Showing posts with label Criminal Law. Show all posts
Showing posts with label Criminal Law. Show all posts

Thursday, June 3, 2010

U.S. Supreme Court: Suspects Must Say They Want to Remain Silent (Expansion of Miranda Rights)



By JESSE J. HOLLAND
Associated Press Writer


WASHINGTON (AP) - Want to invoke your right to remain silent? You'll have to speak up.In a narrowly split decision, the Supreme Court's conservative majority expanded its limits on the famous Miranda rights for criminal suspects on Tuesday - over the dissent of new Justice Sonia Sotomayor, who said the ruling turned Americans' rights of protection from police abuse "upside down."


Justice Anthony Kennedy, who wrote the majority opinion, said a suspect who goes ahead and talks to police after being informed he doesn't have to has waived his right to remain silent. Elena Kagan, who has been nominated by President Barack Obama to join the court, sided with the police as U.S. solicitor general when the case came before the court. She would replace Justice John Paul Stevens, one of the dissenters.A right to remain silent and a right to a lawyer are at the top of the warnings that police recite to suspects during arrests and interrogations.


But Tuesday's majority said that suspects must break their silence and tell police they are going to remain quiet to stop an interrogation, just as they must tell police that they want a lawyer.This decision means that police can keep shooting questions at a suspect who refuses to talk as long as they want in hopes that the person will crack and give them some information, said Richard Friedman, a University of Michigan law professor."It's a little bit less restraint that the officers have to show," Friedman said.


The ruling comes in a case in which a suspect, Van Chester Thompkins, remained mostly silent for a three-hour police interrogation before implicating himself in a Jan. 10, 2000, murder in Southfield, Mich. He appealed his conviction, saying he had invoked his Miranda right to remain silent by remaining silent.Kennedy, writing the decision for the court's conservatives, said that wasn't enough."Thompkins did not say that he wanted to remain silent or that he did not want to talk to police," Kennedy said. "Had he made either of these simple, unambiguous statements, he would have invoked his 'right to cut off questioning.' Here he did neither, so he did not invoke his right to remain silent."


He was joined in the 5-4 opinion by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito.Prosecutors cheered the decision, saying it takes the guesswork out of when police have to stop questioning suspects. "Is it too much to ask for a criminal suspect to say he doesn't want to talk to police?" said Scott Burns, executive director of the National District Attorneys Association.


This is the third time this session that the Supreme Court has placed limits on Miranda rights, which come from a 1966 decision - it involved police questioning of Ernesto Miranda in a rape and kidnapping case in Phoenix - requiring officers to tell suspects they have the right to remain silent and to have a lawyer represent them, even if they can't afford one.Earlier this term, the high court ruled that a suspect's request for a lawyer is good for only 14 days after the person is released from police custody - the first time the court has placed a time limit on a request for a lawyer - and that police do not have to explicitly tell suspects they have a right to a lawyer during an interrogation.


For Justice Sotomayor, deciding to make suspects speak to have the right to remain silent was a step too far. Sotomayor, the court's newest member, wrote a strongly worded dissent for the court's liberals, saying the majority's decision "turns Miranda upside down.""Criminal suspects must now unambiguously invoke their right to remain silent - which counterintuitively requires them to speak," she said. "At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded."She was joined in her dissent by Stevens, Ruth Bader Ginsburg and Stephen Breyer.Supreme Court nominee Kagan had sided with the police in this case. As solicitor general, she told the Supreme Court that the Constitution "does not require that the police interpret ambiguous statements as invocations of Miranda rights."


"An unambiguous-invocation requirement for the right to remain silent and terminate questioning strikes the appropriate balance between protecting the suspect's rights and permitting valuable police investigation," Kagan said in court papers.Thompkins was arrested for murder in 2001 and questioned by police for three hours. At the beginning, he was read his Miranda rights and said he understood.The officers in the room said Thompkins said little during the interrogation, occasionally answering "yes," "no," "I don't know," nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for "shooting that boy down," Thompkins said, "Yes."


He was convicted, but on appeal he wanted that statement thrown out because he said he had invoked his Miranda rights by being uncommunicative with the interrogating officers.The 6th U.S. Circuit Court of Appeals in Cincinnati agreed and threw out his confession and conviction. The high court reversed that decision."


In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to police," Kennedy said. "Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police. The police, moreover, were not required to obtain a waiver of Thompkins' right to remain silent before interrogating him."Sotomayor called that reasoning "a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided during custodial interrogation."


The case is Berghuis v. Thompkins, 08-1470.


Thursday, November 19, 2009

Question of Jurisdiction: U.S. Attorney General Eric Holder v. U.S. Senator Lindsey Graham

"One of the first items law students entering law school learn is JURISDICTION (i.e. which Court (e.g. state, federal or military tribunal) should the plaintiff/district attorney/attorney general bring a petition). This is an excellent video to see what you will be learning when you enter into law school and also a REMINDER for lawyers already practicing, including those who are U.S. Attorney Generals." Syreeta L. McNeal, CPA, JD

Tuesday, August 25, 2009

AP: Chris Brown sentenced in Rihanna assault case




AP, Aug 25, 2009 6:19 pm PDT

A judge on Tuesday sentenced Chris Brown to five years' probation, six months' community labor for the beating of Rihanna and ordered the R&B singer to stay away from his former girlfriend for the next five years.Los Angeles Superior Court Judge Patricia Schnegg told Brown that he could be sent to state prison if he violated any terms of his sentence, including an order to stay 100 yards away from Rihanna unless they're attending music industry events.

A probation report prepared for Tuesday's sentencing describes two previous violent incidents. The first happened about three months before the February beating while the couple was traveling in Europe; Rihanna slapped Brown during an argument, and he shoved her into a wall. In the second instance, Brown allegedly broke the front and passenger side windows on a Range Rover they were driving while visiting Barbados, Rihanna 's home country. Neither attack was reported, the probation report states.
Brown will serve his sentence in his home state — Virginia — and his community labor will be overseen by the police chief in Richmond.

The judge said she wanted to ensure that Brown, 20, performs physical labor instead of community service, such as mentoring young people. He will also undergo a year of domestic violence counseling.

Saturday, July 25, 2009

Time: The Gates Case: When Disorderly Conduct is a Cop's Judgment Call


"I read over this article and I think it gives an excellent explanation of what the misdemeanor charge of disorderly conduct is all about" Syreeta L. McNeal, CPA, JD

Time.com
Saturday, Jul. 25, 2009


In law enforcement, there are few situations that are clear cut, and disorderly conduct is one of the fuzziest. As Harvard professor Henry Louis Gates Jr. now knows all too well, the misdemeanor charge can be used to corral people who are simply uncooperative or rude. State statutes are designed to help police officers maintain authority, and they are so broadly worded that divining what constitutes disorderly conduct is left up to the discretion of individual officers. "It's probably the most abused statute in America," says Eugene O'Donnell, a professor of law and police studies at John Jay College of Criminal Justice in New York City.

Perhaps not surprisingly, a good chunk of disorderly conduct charges end up being dropped, as happened in the case against Gates, who was arrested on his porch July 16 after yelling at the officer who responded to a report of a possible break-in at the Harvard scholar's home in Cambridge, Mass. Gates, who is black, accused Sgt. James Crowley, who is white, of being a racist and also cast aspersions about the cop's "mama". "Mr. Gates was given plenty of opportunities to stop what he was doing. He didn't. He acted very irrational. He controlled the outcome of that event," Crowley told WBZ Radio in Boston on Thursday.

Talking trash by itself isn't a punishable offense — unless, it seems, you draw a crowd while doing it, which is part of the allegation against Gates. That's why in the wake of the Gates incident, cops are holding firm on the need for lots of latitude in issuing disorderly conduct charges. President Barack Obama, who said earlier this week that Cambridge police had "acted stupidly," called Crowley Friday to make nice, though he stopped short of issuing the apology that Massachusetts police unions sought and maintained that he still thought "there was an overreaction."

"Disorderly conduct is a fluid concept," says Tom Nolan, a criminal justice professor at Boston University who spent 27 years in uniform at the Boston Police Department. "Unlike a lot of other crimes, this really calls for the use of discretion in a way that armed robbery or more serious felony crime doesn't. The less serious a crime, the more officer discretion you use," he says, adding "discretion is judgment that we hope is based on wisdom, experience and training."

Disorderly conduct has its roots in the mid-19th century, when police officers needed a way to quell street brawls that erupted frequently between recent immigrants and already established residents, often regarding labor issues. Crowds would gather and cops needed to restore order in public places. According to the Cambridge police report, Gates exhibited "loud and tumultuous behavior, in a public place" that "caused citizens passing by this location to stop and take notice while appearing surprised and alarmed."

The issue of whether or not Gates — first in his home and later on his front porch — was in a public place has sparked plenty of debate, including in the blogosphere. Crowley's account of the incident included the detail that "at least seven" passers-by had stopped to rubberneck. Sam Goldberg, author of Boston Criminal Lawyer Blog, thinks the report includes that detail in order to bolster the case that this altercation was playing out publicly. "It's as if he was saying, 'Look, he was really causing a disturbance,'" says Goldberg, a criminal defense attorney at the Cambridge-based firm of Altman & Altman.

Jon Shane, who spent 17 years as a police officer in hardscrabble Newark, N.J., said that had he been the cop called to Gates' house, he would have left Gates and his huffy comments alone once he was sure Gates was the homeowner. He admits he may well have been offended by the professor's alleged bluster, but that's just part of the job, so much so that there's a term in police vernacular devoted to situations like this: contempt of cop.

"In contempt of court, you get loud and abusive in a courtroom, and it's against the law," says Shane, now a professor of criminal justice at John Jay who specializes in police policy and practice. "With contempt of cop, you get loud and nasty and show scorn for a law enforcement officer, but a police officer can't go out and lock you up for disorderly conduct because you were disrespectful toward them." The First Amendment allows you to say pretty much anything to the police. "You could tell them to go f--k themselves," says Shane, "and that's fine."

Like Shane, there are plenty of cops and ex-cops who think Gates' behavior didn't warrant the disorderly conduct charge, and there are those, like Nolan, who feel it did.

"Police pride themselves on resolving issues, and 99% of the time it occurs without arrests happening," says Nolan. "You are not going to win any accolades bringing in anyone for a street disturbance. It's a waste of time because in order to bring this situation to a conclusion, you've got hours of paperwork ahead of you."

"You do it because you have no other tool at your disposal," he says of disorderly conduct.

"There really isn't any other choice."

Wednesday, June 24, 2009

Supreme Court Rules that DNA Testing is Not a Right for Criminal Defendants

William Osborne


By Leland C. Abraham, Esq.

The Supreme Court, in a 5-4 decision, turned down an Alaska man’s request for DNA testing. Many have argued that the Supreme Court committed a grave disservice to the cause of justice.


William Osborne was convicted of raping and nearly killing a prostitute in Anchorage, Alaska in 1993. The DNA testing at the time concluded that Osborne could have been among the 15-16% of the African-American community who could have committed the crime. This level of uncertainty is likely not to have held up in a modern court case. More unnerving is that his lawyer is reported to have advised him against seeking a better DNA test.


In the decision, the justices did not reject Osborne’s claim on the merits of his case, but rather they rejected it because they stated that it was not their jobs. Herein lies a problem with how the Supreme Court is interpreted. The function of the Supreme Court is not to make the laws, but it is to interpret the law. Thus, because the Supreme Court is not a rule-making body, it does not have the authority to declare that an inmate has a Constitutional right to DNA testing, no matter how grave the injustice. In response to this case, Chief Justice John Roberts stated, “The elected governments of the States are actively confronting the challenges DNA technology poses. . . . To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response.” The rule making authority has been left to legislatures.

What makes this case so unique is that the denial of DNA testing is usually premised on the fact that DNA testing is so expensive. Generally, DNA tests costs thousands of dollars to conduct and the state usually does not have an abundance of money to expend on every request for a DNA test. However, that is not the case for Mr. Osborne. The reports are that he offered to pay for his own test, so money would not have been a factor for the Alaska Courts to consider. This may just be an Alaskan practice. Although DNA testing has freed over 240 inmates across the nation, Alaska has not granted a single DNA review for a convicted inmate according to the four dissenting justices. One of the dissenters, Justice John Stevens said, “When absolute proof of innocence is readily at hand, a State should not shrink from the possibility that error may have occurred.” Herein lies the confusion of the Court’s decision. While it is recognized that the Supreme Court does not have rule-making capabilities, it is a court of review. The statements by Justice Stevens clearly indicate an affront to Mr. Osborne’s right to Due Process. This alone would have given the Supreme Court jurisdiction to determine whether Mr. Osborne was denied Due Process of law by lacking proper access to the DNA technology. This would take the matter out of the state court jurisdiction and put it right where it should have been, the Supreme Court. However, the Supreme Court decided that it did not have authority to rule on the matter which appears to be a misinterpretation of the Supreme Court’s authority.


Most states provide for post-conviction DNA testing. In the few that do not, the inmate is out of luck in proving his innocence. In review of Alaska’s practice, Justice John Roberts acknowledged that most states had post-conviction access to DNA technology and because those states had it, he saw “nothing inadequate” concerning Alaska’s procedure. Alaska may not have cared that it subverted the Constitutional rights of an American citizen, but it is surprising that the US Supreme Court may have cared even less.


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.

Tuesday, June 23, 2009

People: Chris Brown gets probation, labor for Rihanna assault




By Tony HicksContra Costa Times
Posted: 06/22/2009 04:06:32 PM PDT

Chris Brown pleaded guilty Monday to count of felony assault on pop star Rihanna.
Brown entered his plea before a preliminary hearing was scheduled to start in Los Angeles on Monday. Rihanna had been on standby to testify.

After Brown left the courtroom, Rihanna was addressed by Los Angeles Superior Court Judge Patricia Schnegg, who explained to the Barbados-born singer that she had issued a stay-away order, requiring Brown and Rihanna stay at least 50 yards from each, except at industry events when the distance is reduced to 10 yards.

Brown's lawyer, Mark Geragos, said the plea deal includes five years of supervised probation and six months of community labor. Brown will be formally sentenced on Aug. 5.

Schnegg accepted Brown's plea, but specified the community service must entail hard labor, citing Caltrains cleaning or graffiti removal as an example. She said Brown likely will be allowed to do his community service in his home state of Virginia. He'll also be required to attend domestic violence classes.

Lawyers for Brown, 20, and Rihanna, 21, refused to discuss the status of the pair's relationship. Brown was arrested Feb. 8, after police say he hit and threatened Rihanna after leaving a pre-Grammy party in Los Angeles.


Saturday, May 23, 2009

Milwaukee Police Under Fire for Unsolved Investigation of Serial Killings of Prostitutes




Associated Press (via Fox News.com)

MILWAUKEE — Within a 3-square-mile area of Milwaukee's north side an unknown man strangled six women police say were prostitutes between 1986 and 2007. But it wasn't until this past week that the city's top cop said recent DNA tests had linked the killings.

Some people in the community, including the women's' families, wonder why it took police so long to discover the DNA link and announce it, and whether some officers' biases against the victims' lifestyles and race kept them from focusing their attention on the crimes.

"Crack whores," is how some officers in past decades referred to prostitutes, said LaVerne McCoy, who retired as a sergeant in January after 25 years in the Milwaukee Police Department.

"They are forgetting that crimes are being committed and this person is continuing to do this because of our attitudes about the victim and that's what our priorities should be: Get this murdering criminal off the street," McCoy said.

Suspicions of a serial killer had swirled for years. A 1997 Milwaukee Journal Sentinel article said then-Chief Arthur Jones assigned officers to investigate strangulations of women on the north side after Joyce Mims was found dead in a vacant house.

Last Monday, Police Chief Ed Flynn said DNA tests in the past couple of weeks had linked her death and at least five others to the same unknown man. He said the same person had sex with a 16-year-old runaway whose throat was slashed, but that someone else likely killed her.

To read more, follow link below:
http://www.foxnews.com/story/0,2933,521477,00.html


Friday, March 27, 2009

T.I. Sentenced To A Year And A Day In Prison



Per MTV News

Mar 27 2009 11:24 AM EDT

By Jayson Rodriguez

ATLANTA — A Northern Georgia District judge sentenced T.I. to one year and one day in prison on felony weapons charges Friday (March 27), calling the rapper's plea deal "experimental" but a success.

Judge Charles Pannell Jr. told the rapper he had more than exceeded the court's expectations, and he hoped his case would inspire similar plea deals.

As a part of the plea deal T.I. (real name: Clifford Harris) struck last March, the year-and-a-day sentence was expected. The rapper is also required to complete 1,000 hours of community service before turning himself in, and another 500 hours after completing his sentence. He also must pay a $100,000 fine.

Tip is scheduled to report to prison voluntarily within the next six to eight weeks. However, the judge acknowledged that the rapper has agreed-upon commitments what will not allow him to enter prison before May 19.

To read more, follow the link below:
http://www.mtv.com/news/articles/1607943/20090327/t_i_.jhtml

Thursday, March 19, 2009

Guantanamo Detainees May Be Released in U.S.

Per the Wall Street Journal Online

By EVAN PEREZ

WASHINGTON -- Attorney General Eric Holder said some detainees being held at Guantanamo Bay, Cuba, may end up being released in the U.S. as the Obama administration works with foreign allies to resettle some of the prisoners.

Eric Holder

Mr. Holder, in a briefing with reporters, said administration officials are still reviewing individual cases of the approximately 250 detainees to determine which will be put on trial and which may be released to comply with plans to close the detention facility by next year.

Six weeks into his tenure, Mr. Holder is still trying to assemble much of the Justice senior leadership, with several nominees awaiting Senate confirmation. He said he has reviewed the department's handling of white-collar criminal cases in response to the financial crisis and is considering ways to increase coordination on financial fraud among federal prosecutors and state officials. He said he is trying to increase the budget dedicated to white-collar crime, while maintaining funding for national security.

European justice ministers met with Mr. Holder earlier this week and pressed for details on how many Guantanamo prisoners the U.S. planned to release domestically, as part of any agreement for allies to accept detainees. Mr. Holder said U.S. officials would work to respond to the questions European officials have over U.S. Guantanamo plans.

See more from the following link: http://online.wsj.com/article/SB123741378746277081.html

"A couple of questions:

1. Which state will they be released to?

2. How will our state/federal criminal system deal with a person who basically has little to no ability to be rehabilitated when they are willing to sacrifice their lives to kill all American or Jewish life for their religious belief?

I am reminded of WWII where the Japanese performed Kamikaze missions on US ships before President Truman dropped two automic bombs before the Emperor of Japan conceded in defeat.

Will a person who wants to do this type of kamikaze mission on American citizens require the same result?" - Syreeta L. McNeal, CPA, JD

Post your thoughts please....

Friday, March 13, 2009

Boston Teens state Rihanna is at Fault for Assault

"This article and study is one reason why kids (or teenagers) lack the mental capacity to make decisions as an adult legally." - Syreeta L. McNeal, CPA, JD

Many Boston teens surveyed say Rihanna is at fault for assault

By Milton J. Valencia and Jenna Nierstedt
Globe Staff and Globe Correspondent / March 13, 2009

Here's a conversation starter: Nearly half of the 200 Boston teenagers interviewed for an informal poll said pop star Rihanna was responsible for the beating she allegedly took at the hands of her boyfriend, fellow music star Chris Brown, in February.

Of those questioned, ages 12 to 19, 71 percent said that arguing was a normal part of a relationship; 44 percent said fighting was a routine occurrence.

The results of the survey, conducted by the Boston Public Health Commission across the city and equally among boys and girls, are startling for local health workers who see a generation of youths who seem to have grown accustomed, even insensitive, to domestic violence.

"I think you'd have to be pretty jaded if you weren't startled by it," said Casey Corcoran, director of the health commission's new Start Strong program.

To read more, follow this link: http://www.boston.com/news/local/massachusetts/articles/2009/03/13/many_boston_teens_surveyed_say_rihanna_is_at_fault_for_assault/

Thursday, March 12, 2009

2 arrested in FBI raid at Obama appointee's office

March 12, 2009 - 12:57pm

WASHINGTON - A D.C. Office of the Chief Technology Officer employee and a private contractor have been arrested in a federal bribery sting, sources tell WTOP. D.C. Office of the Chief Technology Officer employee Yusuf Acar and Advanced Integrated Technologies Corporation (AITC) President and CEO Sushil Bansal have been arrested, sources tell WTOP.

Acar, 40, was taken into custody Thursday morning by FBI agents at his home in Northwest D.C.

In 2008, Bansal's firm received .Net Development Support and Peoplesoft Consulting Support contracts from the D.C. Office of the Chief Technology Office totaling $350,000.

AITC has also received contracts from the D.C. Department of Motor Vehicles. In 2008, Bansal received the Entrepreneur of the Year Award from the Association of Indians in America, according to AITC's Web site.

The FBI is now serving a search warrant at the office of D.C.'s Chief Technology Officer, WTOP has learned.

"We are there as part of a continuing ongoing criminal investigation," FBI Washington Field Office spokesperson Katherine Schweit tells WTOP.

Schweit would not comment on the details of the investigation.

More than a dozen FBI agents - including evidence technicians - are at the office, located at 1 Judiciary Square on 4th Street in Northwest, WTOP's Mark Segraves reports.

Most of the employees have been told to go home. Other employees have been segregated into a waiting room.

Segraves reports the FBI's search has expanded from 9th floor offices to 10th floor offices.

The 10th floor has been closed to the public while the FBI searches the offices that house the Administrative Services Modernization Program, Segraves reports.

A spokesman for D.C.'s U.S. Attorney tells WTOP he cannot discuss the investigation, as it is currently sealed.

On March 5, President Barack Obama named D.C. Chief Technology Officer Vivek Kundra as the federal government's chief information officer.

Kundra's last day was March 4.

Kundra, who was in charge of technology in the District since 2007, has been a consultant to Obama since he won the election.

Kundra has not been linked to Thursday's raid.

To read the entire article: http://www.wtop.com/?nid=596&sid=1622618

Thursday, March 5, 2009

Chris Brown charged with 2 felonies



Mar 5 03:34 PM US/Eastern

By ANTHONY McCARTNEY


Associated Press (AP) Entertainment Writer


LOS ANGELES (AP) - Chris Brown has been charged with two felonies stemming from what a police detective describes as a brutal argument between the singer and his girlfriend, Rihanna, provoked by her discovery of a text message from another woman.


Brown is expected to be arraigned Thursday afternoon on charges of assault likely to cause great bodily injury and making criminal threats. The 19-year-old R&B; singer remains free on $50,000 bail.


The felony complaint handed down in court Thursday morning identifies Brown's alleged victim only as "Robyn F." Rihanna's real name is Robyn Rihanna Fenty.
If convicted, the possible sentence ranges anywhere from probation to four years and eight months in state prison, said district attorney's spokeswoman Sandi Gibbons.


For more information (or to view the entire article) follow the link below:

Monday, February 23, 2009

Stop Hitting Me! Domestic Violence and Its Impact on the Family Unit




By Hugh V. Collins and Syreeta L. McNeal, CPA, JD


I know everyone is talking about the alleged domestic assault and battery that occurred between Chris Brown and Rihanna during the weekend of February 7 – 8, 2009. Recently, MTV, US Weekly and People magazine did specials or cover stories regarding the incident. Gossip organizations like Mediatakeout.com and TMZ.com all had their spin on what transpired. Many people are expressing outrage and taking sides. Some people have stated that Rihanna must have done something and deserved to get beat by Chris Brown while others believe that Chris Brown had no right whatsoever to lay a hand on Rihanna regardless of the argument between them. Well, domestic abuse is more common and more people in the U.S. and in the world have witnessed some form of domestic abuse in their lives or among their families. According to the U.S. Department of Justice’s Bureau of Justice Statistics report in 2005, one in 320 households were affected by intimate partner violence. Also, they report that female victims are more likely to be victimized by intimates than male victims.


So, if we are going to talk about domestic violence, let’s REALLY TALK about it. Not just give a he said, she said viewpoint. This article will explore the historical aspect of domestic abuse, identify the true aggressor, analyze the impact of abuse on the family unit, and list options people can do to minimize the damaging and criminal impact of domestic violence. This article will present both a male and female viewpoint so that both sides are fairly represented. Our goal is to not preach or accuse anyone here. This article is designed to make people aware that domestic abuse is of common occurrence in our society, it is not related solely to Chris Brown and Rihanna’s incident, and give people options to undertake to help minimize the damaging impact of it.


Historical Perspective of Domestic Abuse and Reform Efforts


Most people don’t realize that there is an 1824 Mississippi Supreme Court case, Bradley v. State, that legitimized domestic abuse and what was acceptable in society. The Mississippi Supreme Court stated the following in its opinion: “Family broils and dissentions cannot be investigated before the tribunals of the country, without casting a shade over the character of those who are unfortunately engaged in the controversy. To screen from public reproach those who may be thus unhappily situated, let the husband be permitted to exercise the right of moderate chastisement, in cases of great emergency, and use salutary restraints in every case of misbehavior, without being subjected to vexatious prosecutions, resulting in the mutual discredit and shame of all parties concerned.” See Bradley v. State, 1 Miss. 156 (MS 1824).



Examples of moderate chastisement include the wife having bruises, being bloodied, or being raped by her husband. Bradley codified the rule under the old common law (or judge made law in England). Thank goodness Bradley was overruled in 1894 by the Mississippi Supreme Court in Harris v. State. See Harris v. State, 14 So. 266 (MS 1894). But, the lasting impacting of what has been acceptable as moderate chastisement as defined under the old common law and codified in American law seems to show a troubling acceptance of this behavior in American society and around the world. Anybody remember the movie, What's Love Got to Do With It, where Angela Bassett and Laurence Fishburne reenacted the marital rape that existed between Ike and Tina Turner. Well, as the law identified, marital rape was acceptable under the old common law and in American society. No wonder Tina Turner or any other wife who experiences marital rape from her husband believes they will not be able to find help if this was the law.


There are periods of reform against family violence in American history. From 1640 to 1680, the Puritans of colonial Massachusetts enacted the first laws in the world against wife beating and “unnatural severity” to children. From 1874 to 1890, Societies for the Prevention of Cruelty to Children (SPCC) was created to help battered women and victims of incest. In 1962, five physicians published an article about “the battered child syndrome” in the Journal of the American Medical Association. In the early 1970s, women’s liberation movement analyzed “battered spouse syndrome” and evoked awareness about other forms of wife beating and marital rape. Other types of family violence from abuse of the elderly to sibling violence have come to light as well.


The reason why these distinct periods of reform against family violence occurred in American history resulted as a response to social and political conditions or social movements. In all the reform periods, small organizations and dedicated individuals (ministers, millionaires, physicians, temperance activists, and women’s liberationists) made family violence a social issue that demanded public attention.


Identifying the Aggressor in Domestic Abuse


Everyone has an inalienable right to life, liberty and the pursuit of happiness in American society. In tort law and in criminal law, people are allowed to be free of imminent harmful or offensive contact. What is considered harmful or offensive contact has changed. As noted earlier in old common law and in America history, it was generally accepted for a husband or man to do moderate chastisement (e.g. get bloody, beat or rape) their wife or girlfriend without fear of criminal persecution. Since the latest reform in the 1970’s, women are now considered to be equal to men under the law. That means women have the right to defend themselves against any type of violence initiated by their partners. Now, I am not sure that most people understand this legal change for women when it comes to domestic violence especially when one in 320 households where affected by intimate partner violence as reported by the U.S. Department of Justice’s Bureau of Justice Statistics report in 2005.


But let us re-iterate everyone has a right to defend themselves. This is known in criminal law as the affirmative defense of self-defense. The general rule is that a person has the right to use like force in defense of oneself. For example, if a person approaches you with a knife to rob you, you have the right under the law to defend yourself with a similar type of weapon. A knife is considered a dangerous, lethal weapon. So, a person can defend themselves with a knife, a gun or any other type of weapon. What is not considered self-defense is when a person is only verbally assaulted and the person retaliates with his or her fist or a weapon. This example is not an example of self-defense because it is not using like use of force. So, if a person uses their fist when a person is only using verbal assaults, the person using greater force than the initial argument will be considered the aggressor.


Now, if during an argument where it appears one person is retreating and still the other party continues the physical assault, then the person continuing the physical assault will be considered the aggressor even if they did not initially start the altercation. So, the aggressor is defined as the person who acts in a way that would provoke a reasonable person to use physical force for protection. Some people think verbal assaults do provoke a person to use physical force for protection. That is one reason why people justify domestic violence with statements like Rihanna must have done something to have Chris Brown hit her. However, under the law, verbal assaults SHOULD NOT provoke a person to use physical force for protection. If any person does do this, the person (man or woman) has the right to defend themselves or bring civil or criminal charges of assault and battery against you in a court of law.


Domestic Abuse’s Lingering Impact on the Family Unit


Domestic abuse is about a person exerting control over another human being with either mental abuse or physical violence. Domestic abuse is a generational issue that has its origins from children modeling the same behavior that their parents or parental guardians exhibited in their relationships.


Proverbs 22:6 states “Train up a child in the way he should go: and when he is old, he will not depart from it.” Usually, this scripture refers to parents (or guardians of children) taking heed to train their children to be God fearing, loving and decent representatives of their faith in society. When the child becomes an adult, they usually will keep these same principles they received as from their parents and replicate the behavior towards their children as they rear them. But, what this scripture really points out is that any training you give to your child will result in the child likely replicating the behavior when they become an adult. Hence, if a child sees domestic abuse among their parents (or stepparents), they will likely replicate the behavior when they become an adult.


That is generally what Chris Brown is doing when he beats on Rihanna or any girl as a matter of fact. Chris Brown witnessed either his father or his step-father beating on his mother and in his subconscious mind, he thinks this type of behavior by a man against any woman they are intimate with is the way you should treat a woman. Consciously, Chris Brown has stated publicly that he thinks any form of domestic violence is wrong. However, by his father or step-father continuing to beat his mother and his mother continuing to stay in the relationship for whatever reason, the male child has modeled the behavior of the father figure in his life. The same thing happens to girls when domestic violence occurs in their family unit. If girls witness their mother staying in a relationship that is abusive, they generally will be attracted to men who are abusive when they become adults. Girls think, just like their mothers, if I just do something differently, the abuse will stop. The sad part is that most times the domestic abuse does not stop.



Another illustration is from the movie Men of Honor where the initials "ASNF" were clearly scribed into Carl Brashear's transistor radio given to him by his father, a share cropper. Carl’s father believed that if he was able to teach his son anything, it would be the value of hard work, dedication, and fighting a good fight. Through his earlier teachings, Carl learned these values by watching and learning from his father. The letters "ASNF" which meant "A Son Never Forgets" was later learnt by his nemesis, Master Chief Billy Sunday, whom also came from the tough life of a share cropper. Master Chief Billy Sunday was a man who would do anything in his power to ensure Carl Brashear would flunk out of diving school. Unfortunately for the Master Chief, Carl's early childhood lessons were far more potent and persuasive which allowed him to painstakingly accept his adversity and fight to overcome them. His lessons were so deeply imbedded that not even a hateful Master Chief could break him. In the end, he helped make him better when he realized that his father had taught him lessons a son would never forget.


As a child, I witnessed several incidents of child abuse and some degree of spousal abuse. I also had friends suffer the same fate as preteens. There were factual events that occurred and many I would hope were fictional, but that was not the case.


I clearly remember one particular day that would have me question the meaning of a lot of things to come. The sun had already faded for hours and the stars were bright in the sky. I could hear the banging on the back door of my next door neighbor's house, loud voices screaming and yelling at my friend's father to stop and leave his wife alone. He had to have been in another state of mind because none of his friends could persuade him otherwise, and he was willing to listen to no one.



He continued to sharpen the cutlass, and threaten to take her with him if he had to go down. With a crowbar in hand, he pried the windows open. With four children, three boys and one girl, all less than eight years-old, witnessed and agonized over what was transpiring. I continued looking through my window in disbelief. I though he was going to kill them.


The result of that night was not as fatal as I thought it would be, but I awoke the next morning to hear the tales of how afraid they were, and how they would never want the same thing to happen to anyone they love. However, their actions would later reveal something quite different. Two of the boys would often get into fights with women and often got caned in school. They were very short tempered and did not care who they had to hurt to get what they wanted. Feeling abandoned, stories of that night would often surface, while their faces grimaced and they wished they were older to take revenge on their father. There were several spousal beatings after that night and their mother would hide under the guise of shame and make-up. He was not in the picture much after that. Their childhood fights became more intense as they grew into adulthood. The three younger kids were able to control their aggression towards each other, but the oldest male child grew more rebellious and abusive, verbally and physically.


The oldest male child had another incident of child abuse from his father where he was beaten repeatedly while naked, for fighting with a schoolmate who happened to be the child of his father’s mistress. Imagine yourself getting beaten by your own father for fighting with a child of your father’s mistress all because that child found out about the affair and wanted his father for his own mother.


After witnessing such a personal account of what spousal or child abuse had done to such young children at the time, it brings me back to the point that, regardless of the situation while being groomed as a child, negative or positive outcomes are inevitable because a child will never forget the abuse they have had to endure and live through.


One thing to keep in mind is this did not happen in the United States, this happened in Jamaica. The rules are different as there is very little accountability for one's actions when it comes to the family unit. Many times, law enforcement gets involved when it is already too late. If you are lucky, you will be beaten for most of your childhood and you deal with it by sucking it up, and saying to yourself, "what doesn't kill me will make me stronger."


There are just some things in life one never forgets and it will forever impact the relationships you have with people, whether you realize it or not. It can change who you are and if the wound is deep enough, you may stay that way until you are forced to rest forever. The point I am trying to make is no matter what your situation, as a child in the home, whether stable or broken, you learn the teachings of your parents without realizing you are being taught something you will most likely carry with you for life.


Measures to Take to Minimize Domestic Abuse


A. Psychological Measures


De-programming is the key. Og Mandino wrote in “The Greatest Salesman in the World” the following passage: “Good habits are the key to all success. Bad habits are the unlocked door to failure. Thus, the first law I will obey, which precedeth all others is – I will form good habits and become their slave. As a child I was slave to my impulses; now I am slave to my habits as are all grown men. I have surrendered my free will to the years of accumulated habits and the past deeds of my life have already marked out a path which threatens to imprison my future. My actions are ruled by appetite, passion, prejudice, greed, love, fear, environment, habit, and the worst of these tyrants is habit. Therefore, if I must be a slave to habit let me be a slave to good habits. My bad habits must be destroyed and new furrows prepared for good seed.”


If you have witnessed or been a part of domestic abuse, each person must take it upon themselves to deprogram their minds into accepting domestic abuse as a way of settling any argument. Usually, domestic violence involves matters of the heart. Someone feels so connected to an individual that they are so enraged that they must use violence to subdue their partner. Well, I have news for men (or women) who use violence to subdue their partners. Slavery or any form of indentured servitude ended with the passage of the 13th Amendment to the U.S. Constitution that abolished slavery in 1865. Also, women are not your property to be hit on. If we truly value the person and believe everyone has a right to self-defense against an assault or battery, then the same rule must apply.


There are many counselors who are available to help cope with domestic abuse for those who are victims and those who are the abusers. In almost every city in the United States, there is a domestic violence shelter for women and children that will be able to provide a safe haven, counseling, and means to take either civil or criminal actions against the domestic abuser. Please contact your courthouse or ask the police department to give you contact information of the domestic violence shelter in your area. These shelters must be kept confidential for fear of retribution by the domestic abuser on the victim of the abuse.


B. Civil Protective or Restraining Order System


Any person who is receiving threats, been abused or has family members such as a child or parent abused can file an Adult Abuse Order of Protection (or Temporary Restraining Order) in the state civil courts. Usually, these petitions are free to file and the hearing occurs within 10 to 15 days. Both parties are allowed to present their sides of the matter. The plaintiff has to prove that more likely than not (or greater than 50%) the abuse happened. The more evidence (e.g. pictures of abuse, witnesses, etc…) a plaintiff has, the more the court will rule in the plaintiff’s favor. Usually a temporary restraining order will range from 6 months until a full year where both parties are prevented from being within the vicinity of the other party. If the defendant violates the temporary restraining order in effect, the defendant can be hauled to jail for violating the court’s order. There is also a Child Order of Protection available as well for minor children who have been abused. Please contact your respective civil county courts for information regarding these petitions.


C. Criminal Justice System


Another avenue available is when the county prosecutor files a criminal charge of assault and battery or the like. Unlike civil proceedings where the victim initiates the action, the county prosecutor files the charge on behalf of the state where the action occurred. Under criminal law, a conviction against the defendant will occur if there is evidence beyond a reasonable doubt (or greater than 99%) that the defendant did the alleged crime. In criminal cases, there is a mens rea (mental state of the defendant) and an actus reus (act of the crime) where both have to be proven by the county prosecutor in a trial. Currently, the Los Angeles County Prosecutor is informing the police to get more evidence available on Chris Brown before they feel comfortable that they can get a jury of Brown’s peers to convict him on any criminal charge they present. Usually, the criminal avenue is difficult because evidence is lacking to meet the criminal burden. In domestic violence cases with intimate partners, victims are less willing to cooperate with authorities for fear of retribution by their partners once they get out. But, if the county prosecutor is able to get enough evidence to convict, the victim has a better chance of minimizing the reoccurrence of violence by their partner.


Source:
Clare Dalton & Elizabeth M. Schneider, Battered Women and the Law 9-11 (2001).


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.

Arrest Made in Home Foreclosure Civil Disobedience Program

Monday, February 23, 2009
FoxNews.com

By Joshua Rhett Miller

Police in Baltimore today made what is believed to be the first arrest in a civil disobedience program aimed at supporting homeowners who refuse to vacate their foreclosed homes.

An activist with ACORN — the Association of Community Organization for Reform Now — faces criminal charges after breaking into a home in southeast Baltimore on Thursday to protest the foreclosure crisis sweeping the country.

"This is our house now," ACORN member Louis Beverly reportedly said after cutting a lock with bolt cutters at the home.

Beverly will be charged with fourth-degree burglary, according to Anthony Guglielmi, a spokesman for the Baltimore Police. Attempts to reach his attorney, Justin Brown, were not immediately successful.

Donna Hanks, who owned the home since 2001, lost it in September when she couldn't make her $1,995 mortgage payments. It was not immediately clear whether Hanks re-entered her home last week, but she was not expected to be arrested, Guglielmi said.
Other police departments contacted by FOXNews.com said arrests would be made if an individual is determined to be residing at a foreclosed home illegally.

"If they're trespassing and it's not their property, absolutely, there'd by an arrest," a police source in Boston said. "If they were told to leave the property and they didn't, they'd be charged with disorderly conduct."

Pittsburgh Police Spokeswoman Diane Richard said charges would be filed against any individual found living in a foreclosed home, whether that individual had previously lived at the residence or not.

"If someone is court-ordered to vacate and they do not, it would be trespassing at that point," Richard said. "What exactly would be charged depends on the intensity of the violation. It could go all the way up to burglary, which is a felony."

See more, follow the link (http://www.foxnews.com/story/0,2933,498669,00.html)

Video for viewing pleasure: http://www.youtube.com/watch?v=RrqkP3sfOw8

Lawyer charged in killings of Curry's ex, baby

Associated Press

Updated: February 23, 2009, 3:46 AM EST

CHICAGO (AP) - A 36-year-old attorney fatally shot the former girlfriend and infant daughter of New York Knicks player Eddy Curry during a domestic-related dispute, according to police and published reports.

Fredrick Goings of Chicago was charged Sunday with two counts of first-degree murder, Cook County State's Attorney spokeswoman Sally Daly said.

Police said Goings was arrested Friday evening as he was getting into his car outside a relative's place in Chicago. Goings has not made any statements to authorities and is not cooperating in the investigation, Lt. Denis Walsh said.

It was not immediately clear who was representing Goings. A message left at his Chicago law office Sunday was not returned. Goings was due in bond court on Monday.

The bodies of 24-year-old Nova Henry and her 9-month-old daughter, Ava, were found in their Chicago apartment on Jan. 24. Both died of multiple gunshot wounds.

Henry also was the mother of ex-Chicago Bulls player Curry's 3-year-old son, who was found unharmed at the scene. Court records show that Goings was Henry's attorney in a paternity case with Curry involving Ava.

According to the Chicago Tribune, records show that DNA tests confirmed Ava was Curry's daughter. Curry, through Knicks spokesman Jonathan Supranowitz, declined comment. Messages left Sunday for his attorney were not immediately returned.
Police said Goings and Henry had "a relationship" and the motive for the shooting was "domestic related" but declined to elaborate.

According to police, Nova Henry let Goings into the apartment on Jan. 24 and the two quarreled.
"What happened inside that apartment will have to come out at a later date," Walsh told reporters Sunday. "There obviously was an argument."

Police said surveillance images and other evidence linked Goings to the case, but authorities declined to give details.

Goings has been practicing law since April 2005, according to state records.

http://msn.foxsports.com/nba/story/9134358/Lawyer-charged-in-killings-of-Curry's-ex,-baby?MSNHPHMA

Sunday, December 7, 2008

A Day of Reckoning for the Juice


By Leland C. Abraham, Esq.


O.J. Simpson, a former NFL great and Canton-enshrined National Football League Hall of Famer, was convicted of 10 counts on October 3, 2008 and sentenced on December 5, 2008. Most of the counts that Simpson was convicted and sentenced will run concurrently. Perhaps, the most serious of the counts was attempted armed kidnapping. Nevada State judge Jackie Glass expressed that the sentencing would not reflect Mr. Simpson’s prior case in California. If you did not know, 13 years ago, O.J. Simpson was tried and acquitted of double murder in the deaths of Nicole Brown Simpson and Ronald Goldman. Most media outlets have been calling for his head ever since. Many felt that the 9-33 year sentence that he received last week may be retribution for the acquittals 13 years ago.

An examination of the case speaks that O.J. Simpson, along with five other people, robbed Bruce Fromberg and Alfred Beardsley at the Palace Station Hotel and Casino in Las Vegas in September 2007. Simpson is alleged to have taken items including footballs with his autograph on them. Simpson claims that he was attempting to retrieve personal memorabilia. Whatever the story, a gun was introduced at some point which elevated the attempted retrieval to a punishable felony. Simpson stated during his sentencing that he was not aware that he was committing a crime. Unfortunately for Simpson, the reports from the incident state he, along with the other men who accompanied him, locked the door to the hotel room and then introduced a gun. Because the alleged victims did not have a way to escape the situation, this is considered to be kidnapping in most prosecutorial circles. Many may think that the sentencing of Simpson is retribution for the acquittal in the murder case. However, a review of the sentencing guidelines for kidnapping alone would lead to a different conclusion. In some jurisdictions, kidnapping is considered a capital offense. These crimes usually carry the traditional “25 to life” sentence. In most of these cases, the defendant will have to serve at least 15 years before he is eligible for parole. The minimum that Simpson may serve on this count alone is five years.

The next question may be “should there have been a first-degree kidnapping charge in the original indictment?” According to authorities, once Simpson and the men who accompanied him burst into the hotel room, Simpson is heard on an audiotape saying, “Don’t let nobody out of this room.” This is undoubtedly where the kidnapping charge stems from. This would be all the prosecution would need to secure a conviction of kidnapping because Simpson and his acquaintances entered the room with a weapon and Simpson is heard directing the others to not let anyone out of the room. Because members of Simpson’s team were armed and because he secured five other people, the events that occurred were premeditated, meaning Simpson planned them. The next mistake was directing his team to not let anyone leave the room.

The notion that he thought he was taking what was rightfully his reminds me of the traditional law school scenario. It typically goes, “You lend your favorite watch to your friend with the understanding that he is supposed to return the watch on Wednesday. It is now Sunday and the friend has not returned the watch. You go by his house and no one is home but you peek through the window and see the watch on the coffee table in your friend’s living room. Is it okay to go into your friend’s house to retrieve your watch?” The answer of course is “no.” This would be breaking and entering your friend’s house and depending on the prosecutor, it could be larceny as well. The proper thing to do would be to speak with the friend to get the property back. If that does not work, call a sheriff or other law enforcement officer to see if you can retrieve the property that way. If all of these things fail, you can sue your friend for the return of your property. As the latest Simpson case has shown, when you take matters into your own hands and have your own form of vigilante justice, you end up serving the time.

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.

Tuesday, September 23, 2008

CNN: U.S. Supreme Court stays Georgia execution

JACKSON, Georgia (CNN) -- The U.S. Supreme Court granted a last-minute reprieve to a Georgia man fewer than two hours before he was to be executed for the 1989 slaying of an off-duty police officer.

Troy Anthony Davis learned that his execution had been stayed when he saw it on television, he told CNN via telephone in his first interview after the stay was announced.
He said he was "thankful to God" for the news that came during an emergency session the U.S. Supreme Court convened.


Davis said "everyone should pray" for the slain officer's family.

The 39-year-old also said that he is "very grateful for everything that everyone is doing" for him and that he would "accept" whatever decision the Supreme Court rendered in the coming days about his case.

At the Diagnostic and Classification Prison in Jackson, a crowd of Davis' supporters, led by the Rev. Al Sharpton, erupted in cheers when Sharpton announced the stay. Some shouted "Hallelujah!"

For more information, view the following link: http://www.cnn.com/2008/CRIME/09/23/davis.scheduled.execution/index.html

Sunday, June 29, 2008

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.

Saturday, June 28, 2008

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).

Tuesday, June 17, 2008

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.