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January 30, 2011

Legal Aspects of Lindbergh-Hauptmann

Filed under: Uncategorized — by Charles @ 6:36 pm

LEGAL ASPECTS OF LINDBERGH-HAUPTMANN
By Charles A. Riccio Jr., J.D.
Posted October 2010

WHAT?

Not another article about the kidnapping and murder of the Lindbergh child! What can this effort tell us that we do not already know? Read on. It is one of those cases that will never die. Can it be true that the wealthy are treated more leniently than the poor? This writer has always asked students, “Would you rather be guilty and rich or innocent and poor?” And the answer is always about an even split.

In this article, I will consider three topics in the Lindbergh case which might put to rest the inquiring minds of some: the felony murder rule, the judge’s charge to the jury and the appellate court’s opinion.

THE FELONY MURDER RULE

A great many unenlightened people believe that Hauptmann was charged with kidnapping. He was not. He was charged with murder and with nothing else. Why so? Because in 1932 New Jersey kidnapping was not a capital offense, i.e. conviction did not carry with it the death penalty. On the other hand, conviction of first degree murder was a capital offense. But first degree murder required proof beyond a reasonable doubt of the accused’s specific intent to kill his victim, and there was no direct evidence of Hauptmann’s having caused the death of the child. What to do?

The felony murder rule[1] does not require proof of a specific intent to kill. This rule is an ancient one. In its simplest form it provides that a person who commits a dangerous felony is guilty of first degree murder if the death of anyone is caused by anyone even if the death is accidental.

Example: A druggist sets fire to his pharmacy in order to collect the insurance. Firefighters come to the blaze. A firefighter enters the burning building and is killed when the building collapses. The pharmacist is guilty of first degree murder.[2]

Example: Whitman[3] and an accomplice drive to the grocery store. The accomplice remains in the car while Whitman goes in and steals money from the cashier. He and his accomplice flee, accomplice driving. Police officers arrive on the scene and pursue. The thieves’ car speeds off and on going through an intersection crashes into another car killing the driver of that car. Whitman and his accomplice are both guilty of first degree murder.

So what is the problem? As stated above, kidnaping in 1932 New Jersey was not one of the felonies that would activate the felony murder rule. What to do? Burglary on the other hand was one of the felonies that would activate the felony murder rule. So did Hauptmann commit burglary?

Burglary contemplates the unlawful entry into a person’s dwelling house with the intent to commit a crime. So did Hauptmann intend to steal any item of personal property when he entered the child’s bedroom? By a stroke of prosecutorial genius the state realized that Hauptmann had indeed intended to steal something. He intended to steal the child’s Dr. Denton sleeping suit which he was wearing when he was seized. The sleeping suit was worth about $3.00 new. When Hauptmann left the room with the child under his arm and the child accidentally fell and died as a result of a fractured skull it made Hauptmann guilty of first degree murder in accordance with the felony murder rule even though the death was accidental.
We will see in a moment how Judge Trenchard explained this abstruse principle of law to the jury in his charge and how it applied to the facts of the case.

THE LADDER

Yes, the ladder. The ladder is important because it is the only item of evidence that connects Hauptmann to the crime. The thinking went like this: A ladder must have been used to climb to the second floor, and a ladder was found on the grounds so that ladder must have been the one used. With all the planning and preparation that must have gone into the execution of the crime one would think a much better and sturdier ladder would have been used. A much sturdier ladder was used! Pictures of the ladder show it leaning against the wall of the house under the window to the child’s bedroom. But that is not where it was found. It was found on the ground about 80 feet from the house. Lindbergh himself believed the ladder belonged to the workmen who were building the house and who abandoned it when their work was done. The state’s theory was that when Hauptmann descended from the room, the child fell as the result of a broken rung on the ladder and fractured his skull. Hauptmann, then with the child under one arm and the ladder under the other, fled. About 80 feet from the house the load became too heavy to carry so he abandoned the ladder and continued to his car.

Notwithstanding the (disputed) testimony that he had built the ladder, the simple uncontroverted fact supported by the evidence of your own eyes is that the ladder could not possibly have’ been built by Hauptmann and had not been used by anyone in the kidnapping. The writer believes a ladder was used and it was carried away by one of the kidnappers but it was not the ladder that was found on the grounds and admitted into evidence. The state used the ladder in its case because the ladder was the only connection it had with Hauptmann. Without the ladder there would have been no case against Hauptmann.

THE JUDGE’S CHARGE TO THE JURY

Judge Trenchard explained the felony murder rule somewhat ungrammatically and without mentioning the term felony murder as follows: “The state contends that the murder in this case was committed in perpetrating or attempting to perpetrate a burglary and is murder in the first degree. Our statute relating to burglary says ‘any person who shall by night willfully and maliciously break and enter any dwelling house with the intent to steal, commit a battery, shall be guilty of a high misdemeanor. ‘ If therefore the defendant willfully and maliciously broke and entered the Lindbergh dwelling with the intent to steal the child and its clothing and to commit battery he committed burglary”. (emphasis added) No definition for battery was given.

THE VERDICT

Hauptmann was convicted of first degree murder and was immediately sentenced to death. Some members of the jury later said they determined his guilt almost immediately and spent the balance of eleven hours in determining whether they should or should not recommend clemency.

THE APPEAL

Appeal was taken to the Court of Errors and Appeals of New Jersey, October 9, 1935, 180 Atlantic Reporter 809, 1935. The court’s 35-page opinion in which all 13 justices concurred without dissent and without written opinion began the opinion by saying, “it is not necessary at this point to go into an extended discussion of the evidence.” (NOTE: the defense argument in bold italics is followed in plain print by the court’s holding. There is some duplication in the court’s opinion.)

The summation of the attorney general violated the legal and constitutional rights of the defendant.

Held: The summation on both sides was lengthy, the defense summation consumed 100 pages of the printed case, that of the attorney general 135 pages. The defense at trial said nothing by way of protest. Quoting State v. Terry the court said an objection to illegal remarks does not require the trial judge to strike them sua sponte and unless counsel requests their elimination no ground for review is laid. Quoting State v. Biango the court held “improper remarks by the prosecutor in the absence of timely objection and request for action by the court offer no basis for reversal.”

It is argued that the attorney general argued with and bullied the defendant and other witnesses on cross-examination

Held: The attorney general’s remarks were not objectionable because the defendant had assumed an evasive attitude in cross-examination. Also there was no objection by his learned and astute counsel. (NOTE: the cross examination of the defendant by the attorney general continued for over 115 pages with only one objection by the defense.)

It is argued that the trial court should have charged as requested that there was no evidence of a willful and deliberate and premeditated murder by the defendant.

Held: The case was not submitted to the jury by the trial court on the theory of premeditated murder. It was submitted on the theory of homicide in the perpetration of burglary. Felony murder rule does not require evidence of premeditated murder.

The defendant’s constitutional rights under the fourteenth amendment to the United States Constitution were contravened by the summation and material variance of theory.

Held: There was no such infringement of the federal constitution.

The defendant argues that the verdict was against the weight of the evidence.

Held: The verdict not only is not contrary to the weight of the evidence but one to which the evidence inescapably led. There was much more evidence tending to establish his guilt. It was a circumstantial case with the evidence pointing to guilt from so many directions as to leave no room for reasonable doubt. From three unrelated sources the proofs point unerringly to guilty viz, a) the possession and use of the ransom money, b) the handwriting of the ransom notes and c) the wood used in the construction of the ladder. It is deducible to a moral certainty beyond a reasonable doubt that the defendant collected the ransom money and he was therefore the kidnapper – the weight of the evidence was with the state. Improper remarks by the prosecutor or in the absence of timely objection and request for action by the court are no basis for reversal.

The defendant argues that the trial judge impressed upon the jury his conclusion as to the evidence.

Held: It is always the right and often the duty of a trial judge to comment on the evidence and give to the jury his impressions of its weight and value and such comment is not assignable for error so long as the ultimate decision and disputed facts are plainly left to the jury.

A ladder found near the victim’s home on the night of the crime held properly admitted in evidence

Daily presence of prominent persons not connected with the case in court during the trial held not error. (Note: The writer believes the court was referring to the host of movie stars, radio personalities, sports stars, newspaper reporters (e.g., Walter Winchell) and many others giving autographs and being interviewed and photographed.)

Intent to commit a felony which intent was necessary to establish a burglary held was inferable from the stealing of the victim’s clothing.

The proof of value of victim’s clothing (sleeping suit) held not necessary to prove larceny for purpose of establishing burglary.

Summing up for state held not to be such as to bar application of the rule that in the absence of objection there is no ground for review.

On cross-examination of the defendant held not to amount to legal error in the absence of objection.

The claim of violation of the defendant’s rights under federal constitution is without merit.

The judge’s charge on reasonable doubt held free from error.

The stealing of a child and its night dress from its home followed by surrender of night dress merely as proof that the kidnapper had the child held to be indicative of an intent to commit larceny and to constitute that crime.

Held court properly refused to charge that the opinion of experts in handwriting based on mere comparison must be esteemed proof of low degree held the verdict was not against the weight of the evidence.

The rigid cross examination of the defendant held not to present error in the absence of objection by defendant’s counsel.

Refusal to charge there was no evidence that the defendant had committed a premeditated error held not error.

Reliance of state’s attorney in closing summation on theory that victim was beaten to death in nursery held not to have violated any right in the fourteenth amendment.

THE UNITED STATES SUPREME COURT

The United States Supreme Court refused to grant certiorari saying that Hauptmann’s right to a fourteenth amendment due process appeal had not been violated.

(Note: It is reported that as Hauptmann was conducted to the electric chair he was overheard to say, “Little men, little scraps of paper, little pieces of wood.”)

Footnotes:

[1] The felony murder rule in Colorado is located at 18-3-102 C.R.S. Acting either alone or with one or more persons he or she commits or attempts to commit arson, robbery, burglary, kidnapping, sexual assault… the crime of escape… and in the course of or in furtherance of the crime that he or she is committing or attempting to commit, or of immediate flight therefrom the death of a person other than one of the participants is caused by anyone. See also: Criminal Law, Wayne R. LaFave and Austin W. Scott, Jr., St. Paul, Minn., West Publishing company 1972, page 545 et seq.

[2] State v. Glover 50 SW2d 1049 (1932)

[3] Whitman v. People 420 P2d416 (1966)

Must Read:

Waller, George-Kidnap, the story of the Lindbergh case

Scaduto, Anthony–Scapegoat, The lonesome death of Bruno Hauptmann, New York, G.P. Putnam’s sons 1976

Kennedy, Ludovic–The Airman and the Carpenter, New York, Viking Press 1985

Behn, Noel – Kidnap – The Crime – The Atlantic Monthly Press, 841 Broadway, New York, New York Copyright 1994

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April 18, 2009

Colorado Hate Crimes – What does the Law Say?

Filed under: Uncategorized — by Charles @ 4:08 pm

The senseless killing of Matthew Shepard, the Wyoming college student, on October 12, 1998 has spawned renewed interest in hate crimes. The media have discussed the Shepard case and hate crimes in general. But the hate crimes statutes in the 41 states which have them are not uniform. Some differ significantly from others. Many do not include crimes committed on the basis of sexual orientation, advanced age or physical disability. Therefore, the author has thought it might be well to consider the terms of the Colorado statute to permit a clearer understanding.

Hate crimes may be defined as crimes motivated by religious, ethnic, racial, sexual orientation or disability prejudice.

THE COLORADO STATUTE

The Colorado statute, enacted July 1, 1988, is called ethnic intimidation. The intent [3] of the Colorado legislature in enacting the statute was to recognize the right of every person, regardless of race, color, ancestry, religion or national origin, to be secure and protected from fear, intimidation, harassment and physical harm caused by the activities of individuals and groups.

The legislature also found that advocacy of unlawful acts against persons or groups because of their race, color or ancestry, religion or national origin for the purpose of inciting and provoking bodily injury or damage to property posed a threat to public order and safety and should be subject to criminal sanctions.

Click here to read the full article

Burglary in the Poolroom – The Constitutional Right to Counsel – The Clarence Gideon Story

Filed under: Uncategorized — by Charles @ 4:01 pm

In 1961, the poolroom in Bay Harbor, Florida was just a sad and dreary stopping place on the road to nowhere. It promised nothing more than an hour or two of escape from the sad and dreary lives of its patrons by providing a little entertainment in the form of a game of pool and a bottle of beer.

One morning, the owner of the poolroom unlocked the door, expecting nothing more than another day of the sound of clicking pool balls, the exchange of small amounts of money won and lost, and calls for “another beer.” Ira Strickland had no way of knowing he had opened the door to the beginning of a series of events which would lead eventually to the Supreme Court of the United States, and which would change forever the lives of countless Americans.

During the night, the poolroom had been broken into. There was the smashed window and there were the rifled vending machines. And a quick inventory disclosed that some beer and wine was missing. Certainly not a major felony. A crime like thousands of others reported to the police every day. A crime that would be solved quickly and easily because there was a witness.

Click here to read the full article

The Downfall of the Klan in the 1920s The Madge Oberholtzer Story

Filed under: Uncategorized — by Charles @ 3:58 pm

At one time, the Ku Klux Klan was a powerful political organization in the United States. Klan members, supported by the votes and monetary contributions of thousands of their fellow members, ran for and won positions as congressmen, governors, mayors, sheriffs, city councilmen, entire school boards and other high political offices.

THE BEGINNING OF THE KLAN

The Klan began, not as a political organization, but as a purely fraternal society dedicated to patriotism, brotherhood and good fellowship. It had its inception in 1866 in Pulaski, Tennessee, when a group of young Civil War veterans, newly discharged from the Confederate army, found time hanging heavy on their hands and decided to form a social club. The club’s name was taken from Kuklos, the Greek word for circle, Kuklos became Ku Klux and Klan, a variation of clan, was added to form an alliterative and mysterious sounding name for the organization.

THE GROWTH OF THE KLAN

Throughout the sleepy towns of the post-war South, membership in the Klan increased quickly and soon a national leader was elected and became known as The Imperial Wizard. The first person to hold this title was General Nathan Bedford Forrest, a Civil War cavalry commander well known for his wartime exploits and in particular for his stirring though ungrammatical battle plan, “Git thar fustest with the mostest.”
As the Klan grew, its purpose and goals changed. Its purpose became to control and oppress the newly freed slaves and to prevent them from entering the mainstream of American life. Ulysses S. Grant, who was elected president in 1868, said the purpose of the Klan was “by force and terror to prevent all political action not in accord with the views of its members, to deprive (black) citizens of the right to bear arms and of the right of a free ballot, to suppress the schools in which (black) children were taught and to reduce the (black) people to a condition closely allied to that of slavery.”

Click here to read the full article

Who was Ernest Miranda

Filed under: Uncategorized — by Charles @ 3:43 pm

I imagine there are very few people who do not know the Miranda Rules. But how many of us know the facts of this very interesting case?

What was Miranda’s crime? Most people think it was murder. (It wasn’t). Since his conviction was reversed, most people assume that he did not serve any time. (He did). Most people think that the rule against double jeopardy would have prevented him from being re-tried. (It didn’t and he was). Most people would be surprised to learn what happened to Miranda after the Supreme Court decision.

Miranda’s story is not the commonplace telling of just another crime that you might expect to find in a dusty police investigative file. It has all the elements of drama and suspense that you might see in a TV movie. In this article, you will find the answer to the question, “Who was Ernest Miranda?”

Click here to read the full article

Two Cases Regarding Motor Vehicle Stops

Filed under: Uncategorized — by Charles @ 3:34 pm

PEOPLE OF THE STATE OF COLORADO v. DEREK LAVAN JACKSON

For some time, law enforcement has had little guidance from the Colorado Supreme Court in the area of motor vehicle passenger rights. For example, if the driver of a motor vehicle is stopped, is the passenger stopped lawfully when we consider that he has not committed any wrongdoing? May a police officer request a passenger in a lawfully stopped motor vehicle to provide identification, and if he does so request, may the passenger refuse or ignore the request? If identification is provided, may the officer retain the identification while he determines whether there are any outstanding warrants?

THE FACTS OF THE CASE

A police officer stopped a motorist one evening. The motorist was operating his vehicle with only the parking lights illuminated when headlights were required. The officer requested and received the driver’s license, registration and proof of insurance. He also asked for and received identification from the passenger, Derek Lavan Jackson. The officer did not suspect Jackson of a crime, nor did he consider Jackson a threat. Having received the identification of both driver and passenger, the officer told them to “hang tight in the car. I’ll be back with you in a minute”. The officer returned to his patrol vehicle and conducted a “routine clearance” check to determine whether the motorist’s license was valid and whether there were any outstanding warrants for either person. The officer found there were three outstanding traffic warrants for Jackson, so the officer arrested him. Approximately 10-15 minutes had elapsed between the time the officer had contacted Jackson and when Jackson was taken into custody.

Later, during the booking process at the Aurora city jail, crack cocaine was found in Jackson’s pocket, and he was charged with unlawful possession of a controlled substance. Jackson was tried and convicted of the possession charge and he appealed the conviction.

THE COURT OF APPEALS DECISION

The Colorado Court of Appeals reversed the conviction, holding that the officer had violated Jackson’s 4th amendment right to be free from an unreasonable seizure when he asked for Jackson’s identification without having any reasonable suspicion that he was engaged in any criminal activity.

The Colorado Supreme Court granted certiorari to consider whether police officers must always have a reasonable suspicion of wrongdoing to question passengers of a stopped vehicle, or whether under some circumstances, such questioning should be viewed as a consensual interview not requiring any suspicion.

Click here to read the full article

Miranda Overruled? – A Stunning Court Decision

Filed under: Uncategorized — by Charles @ 3:29 pm

As a result of a decision from a federal circuit court of appeals, the 33-year old Miranda rule may be on its way to the dustbin!

The Miranda rule requires police to inform a suspect that he has a right to silence and a right to have counsel with him while he is being interrogated. Failure to inform a suspect of his rights will result in any confession being inadmissible against him at trial.

But is compliance with the Miranda rule a Constitutional duty? Is it the U.S. Constitution which requires a police officer to advise a suspect of his rights? Is failure to give the Miranda warnings to a suspect before interrogating him a violation of his Constitutional rights? If you answered “yes” to any of these questions, you may be surprised to learn otherwise.

THE CASE BEGINS

On January 24, 1997, a man armed with a semi-automatic pistol and carrying a black leather bag burst into a bank in Alexandria, Virginia and robbed it of approximately $896.00. He ran out of the bank and down the street to a white Oldsmobile Ciera. He tossed something into the trunk and got into the car on the front passenger side. The car then sped away.

Witnesses had taken notice of the car and its license plate, and investigation soon disclosed that the car was registered to Charles T. Dickerson of Maryland. Three days later, FBI Special Agent Lawlor and other agents went to Dickerson’s apartment. Although Dickerson would not allow the agents to search his apartment, he consented to go with them to the FBI field office.

DICKERSON’S CONFESSION

At the field office, Dickerson first denied any involvement in the bank robbery, but admitted that he had been in the vicinity of the bank on the date of the robbery. He had met a friend quite by chance and had driven him to a liquor store at his request.

While Dickerson was being questioned, Agent Lawlor acquired a telephonic warrant from a federal magistrate to search Dickerson’s apartment. Dickerson finally admitted to being the getaway driver in a series of bank robberies. He admitted that the January 24th robbery had actually been committed by a Jimmy Rochester, but he (Dickerson) had been the driver of the getaway car. Dickerson was then arrested.

Dickerson was indicted by a federal grand jury on charges of conspiracy, bank robbery and using a firearm during a crime of violence in violation of federal criminal statutes.

Click here to read the full article

“Something Terrible has Happened” – The Story of Thalia Massie

Filed under: Uncategorized — by Charles @ 3:20 pm

Hawaii, between the world wars, was truly a Garden of Eden. Blessed with a gentle climate, cool breezes and sandy beaches, Hawaii was a choice duty assignment for the officers and men of the United States Navy.

Lieutenant Tommie Massie, an Annapolis graduate and a young submarine officer, found it so, but his child bride Thalia (whom he had married when she was 16) found it a bore. To her, the life of a Navy wife was suffocating and meaningless and she had grown tired of the endless gossip and bridge games which filled the lives of her friends.

Thalia Massie was the daughter of the wealthy and socially prominent Fortescues of New York. Her mother, Grace Bell Fortescue, was related to Alexander Graham Bell, the inventor of the telephone. Her father, a war correspondent and successful Broadway playwright, was a cousin of Teddy Roosevelt.

In 1931, after Thalia and Tommie took up residence in Honolulu and Thalia had done the usual sightseeing required of all new arrivals, she settled into a life which she found increasingly boring and meaningless.

One evening in September, Tommie returned home to their rented cottage in the hills above Honolulu and told his young wife they were going to a party at the Ala Wai Inn, a new night spot one of the officers had discovered. Thalia reacted to this announcement as though she had been told she needed dental work. “God, no, Tommie! Do we have to?” she begged. “I couldn’t stand it”. She pleaded a headache, but Tommie insisted that a night out would do her good. The discussion soon turned into a nasty argument with voices raised in anger, until Thalia in resignation muttered, “Oh, have it your way!” She changed into a party dress determined to have a dreadful time.

Click here to read the full article

February 25, 2009

U-Boat: Nazis Invade the United States

Filed under: Uncategorized — by Charles @ 2:03 pm

The submerged German U-Boat approached the enemy coast. Through his periscope, the captain saw that the night was moonless and the beach was shrouded in fog. The journey across the breadth of the North Atlantic Ocean had been not only dangerous, but also uncomfortable for his four mysterious passengers. These four, together with what they called their luggage, had been crammed into every available nook in the boat.

The Captain would be much relieved when he could discharge his “guests” and return to the comparative safety of the open sea.

Through a break in the fog, the captain saw the beach and ordered his passengers to gather their gear and prepare to leave the submarine. The team of four boarded a rubber boat and were paddled silently by sailors through the darkness to the shore. The rubber boat lightly touched the beach. The four quickly disembarked and carried their heavy luggage to the shore. With a whispered “Good luck”, the sailors paddled back to their boat.

The four men prepared to undertake Operation Pastorius, the mission for which they had been trained.

THE MEN AND THE MISSION

Who were these four men, where had they landed and what was their mission?

The year was 1942, the place was the beach at Amagansett, Long Island, New York, the men were Nazi saboteurs, their “luggage” was explosives and their mission was nothing less than to sabotage and destroy as many American factories, shipyards and installations manufacturing war materials as possible before being captured.

Another team of four men was to land a few days later on the beach at Ponte Vedra, Florida with the same mission: sabotage!

Neither team was composed of the men you might expect them to be: highly efficient and fanatically determined to risk all for the third Reich. Instead, the group was composed of men who thought the mission did not have a chance of success and had joined only to return to the United States. We use the term “return” advisedly, because all eight had lived for several years in the United States, and were given this dangerous assignment because of their fluency in colloquial English. Unknown to their superiors, they were disappointed and disillusioned with life in Germany under der Feuhrer and only wanted to return to the United States.

But be forewarned. This is not the usual story of spies captured by the authorities and punished. This is an almost unbelievable tale, which might better be entitled “The Eight Stooges Visit New York”.

Click here to read the full article

Jury Nullification – A Step Forward or a Step Backward?

Filed under: Uncategorized — by Charles @ 1:58 pm

Jury nullification occurs when a jury decides that a defendant is guilty of the crime he is charged with, but returns a verdict of not guilty. The jury ignores the judge’s instructions concerning the law and decides the case in accordance with their own conceptions of fairness.

Is jury nullification a new idea? Not at all. The principle goes back to the early days of the common law in England. In 1670, an English jury refused to convict William Penn (the man who founded the great state of Pennsylvania) for preaching Quakerism. The British government believed Quakerism to be subversive and made every effort to suppress it. The jurors were fined and one was imprisoned until he was released by a judge who ruled that jurors could not be punished for their verdicts.

In 1735 a New York jury acquitted John Peter Zenger, a newspaper publisher who was clearly guilty of seditious libel against William Cosby, the governor of the New York colony. Zenger’s statements against the governor were truthful, but still violative of the law as it was written at the time. By their verdict, the jury helped to establish the great principle of freedom of the press, which would later be written into the bill of rights of the new democracy.

During the wild and turbulent period of our history known as the Roaring Twenties, juries refused in many cases to convict persons engaged in the making of illegal alcohol. More recently, draft protestors, war protestors, nuclear armament protestors and people for or against abortion–to name but a few of the burning issues of the day–are sometimes acquitted because of the jury’s sympathy with or antagonism toward the law alleged to have been violated.

Juries clearly have the power to ignore the judge’s instructions and vote to acquit, no matter how strong the proof of guilt may be. And jury acquittals are final. They cannot be appealed for any reason. Although each juror can be and often is polled–that is, asked if he concurs in the verdict–he cannot be made to explain or to justify his verdict to anyone. So the temptation to practice jury nullification may be strong. But do the jurors have the right to do so? If jury nullification is practiced, will the defendant have received the kind of trial that he is guaranteed by the United States and the Colorado Constitutions?

Click here to read the full article

February 9, 2009

Double Jeopardy – Two Bites of the Apple or Only One The Frank Palko Story

Filed under: Uncategorized — by Charles @ 2:18 pm

Some recent high profile cases involving dramatic situations or well known personalities have caused an upsurge of interest in the workings of the legal system. And this is good. But the news media have stressed the lurid and sensational elements of these cases and sometimes have been less than accurate in explaining some of the legal procedures.

Remarks by some columnists have included the following:

  • “The civil trial of O. J. Simpson condemns him as a murderer”
  • “The civil trial is a basic violation of due process…even though it is permitted”
  • “The jury can’t sentence [Simpson] to death or imprisonment but it can sentence him to being in debt for the rest of his life”

A civil trial cannot and does not condemn anyone to anything, and if a civil trial were a violation of due process, it would not be permitted. And, of course, the civil jury could not and did not sentence O. J. Simpson to being in debt for the rest of his life.

But the most inaccurate statements of the law have been reserved for the concept of double jeopardy. The Simpson trials, the trials of police officers in the Rodney King case, the trials of Bernard Goetz (the Subway Vigilante, as the news media dubbed him) and other cases have been the bases of much confusion about double jeopardy.

Exactly what is the double jeopardy protection, anyway? The fifth amendment to the U. S. Constitution doesn’t tell us much:

“…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…”

This fifth amendment right, like all rights in the Bill of Rights, applied originally only to the federal courts. The protection against double jeopardy could only be enjoyed by a person tried in federal court…he had no U. S. Constitutional protection against double jeopardy in the courts of his own state. Originally, a criminal defendant tried in a state court had only whatever double jeopardy protection his state chose to give him. So, if his state gave no protection against double jeopardy, he could be subjected to double jeopardy quite lawfully.

Click here to read the full article

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