Can exorcism be used as a viable defense to murder? Five members of a Korean family are being charged with murder over the death of a relative during an exorcism ritual. Prosecutors of the German court have stated the family members wanted to expel a “demon” they believed to have possessed their relative.
According to prosecutors, all the accused took part in suffocating the woman. The woman died of asphyxiation as a result of “massive chest compression and violence to her neck.” It’s believed the family members took turns holding and pinning the victim to the ground and kneeing her in the chest in order to “cast out the devils.” They are also alleged to have stuffed a towel in her mouth multiple times in order to stop her from screaming.
The family members claimed that sometime last year, the victim began hitting herself, talking to herself, and became physically aggressive towards her family for unknown reasons, which was what ultimately led to their decision to perform an exorcism. According to German media, the family members being charged with murder are all believed to practice a form of Christianity with shamanist influences.
Cases of Exorcism Aren’t Unheard of in The U.S.
Similar cases have popped up, although infrequently, around the U.S. The first known claim of demonic possession to be used as a method denial of criminal responsibility came in 1981 when Arne Cheyenne Johnson was convicted for first-degree manslaughter for killing his landlord. Johnson killed his landlord during a heated conversation, but claimed that the landlord was possessed and tried to use that as a defense. The judge didn’t buy it, though, and ruled that such a defense could never be proven and, therefore, was not a suitable defense in a court of law.
In 2014, a Maryland mother was charged with killing her two children during an attempted exorcism. Zakieya Avery stabbed both of her children to death (and wounded two other children while attempting the exorcism) because she believed the children were possessed by demons. Although it’s unclear what Avery’s religious beliefs were, Avery never had to stand trial because she ultimately plead guilty to the crimes. A judge found her not criminally responsible and sentenced Avery to a psychiatric hospital rather than prison time.
Insanity is widely accepted as a viable defense and that seems to be the likely route that most defendant’s would take, but I imagine it will be nearly impossible to prove that all five family members in the German trial are legally insane. When it comes down to it, the practice of exorcisms, although often not formally recognized by churches, have deep religious roots—so it boils down to whether or not a person can use religion as a defense to a crime.
Government Leaves Small Window for Religion in Laws
There are some states that leave some wiggle room when it comes to using religion as a defense to certain crimes. You might be thinking there’s supposed to be separation of church and state and, of course, there is, but it can be more convoluted than that. The First Amendment leaves room for the free exercise of religion, so it makes sense that the government would allow religion to be used in certain instances.
For example, Oregon law allows a religious-based defense when the crime is possession of peytote, while Illinois allows an exception to serving alcohol to minors during religious ceremonies. The Supreme Court has held that convictions stemming from charges against an Amish family for not sending their children to school in violation of a state law were a violation of the free exercise clause of the First Amendment.
Bans On Sharia Law Evidence Religion Can’t Be Taken Too Far in Our Justice System
Despite these types of exceptions, there’s a history of keeping religion out of our justice system and that’s been especially evident in recent years.
In 2011, a New Jersey judge refused to grant a woman a protective order from her husband because he defended his actions by claiming that rape and sexual abuse aligned with his Muslim beliefs. The case was ultimately overturned by a higher court, but it incited an outrage within the U.S. which led to legislation across the country that attempted to specifically ban Sharia law.
Although higher courts have ruled banning one specific type of belief, i.e. Sharia, isn’t constitutional, it is legal to prohibit the use of any type of religion as a legal cop-out.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
When I think of a kid home alone, I picture Macaulay Culkin and his iconic expression gasping in disbelief that his parents left him home alone. Although his famous character, Kevin, was only a mere 8 years old, that seems a lifetime older than the 2-year-old Arizona boy that was left home alone by his parents.
We’ve heard of players of the now famous game getting hurt, but this is a first. A concerned neighbor called the police and when deputies arrived, they found the toddler bawling outside an unlocked house in the 96-degree heat trying to get inside the house. Local deputies found the child to be “red-faced, sweaty and dirty,” by the time they arrived and it took the parents nearly an hour to return home once they were called by police and informed about their child. The young child’s father, allegedly replied, “Whatever,” when called and told the boy was found abandoned.
Certainly a 2-year-old should never be left home alone under any circumstances, but at what age is it appropriate to leave your child home alone?
It Really Comes Down to a Simple Judgment Call
Many states offer guidelines, but only three states have specific laws on the books that have a minimum age requirement for leaving a child home alone. Illinois, for example, requires the child to be at least 14 years old, while Maryland has a mere 8-year-old minimum. Oregon, the third of the states, requires a child to be 10, while Kansas has a guideline of only 6.
However, even with these minimum requirements, many states will charge a parent with failing to provide adequate supervision for the child, neglect, and/or abandonment. Even with those state procedures, many don’t have any legal standards set defining what adequate supervision even is.
Age is one of the most common factor considered, but according to the Children’s Welfare Information Gateway, a parent should never consider age alone as a determining factor. Emotional well-being and maturity of the child seem to be the most important factors, but many states will often consider things like a child’s physical condition, the home environment, or how long the parent was absent. Even at a significantly older age, a child may not be emotionally stable enough to deal with being left home alone.
A parent should consider whether a child can obey rules, make good decisions, how a child responds to unfamiliar or stressful situations, how long the child will be alone, whether a child is able to fix a meal for themselves, whether the home is safe and free from hazards, and whether the surrounding areas and neighborhood are safe. This is certainly not an end all be all list. It’s going to depend on the situation of each child and, with an absence of law, it really comes down to a judgment call for many parents.
Legal Consequences Can Be Hefty
While parents are given wide latitude to make these decisions on their own, there’s definitely a line that can be crossed and the consequences aren’t anything to shake off. The Daleys are being charged with neglect and child endangerment, but possible jail time is just the beginning of consequences a parent could possibly face for leaving their child home alone. Have you ever heard of a little thing called CPS?
Child Protective Services is typically always notified to begin an investigation into family life when someone reports a child was inappropriately left at home. This can be a lengthy and grueling process that can end in the state taking over custody of children.
Even if a child isn’t directly taken away from their parents, courts can intervene in simple everyday decisions until the parent is deemed fit to do it on their own. Some courts may even require rehabilitative services to both children and parents. Often times, it can take months or even a year or more to regain full decision-making power in regards to your children.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
“In all criminal prosecutions, the accused shall enjoy…the assistance of counsel for his defense.”
The 6th Amendment. The Constitution is pretty clear when it comes to a criminal defendant’s right to an attorney. What it isn’t clear about, is who’s responsible for funding these public defenders. Case law is of no help either. Is it the responsibility of the state? The federal government? Or is it a civic duty of every licensed attorney to offer up free services?
Recent years have evidenced a growing problem for public defenders created by legislative budget cuts and, as a result, offices are being forced to cut the already low number of public defense attorneys from their employment roster. As a result of these decreases in available funds to hire adequately trained criminal defense attorneys, defendants’ rights to an attorney are being jeopardized.
Public Defense Attorneys Often Get Blamed, Although It’s Not Really Their Fault
Public defenders often get a bad rap for not being effective attorneys, but when you consider the number of clients in many of their caseloads, it’s easy to see why many don’t have the time to meet with their clients until the day of trial. In 2009, the average caseload for Florida public defenders was 500 felonies and more than 2,200 misdemeanors.
According to the American Bar Association and the National Advisory Commission on Criminal Justice Standards, public defenders should take on no more than 150 felony cases per year or no more than 400 misdemeanor cases per year. The problem has only grown worse. More recently, 22 public defenders were left to handle more than 18,000 cases after budget shortfalls in Caddo Parish, LA. Anyone can easily do the math, but that’s roughly 818 cases per attorney. It’s simply too much for any one attorney to handle.
High Caseloads and Few Attorneys Means Offices Are Forced to Turn to Alternative Means
Caddo Parish’s lack of statewide funding forced their public defender’s office to cut 12 attorneys from their already diminished staff. The office was forced to fill the void and started assigning cases to any lawyer within the city whether they had any criminal experience or not. This means insurance attorneys, real estate attorneys, tax attorneys, you name it; if they have a law license, their name is on the list.
Missouri’s public-defender system is struggling just as much. The Director of the Public Defender System went so far as to order the state’s Governor to serve as public defender due to the lack of funding to hire enough defense attorneys to handle their caseload. Missouri and Louisiana aren’t alone, as it’s becoming a national problem.
Budget Cuts Are a Major Source of the Problem, But A Standard Needs to Be Set
Public defense budgets often get overlooked because most of the money goes to the other side of the criminal justice system—prosecution, police, and corrections. It makes sense that, with a tough on crime attitude, legislators want to put their money where their mouth is, but it can’t be at the expense of defense counsel because it’s just as important. The issue really stems from a lack of guidance on where the money should come from.
The landmark Gideon v. Wainwright decision held that the 6th Amendment applied to the states via the Due Process Clause of the 14th Amendment and, thus, required state courts to provide lawyers for all indigent criminals unable to hire their own counsel. The decision didn’t address how this right was to be implemented though. Did the decision effectively require states to solely bear the cost of hiring public defenders?
Some feel this isn’t a state’s burden to bear. If the federal government is responsible for protecting our constitutional rights, should that include the responsibility to ensure funding is available? If funding is not guaranteed at the state or federal level, how do we ensure a defendant’s due process rights to effective counsel are upheld?
The common argument in favor of using federal tax dollars to hire well-trained public defenders is that ineffective assistance of counsel is an easy basis to overturn a verdict and, thus, risks putting guilty defendants back on the streets. That same argument can apply to the states, as well. But, it shouldn’t just be about the risk of putting guilty defendants back on the street—it’s a constitutional right and one that’s imbedded in our history and, regardless of who’s responsible, the underfunding issue is an area that needs addressed.
What good does it do to have counsel if they’re not effective? No person afforded the capability of hiring their own lawyer would choose a real estate attorney to defend them in their capital murder case. Would you hire a dermatologist to remove your brain tumor? They both went to medical school and they’re both doctors, so why not?
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
A caregiver in Phoenix, Arizona, is accused of using a telephone cord to bind her eighty-nine year old victim. According to police reports, the victim was tied to a chair with a phone cord and slapped on her head and face by her caregiver for nearly four hours. The victim was found several hours after the alleged abuse.
Hundreds of thousands of seniors are abused, neglected and exploited every year. The cases that are reported are only a fraction of what’s happening as elder abuse is an often unreported crime. This happens for a myriad of reasons, including the mental state of the victim (people simply do not believe the victim when he or she tells others of the abuse) or availability of help (the abuser may be the only person with whom the victim communicates). Most of the time, the perpetrators are people the senior trusts most: caregivers, friends, or even relatives.
What is Elder Abuse?
In general, elder abuse is a term that refers to any knowing, intentional, or negligent act by a caregiver or any other person that causes harm or serious risk of harm to a vulnerable adult. Based on the prevalence of elder abuse, all fifty states have passed some form of elder abuse prevention laws. While each state law is different, abuse has seven categories:
What are the Legal Repercussions of Elder Abuse?
All states and the District of Columbia have specific laws that criminalize the abuse, neglect and exploitation of elders. Nevertheless, there is considerable variability in the state statutes. Some states define elder abuse as particular conduct against a person over a specific age, while other states focus on the victim’s physical or cognitive vulnerability without regard to age.
At least two states, Massachusetts and North Carolina, have laws which subject anyone over the age of 18 who has sufficient means, but neglects or refuses to support a parent who is unable to support him or herself due to age or disability, to a fine or imprisonment.
If elder abuse is suspected, the first necessary step is reporting the abuse. The vast majority of states require certain classes of professionals (medical professionals, health care providers, mental health counselors, etc.) to report suspected abuse and neglect. Some states have 24 hour hotlines to make reporting easier.
Next, both social service and law enforcement agencies are instructed to investigate reports, intervene, or remove the senior victim from the abusive environment. Authorities are granted special powers to revoke or deny operating permits if they find abuse in nursing home and care facilities. It is also possible that provisions protecting employees who report such abuse are protected from retaliation by their employers.
A perpetrator of elder abuse can be prosecuted for:
depending on the situation. Some states increase penalties when the victim is elderly. For instance, an offender in Nevada who commits a crime against a person who is over sixty is subject to a prison term twice as long as that normally allowed for the same offense.
Because of the age of the senior, civil and criminal cases involving an older victim is given priority in states such as California, Colorado, Nevada and New York. Many states also make other accommodations, such as allowing depositions to be videotaped in case the elderly victim or witness cannot attend trial.
Most elder abuse offenses are felony level offenses. Elder abuse charges based on omissions or negligent conduct typically fall into the lower end of felony charges with a shorter prison sentence ranging from one to three years. Elder abuse charges based on intentional or knowing conduct receive longer prison sentences, ranging from two to twenty years.
Preventing Elder Abuse
If you suspect someone you love is being abused, be vigilant. If your loved one resides in a nursing home, make unexpected visits and make note of any ailments you notice. Contact an attorney if you discover signs of elder abuse.
Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law
In the current battle between medical marijuana users and the federal government over the use of marijuana, it appears that the Feds have managed to score a recent victory. This victory was granted by the United States Court of Appeals for the Ninth Circuit, which is known as the most liberal of the federal appellate courts.
The Ninth Circuit recently held that a gun store in Nevada did not violate a medical marijuana cardholder’s Second Amendment right by refusing to sell the person a gun on the grounds that she is a user of a controlled substance. Even though the state of Nevada has permitted marijuana to be used for medicinal purposes since 2000, marijuana is still a Schedule I drug under the Controlled Substances Act. This means that it is illegal to grow, sell, buy, or use marijuana, even as a medicine, under federal law.
Firearm merchants are prohibited from selling guns to users of controlled substances, including users of marijuana, by the Gun Control Act. The Bureau of Alcohol, Tobacco, and Firearms (ATF) issued a regulation barring anyone who has a medical marijuana card from purchasing a firearm based on the assumption that the cardholder is most likely a medical marijuana user.
When S. Rowena Wilson went to go buy a firearm a week after the regulation was issued, the gun store informed her that she was prohibited from buying a gun because she was a medical marijuana card holder. Ms. Wilson sued the ATF, claiming that the regulation violated her Second Amendment right to possess a firearm.
Rowena Wilson’s lawsuit against the ATF is based on the notion that people should not be barred from buying firearms just based on their possession of a medical marijuana card, without actual proven use of medical marijuana. Unlike most medical marijuana cardholders, Ms. Wilson claims that she does not actually use medical marijuana and, thus, is not a user of marijuana as a controlled substance. Thus, the assumption that the regulation is based on is not one that is necessarily true about Ms. Wilson and should not have prevented her from obtaining a firearm.
However, the Ninth Circuit found that the regulation did not violate Ms. Wilson’s 2nd Amendment right to possess a gun severely enough so as to require the regulation to be invalidated. The court stated that Ms. Wilson could have easily purchased firearms prior to acquiring her medical marijuana card. The regulation does not prohibit possessors of medical marijuana cards from owning or using guns, meaning that they are not violating the regulation by holding onto firearms that they acquired before getting medical marijuana cards. Thus, anyone who possessed a medical marijuana card but did not actually use medical marijuana, such as Ms. Wilson, could still use a firearm to defend themselves in the manner guaranteed by the Second Amendment.
Although Ms. Wilson intends to appeal the 9th Circuit’s decision, for now the court’s ruling broadens the prohibition on who can actually purchase a firearm under the Gun Control Act. Now, people who are merely assumed to be using drugs by simply having a medical marijuana card are also unable to buy a gun, even if they have never actually used or have any intention of using marijuana. Unless the decision is overturned, medical marijuana card possessors residing in California, Nevada, Alaska, Hawaii, Montana, Washington, Oregon, and Arizona are now prohibited by law from buying any new firearms.
If you have questions about the regulation or are concerned that the court ruling may negatively impact you, contact a criminal defense lawyer.
Authored by Kristen Johnson, LegalMatch Legal Writer