Children Sell Themselves on Craigslist

By Leland C. Abraham, Esq.

As far as the multi-media is concerned, the single largest effort to stop child molestation is Dateline’s “To Catch a Predator.” On the show, reporters join law enforcement officers to stop would-be child molesters from committing crimes against the nation’s youth. The result has been a nationwide crackdown on internet solicitation for child sex. While the policing of chat-rooms has increased, the policing of other avenues in which children make themselves available for sex has also increased. One of these avenues is Craigslist. Craigslist is a medium in which independent vendors are able to make listing for items they wish to sell. In a sense, it is an independent market. In recent years, it has also become a market for child prostitution.

For nearly two years, members of the Sacramento, California vice squad have been working to cut down on online child prostitution. Police have apprehended nearly 70 girls under the age of 18 since 2005. Most of these girls have been released to foster or group homes. The Sacramento police have combined efforts with the FBI, as part of a nationwide campaign to combat underage prostitution called Innocence Lost. The program is now in 30 cities and the goal is to decriminalize the girls and concentrate on the pimps who control them.

Police say most ads appear on Craigslist under a category named “Erotic Services.” Although Craigslist has posted a disclaimer, warning against human trafficking and the exploitation of children, law enforcement officials have concluded that it has not deterred girls from posting the ads or men who are searching for sex. The overriding question that haunts the nation is “why would a girl sell herself online?”

To answer that question, police have attempted to “de-brief” these girls once they are apprehended. One girl who was interviewed stated that she was 14, but had posted ads online since she was 11 years old. When asked why she posted ads online she replied, “I wanted to feel loved…I wanted to feel important.”

Craigslist executives said they abhor the fact that their site has been used in such a manner but believe that the problem could be harder to track if the category were removed. According to Craigslist executives, the problem would be harder to track if the category were removed because the ads would be spread throughout the entire site instead of centralized in a single category.

Both legal experts and police say that Craigslist bears no legal responsibility. Undercover officers have stated that the listings have actually helped them to track the girls who are posting the ads. In select cases, this has also led police to the girls’ pimps. Officers say that as the years pass, the number of ads from underage girls appears to have significantly increased.

Preventative measures from parents have proven to be somewhat ineffective as the number of child prostitutes online has increased in recent years. One thing parents can do to police their children’s activities is to become more involved in the daily lives of their children. In recent years, parents have been more concerned with being friends with their children as opposed to being parental figures. It is my opinion that this form of parenting has led young girls to seek parental figures in pimps. A simple change in the posture of parents could be the single greatest factor in reducing the number of young girls who seek attention through online prostitution.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

Trend of the United States Supreme Court Regarding the Right to Bear Arms

By Syreeta L. McNeal, CPA, JD

Second (2nd) Amendment of the United States Constitution states:

A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.[1]

There are four recognized general considerations regarding the Second Amendment. The first view is that the Second Amendment is a limitation only on the federal government and not on states.[2] The second view is that the Second Amendment guarantees a collective right rather than an individual right.[3] The third view is that the Second Amendment guarantees an individual right rather than a collective right.[4] The final view is that the Second Amendment right is not applicable in absence of a reasonable relationship to a "well regulated militia."[5]

The buzz surrounding this week’s United States Supreme Court decision in District of Columbia v. Heller is relevant because it advocated, in a 5-4 decision, that the Second Amendment should be viewed under the third view which guarantees an individual right rather than a collective right as it applies to citizens keeping handguns and other firearms for private use in their homes.[6] This view should not be a surprise looking at the trend of rulings by the Supreme Court on the Second Amendment. To understand the significance of this decision, it is important to see how the United States Supreme Court has ruled over time on the Second Amendment and what view was the basis of the Court’s decision at that time.

Here is a summary of the cases rendered by the Supreme Court regarding the four general views:

Case Name (Year); View
U.S. v. Cruikshank (1875)[7]; 1
Presser v. People of State of Ill. (1886)[8]; 1
Miller v. State of Texas (1894)[9]; 1
U.S. v. Miller (1939)[10]; 4
Burton v. Sills (1969)[11]; 3
U.S. v. Bass (1971)[12]; 2
Lewis v. U.S. (1980)[13]; 3
District of Columbia v. Heller (2007)[14]; 3

Note:
· 1 = Second Amendment is limitation only on Federal Government and not on states
· 2 = Second Amendment guarantees a collective right rather than individual right
· 3 = Second Amendment guarantees an individual right rather than a collective right
· 4 = Second Amendment right is not applicable in absence of reasonable relationship to "well regulated militia."

As the chart indicates, from 1875 to 1894, the United States Supreme Court cases dealt with limiting the application of the Second Amendment on the federal government and not on the states. To understand this application, it is important to understand the makeup of the United States Supreme Court during this era. The United States just ended a civil war between the North and South in 1865. During the period of reconstruction, Radical Republicans gained control of both the Presidency and Congress and began to pass laws to expand legal rights for blacks with the passage of the Thirteenth (13th), Fourteenth (14th), and Fifteenth (15th) Amendments. Unlike these branches of the federal government, the Supreme Court had justices who were loyal to the Southern Confederacy. They hated the fact that the North won the Civil War and used their rulings to limit federal domination over the states. As a result, the cases passed from 1875 to 1894 reflect that trend.

In 1939, the Supreme Court appeared to have the case on the Second Amendment reflect the mood of the country being in the midst of World War II by limiting the right to bear arms to being used under a well regulated militia. From 1969 until the present, the trend has been for the Supreme Court to follow the third view allowing the Second Amendment to be an individual right, instead of a collective right except for one outlier in 1971. So, it should not be surprising that the latest Supreme Court case, District of Columbia v. Heller, guaranteed an individual right rather than a collective right as it applies to citizens keeping handguns and other firearms for private use in their homes.[15]

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

[1] U.S. Const. amend. II
[2] Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[3] Id.
[4] Id.
[5] Id.
[6] District of Columbia v. Heller, ___ U.S. ____ (2007).
[7] U.S. v. Cruikshank, 92 U.S. 542 (1875). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[8] Presser v. People of State of Ill., 116 U.S. 252 (1886). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[9] Miller v. State of Texas, 153 U.S. 535 (1894). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[10] U.S. v. Miller, 307 U.S. 174 (1939). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[11] Burton v. Sills, 394 U.S. 812 (1969). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[12] U.S. v. Bass, 404 U.S. 336 (1971). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[13] Lewis v. U.S., 445 U.S. 55 (1980). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[14] District of Columbia v. Heller, ___ U.S. ____ (2007). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[15] District of Columbia v. Heller, ___ U.S. ____ (2007).

When is the Length of a Criminal Sentence Considered Cruel & Unusual Punishment?

By Syreeta L. McNeal, CPA, JD

Recently, YourBlackWorld.com blogger, Chiderah Aalisa, posted an article regarding the sentencing of Corey Devon Green to 297 years in prison for charges of attempted murder, kidnapping and theft of a vehicle in Dotham, Alabama. Many in the black community are outraged and can’t understand how Corey Green can be sentenced to 297 years in prison and this length of sentence not be considered “cruel and unusual” punishment. Well, this article is aimed to give information to the black community concerning the status of the law as it relates to the following issue: when is the length of a criminal sentence considered cruel and unusual punishment? To address this issue in context of the Corey Green sentence, the article will give general background regarding application of the Eighth Amendment of the United States Constitution and the status of Alabama law.

Background

Eighth (8th) Amendment of the United States Constitution states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.[1]

Many authorities have recognized that the constitutional prohibition of cruel and unusual punishment is to be enforced in relation to modern concepts of what constitutes "cruelty" and what is "unusual" as of the present time.[2] Although constitutional provisions barring cruel and unusual punishment are primarily aimed at inhuman and barbarous penalties, such as those involving various kinds of physical torture, it is also true that the duration of punishment, as well as the kind of punishment, comes within the purview of the constitutional proscription.[3]

Accordingly, while punishment by fine and imprisonment is not per se cruel and unusual, yet, where the duration of a sentence of imprisonment imposed on one convicted of a crime is so disproportionate to the offense committed as to shock the moral sense of the community, the punishment is constitutionally impermissible.[4] Nevertheless, although circumstances may exist under which a sentence of imprisonment may be cruel and unusual, Courts have ruled that regardless of a sentence’s severity or length, a sentence of imprisonment within the limits of a statute where the statute is deemed valid and constitutional does not ordinarily amount to cruel and unusual punishment.[5]

Status of Alabama Law

Generally, a sentence within the limits of a valid statute ordinarily is not cruel and unusual punishment.[6] There are exceptions to this general rule. There are circumstances under which a sentence may be considered cruel and unusual punishment under Alabama law.

For example, in Wilson v. State, the Alabama Criminal Court of Appeals held that the statute mandating a sentence of life imprisonment without parole for a first drug offense of trafficking in morphine violated constitutional prohibition against cruel and unusual punishment, as applied to the defendant.[7] In Wilson, the Court outlined factors that may be considered in assessing the severity of crime, in connection with determination of whether the sentence is grossly disproportionate under constitutional prohibition against cruel and unusual punishment. The factors include consideration of the circumstances of the crime, the harm caused to the victim or to society, the culpability of the offender, and the offender's motive in committing the crime.[8]

As it relates to cumulative or consecutive sentences, Alabama courts have ruled that they do not represent cruel and unusual punishment. For example, in Jolly v. State, the Alabama Criminal Court of Appeals held that consecutive 20–year sentences for two counts of reckless manslaughter arising from a head–on collision did not violate the Eighth Amendment prohibition against cruel and unusual punishment.[9]

Summary

In Alabama, this is the current status of the law. Hopefully, those who are working to provide legal counsel to Corey Green in appeal of the Alabama trial court's sentencing will be able to see if there is a possibility to argue the case under a violation of the Eighth Amendment prohibition against cruel and unusual punishment.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

[1] U.S. Const. amend. VIII.
[2] Am. Jur. 2d, Criminal Law § 611
[3] Am. Jur. 2d, Criminal Law § 612
[4] Am. Jur. 2d, Criminal Law §§ 612, 614
[5] Length of sentence as violation of constitutional provisions prohibiting cruel and unusual punishment, 33 A.L.R.3d 335 (2008). See also Tombrello v. State, 421 So. 2d 1319 (Ala. Crim. App. 1982).
[6] Tombrello v. State, 421 So. 2d 1319 (Ala. Crim. App. 1982).
[7] Wilson v. State, 830 So. 2d 765, 781 (Ala. Crim. App. 2001).
[8] Id. at 778.
[9] Jolly v. State, 858 So. 2d 305, 316 (Ala. Crim. App. 2002).

Supreme Court Rejects Death Penalty for Child Rapists

When Texas' leading politicians called loudly for the death penalty for repeat child rapists last year, they knew there was a good chance the U.S. Supreme Court might find the provision unconstitutional. Legal experts told them so – repeatedly.

And on Wednesday the Supreme Court, in a 5-4 decision in a Louisiana case, did just that, ruling that "the death penalty is not a proportional punishment for the rape of a child."

The decision didn't surprise many, said Shannon Edmonds, staff attorney for government relations with the Texas District and County Attorneys Association.

"A lot of legal experts had seen the writing on the wall from the Supreme Court," he said. "Whether those people, on both sides, agree with what the Supreme Court was going to do or not, didn't mean they didn't see it coming."

The decision does not entirely overturn Jessica's Law in Texas, the statute named after Jessica Lunsford, a Florida girl who was abducted and killed in 2005. The ruling invalidates the Texas death provision, but legislators created a fallback position in the statute: Life without parole would apply if capital punishment for child rape was outlawed.

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supreme court,black attorneys,black lawyers,african american attorneys,african american lawyers

Dems Who Flipped On FISA Immunity See More Telecom Cash, By Chris Frates - CBS News

House Democrats who flipped their votes to support retroactive immunity for telecom companies in last week’s FISA bill took thousands of dollars more from phone companies than Democrats who consistently voted against legislation with an immunity provision, according to an analysis by MAPLight.org.

In March, the House passed an amendment that rejected retroactive immunity. But last week, 94 Democrats who supported the March amendment voted to support the compromise FISA legislation, which includes a provision that could let telecom companies that cooperated with the government’s warrantless electronic surveillance off the hook.

The 94 Democrats who changed their positions received on average $8,359 in contributions from Verizon, AT&T and Sprint from January, 2005, to March, 2008, according to the analysis by MAPLight, a nonpartisan organization that tracks the connection between campaign contributions and legislative outcomes.

Retroactive immunity could squash about 40 lawsuits pending against telecommunication companies that helped the government monitor the telecommunications traffic of Americans without warrants. The telecom industry has lobbied hard to insure that the provision is included in the Foreign Intelligence Surveillance Act update Congress is currently considering.

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Same-Sex Marriage: Conflict within Black America

By Syreeta L. McNeal, CPA, JD

“I now pronounce you husband and wife. You may now kiss your bride.” Well, now in Massachusetts and California, when two people of the same sex tie the knot, it probably will be appropriate to classify them as “I know pronounce you A and B. Either of you may kiss each other.” Does this sound awkward to you?

Black America has struggled with acceptance of homosexuality and acknowledgement of same-sex marriage. Recently, the California Supreme Court overturned the state legislature’s ban on same-sex marriage. On television, you could see blacks partake in the same-sex marriage ceremony sanctioned by the state of California. Black America’s reaction to the California Supreme Court ruling sanctioning same-sex marriage in their state is sparse at best. At issue is whether marriage is a religious ceremony or a state sanctioned ceremony. Well, the answer to that question is it is a combination of both; hence, the conflict arises.

Marriage originated from religious customs and practices. The first recorded use of the word "marriage" for the union of same-sex couples occurred during the Roman Empire.[1] In the year 342, the Christian emperors Constantius and Constans declared that same-sex marriage to be illegal.[2] In the year 390, the Christian emperors Valentinian II, Theodosius and Arcadias declared homosexual sex to be illegal and those who were guilty of it were condemned to be burned alive in front of the public.[3] Like historic times, all but two states, Massachusetts and California, outlaw same-sex marriages. Even though we emphasize separation of church and state in the United States, states regulation of marriage shows that parts of the church and state are interwoven and not separately treated within the United States for institution of marriage.

In general, religious groups are against same-sex marriage. At the heart of this view, is a biblical restraint from practicing any form of sexual sin. For example, the New Living Translation version of I Corinthians 6:9-11 states as follows:

9 Don’t you realize that those who do wrong will not inherit the Kingdom of God? Don’t fool yourselves. Those who indulge in sexual sin, or who worship idols, or commit adultery, or are male prostitutes, or practice homosexuality,

10 or are thieves, or greedy people, or drunkards, or are abusive, or cheat people—none of these will inherit the Kingdom of God.

11 Some of you were once like that. But you were cleansed; you were made holy; you were made right with God by calling on the name of the Lord Jesus Christ and by the Spirit of our God.

I know when people ask me to partake or accept this different sexual lifestyle, I usually respond that I don’t plan on being Lot’s wife and turn into a pillar of salt when I was told not to look at (or participate) in the destruction of Sodom and Gomorrah. For those who are not familiar with Sodom and Gomorrah, Sodom and Gomorrah are two biblical cities that God destroyed because of sexual deviancy and wickedness from all types of sexual activity, including homosexuality. This response usually gets some laughs, but it touches the core of the religious argument. For those who are trying to live righteously, we try to live by these rules. I know for myself, I am trying my hardest to not fornicate. Now, people are asking me to accept same-sex marriage which is a validation of homosexuality that is taught to be morally wrong? There will always be an internal conflict for me and many members of religious groups. So, for those promoting the religious community’s acceptance of same-sex marriage, this will nearly be an impossible conversion to make because of the teachings espoused.

Inaccurate Comparison of Same-Sex Marriage to the Civil Rights Movement

Another thing that disturbs me regarding the argument for same-sex marriage is the comparison of those in the gay community of their struggle being similar to the Civil Rights Movement. This argument is flawed for several reasons. First, the legal basis to challenge laws constitutionally is not the same. There are three levels of review a court uses to decide if a law is constitutionally invalid under equal protection analysis and to fundamental rights in due-process analysis of the 14th Amendment of United States Constitution: (1) strict scrutiny, (2) intermediate review, and (3) rational basis.

Strict scrutiny is the highest standard applied to suspect classifications (e.g. race) and fundamental rights (e.g. voting rights). Under strict scrutiny, the state must establish that it has a compelling interest that justifies and necessitates the law in question. The Civil Rights Movement cases presented to the United States Supreme Court were based on strict scrutiny. In Loving v. Virginia, the United States Supreme Court held that the state law banning interracial marriage was unconstitutional by applying strict scrutiny review.[4]

The second level of review by the courts is intermediate review. This is a standard lying between the extremes of rational-basis review and strict scrutiny and applies to gender and legitimacy issues. Under intermediate review, the classification must be substantially related to the achievement of an important governmental objective to pass constitutional muster.

The final level of review by the courts is rational basis review. This is the catchall review for classifications that do not fall into either strict scrutiny or intermediate review. For example, state laws on marriage generally fit this category. Under rational basis review, the classification must be rationally related to the achievement of an important governmental objective to pass constitutional muster. It is a very low standard and usually anything the state shows that is reasonably related to the law will meet the test.

Currently, it is debatable as to how homosexuality should be classified under constitutional standards of review. It is not applicable to strict scrutiny because it is not a suspect classification and not considered a fundamental right. It probably applies to intermediate review because it has gender overtones to it. However, there is a strong argument by the states that same-sex marriage should be reviewed under rational basis as well. Rational basis review is probably the main reason why state courts upheld the state legislatures banning same-sex marriage in the remaining 48 states. But, the law is unsettled on how same-sex marriage should be classified.

Second, allowing same-sex marriage will open the flood gates for more forms of immorality to be able to get a marriage license from the state. Religiously, homosexuality is a sexual sin. Another sexual sin that is considered immoral is bestiality. Bestiality is when a human being has sexual relations with an animal. Currently, bestiality is banned in all 50 states. So if we accept advocates of same-sex marriage that we should allow states to let homosexuals obtain a "marriage" license, then I argue we should also allow human beings to get marriage licenses with their domesticated animals as well if they choose to have sexual relations with them. What is the argument against expanding the state laws to include marriage for bestiality? Both homosexuality and bestiality are considered immoral. So, lets expand the argument to allow people to marry their dogs and cats as well. I think Catherine the Great would have loved marrying her horse that she had sexual relations with even though she died from it. By allowing same-sex marriage, states would probably feel compelled to allow other forms of immorality, like bestiality, to be able to get a license to get married. This creates a slippery slope that most rational human beings have difficulty coming to terms with.

Finally, people should perceive any comparison of the struggle for homosexuals to get a marriage license to the civil rights movement as a slap in the face to anyone who is of a different race or ethnicity from the majority culture. Private acts of affection should not be affiliated with people’s public appearances. A person can’t hide a wheel chair if they are disabled when entering the work force or public place. Neither can an African-American hide their skin tone when entering into the work force or public place. Unlike a disability or race, many people can hide the fact they are a homosexual when they enter the work force or other public places in society. Who you have sexual intercouse with should not be issues for work place or public discussion. It is a private act and the constitution does protect heterosexuals and homosexuals alike to keep their personal life private in a public setting. So, for those who think that same-sex marriage is equivalent to the legal cases that ended racial discrimination, this is not accurate at all.

Advocate of Civil Unions

Now, advocates of same-sex marriage might think my view expressed above is against homosexuals being able to join with their respective partners. That is not true. I am actually a proponent of civil unions. These legal unions preserve the separation between church and state. Unlike marriage which overlaps between the church and state, civil unions are same-sex unions created by the state only. Connecticut, Vermont, New Jersey, and New Hampshire have created legal unions that, while not called marriages, are explicitly defined as offering all the rights and responsibilities of marriage under state (though not federal) law to same-sex couples.[5] Maine, Hawaii, the District of Columbia, Oregon and Washington have created legal unions for same-sex couples that offer varying subsets of the rights and responsibilities of marriage under the laws of those jurisdictions.[6]

So when it comes to same-sex marriage, I have to argue against its implementation. However, a more appropriate alternative to compromise the two competing forces is to allow civil unions for those of the same-sex to be created by the state. If in 1791, colonies from the North and South can come together to create a compromise document of the United States Constitution, then surely proponents for and against same-sex marriage can come to a compromise. A compromise that preserves each group’s view is a civil union. It preserves marriage to retain its religious emphasis and allows those who would be “immoral” in a religious light to share in similar benefits that married couples share.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

[1] http://en.wikipedia.org/wiki/Marriage#History
[2] Id.
[3] Id.
[4] Loving v. Virginia, 388 U.S. 1 (1967).
[5] http://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States
[6] Id.

Discrimination and the Workplace

By: Leland C. Abraham, Esq.

One of the least discussed national topics is discrimination in the workplace. Discrimination on the basis of race, national origin or sex occurs more than most Americans are led to believe. A few nuggets of knowledge concerning employment discrimination may help those who have been subject to discrimination protect themselves in their respective places of business.

Racial discrimination occurs when an employer makes job decisions on the basis of race. This occurs even when an employer adopts neutral job policies that disproportionately affect members of a particular race.

There are federal and state laws that prohibit race discrimination in every aspect of the employment relationship, including hiring, firing, promotions, compensation and any other terms or conditions of employment. For example, an employer commits racial discrimination when it refuses to hire blacks, promotes only whites, requires only Latinos to submit to drug tests, or refuses to allow Asian-Americans to interact with customers. An employer that discriminates on the basis of physical characteristics associated with a particular race, such as hair texture or skin color, also commits discrimination.

There are even employment practices that may seem neutral on the surface, but they are in fact discriminatory. For example, height requirements may eliminate a disproportionate number of Asian Americans or Latinos. Also, an employment policy that requires men to be clean shaven may discriminate against black men who are more likely to suffer from pseudofolliculitis barbae (a painful skin condition that is exacerbated by shaving). Most employers are aware that the majority of black men do not shave because of this condition. Rules or policies that have a disproportionate impact on a particular race will only pass muster, or be legitimate, if the employer can show that the negative impact that the policy has on the race adversely affected has a legitimate work related purpose. In short, there has to be a real work reason for the policy and it can’t be arbitrary.

Another arena of the employment process where discrimination is often present is in the area of promotions. There are many instances in which employees of color are passed over for promotions in favor of their white counterparts. Many of these employees of color state that their work performance is at the same quality of production as their colleagues who receive promotions. If this is true, the only difference between the employees of color who were passed over for the promotions and their white colleagues who received the promotions is race. If race is the deciding factor, this is a clear case of discrimination.

There are times, when the work conditions become so hostile that an employee is forced to leave his place of employment. When this happens, the employee will still have an action available to him called “constructive termination.” Constructive termination occurs when the conditions at the place of employment become so extreme that an employee cannot possibly remain employed with such an employer. The Equal Employment Opportunity Commission (EEOC) states that there are an increasing number of constructive termination suits that it prosecutes.

Whatever your profession, there has been someone of color who has experience some form of discrimination that paved the way for you to have the opportunity to employed. In honoring those who have paved the way, make sure that you don’t have to be subject to the same form of discrimination that they had to endure.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

It's the Jury, Stupid!

By Syreeta L. McNeal, CPA, JD

Sometimes people forget how the United States legal system works. Unlike my colleague who wrote the previous article projecting the untimely demise of R. Kelly in his Illinois criminal case of child pornography, I reserved any rush to judgment on the guilt or innocence of the accused. For one thing, I am not one of the jurors who is listening to the evidence presented by the Illinois prosecutor and the criminal defense attorney during trial. Second, the burden of proof for the Illinois prosecutor to meet to convict a person of a crime is not based on a "belief of one's guilt" but on what the Illinois prosecutor can actually prove, beyond a reasonable doubt, that the defendant did in fact commit the crimes alleged. Finally, if there is any reasonable doubt to any of the charges alleged and to any of the evidence that links the defendant to the crime, the jury must find the defendant not guilty by law.

So, instead of writing a long commentary to discuss the rationale behind R. Kelly's "not guilty" verdict on all fourteen (14) counts relating to child pornography, let's remember this basic premise that lawyers and non-lawyers alike should hold: withhold judgment unless the prosecutor has presented evidence to the jury (or judge), beyond a reasonable doubt, that the defendant did in fact do the crime charged.


Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

R. Kelly is Toast!

By Jamal C. Wright, Esq.

The talented R&B singer, who has been charged with multiple counts of possession of child pornography, is in the final days of the trial of his life in Chicago. Having beaten his first child pornography case in Florida in 2004 on a technicality, he is up against much tougher odds in this case. Namely, he’s up against strong evidence in the form of a certain infamous videotape.

During the Florida case about explicit photos, his attorneys argued successfully that the main evidence against him should be suppressed due to a faulty process of search and seizure. Prosecutors were defeated, citing the difficulties of connecting evidence to Kelly that the jury can’t even know exists. This time Kelly is facing more motivated prosecutors and up to fifteen (15) years in the slammer.

At the beginning of this trial in Chicago, the linchpin evidence didn’t get suppressed. The jury was forced to sit through the entire video. Not good. The defense was forced to resort to ridiculous assertions like the notion that the tape had been doctored or that it was someone else besides the world-famous Kelly, on the tape. Imagine that. One of the biggest stars in the world forced to deny his own image in a video that everybody knows is him. It’s like an episode of the Twilight Zone.

He’s toast.

But all the Kelly-funded children’s charities in the world won’t help me muster up an ounce of sympathy for him. Mostly because I think he’s guilty. But also because I believe he’s either stupid or crazy.

Crazy is more forgivable. He may be a sick man. Evidence certainly would support it. You don’t to have to Google his name to know what his reputation is. In an affidavit filed in a 2005 civil case, Jay-Z alleged that Kelly would treat tour audiences to videos of himself with young girls simulating sex acts. He makes videotapes of himself with underage females and allows the tapes out of his sight. Classic crazy. That reeks of someone who doesn’t know right from wrong, even after he was charged earlier for the same type of stuff in Florida. He certainly can’t control his fix.

If he’s sick, then he needs help and this situation is probably the best way for him to get it.

If he’s stupid, it’s unforgivable. It’s unforgivable because he’s blessed with the money to have the best management around him. The type of management that would advise him not to film himself committing felonies with a minor in a such a way that makes a prosecutor smile. A bunch of fellas that would tell him of all he had to lose.

It’s not over for Kelly. The case is scheduled to go to the jury very soon. Every case comes down to the jury’s view. They could view him as an honest business man getting hassled or as a charitable superstar. They could let him go. They could give him the opportunity to help himself on his own.

What can we learn from this?

Here’s the advice Kelly could’ve paid for, but you get for free.
Stay away from committing criminal acts, obviously. But if you absolutely must go criminal, never take pictures of yourself committing a crime. I cringe when I see young males in the inner-city taking pictures holding joints or drinking under age. Detectives and prosecutors have another name for these pictures. Evidence. I would expand this rule outside of law and say never take a picture doing something you would have trouble explaining to your eleven (11) year-old grand kid when you’re seventy-two (72). Once a picture hits the internet, it’s out of your hands forever the control over who sees it and under what context it is seen.

In essence, Myspace, is not really yours.

And it isn’t R Kelly’s either. He should’ve known that. But maybe he’s just crazy.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

You Should See Something Wrong With a Little Bump N’ Grind with Minors

By Syreeta L. McNeal, CPA, JD

R. Kelly had a smash hit with “Bump N’ Grind” in the 1990’s. However, when it comes to minor children, this type of sexual addiction has limits. Illinois may regulate child pornography since such material falls outside the protection of the First Amendment of the United States Constitution.[1] The crime of child pornography is an offense against the child and causes harm to the child’s physiological, emotional and mental health, resulting from a trespass against the dignity of the child, and is particularly harmful in that the child’s actions are reduced to a recording which could haunt the child in future years, especially in light of mass distribution system for child pornography.[2] However, the state’s right to regulate child pornography is limited; therefore, the law must adequately define the prohibited conduct, the category of prohibited “sexual conduct” must be suitably limited and described, the offense must be limited to works that visually depict sexual conduct by children below the specified age, and the element of scienter (a mental state consisting in an intent to deceive, manipulate or defraud) on the part of the defendant must be a component of the offense.[3]

People of Illinois are charging R. Kelly with the crime of child pornography. Section 11-20.1 of the Illinois Statute defines the elements, defenses, and sentencing for a person charged with the crime of child pornography.[4] The media attention devoted to this case is not to the level of O. J. Simpson, but for you media junkies who are interested in paying attention to the evidence presented, than continue watching. However, I want to shed light on what a jury would have to decide after hearing all the evidence in a court of law.

Here is an example of the Illinois pattern jury instruction for the charge of child pornography:[5]

Sample Illinois Pattern Jury Insturction on Child Pornography
To sustain the charge of child pornography, the State must prove the following propositions:

[1] First Proposition: That the defendant [ ( [ (filmed) (videotaped) (photographed) (depicted) (portrayed) ] by means of visual medium or reproduction) (depicted by computer) ] [ (a child he knew or reasonably should have known to be under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ];

[or]

[2] First Proposition: That the defendant with the knowledge of the [ (nature) (content) ] thereof, [ (reproduced) (disseminated) (offered to disseminate) (exhibited) (possessed with the intent to disseminate) ] a [ (film)(videotape)(photograph)(depiction by computer) [or other similar visual reproduction]] of [ (a child) (an institutionalized severely or profoundly mentally retarded person) ] whom the defendant knew or reasonably should have known to be [ (under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ];

[or]
[3] First Proposition: That the defendant with the knowledge of the [ (subject matter) (theme) ] thereof, produced a [ (stage play)(live performance)(film)(videotape)(depiction by computer) [or other similar visual portrayal]] which included [ (a child whom the defendant knew or reasonably should have known to be under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ];

[or]
[4] First Proposition: That the defendant [ (solicited) (used) (persuaded) (induced) (enticed) (coerced) ][ (a child whom he knew or reasonably should have known to be under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ] to appear in a [ (stage play)(live presentation)(film)(videotape)(photograph)(depiction by computer) [or other similar visual reproduction]] in which the [ (child) (institutionalized severely or profoundly mentally retarded person) ][ (would be) (would be depicted, actually) (would be depicted, by simulation) ] in the following [ (act) (pose) (setting) ]: ;

[or]
[5] First Proposition: That the defendant was a [ (parent) (step-parent) (legal guardian) (other person having care or custody) ] of [ (a child whom the defendant knew or reasonably should have known to be under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ] and that the defendant knowingly [ (permitted) (induced) (promoted) (arranged for) ] such [ (child) (institutionalized severely or profoundly mentally retarded person) ] to appear in a [ (stage play)(live performance)(film)(videotape)(photograph)(depiction by computer) [or other similar visual [ (presentation) (portrayal) (simulation) ]] of the following [ (act) (activity) ]: ;

[or]
[6] First Proposition: That the defendant with the knowledge of the [ (nature) (content) ] thereof, possessed a [ (film)(videotape)(photograph)(depiction by computer) [or other similar visual reproduction]] of [ (a child) (an institutionalized severely or profoundly mentally retarded person) ] whom the defendant knew or reasonably should have known to be [ (under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ];

[or]
[7] First Proposition: That the defendant [ (solicited) (used) (persuaded) (induced) (enticed) (coerced) ] a person to provide [ (a child under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ] to appear in a [ (stage play)(live presentation)(film)(videotape)(photograph)(depiction by computer) [or other similar visual reproduction]] in which the [ (child) (institutionalized severely or profoundly mentally retarded person) ] would be depicted, actually or by simulation: ;

And

[a] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of sexual intercourse with [ (a person) (an animal) ].

[or]
[b] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of sexual contact involving the sex organs of the [ (child) (institutionalized severely or profoundly mentally retarded person) ] and the [ (mouth) (anus) (sex organs) ] of another [ (person) (animal) ].

[or]
[c] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of sexual contact involving the [ (mouth) (anus) (sex organs) ] of the [ (child) (institutionalized severely or profoundly mentally retarded person) ] and the sex organs of another [ (person) (animal) ].

[or]
[d] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of masturbation.

[or]
[e] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation was portrayed as [ (being the object of) (otherwise engaged in) ] an act of lewd [ (fondling) (touching) (caressing) ] involving another [ (person) (animal) ].

[or]
[f] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of [ (excretion) (urination) ] within a sexual context.

[or]
[g] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation was [ (portrayed) (depicted) ] as [ (bound) (fettered) (subject to sadistic abuse) (subject to masochistic abuse) (subject to sadomasochistic abuse) ] in a sexual context.

[or]
[h] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] was [ (depicted) (portrayed) ] in a [ (pose) (posture) (setting) ] involving a lewd exhibition of the [ (unclothed genitals) (pubic area) (buttocks) (a fully or partially developed breast) ] of the [ (child) (institutionalized severely or profoundly mentally retarded person) (other person) ] [if the [ (child) (institutionalized severely or profoundly mentally retarded person) (other person) ] is a female].

If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.

If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.

As the sample jury instruction shows, the prosecutor has to persuade the jury with the evidence, beyond a reasonable doubt, that the defendant did one of the seven first propositions [(1) - (7)] and one of the eight second propositions [(a)-(h)] to be guilty of child pornography. Beyond a reasonable doubt represents a very high standard and in numeric terms, this standard represents that the evidence presented in trial has to convince the jury (or judge) by more than 99% that the defendant did in fact do the crime alleged. If the jury (or judge) has any doubt regarding the credibility of the evidence presented by the federal or state prosecutor, they usually find the defendant not guilty. The rationale for this high standard in a criminal case is that our legal system feels it is far worse to convict an innocent man on suspect and unreliable evidence.

A defendant does have defenses to the Illinois statute of child pornography. If the defendant can disprove or raise reasonable doubt of each of the first and second propositions of the jury instructions, than the defendant is more likely to be found not guilty of child pornography. Also, the defendant can assert affirmative defenses which will serve the same effect. Here is an example of the Illinois pattern jury instruction for the affirmative defenses to child pornography:[6]

Sample Illinois Pattern Jury Instruction on Affirmative Defenses for Child Pornography

[1] It is a defense to a charge of child pornography that the defendant reasonably believed, under all of the circumstances, that the [ (child was 18 years of age or older) (person was not an institutionalized severely or profoundly mentally retarded person) ] but only where, prior to the act or acts giving rise to prosecution, he [ (took some affirmative action) (made a bona fide inquiry) ] designed to ascertain whether the [ (child was 18 years of age or older) (person was not an institutionalized severely or profoundly mentally retarded person) ] and his reliance upon the information so obtained was clearly reasonable.

[or]
[2] It is a defense to a charge of child pornography that the defendant was employed by [ (a public library) (any library operated by an institution accredited by a generally recognized accrediting agency) ] at the time the act leading to the charge of child pornography took place and such act was committed during the course of employment.

[or]
[3] The charge of child pornography shall not apply to the performance of official duties by [ (law enforcement officers)(prosecuting officers)(court personnel)(attorneys) (bona fide treatment programs conducted by licensed physicians) (bona fide treatment programs conducted by licensed psychologists) (bona fide treatment programs conducted by licensed social workers) (professional education programs conducted by licensed physicians)(professional education programs conducted by licensed psychologists)(professional education programs conducted by licensed social workers) ].

This is what the jury will be doing with the evidence that is presented in R. Kelly’s trial. I am reserving any views of guilt or innocence as we our instructed by law to do. Everyone is presumed innocent until proven guilty by the state prosecutors in a court of law. To reach that end, now you have a preview of what a jury will use to decide whether or not R. Kelly is guilty of child pornography.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

[1] People v. Lamborn, 708 N.E.2d 350 (Ill. 1999).
[2] Id.
[3] Id.
[4] Ill. Comp. Stat. 5/11-20.1 (2005).
[5] Ill. Pattern Jury Instr.-Criminal 9.30 (4th ed. 2006)
[6] Ill. Pattern Jury Instr.-Criminal 9.29A (4th ed. 2006)

Divorce and the Black Family

By Leland C. Abraham, Esq.

Divorce among couples in the U.S. has seen a steady rise in the past two decades. There has also been an increase in the number of individuals raised in single-parent households. This “epidemic” of divorce has especially affected the black family. Over the last thirty (30) years, the foundation of the black family has seen a significant change. In that time span, the proportion of black couples who have divorced has increased and the proportion of black couples who have married has declined.

At the current rate, two-thirds (2/3) of all black marriages will end in divorce, and two-thirds (2/3) of black children will experience the dissolution of their parents’ marriage before they reach the age of sixteen (16). Because the divorce rates are so high, it behooves young couples to know a few things about divorce laws in order to protect themselves if, and when, divorce appears to be their only option.

Most states are “no-fault” states. This means that a court of law, considering the merits of a divorce, will not consider certain “amoral” acts when deciding on the divorce. For example, Missouri is a no-fault state. In the Associate Circuit Division that considers the merits of a divorce, adultery will rarely be considered when dividing the assets or deciding who gets custody of the children.

Most courts seek to establish a “fair and equitable” distribution of the assets and debts. Courts have put this standard in place so that participants of the divorce will not be “taken to the cleaners.” In times past, the primary income earner would be required to pay alimony (monthly payments to the non-primary income earner) in addition to child support. Today, in no-fault states, if a court does award a spouse alimony (today referred to as “maintenance”) it will be a temporary order. It will only buy the receiving spouse some time to find employment and provide for his/her own welfare. Generally, Courts will not tack-on, or add, child support to the figure arrived for maintenance. Maintenance will always be for the welfare of the spouse and will not include the needs of the child. However, there is a separate action that will provide for the needs of the child. This is often accomplished with a petition for child support. In Missouri, child support is determined by State Form 14, which includes the income of both parents and the expenses of the child that are not covered by insurance.

Most men of my generation have a concern that child support is not always spent for the welfare of the child. Unfortunately, there is no legal “soothing” for their concern as there is no court order which dictates how child support has to be spent. Often times, the custodial parent, or the parent who is receiving child support, spends the monthly child support on bills or other expenses that may not provide a benefit “directly” to the child. This does not break the law in anyway as there is usually no stipulation within a child support order that directs how the money is to be spent.

The child support orders are usually in effect until there is a changed circumstance. This may occur if the spouse who receives child support gets a higher paying job. Generally, if the paying spouse loses his or her job, there will not be an amendment to the child support order. This means that if the child support amount was determined with an estimated yearly income of $80,000 and the spouse now only makes $60,000, that spouse will be responsible for child support as if he or she made $80,000. In the case of child support, the court looks after the “best interest” of the child. The court considers the standard of living that the child would have received had the parents not divorced and it tries to put the child in the financial situation that the child would have been in had the parents not been divorced. The court feels that the child should not have to suffer because the parents could not work out their differences.

Another way in which a child support order may be terminated is the emancipation of the child. This may occur when the child becomes eighteen (18) years old, if the child does not attend college. If the child does attend college, the support order will usually continue until the child either graduates or spends four years at the university, whichever comes first. Another way that a child may become emancipated is by becoming married. States vary on laws concerning the marriage of minors and emancipation age.

The unfortunate scenario for the black family is the divorce rate appears to increase as the years go by. In 1970, sixty-eight percent (68%) of black families had two parents in the home. This number dropped to fifty percent (50%) by 1990. This is an eighteen percent (18%) decrease in a twenty (20) year period compared to a six percent (6%) decrease in white families. Black husbands and wives are also more likely to separate. Some sixteen percent (16%) of black couples between the ages of eighteen (18) to forty-four (44) have separated versus some four percent (4%) of white couples. These divorce and separation rates persist and it appears that these rates are independent of education and parental marital status. Since the divorce and separation rates do not appear to stagnate, education concerning the structure of divorce is perhaps the next step for the black family. This article is one step in that direction.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

Chiderah Aalisa, My Black World: Did this Black Man Receive Justice?

Chiderah Aalisa - YourBlackWorld.com

In April of 2008, Corey Devon Green was sentenced to 297 years in prison. Green, 18, was charged with attempted murder, kidnapping, and stealing the car of a white man named Robert Wimbish. This is not the first story of racial injustice in the Southern court system, but it definitely is an example of one where the truth and hard facts appear to have been brutally ignored.

Theresa Pearson, Green’s mother, is outraged because she feels that her son was not given a fair trial by the Alabama judicial system. Green was arrested for crimes he may not have even committed and given maximum penalty. In the same town of Dothan, a man who killed his own son received a 20 year sentence in April. To the casual observer, the logistics of the case don't seem to add up.

Green was diagnosed at a very young age with Schizophrenia, Bipolar Disorder, and ADHD, thus classifying him as mentally impaired. Twice a day Green takes doses of medications such as Ridolin for ADD/ADHD, Geodon for Schizophrenia, and Abilify, an antipsychotic medicine for his conditions. He had also been attending special counseling and therapy. Pearson began to notice the discrimination against her son when she had trouble setting up appointments with a therapist. She was constantly told to come back later or try other numbers, and it was months before she secured one.

On the night of August 3rd, 2007, Green ran away from home. Worried, Pearson called the police who returned him home around midnight. Once in the past Green ran away from home because supposed voices in his head told him to. This behavior, listening to voices, is very common in Schizophrenics.

Three days later, on August 6, the police came back to Pearson’s home, arresting Green for crimes they suggested he committed when he ran away. He was accused of the kidnapping, attempt to kill, and robbery of Robert Wimbish, a white Dothan resident who claimed that Green left him near death. Green was 17 years old.

How certain was Wimbish that Green was the one who did it? The following specifics of this trial support Pearson’s argument that her son was wrongfully accused and even more, wrongfully sentenced:

No DNA samples or fingerprints were ever taken or presented in court to match those of Green’s to those found at the scene of the crime or on the victim.

A relative of Pearson claimed that Green had found his way to her house the day he ran away, thus he may not have even been present at the crime scene.

Pearson was given a state attorney, Jack Blumenfeld, after her first state lawyer, Martin Johnson, withdrew from the case in November of 2007. Apparently, Johnson was pressured into dropping the case and had been receiving threats. Could it have been because he was fully capable of winning by presenting truth and evidence? Pearson says yes. She stated, “Everyone knew [Johnson] could win this case, that’s why they made sure he couldn’t take it.”

Blumenfeld seemed uninterested in helping Green or his mother. Pearson recalls that Blumenfeld dismissed all of her son’s medical records as irrelevant to the success of their argument. She is also certain that Blumenfeld never contacted the witnesses who could testify for her son’s defense, as none of them showed up in court.

Pearson was even denied access to her son’s public records when she went to the police to ask for them in January. She said, “They asked me, what do you need them for? We don’t just give them out.”

Pearson also claimed that during a meeting with the District Attorney Doug Valeska, she informed him of Green’s medical conditions but to no avail. She said, “I told him that Corey has medical records that prove he is Schizophrenic and Bipolar…. and he said he knew that…but he don’t believe it’s true.”

The jury for the trial comprised of 11 white men and women, and only one black man. Furthermore, some of the jurors may have even known Judge Lawson Little and Doug Valeska personally.

The victim, Wimbish, is alive and well today. He wrote this note to the editors of the Dothan Eagle, the local newspaper, on April 18, 2008:

“Recently, Judge Lawson Little showed the residents of Houston County how fortunate they are to have such a strong law and order judge serving them. Judge Little gave the maximum sentence and showed no mercy for a heartless criminal, Corey Green.

My entire family and I want to thank Judge Little, Dothan’s law enforcement, District Attorney Doug Valeska and the Southeast Alabama Medical for all they did for me during a horrible experience. When Corey Green tried to kill me and left me for dead, all these people showed mercy and made certain the punishment due to Corey Green was carried out to the maximum of the law.

Hopefully the residents of this area will appreciate the efforts that all these people put into seeing justice done for a long time to come.

Robert Wimbish

Dothan”


Regardless of Green’s involvement in the kidnapping, robbery and assault of Wimbish, (although that should definitely be called into question) the entire case may not have been represented to the best of the lawyer’s ability, nor following the guidelines of the law. Pearson is no lawyer, but she realized this immediately.

According to Ms. Pearson, Green’s mental state should have been taken into account and his medical records presented in court, as should have evidence been taken in the form of fingerprints or DNA at the scene of the crime. Pearson is certain that the color of her son’s skin and his mental state had a lot to do with the carelessness of those handling the case, and the outcome of the sentence. The judicial system is highly dependent upon two groups of people: those in power and unfortunately, as this case is an example of, those with very little voice and financial ability to challenge authority.

Now, a potentially innocent teenager with unstable mental health faces the penalty of 297 years in prison for a crime that does not even match the sentence. Pearson is determined to seek justice. She said, “Too many black folk down [South] let this happen to their kids and don’t do nothing about it…. but not me. I’m going to fight this until they let my baby home, or until God calls me home…whichever comes first.”

Chiderah Nelo Monde-Anumihe is a correspondent for YourBlackWorld.com. If you would like to help with this case in any way, please email us at info@yourblackworld.com.

Free Speech v. Punishable Crimes: The Thin Line That Divides

By Syreeta LaShawn McNeal, CPA, JD

People fear the worst possible scenario that Senator Obama will be assassinated as he seeks to be President of the United States of America. If the increased secret service presence for Senator Obama, noose sightings since his presidential announcement in May 2007, and recent comments by former Arkansas Governor and former Republican presidential nominee, Mike Huckabee, talking about pointing a gun at Senator Obama while he is on the floor at a televised NRA meeting does not hasten those fears, then those who truly support Senator Obama are not understanding that this is the reality for any black man deciding to attain the highest office in the land over their white counterparts.

I love the fact that my dear brother, Dr. Boyce Watkins, is trying to find out whether Fox Contributor Liz Trotta’s personal comments about assassinating Senator Obama and Osama Bin Laden qualify as a particular crime with his recent entry on May 26, 2008. Dr. Watkins even highlighted a federal statute, 18 U.S.C. § 373(a), to see if there is any validity to federal prosecutors bringing a case against Trotta.

Well, the issue is whether Trotta’s statements on the Fox News broadcast is a form of free speech protected under the First Amendment of the U. S. Constitution or is it a solicitation of a crime, punishable in the federal courts?

To tackle this issue, this article will give a background of First Amendment protections of the U.S. Constitution on free speech. Next, this article will analyze the intent of 18 U.S.C. § 373 as identified in the United States Court of Appeals for the Ninth Circuit's ruling in U. S. v. Devorkin in 1998. Finally, this article will analyze whether Trotta’s statements fall into free speech or solicitation of crime, punishable under the law.

Free Speech Under the First Amendment of the U. S. Constitution

Under the First Amendment of the U. S. Constitution, citizens are allowed to speak freely in praise or criticism of their government and its leaders without fear of prosecution. The founding fathers ensured this guarantee in the original Bills of Rights to the U. S. Constitution because many of the American revolutionaries were persecuted for criticizing King George of Great Britain.

Free speech does have limitations. Federal and state governments are allowed to regulate this protected right as long as it is narrowly tailored to protecting the health, safety, and welfare of its citizens. For example, you can’t yell “fire” in a crowded theater for fear that this action will cause great danger for the health and safety of its theater occupants. If a person does yell fire in a crowded theater, the act is punishable by fine or jail under either state or federal law.

Legislative Intent of 18 U.S.C. § 373

18 U.S.C. § 373 states as follows:

(a) Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances highly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both; or if the crime solicited is punishable by life imprisonment or death, shall be imprisoned for not more than twenty years.

(b) It is an affirmative defense to a prosecution under this section that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant prevented the commission of the crime solicited. A renunciation is not "voluntary and complete" if it is motivated in whole or in part by a decision to postpone the commission of the crime until another time or to substitute another victim or another but similar objective. If the defendant raises the affirmative defense at trial, the defendant has the burden of proving the defense by a preponderance of the evidence.

(c) It is not a defense to a prosecution under this section that the person solicited could not be convicted of the crime because he lacked the state of mind required for its commission, because he was incompetent or irresponsible, or because he is immune from prosecution or is not subject to prosecution.

To non-lawyers viewing this statute, many people think there is a possibility that Trotta could be prosecuted under 18 U.S.C. § 373. However, examining the United States Court of Appeals for the Ninth Circuit ruling in U. S. v. Devorkin in 1998 would show that this is less likely to occur.[1]

The facts of the case are Devorkin, a Montana resident, contacted a confidential informant and asked him to kill Karen Ramsey, Devorkin's former spouse, who lived in Seattle, Washington.[2] In return, Devorkin offered to kill the informant's former son-in-law.[3] The informant contacted law enforcement officials and, after several monitored conversations with Devorkin, he introduced Devorkin to Special Agent Gunderson of the Bureau of Alcohol, Tobacco, and Firearms, who posed as a "hit man."[4] At a motel in Montana, Devorkin gave Gunderson $500, one-half of the $1,000 fee to commit the murder, and photographs of Ramsey.[5] Devorkin was arrested at a second meeting with Gunderson at which Gunderson falsely told Devorkin that he had murdered Ramsey.[6]

In Devorkin, the legislative history sheds light on the intent of 18 U.S.C. § 373. The Court asserted that the Senate Judiciary Committee's report clearly indicates that the provision was intended to reach persons who solicited crimes, but were unsuccessful, and that other provisions were in place to deal with the situation when the crime solicited was completed:

The Committee believes that a person who makes a serious effort to induce another person to commit a crime of violence is a clearly dangerous person and that his act deserves criminal sanctions whether or not the crime of violence is actually committed. The principal purpose of the new section is to allow law enforcement officials to intervene at an early stage where there has been a clear demonstration of an individual's criminal intent and danger to society. Of course, if the person solicited actually carries out the crime, the solicitor is punishable as an aider and abettor. S. Rep. No. 98-225, at 308 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3487.[7]

Application of 18 U.S.C. § 373 to Liz Trotta’s Statements on Fox News

In contrast to Devorkin, Trotta stated on a Fox News broadcast that she wishes both Osama and Obama were assassinated in a joking manner. Under 18 U.S.C. § 373, this would not rise to the level of Trotta’s statement being a clear demonstration of an individual’s criminal intent and danger to society. She said it while laughing. Also, she did not publicly tell people that she would pay money to anyone who assassinated Obama and then actually pay money to the person as done in Devorkin.

Trotta’s comments are more comparable to Fox News Contributor Bill O’Reilly’s comments about creating a lynching party on Michelle Obama if she did not have pride in her country until now was true. Also, Trotta’s comments are comparable to ESPN Golf Channel anchor Kelly Tilghman’s comments about lynching Tiger Woods in a back alley. O’Reilly and Tilghman were not brought up on federal or state criminal charges for soliciting perceived violence against people or government entities. Their statements are protected under the First Amendment protections of free speech. Like American revolutionaries, these people are free to express their opinions about people as long as they do not clearly demonstrate an individual’s criminal intent to harm a person or danger to society.

So, Dr. Watkins, you probably will not be successful in getting a federal prosecutor to bring up charges against Trotta under 18 U.S.C. § 373. More appropriate action you can take is to protest the network and have Trotta publicly apologize or be suspended for her comments by the network. O’Reilly and Tilghman experienced this later action. But, criminal prosecution for these statements is highly unlikely.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

[1] U.S. v. Devorkin, 159 F.3d 465 (9th Cir. 1998)
[2] Id. at 466.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.

The Incarceration of the Races

By: Leland C. Abraham, Esq.

It has long been the opinion of many that minorities have an unfavorable position when they are defendants in a court of law. Many feel that black males, in particular, are at a disadvantage when it comes to the pursuit of justice. It has long been determined that Blacks and Hispanics are disproportionately represented in the U.S. prison populations. Determining why that is has become a difficult task.

The disparity in minority populations represented in the prison system versus the white population has caught the eye of several human rights organizations. One such organization is Human Right’s Watch. Human Right’s Watch researched prison populations across the country and discovered that, on a state by state basis, there is a dramatic disparity between the percentage of Blacks and Latinos behind bars and their White counter-parts. According to the Human Right’s Watch, in 2002, Blacks and Hispanics make up sixty-two (62) percent of the U.S. incarcerated population, while only accounting for twenty-five (25) percent of the total U.S. population. According to the Human Right’s Watch’s research, between ten (10) and fifteen (15) percent of the total Black population is incarcerated in twelve (12) states (Colorado, Iowa, Kansas, Kentucky, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, West Virginia, Wisconsin, and Wyoming). Black women are incarcerated at rates between ten (10) and thirty-five (35) times higher than their White counter-parts in fifteen (15) states (Colorado, Connecticut, Illinois, Iowa, Maine, New Jersey, New Mexico, New York, Rhode Island, Texas, Vermont, West Virginia, Wisconsin, and Wyoming).

This disparity will lead many to wonder about the integrity of the justice system. Incarceration is the result of a finding of guilt in a criminal court. Criminal Courts have a higher burden of proof than their Civil Court counter-parts. In a criminal matter, a defendant may only be found guilty in three ways: A guilty plea, a conviction by a jury of the defendant’s peers, or a verdict of guilty from a bench trial (a trial in which a single judge determines guilt or innocence). Based on the statistics that the Human Right’s Watch has compiled, it does appear that Blacks have been “found guilty” in criminal court rooms at a higher rate than Whites have. This disparity can be attributable to many different factors, but one central factor may account for why Blacks continue to receive the “short end’ of the legal stick.

The burden of proof in criminal cases is “beyond a reasonable doubt.” This means that a prosecutor has to prove that there is no doubt that the defendant committed the charged crime. Historically, this standard has been proven to not be a proper bench-mark for justice in the annals of American Jurisprudence when it pertains to Blacks and Hispanics. Over the last five (5) to seven (7) years, there have been many cases in which defendants were serving sentences, only to have those sentences overturned because of some exonerating evidence. When one does an analysis of these cases, many of these defendants claimed to have had alibis during the time the crimes were committed, but these claims went unheard. As a result, many Blacks were convicted of crimes in which they were innocent.

Although there have been many legal reforms since the advent of Civil Rights legislation in the 1960s, many feel that nothing has really changed in the scope of the justice system. While many would tell these “skeptics” of the legal system that their claims have no merit, an analysis of recent court decisions may lead some credence to these claims. One such instance is the case of Shaquanda Cotton. Cotton, a 15 year old resident of Paris, Texas, was given a sentence of seven (7) years imprisonment for pushing a school monitor. Many argue that the punishment does not fit the crime in this case. Cotton, who had a medical condition that required a morning medicine dosage, was eager to get to the nurse’s office before school started. Cotton attempted to press past the school monitor, a 58 year old Caucasian woman, and was shoved by the monitor. In a retaliatory effort, Cotton shoved the woman back and was subsequently arrested. Once her case went to trial, she was given a sentence of seven (7) years imprisonment. Many in the community felt this was a miscarriage of justice because the same judge who sentenced Cotton to seven (7) years imprisonment, sentenced a 14 year old White girl to probation for burning down the family home three (3) months before he decided the Cotton case.

The Cotton case is one of many examples where there is a perceived bias within the justice system. Although Blacks have made much progress since the advent of the Civil Rights legislation, there still appears to be a systematic discrepancy in treatment between the White population and the Black and Hispanic populations when it comes to the justice system. Until this inequity is rectified, there will continue to be a disparity among the races in prison populations.

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