LegalMatch: Criminal Law

Madness, Mayhem, and Ear-Biting.

“Mayhem” isn’t a word you see a lot of.

Sure, it might slip into the sales pitch for a shoot-em-up game or roll off a preacher’s tongue at a sermon, but chances are that you and your buddy aren’t going to be throwing it around over coffee. Well—unless you’re both die-hard Palahniuk fans and planning your own Project Mayhem. But even then, “mayhem” isn’t exactly a household noun.

In fact, “mayhem” wasn’t a noun at all when it first came into use. Evan Morris, who writes a column on word origins called “The Word Detective,” unearths the word’s roots:

"Mayhem," meaning "the infliction of violent injury on a person or thing," comes from the Anglo-Norman "maihem," or injury, which also gave us "maim." In fact, for much of their history in English since the 13th century, "maim" and "mayhem" have been nearly interchangeable words. One could "mayhem" one's neighbor, who would then have a "maim," or lasting wound or injury.

The word retains some of its original meaning in the legal world—the world that this blog loves the most! In legalese, “mayhem” is assault with the intent to maim or disfigure. Is it really a surprise that the word has come to be synonymous with violent chaos and disorder?

 

Let's examine the legal specifics of a mayhem charge.

One can only be charged with mayhem if he or she has maliciously and unlawfully removed, disfigured, or rendered useless another person’s arm, hand, finger, leg, foot, toe, tongue, eye, nose, ear, or lips.  Unsurprisingly, mayhem is a fairly serious felony.

If you’ve had the grave misfortune to have lost a piece or two of yourself to a violent encounter (and we’re not talking broken hearts and angry breakups), a good criminal lawyer is definitely in the cards for you. And if you’ve maybe, accidentally, kind of sunk your teeth into someone and bitten off their ear, you definitely want to ring up a criminal defense lawyer before you spend the next 20 years wearing stripes.

by Kate Beall

Historical Controversy Surrounds Waterboarding, Labeling It a War Crime.

An article published in the Washington Post in 2006 has been brought to light to expound on legal circumstances surrounding waterboarding. The piece, entitled “Waterboarding Historically Controversial,” highlights several conflicting examples of U.S. legal consideration of the interrogation technique—one declaring it a war crime, and others protecting it as an acceptable post-9/11 “coercive method.”

Waterboarding was initially cited as a war crime during World War II, when Japanese officer Yukio Asano was tried for using the technique against a U.S. civilian. Asano was sentenced to 15 years of hard labor as punishment for his crimes.

In 1963, 16 years after Asano’s conviction, the CIA kept now-declassified manuals outlining a similar technique. After 9/11, CIA interrogators were once again given permission to use waterboarding against “higher-level Al-Queda operatives,” despite the fact that even presidential hopefuls like John McCain have recognized waterboarding as being “no different than holding a pistol to [a person’s] head and firing a blank” [1]. Again, I’ll cite the Geneva Conventions, which prohibit (among other things) “mutilation, cruel treatment, and torture.”

While the debate here seems solely centered around whether or not waterboarding is torture (as the U.S. government has continuously said that it does not condone torture and long ago signed on to each of the Geneva Conventions), it is difficult to say that something that puts people in immediate and aggressive fear of their lives is anything but that.

[1] "Waterboarding - The 'Un-Torture.'" Matthew Good (www.matthewgood.org).

 

by Kate Beall

Bush Threatens To Veto Bill That Bans Torture.

More information on the Waterboarding case is available through the Huffington Post.
Check my previous entry, "Is Waterboarding Torture, or an Interrogation Technique?" for legal specifics on the situation.

by Kate Beall

Is Waterboarding Torture, or an Interrogation Technique?

Those who have been following the heated debate around “waterboarding” were treated to news today about the House’s ban of this cruel interrogation practice. This method of “interrogation” involves the simulation of death by drowning. By sealing the mouth of the victim with plastic or cloth and then pouring water over their upturned face, interrogators are able to trick the brain into believing that it is drowning by allowing a small amount of water into the victim’s lungs. CIA agents undergoing a controlled experience of this kind of inquisition lasted only an average of 14 seconds before begging for release.

Until recently, US Attorney General, Michael Mukasey would not confirm whether or not waterboarding constituted a form of torture, saying only: “If it amounts to torture, then it is not Constitutional” [1].

 

What we do know is that illegal interrogation methods include the use of physical force, “such as torture” [2]. Mental torture or coercion, such as brainwashing and drugging, are also in violation of United States laws and are further prohibited by the rules set down by the Geneva Convention. These laws were put in place to uphold the constitutional protection against cruel and unusual punishment and to protect both citizens and soldiers from the horrors of war. Prisoners of war are thus also protected by these regulations, and prisoner rights violations are a matter of serious consequence.

With this stroke by the House, waterboarding may finally find itself officially determined to be an act of torture—but the White House still stands by with a threat to veto the bill. The final say thus lies with the stroke of the President’s pen.

by Kate Beall

Your Potty-Mouth Could Mean a Misdemeanor.

UK’s Metro reports on a strange case taking place in Pennsylvania, in which a woman is being charged with disorderly conduct after cursing at her overflowing toilet.

This story showed up in several US papers as well, eager to call attention to this unusual positioning of right to privacy and public nuisance laws. The woman in question, Dawn Herb, was called in to court after an off-duty policeman and neighbor called to complain about her loud swearing. His 12 year-old daughter was the first to bring the noise to his attention.

However absurd the story, the question of First Amendment rights is being brought to attention as well. Herb’s lawyer argues that his client was well within her rights when she loosed a string of profanities in her bathroom. The prosecution of such an action, he argues, is a violation of the Constitution because it suggests the intent to curtail or control her choice of speech. The prosecution, on the other hand, seeks to classify Herb’s loud outburst as a misdemeanor, relying on Pennsylvania’s definition of disorderly conduct as including the use of “obscene language or gestures in a way that causes 'public inconvenience, annoyance or alarm'” [1].

 

So what parts of speech are actually protected by our First Amendment?

The First Amendment, which is the free speech and press amendment, guarantees the constitutional protection of ALL forms of speech EXCEPT:

• Speech that intends/tends to incite immediate lawlessness
• Obscenity and pornography in certain      circumstances
• Fighting words in limited circumstances
• Offensive speech in limited circumstances

These “limited circumstances” vary from State to State and are often defined by the decisions made in high-profile court cases, where a standard is set for future, similar cases. Because Herb’s speech borders on “obscenity,” it is ultimately up to her lawyers to defend her speech as constitutionally protected, but some standards have been set by similar obscenity laws in broadcasting.

> Judge to decide on toilet swearer’s fate (Metro.co.uk)

by Kate Beall

TASER Deaths and Injuries Abound.

TASERs have become a hot-topic in the media of late, from the videotaped collegiate of “Don’t tase me, bro!” e-fame to more somber cases like last week’s tasing of an innocent deaf man. But what is only beginning to come to surface is the death toll exacted by police usage of TASERs on noncompliant or resisting victims.

TASERs and stun guns were initially introduced in 1969 as a less-lethal alternative to firearms, and are currently produced by TASER International, Inc. However, growing controversy surrounding the shock weapons has called their usage into question. Over 20 taser-related deaths have been recorded in the past year alone, and loose-handed usage of tasers has even brought Amnesty International into the fray. Amnesty currently condemns Taser usage as inhumane.

 

The confusion surrounding TASER usage can be blamed at least partially on TASER International, who have been one of the few institutions to conduct research on the effects of their weapons. Such research on its own necessitates a certain amount of skepticism, as vested interests in the success of TASER products hardly makes for neutral reporting. 

For those who have sustained injuries as a result of being tased, or those who have lost a loved one to a TASER-related death, litigation is an option. You can file a product liability claim against the manufacturer (in this case, TASER International) and hope that your lawyer can prove that a defect was responsible for your injury or loss.

However, until further research is done on the immediate and long-term effects of TASER usage on human beings, it is impossible to say whether those lawsuits will be successful. In the meantime, people continue to die.

by Kate Beall

School Shootings, "Delinquent Acts," and Juvenile Justice.

Today’s hostage situation at Las Plumas High School was a bitter reminder that youth violence problems in the United States have yet to be resolved. Though nobody was injured at the California school this morning, the firearms and hostages recall a number of incidents in past years—at Virginia Tech, Red Lake, Columbine, and other schools. And while Columbine may be pointed at as the catalyst for much of today’s publicized youth violence, it was not the first school shooting in U.S. history.  Events at the University of Texas at Austin (1966) and Parkway South Junior High (1983) are two of several shootings that predate the Columbine massacre.

But even as we honor and remember the victims of these incidents, we are forced to decide how to deal with the youths who have committed these crimes. When is it alright to try minors as adults, and who is empowered to make the decision to do so? In cases like that of this Bethell County youth, the decision remains unclear.

In most states, youths under the age of 18 are tried by the Juvenile Justice System, where they are prosecuted for “delinquent acts” as opposed to actual crimes. However, many states will automatically have a juvenile tried as an adult if they have committed violent crimes (murder, armed robbery, rape, etc.) and are over a certain age (usually 14 years-old and older). In these cases, it can be useful to understand the differences between the Juvenile vs. Adult criminal system.

If you have further questions about juvenile crime or requirements for trial as an adult, please visit our Criminal Law Forum. There you can find links to a variety of helpful articles, get answers from experienced members, or discuss recent events in criminal law.

For an experienced Juvenile Law attorney in your area, click here.

 

By Kate Beall

Canadians Are Choosy As to Who Gets In.

A very real side-effect of the increased security cooperation between Canada and the United States has proven to be a bane to a lot of would be travelers to the great white north. It seems Canadian border agents now have instantaneous access to US criminal record databases and call pull your entire criminal record. Crimes we may classify as misdemeanors may be regarded as felonies by our cousins to the north. such as DUI/DWI convictions. You can read more about this in our companion blog, LegalMatch: Immigration Law and also get more info on criminal record expungement and immigration issues at LegalMatch.com

DUI & DWI Explained.

Drunken driving offenses are usually referred to as DUI (driving under the influence) or as DWI (driving while intoxicated). Driving a motor vehicle (or boat) with a blood alcohol level exceeding a maximum permissible legal blood alcohol limit is considered drunk driving. The legal limit for adults ranges from .08% to .10% depending on the State. Driving when your physical abilities are impaired by alcohol or drugs is also considered drunk driving. In most cases it makes no difference whether the drug in question is legal or illegal. Should you ingest a drug impacts your sense of seeing, talking, hearing, walking, and/or judging distances, you may be guilty of a drunk driving or boating offense.

The most common intoxication tests for DUI/DWI use a breath (Breathalyzer), a blood or a urine test. Usually being submitted to one of these test is the result of a failure to pass a cursory impairment test, such as walking a straight line, touching your nose while standing toe tip to heel, or reciting the alphabet incorrectly or incoherently. If you refuse to take a breath, blood or urine test when asked to do so by a law enforcement officer that has a reasonable suspicion to suspect that you have operated a vehicle or boat while impaired, you may lose your license to operate a vehicle by automatic suspension by your state DMV. You may be arrested and convicted based on testimony provided by the arresting officer or other witnesses in spite of refusing to take a test.

There are tough penalties for drunk driving DUI/DWI convictions in most states and these usually include large fines, license restriction or suspension, community service, mandatory attendance at a DUI DWI education course, 1 to 3 years probation, county jail or state prison for repeat offenders, and/or having your vehicle impounded.

Other consequences of DUI/DWI convictions are increased insurance costs, loss of your driving privilege, civil penalties if an auto accident was caused by your impairment and job loss if it requires driving. You can find out more about your rights and the legal implications of drunk driving at the LegalCenter Law Library, LegalMatch.com’s free legal resource. LegalMatch is a free and confidential service that can instantly match you to a pre-screened and qualified lawyer in your local area. Posted by Chas Blackford

Booker Did What to Sentencing Guidelines?

What are Federal Sentencing Guidelines?

Federal Sentencing Guidelines have been in place for approximately 2 decades.  These guidelines established a uniform sentencing system for all convicted defendants in the United States Federal Court System.  Critics believe that the penalties established in the guidelines are too harsh.

United States v. Booker

In January 2005, the United States Supreme Court handed down a decision in the United States v. Booker case.  The facts of this case that brought sentencing guidelines to its knees are as follows:

During the sentencing phase for Booker the judge heard further evidence and concluded that the defendant possessed an additional 566 grams of cocaine and had obstructed justice.  As a result of this additional testimony, the judge sentenced the defendant to 30 years rather than 21 years based on the jury’s verdict. 

The Effect of United States v. Booker

As a result of the Booker case the court held that the Federal Sentencing Guidelines were unconstitutional.  Under the Guidelines, judges were allowed to sentence defendants based on all facts surrounding the defendant’s offense.  Why is this unconstitutional?  The sixth amendment, which guarantees the right to trial by jury, implies the right to have a jury find the facts that increase the sentence.  Simply put the Court found that a judge should not be allowed to take other factors into consideration other than facts found by a jury.

Retroactive Application?

Many wonder how Booker will affect the prison inmates who are serving sentences imposed under the now unconstitutional Federal Guidelines.  Many court analysts are saying that unfortunately the Booker decision did not speak to the question of retroactivity.  We all must now wait until a future case, which speaks to this question, is decided.  In one case, Bey v. United States, the court determined that the Booker decision did not apply retroactively to second or successive habeas petitions but addressed no other types of cases.  We again wait for another decision to set precedent on this topic.  In November the Supreme Court denied review in 11 cases on the issue of retroactivity and the Booker decision.  The Court stated that they simply were not ready to confront that question.   

By Lisa Zanassi

That was 20 Years Ago...!

I’ve heard it many times.  “I was only 18 when I…broke into this car, got into a bar fight, stole money from this yogurt stand I used to work at.”  Now at 38 you are wondering why you are having difficulty finding employment, obtaining a professional license or even renting an apartment.  It could be because of a crime committed some 20 years before.

So what to do?  You may be able to petition the Court to seal your records or have your conviction expunged.  Record Sealing allows retention of your records with limited access usually for law enforcement or sentencing purposes.  Expungement typically requires that the court records be destroyed as well as police or other records deriving from the arrest or conviction.  Both options will result in a clean record when a background check is conducted, but to make sure that nobody will ever see your criminal record you should look into expungement if it is available to you.  Once your record is expunged, it is as if the arrest and/or conviction never took place.

Procedures for Record Sealing or Expungement vary from state to state.  Typically there is a waiting period after you are released from probation before you can start this process. Check with your courthouse.  Generally, the following must be complied with:

• A Petition must be filed with the Court and appropriate fees paid.
• Sentence in question must have been served.
• There are no new charges.
• Petitioner must prove that probation has been fulfilled.

Remember: most felonies, sex offenses and motor vehicle violations are not eligible for expungement or record sealing.  To find out what offenses are eligible you will either want to research via the internet or a law library or you can hire an attorney to assist you in this process.

Juvenile Record Sealing and Expungement may also be available if the crime was committed when you were a minor.  The requirements listed above will be similar but forms and fees may be different.  Contact your courthouse for exact procedures.

If you have been convicted of a crime and have completed your sentence and fulfilled terms of your probation you should look into record sealing and/or expungement.  Don’t wait until it becomes a problem for you to find a new job or apply for a professional license.

By Lisa Zanassi

Welcome to the LegalMatch Criminal Law Blog!

Are you seeking legal advice or representation on a criminal law-related issue? Perhaps you're an attorney who specializes in criminal law? The LegalMatch Criminal Law Blog is the online source for relevant and informative articles and information. LegalMatch offers an authoritative and trustworthy voice on the issues of the day as they concern the legal industry and you as a consumer. Please note, the articles and information in this blog are for informative purposes only. Always consult the professional advice of a lawyer for your particular legal issue. Enjoy!

Stiff Criminal Penalties for Dangerous Dogs.

It seems like not a day goes by when a dog attack is not front page news.  What is going on?  Many will tell you it is the breed of dog that is the problem – some breeds of dog are simply too dangerous for owners to control.  I tend to believe that the opposite is true: that the owner is too dangerous for the breed.

When acquiring a pet you must make your choice wisely.  The wrong choice could put you in jail.  Many states have criminal penalties associated with dangerous dogs and the pain inflicted by them.  You could be found guilty of a felony or a misdemeanor depending on the severity of the attack.  Charges could include, but are not limited to, keeping a dangerous dog, criminally negligent homicide, involuntary manslaughter, criminal recklessness, and second degree murder.  Read more about cases involving criminal convictions for dog bites.

Today, because of the enormous amount of press coverage involving dog attacks, prosecutors will convict you if they feel you are responsible for the dog attack.  Inadequate enclosures, failure to control your dog or training your dog to fight or attack will end you up in jail.  For example, check out the California Penal Code sections involving criminal liability for dogs.

Now I know that you think this article is strictly about Pit Bulls but this simply is not the case.  Criminal liability is not breed specific.  True, many reported dog maulings are associated with Pit Bulls or dogs such as the Presa Canario but I associate this with the fact that these dogs are extremely strong and have the ability to inflict damage.  Dogs like a Yorkshire Terrier simply do not have the bite or body strength to kill a grown man. 

Socialization and training are imperative in any breed.  Getting to know your breed is also important prior to taking on the responsibility of dog ownership or during the ownership period.  Read Choosing the Right Dog.  I know many Pit Bulls who are very friendly and loving and I would bet money that I will never read about them in the paper.  I attribute their demeanor to their owners.  Yes, pit bulls are often associated with the seedier parts of society but there are many owners who lives revolve around their animals and it shows.

Be good to your animal.  Don’t ignore signs of aggression and know the breed before taking on the responsibility.  Every animal has a special talent or function.  If you believe your dog’s special talent is to attack other dogs or people, you may be biting off more than you can chew. 

If you are being charged with possessing a dangerous animal, you will need an attorney.  If you are a victim of a dog attack, read more about cases involving criminal convictions for dog bites.

By Lisa Zanassi

Drunk Driving Defenses

Everyone knows someone with a DUI story where they were arrested for something they didn’t do.  Whether the person was driving fine but their license plate light was out, or they really only had one drink, DUI’s are a crime that seems to affect all citizens across the board. With their prevalence also comes a multitude of theories as to how best to deal with a DUI stop and the subsequent defense of the DUI charge. But in order to truly sort out the fluff legal advice from the true state of the law in your jurisdiction, a person must turn to reliable sources of information in order to make the proper legal decision.

There are really two specific areas of confusion in the DUI legal process. First, people often do not know what to do when they are pulled over and have been drinking that day or night. Many people don’t know how the alcohol impairment measurement system even works, or how BAC (blood alcohol level) is calculated. Some people don’t know how alcohol affects them personally, as they may feel fine on an amount of alcohol that will definitely find them in violation of the law. People often do not know what is involved in a field sobriety test. People do not know if they should refuse a breathalyzer, and if they do, what the legal ramifications are for such a refusal.

Many people wonder how to answer the officer’s questions. These are all questions that need to be answered if you are anyone from a binge drinker to someone who may socially drink a glass of wine with a friend and then drive home. Knowing such information can not only help you avoid a DUI, but can also help in mounting a successful defense in the unfortunate case that you are arrested for a DUI.

The second area of confusion with DUI’s is most people don’t realize that DUI’s are successfully defended all of the time. Some people wonder why defense attorneys would even take on a case in which the blood alcohol level (BAC level) was firmly established at a high level, way past the legal limit. The reason is because these machines, as wonderful as they are, can sometimes have substantial inaccuracies.

Most people would like to avoid jail-time or the other stiff penalties that are sometimes levied as a result of a DUI. A DUI, when not handled properly can result in jail time, loss of license, increased insurance points, a police record, and can cost people thousands of dollars to pay for the fines, programs, and the judicial process. Knowing what to do before getting in your car, knowing what to do when pulled over, and knowing what to do before going to court can be invaluable information. Being informed about something that can literally happen to anyone gives you the upper hand that many people do not have, and at the very least, allows you to make complicated decisions on the spot without the stress and worry of not knowing if what you are doing will hurt or help you in the end.

By Evan Anderson