liability.

Let’s use the most classic example of a waiver to which we can all relate: our grade school field trip permission slip. Little Willy brings home a permission slip for Mommy or Daddy to sign. The permission slip says something to the effect of, “I hereby authorize Negligent Nanny School System to take Little Willy on a field trip to Antarctica. I further understand that the Negligent Nanny School System is not liable for the injury or death of Little Willy that may occur while en route to/from Antarctica, or while sightseeing thereon. Signed, Mommy and Daddy.”

To borrow from Professor Cady, if that permission slip actually absolves Negligent Nanny School System from liability, then I am going to get a license plate printed for my car that says, “Not responsible for any injury or death as a result of this vehicle.” After all, class, what is liability based upon? That’s right, “Fault!”

Regardless of what is written on a half sheet of paper, regardless of whether the permission slip bears the notarized signature of Mommy or Daddy, if Little Willy is attacked by a polar bear while snorkeling with penguins, someone is going to be liable.

Well, a permission slip (or some other form of a waiver) may absolve liability, but only if it is not against public policy to do so. In our example, Negligent Nanny School System’s permission slip cannot stand up because why? That’s right, “All liability is based on fault.” While Little Willy is under their care, if a Negligent Nanny school bus runs over him, the permission slip is out the door. Why? Because Negligent Nanny cannot point to the signed permission slip and say, in essence, “Hey, you gave us permission to run over your kid. Tough luck.” Liability is based on fault and waivers that attempt to completely do away with that simple premise are void.

Waivers are an all or nothing proposition, as Professor Cady taught me. Either they act as a complete bar against liability, or they are entirely void because they are against public policy.

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

Lawyering is No Laughing Matter. Or is it?

Q: What is your favorite lawyer joke?

A: I remember little about my law school orientation – save for being absolutely frightened at what was about to come my way. However, I recall the sage advice one lowly attorney deigned worthy to impart upon us. “As lawyers,” he said, “Everyone will come up to you and tell you their favorite lawyer joke. You must always be prepared with one in return.”

Why is it that lawyers are central to so many jokes? We have been called everything from sharks to snakes to things much worse. These jokes usually have one thing in common: the lawyer dies a horrific death. When was the last time you heard a doctor’s joke? Have you ever heard a joke about an engineer who suffered as horrible a fate as a lawyer? Not very many florist jokes, are there?

Centuries of parents have wanted their children to grow and become lawyers. You would think we would get a little bit of respect. But, somehow we have become better known for our jokes than for our many grand contributions to society.

It must be that lawyers are a rather self-deprecating bunch. We practice a serious trade and daily deal with major life controversies. It is the hallmark of our profession: the ability to provide objective advice to a client caught in the crossfire. I dare say, few other professions can be so blessed as to have had a tome of jokes written in their honor.

My favorite lawyer joke goes something like this: A young man and his betrothed were on their way to their wedding, after years of being engaged. But the lovebirds were tragically killed in an accident involving a run away soda machine and dynamite.

Upon arriving at the pearly gates, the young almost-married couple asked St. Peter, “Pete, we were so in love and were about to be married. Is there any way we could be married here.” St. Peter scratched his head and, understanding the couple’s plight, said, “I will see what can be done.”

Three hundred years go by without word from Peter. Five hundred. Seven hundred. One thousand years go by and finally St. Peter comes by one day and announces, “We are able to get you married after all. Just come by the heavenly sanctuary tomorrow at noon and a preacher will marry you.”

It was a glorious wedding, the one the couple had always dreamed of having. But, they soon discovered that they had made an unwise choice in marriage. “Pete,” the too-soon deceased man said, “I don’t know what we were thinking. Married life does not work for us. Is there any way we could get a divorce?” Peter, understanding the irregularity of such a request, said, “I will see what can be done.”

Five hundred years go by. Nothing. One thousand. Three thousand years later, Pete arrives back at the now old married couple’s doorstep. “We can get you a divorce. Just show up at the lawyer’s office at noon tomorrow.”

“Thanks Pete.” Said the young man, “But, what took so long?” “Well,” Peter answered, “If it took us one thousand years just to find a preacher in heaven, you can imagine how hard it was for us to find an attorney!”

Lawyer jokes: just one more way lawyers help alleviate the pressures of this world.

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

Who Holds the Power?

Q: Sometimes a legislature will pass a law and then a judge will make a decision that it cannot go into effect. The legislature can override a Presidential veto, can it also override the judiciary?

A: As a good citizen, you know that our government is comprised of three separate, though equal, branches of government: the Legislature, the Executive, and the Judicial. Our United States Constitution vests all the lawmaking powers in the Legislature: the Senate and House of Representatives.

(Sidebar: Did you know you do not have to be a Congressman in order to be the Speaker of the House? In fact, the 105th Congress gave two votes for former Congressman to serve as speaker. It has me thinking of a career change.)

The Legislature, however, is powerless to put those laws into action. The Executive (the Presidency), therefore, exists to implement and enforce the laws passed by the Legislature. The Judiciary cannot make law, nor can it enforce the laws; however, in the words of one venerable U.S. Supreme Court jurist, it can, “say what the law is.”

If the Executive does not like a piece of proposed law, it can reject the work of the Legislature, known as a “veto.” In very rare instances, this will rile the Legislature enough that it will invoke its Constitutional right to override the Executive by a supermajority (a 2/3’s vote). But this seems a far cry different from when a judge declares a certain law – legislated by the Legislature, executed by the Executive – to be “unconstitutional.”

The framers of our Constitution recognized that government must have an independent branch review the law being produced and executed. If the Constitution were to have any effect, it could not be undermined by legislation contrary to its stated goal of forming, “a more perfect Union.” Hence, it falls to the Judiciary to approve of legislation and how it is being executed.

Thus, when a judge declares that a given law is unconstitutional, the court is saying that the law is inconsistent with the standard by which we have consented to be governed: the Constitution.

While the Legislature is not given a veto over the Judiciary, it can change the law that’s been deemed unconstitutional. In other words, the Legislature can fix the fatal defect and, therefore, achieve a quasi-veto over the Judiciary. Or, the Legislature could attempt to amend the Constitution so that the law previously deemed to fall outside of the Constitution would now fall squarely within the ambit of its protection.

This is why your civic duty of voting is so important. It falls to us, the citizens of America, to select representatives and senators who understand our Constitution and who will institute laws consistent with it. Good lawmakers understand the Constitution and their role in making laws that will, “establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity . . ..”

Remember to vote on Tuesday. (And tell your Congressman to vote me in as Speaker of the House!)

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

Kerry. Apparrently Someone Didn't Study Hard Enough

Ok, you know I cannot pass up a chance to talk on these comments by Lurch, aka John "I served in Vietnam" Kerry. You know, put aside his constant mispronunciation of "Jenjis" Khan, put aside his horid excuse for a salute when he "reported for duty" at the last DNC national convention, put aside his gallutish bafoonery, and he's just a your typical, intolerant liberal.

On Tuesday, John "Did I mention I was in Vietnam" Kerry said the following: "You know, education, if you make the most of it and you study hard and you do your homework and you make an effort to be smart, you -- you can do well. If you don't, you get stuck in Iraq."

This, according to his strongest defense, was a "botched joke." I would hate to see the real joke. The obvious implication of this "joke" was that the military is filled with dummies who could not cut it in the real world; ie, military service is a penalty.

Sidebar: In another report, the Yale University grades of John Kerry and George W. Bush were finally compared - about two years too late. Apparently Kerry is as "dumb" as Bush. While at Yale, Kerry managed more "D's" than W and their final grade average (they did not have GPA's then) were only two points apart.

Here's the point I want to make: Kerry's comments were not as much of an insult to the active military (though it is) as it was a direct insult to the fine ROTC programs throughout our fine nation's campae of higher education. ROTC programs exist to provide men and women a chance to go to college for near to free in exchange, following college, for service in the finest military in the world.

And I can personally attest to how well ROTC works. My brother-in-law is a soldier, a former commanding ROTC student officer of his unit. He worked hard to complete his ROTC training and, in return, was given a tremendous education. What is more, he continued in the Air Force and was given a chance to gain both his Masters and Doctorate degrees while on active duty. My brother-in-law is smarter than I will ever be, and twice that of Senator "Don't forget, I fought in Vietnam" Kerry. He remains, to this day, committed to his work in the Air Force, doing some of the most complex monitoring and research that this world has to offer. To imply that the very military education program that vaulted my brother-in-law's educational development is somehow second best to "education" is an insult of dynamic proportions.

Mr. Heinz-Kerry: keep talking, keep showing us that today's liberals hate the military and are, in essence, rich, snobby white boys from Boston Commons and botoxed women from San Fran.

Your comments, your "botched" attempt at humor reveals exactly one thing: even the most uneducated boatswain's mate is smarter than you.

Even if you did serve in Vietnam.

Stem the Tide

Over the past week, there's been something short of pandemonium surrounding the virtual verbal battle between Michael J. Fox and Rush Limbaugh (with side battles including Kurt Warner, Patricia Heaton, Jim Caviezel, and CNN). The most recent verbal vomitting has come from McFly himself - that's Michael J. Fox for those of you who slept through the 80's. During an interview with Abc News, Fox admitted that he has never read the very amendment for which he has been stumping.

Not reading the fine print may explain why Mr. Fox ever considered embodying, "Teen Wolf."

But, I digress. Interestingly, the amendment appears to endorse human cloning and, rather limitedly, permit for research into embryonic stem cells for various diseases, including Mr. Fox's Parkinson's Disease.

I do not want to comment on the passage of an amendment that I have not read either; however, I did want to highlight one extremely important piece of information that I just recently became aware. Did you know that there has not been one diseases linked to being treated/cured by the use of embryonic stem cells (the harvest of which requires the destruction of pre-born humans)?

Before you argue that such lack of proof is due to lack of research, I must remind you that embryonic stem cell research has been permitted in the realm of those still-born fetuses have been reserved for science. That is, there is a limited supply of embryonic stem cells that have been tested, but none (zero, zilch, nada) have resulted in the advance of science and the attrition of disease.

Please look at this list from www.stemcellresearch.org. The use of adult stem cells has resulted in cures or treatments for more than seventy (70) different diseases. For embryonic stem cells? None (nil, zip, non).

Oh, number 48 on the list? Parkinson's Disease.

Mike, I truly am sorry for your affliction; however, read the fine print and endorse something that is proving highly successful!

Remember Dr. Emmett Brown's warnings against messing with the time-space continuum. Great Scott!

Humans With Chests and No Heart

C.S. Lewis once observed something to the effect that today's humanity is so concentrated on pleasuring their minds and with filling their bellies with all the pleasures this world has to offer that they have become men with bellies, men with brains, yet without chests. Ol' Jack was observing that modernity has pushed its occupents to gratify their senses and the pleasures of today that modern mankind has forgotten the eternal aspect of their humanity and, in so doing, have left themselves devoid of a soul.

Someone else has observed of today's youth that, "They have forgotten what it means to blush." We see it everywhere and, in the midst of a political season, we cannot avoid it. I was disheartened to learn recently that there is a high school system, in the most conservative county one can imagine, that requires its high school freshmen to draw the genitalia of the opposite gender in a coed health class. You read that right: girls are drawing boys' wedding parts and boys are drawing the private areas of girls. Drawing; not labelling a nameless, anatomical cut-away diagram. They pull out their pencil, paper, and high levels of teenage hormones and draw genitalia. Then, seated next to their latest crush, they giggle - as teens are wont to do.

I am certain you are aware of the Mark Foley scandal and what a furor the same-sex, predatory filandering of the ex-congressman has created. The coverage of this grotesque stuff is the subject of kiddy porn and fit only for the burn pile. Yet, it is being read over broadcast and cable airwaves, posted on various blogs and web news rings, and discussed in detail over the watercooler.

Last week, Senator Mark Allen (R-VA)'s campaign released some excerpts from his opponent's - Alex Webb - novels. [Note: As far as I have been able to decipher, Webb's only claim to be able to be a good Senator is that he is: (a) a novelist and (b) a Democrat, hence not Bush. Good strategy.] The words of the novels I dare not repeat for fear that my mother will read them and, knowing that I have actually peeked at them, be rather ashamed of me. Dime-store novels these are not and involve graphic discussions of fellatio between a father and son (defended as "beautiful" and "normal in context" by Webb), descriptions of east-asian whorehouses, and a lurid description of a stripper's ability to slice a bananna without using her hands.

Now that you are back from vomitting in the toilet, let's disect this a bit.

Drawing genetalia by teens, Congressional pages eliciting and being given Congressional assignations, Senatorial candidates praising incestual fellatio - where is their heart? What has become of hummanity's chest?

Has our society become so ruled by its zipper that even our school curriculum - in the name of "health" - demand children draw things that only married women should know how to diagram? Has culture devolved to the point that Congressman, rather than protect innocent children, will take advantage of them? What does it say of a country that an individual who describes insipid sexual behavior is one vote away from becoming a member of the U.S. Senate?

The answer to these questions is nothing new: it has always been so. Culture, society, countries - these are only constructs consisting of individuals, humans - morally deficient beings. No matter how much we insist that we are knowledgeable, no matter how much we say that pleasure is the end-all-be-all to our lives, we must still acknowledge that gnosis and eros must still be grounded in the powerhouse of the human psyche: the heart. And that heart is "deceitfully wicked, above all things."

But to those of you nodding in agreement, shaking you head in disapproval, and uttering a "tisk-tisk" right now, let me ask you this - Do you still blush? What does it take for you to be embarrassed? Have you become so mesmerized by the trappings of the world that you have forgotten that there are some things with which we must be embarrassed?

I hope not.

With such a push for toleration and "love everyone regardless of their sin," I hope you take time to be embarrassed at what you read and see. I hope your collar becomes a bit hot by the blush that creeps into your cheeks. I hope your gut is wrenched and knotted by the depravity around you.

Why? Because I believe that's how a Holy God reacts to what he sees around us.

Constitution not Subject to Evolution

From time to time, this column – ordinarily dedicated to answering your curiosities about the practice and function of the American legal system – will take time to provide some editorial commentary on current events involving the law. Allow the following departure from our usual format.

Earlier this Fall, Justice Antonin Scalia of the Supreme Court of the United States addressed the annual membership conference of the American Civil Liberties Union (ACLU). In a conversation that included Justice Scalia and Nadine Strossen, the topic of whether the U.S. Constitution was a living (or evolving) document arose. Countering Strossen’s point that the Constitution was, in fact, evolving, Justice Scalia said the following:

“Once you say it evolves and it doesn’t depend on what the people thought they were doing when they adopted it, somebody’s going to have to decide how it evolves. Why in the world would you want nine people from a very uncharacteristic class of society – to wit, lawyers – to decide how the Constitution evolves?”

Commentators much smarter than I have bandied about these arguments with greater eloquence than my fingers can type. In general terms, usually those of a liberal persuasion view the Constitution as a living, breathing document that evolves with our society and culture. In contradistinction, often those of a more conservative persuasion argue that the Constitution has a specific meaning, one that cannot be changed by society’s evolution.

Suppose Ms. Strossen is correct and the Constitution is a living and breathing document, capable of changing meaning as our culture evolves. Which liberties are protected? If the Constitution changes its meanings as society becomes more enlightened, do we ever actually retain any of our “inalienable rights”?

If you hold to Justice Scalia’s point of view, you might be accused of being an originalist or, worse, an absolutist. If the Constitution does not evolve to meet the needs of our developing culture, then did the Founding Fathers contemplate including a bazooka in our Second Amendment right to bear arms?

The debate between the two jurisprudential philosophies reflects, much the more, the debate about truth: is it relative or is it absolute? Taking our cue from Pontius Pilate’s rhetorical question to Jesus, we must also ask, “What is truth?” Does truth change depending upon the circumstances? Upon a culture’s evolution?

Whether it is relativism or originalism I dare say we cannot allow our answer to simply be, “It depends.” If we were to do so, the rights we once thought were inalienable could become rather . . . well . . . alienable.

Our legislature keeps our laws in lock-step with our so-called, “cultural evolution.” But, it is necessary that we maintain a document that is of immovable stock, defining with a modicum of finality that which we as a nation consent to be governed. Left to redefinition by a committee of nine (and lawyers at that!), I suspect our Constitution would go much the way that Justice Scalia predicts: “It would mean whatever they think it ought to mean.”

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

Top 10 Ways to Get Out of Jury Duty

Q: How do I get out of jury duty?

A: As an attorney, I get this question all the time. We live in a democracy that is of, for, and by the people, yet we often cringe when we receive that envelope that carries that ominous “Jury Summons” within. Prospective jurors are like students: they want less time in court (class) for their money!

Let me answer the age-old question once and for all. Let me equip you with the tools you need to get out of jury duty. Here they are, the top ten ways to get out of jury duty:

1. Move to Canada – Take up residency north of the border, renounce your U.S. citizenship, and you’ve just earned yourself freedom from jury duty. Of course, you’ll need to learn to add ‘eh?’ to the end of all your sentences. Hoser.

2. Find Neverland – The fact of the matter is that only those who are 18 years and older get to sit on a jury. Manage to always be one of the “Lost Boys” and never a jury box shall you see.

3. Forget Everything You Ever Learned – Only prospective jurors that can read, speak, and understand the English language can sit on a jury panel. So, forget you ever knew it. You only understand American Sign Language (ASL)? That’s OK. The WV Code specifically provides that knowing ASL is sufficient for jury service.

4. Go Directly to Jail – If you have committed a crime sufficient to revoke your right to vote, you have just disqualified yourself from future service as a juror. Of course, only those who actually look good in blaze orange jumpsuits with silver “cuffs” should actually be this bold.

5. Lie and Get Caught Doing It – But then again, “perjury” still has the word “jury” in it.

6. Serve on a Jury –If you serve on a jury (not just have jury duty) within two years of your most recent summons, you don’t have to serve again…for now!

7. Don’t File Taxes – Tax returns are an avenue from which county clerks pull potential jurors. Of course, the IRS might not like your excuse, “I only did it to get out of jury duty!” (And then you’re back to #4. Without passing go.)

8. Don’t Vote – Another area where prospective jurors are found is the voter registration list. No voter’s registration. No jury duty. And no say in our republican democracy.

9. Don’t Drive – All individuals with a driver’s license are eligible to be called for jury duty. Well, gas prices are high….

10. Retire – Our friends and loved ones over the age of 65 get special dispensation: they get to choose whether they want to serve on a jury. Hey, age has its privileges.

Serve your jury duty. It’s about the only way of participating in a branch of government without actually being elected. “The dog ate my summons!” just will not keep you from being held in contempt.

Returning to the Scene of the Crime

Q: Prosecutors often “seek extradition, implying that they want to bring someone from
one state to another. But, when a criminal “waives” extradition, he is sent from
one state to the other. Just what is meant by the term “extradition”?

A: Extradition basically means that there is a criminal that has been detained in one jurisdiction, but another jurisdiction gets him first because that state already called “dibs.”

Suppose Jim Bob commits a crime in WV. He is caught, but before he goes to trial, he manages to escape to NJ. But, Jim Bob unwisely decides break into the Hoboken chief of police’s house, only to be caught and arrested. When they check his record, they discover that he has an outstanding warrant for his arrest. After NJ notifies Gov. Manchin via the WV attorney general’s office, the governor issues a “Governor’s Warrant” and extradition procedures are initiated.

Jim Bob is brought to a court in NJ and told that Gov. Manchin wants to try him for his crimes in WV. Jim Bob has two choices: he can waive extradition or he can demand the powers that be prove he is the Jim Bob named in the Gov. Manchin’s warrant.

If he waives extradition, he is basically admitting, “Yep. That’s me. Ya’ got me sheriff!” The judge reads him his rights, provides a waiver form for him to sign. And then he is put in the pokey until a WV patrolman pops over to NJ to procure the perp.

But, if he chooses not to waive extradition, then lawyers from the WV attorney general’s office coordinate with lawyers from the attorney general’s office of NJ in an effort to prove that the Jim Bob sitting in that NJ courtroom is the one and the same Jim Bob wanted for trial in WV. In other words, they are seeking extradition. After this lengthy, lengthy process proves Jim Bob is, in fact, Jim Bob, ol’ JB is consigned to the county clink until a WV constable can collect the crook.

(Dear Sidebar: Abate the alliteration already. Signed, The WV Word Watchers.)

Whether he waives or is extradited, Jim Bob will be tried in WV first and, after extradition proceedings are done in reverse, he is sent back to NJ to face his charges there. Now you can see that extradition can contemplate bringing or sending. In other words, extradition can be sought or be sent.

Do not miss the importance of extradition. If it were not in place, one criminal could be picked up and sent to trial across the country for another’s crime(s). The extradition process is a safeguard built into our republican democracy that ensures that the right wrongdoer is being tried for the correct mistake.

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