Dead Defendant

I have the case of a dead defendant. There are currently two charges against him one of which is a felony. The prosecutor is indicating that he will dismiss the charges. I'm not sure but that we shouldn't rethink this. Why let a dead person get away with it? Isn't one of the purposes of punishment to scare the crap out of other people so they will not commit the same crime. Isn't the cost of defending oneself substantial. Defense counsel needs to be paid and there are various costs involved including the per diem for the jurors who must take time out of their ordinary affairs to hear the case. The state is just as likely to be reimbursed for court costs from a dead person's estate as from a live defendant. Death is simply too simple; the escape from due process and punishment should not be relief from the criminal justice system. Too much effort, time, and money has gone into the prosecution of a defendant to allow him to escape the consequences of the criminal charges by reason of death. His next of kin, his children and wife, all those near and dear, should be warned that death is not an escape; it is not the easy way out of one's troubles. The law is inexorable; it applies to the living and the dead. Criminal behavior must be punished if it need follow a person to the grave. Defense counsel should be ordered not to mention the defendant's death at trial before a jury; it is not the business of the jury to know the defendant is dead--it's not relevant and it could cause the jurors to believe that the court is wasting their time. Why try someone who is dead, they might ask. The court does not have the time to explain every little thing to a jury panel. The jurors are in court to determine the facts, not the punishment. In most circumstances the facts will be uncontroverted, the prosecution will not be required to rebut anything the defendant might say on his own behalf, and as far as the jury would know, the defendant simply decided not to show up for his own trial. They can bring in a verdict of guilty without having to look at him at counsel table when the verdict is read. All very nice and tidy. So, I say, we should think this through more thoroughly. Consider the benefits of trying dead people for crimes they committing while living. Sound reasons exist for continuing such prosecutions.

Pardon the Turkey

A bulletin was released announcing President Obama pardoned the White House turkey. This act of compassion was made to give us the warm and fuzzy feelings required for the holiday. Among the myriad of things we are to be thankful for this holiday weekend, we may add our thanks to the President for allowing the White House turkey to strut another day. It is a symbolic gesture; a gesture to remind us once more that we should be thankful for what we have and not to complain about what we don't have. I suggest to the President that he might direct his compassion elsewhere. He has the power to pardon several million people wasting away in prison; some for life, others for years until they are too old and decrepit to do anything other than sit once they are released. This would be an act of courage for a hue and cry would ensue from the public denouncing such an act of compassion as weakness and morally reprehensible. In the mind of many it is a perfectly reasonable exercise of executive power to release the White House turkey from its death sentence but a man from his cage not so much. The mind of the public is a very fickle thing; it moves like air currents, soft and strong, from one direction to another, all within minutes. The president of the United States is in a position where he can actually effect a change in public opinion. Now that President Obama is not required to stand for reelection and say simply what people want him to say at any given moment, he might actually do something that will change the perception of the public toward this vast incarceration complex that we have built here in this home of the brave and land of the free. Rather than pardon a turkey maybe he should consider pardoning some people. They would be very thankful; their families would be thankful; their children would no longer be required to drive hundreds of mile to visit their fathers or mothers behind stone walls and razor wire. The republic would not disintegrate. If the president of the United States were simply to state that pardoning a person from prison is the thing to do, the right thing to do, and he said it often enough, to many it would indeed become the right thing to do; and, more importantly, we might accomplish something that would actually be compassionate.

Suicidal Fires

The Iowa Supreme Court has recently announced that fire by suicide is not very helpful. Normally, if married, both spouses are insured or are what are determined to be, co-insured. Presumably the purpose of house insurance is to provide money in the event it burns down. But let's not be too ready to presume. We buy the insurance and then months later actually receive the policy so that we can actually see what it says; and secondly, we don't read it anyway. We just presume that if anything happens to our house, we will be covered. Not so fast, says the Iowa Supreme Court. Presumptions can be dangerous. The Court in Postell v. American Family Insurance has recently decided that if one spouse sets the house on fire to commit suicide, the surviving party can't collect the insurance on the house. Whether the spouse attempting suicide succeeds or fails doesn't appear to be an issue. Regardless, the non-suicidal spouse is out of luck. This decision certainly benefits the insurance companies and it is uncertain how one is to protect oneself financially from a husband or wife who wants to off themselves other than to ask them to do it in a way that doesn't cause financial ruin to the survivor. In Postell, the bank with the mortgage was paid, but the court doesn't delve into the appropriateness of this as opposed to the Mrs. getting nothing. Apparently the bank was not an insured even though it was paid in full. I suspect that we now will each be required to have our own insurance policy-no more co-insured stuff. This applies to any situation where more than one person owns a residence married or no. If the person you lives with gets into a twit one day and trashes the place, you are out of luck. No money for you! It would be interesting to know, and I do not, whether two people can each have their own insurance policy on the same property. If not, too bad; if so, your insurance agent is now able to have two commissions rather than one and insurances companies are able to sell two policies thereby doubling their income. It looks like everyone is a winner except the homeowner.

Common Rumour

My fascination with Chief Judge Bouget in his The Manner of Procedure of a Judge in a Case of Witchcraft continues. There is much discussion on the use of torture; when it is appropriate and when not. In the case of common rumour, Judge Bouget believes that an additional indication of witchcraft must be present before common rumour would be sufficient grounds to torture the suspect. The good judge did not particularize these indications apparently determining, as we say today, the matter must be decided on a case-by-case basis. Common rumour continues today in our use of opinion and reputation evidence as found in Rule 5.608 of the Iowa Rules of Evidence. Another example of the law's strict adherence to traditional practices and methods. The problem, as Judge Bouget specifically states, is that proof is so difficult in cases of witchcraft, due I suppose to the craftiness of witches. And since proof is difficult, confessions are very useful often being the only substantial proof available in cases of witchcraft; and the most effective method of obtaining a confession, is torture. Here we have another long and verifiable tradition in law that knows no jurisdictional boundaries-the establishment of guilt by confession. As all practicing criminal defense lawyers know, today, in our own time, the vast majority of criminal cases are resolved through the confession of the defendant. In 1619 the order of events were as follows: first we have common rumour, then we have torture and a confession, then the trial, lastly the punishment which for many is burning alive. A good reputation appears to be considerably convenient in a charge of witchcraft or any of the more modern crimes introduced from time to time by our legislatures. A bad reputation brings the attention of the authorities-the eye of the law is on you. Law enforcement personnel will know the car you drive, will know where you live, will know the incidence of short-term visitors at your residence, will generate trash-rips to check your garbage, in other words; keep you under surveillance. Sooner or later the person being watched, because of his bad reputation, will commit any one or more of the thousands of crimes now in existence, be hauled to jail, and taken before the court for punishment. In all likelihood the defendant will have confessed. Physical torture, not being commonly accepted nowadays, we set a bond which can not be meant. The defendant loses his job, his dog or cat starves to death, his landlord does not get his rent, his electricity is shut off, his wife and children have no money for food, he has no access to his disability check, he can't pay his cell phone bill, his associates take all his property. The only method by which the defendant may escape these inconveniences is to plead guilty, received probation or time served, and get out of jail. The authorities have prevailed once again.

Pre-puberty Witches

I recently picked up a small volume by Henry Boguet titled An Examen of Witches edited by Montague Summers. A marvelous little book meant to instruct judges on how to properly prosecute witches. As with most prosecutions and punishments, an effort needed be made to standardize as much as possible both the prosecution and punishment of those before the court. In this instance, the subject is the prosecution and punishment of witches. Included in the above-referenced volume is The Manner of Procedure of a Judge in a Case of Witchcraft by Boguet. Article LXII specifically deals with the punishment of child witches, both those reaching puberty and those who have yet to reach puberty. Adults found to be witches, it must be noted, were either burned alive or where mitigating circumstances were found, strangled first and then burnt. Boguet believes, as we still do, that children should be given special consideration-that some mercy should be granted them. Boguet rejects the notion that child witches should not be put to death; but does impose the following caveat: only if the child acted with malice should the usual penalty apply. If it is found that the child acted with no malice, Boguet believes some more gentler form of penalty is required, such as hanging. The atrocity of the crime is why the ordinary provisions of the law are not applicable. Witchcraft is the most heinous of crimes. Once Satan has captured an individual, escape is nearly impossible therefore it is better to kill the children rather them rather than to allow them to remain living "in contempt of God and to the danger of the public". This logic, of course, is unassailable. We, those of us living in the 21st century United States have adopted this logic for the purpose of prosecuting and punishing sex offenders. Sex offenses are the most heinous of crimes. Once a sex offender always a sex offender as it is extremely unlikely that a sex offender can ever be rehabilitated; ergo, he remains a danger to the public and must be controlled and monitored throughout his life with either imprisonment or with constant supervision. I, as a lawyer, find it comforting to know that our jurisprudence has this history and tradition on which to draw for precedent. I highly recommend this volume to all those interested in the proper administration of justice. It is published by Dover Publications, Inc. in 2009. It is believed that the learned Henry Boguet published the original volume in 1619 as Discours des Sorciers. He was a magistrate of Burgundy. According to the editor, Mr. Summer, his book was used by many of the local parliaments to enact appropriate legislation.

Knock-and-Announce

Knock-and-announce is a term created by the courts to describe the requirement set out in 808.5 of the Iowa Code of law enforcement to announce themselves before they come busting into your house to search for some contraband or illegal substance. Once a search warrant has been obtained from a judge, the entry team gathers and those who will be participating in the execution of the warrant don their ninja outfits, arm themselves with what weaponry they deem necessary for their own protection, grab the battering ram to smash in the door, and drive to the place where they believe criminal activity is afoot. Searches are expected to be reasonable. Reasonable searches are mandated by both the constitution of the United States and the constitution of the State of Iowa the purpose of which is the idea that we all should be safe and secure in our own homes. The question is, of course, what is reasonable. We have created what are called entry teams. These teams are comprised of members of various law enforcement agencies who throughout their lives have ingested far too many TV cop shows and have convinced themselves that people who commit crimes deserve no respect. When law enforcement shows up at your door to serve a search warrant and knock and announce their purpose, you as a resident of that dwelling are required to give them immediate access. Here we have another one of those terms that may mean one thing to you as the home owner and another, entirely different meaning to those executing the warrant. To you as a home owner, immediate may very well mean the time required to get up out of your chair, walk to the door, see who is there, and open it. On the other hand, the term immediate to the entry team means instantly. To law enforcement it doesn't matter if you might be on the john, or asleep, or putting the kid to bed, or at the other end of the house. If the door is not opened instantly, wood and glass go flying over the floor, men in their ninja outfits are running through the door with guns drawn yelling at you to lay on the floor. Two reasons are given for this sudden and frightening entry into your house: (1) you may have time to run to the place where you have stashed your stash and flush it down the toilet and (2) officer safety. The second reason given is my personal favorite. Whenever questioned about the suddenness and force used in an entry of a home, the response is normally officer safety. This is the mantra, the rationale, for destroying your door. What the reason is, which would never be admitted, nor could it be, is that it is much more fun. Pulverizing doors and scaring the crap out of people is so much more fun than having some known criminal compliantly opening the door. Police work is really boring when you think about it and when there is a chance of a little excitement, most officers jump at the chance.

Why Do Powerful Men Have Affairs?

Because they can.