The law is an ass . . .
“It was all Mrs. Bumble. She would do it," urged Mr. Bumble; first looking round, to ascertain that his partner had left the room.
"That is no excuse," returned Mr. Brownlow. "You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction."
"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass — a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience."
― Charles Dickens, Oliver Twist
"That is no excuse," returned Mr. Brownlow. "You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction."
"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass — a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience."
― Charles Dickens, Oliver Twist
Please understand that Publius Fred is a great respector of the law generally and of the American concept of the Rule of Law in Particular. But like Mr. Bumble, Publius Fred sometimes finds that the law, or rathers those that enact, enforce and interpret it, are quite the ass. Here you will find Publius Fred's take on matters legal.
Parking Enforcers Who Chalk Tires Violate The Constitution? Normally Fred is a big support of privacy and keeping the gubment out of our business. But he really has to scratch his head over this decision. Placing a chalk mark on a tire is so minimally invasive that he does not see it as an unreasonable search -- which it what the Fourth Amendment prohibits. Unlike the GPS tracking case that the court relied on in reaching this head-scratcher, the purpose of the chalk mark is not to track were the car goes to, but whether it does not go at all. That having been said, Fred does see an opportunity here to develop an app that meter-maids can use to photograph individual cars or perhaps whole blocks of cars and then determine who the violators are by doing AI photo comparisons. The photos would then be available as evidence, timestamps and all, when the ticket is challenged in court.
A Grand Jury in Richmond, Virginia has indicted a store clerk for manslaughter in the shooting death of a person who was robbing his store. Now Fred has some understanding of the law, and the grand jury was not exactly wrong in returning this indictment. The clerk pursued the robber from the store and fired his weapon in the street several times. He had wounded the robber in the store and possible again in the street, although the robber escaped and died later. Thus, it is true that the clerk "became the aggressor" when he followed the robber out of the store. Nonetheless, if Fred were defending this fellow, he'd ask for a jury. In a city like Richmond, there is a fair chance that a large proportion of the jury pool will be either themselves crime victims or will certainly know someone who has been. Jury nullification is not a strategy that an attorney can openly rely upon -- but stuff happens, y'know?
The Supreme Court of Virginia has released an interesting opinion that answers the assinine question, "If a criminal defendant fails to appear one time, how many times has he failed to appear?" The answer, according to a 5-2 majority, is as many times as he had charges against him. At first blush, this must seem to be a case of the law (or of five Justices of an appellate court) being an ass. But as the majority reasons in Johnson v. Commonwealth, the offense is the failure to appear to answer a charge for an offense. In this case, Johnson had three charges, felonies all, and so he was liable for failing to appear three times. The dissent reasons that the law could just as easily be intrepreted to mean that the defendant failed to appear for a hearing (or trial, or whatever) and such should be treated as a single offense regardless of the number of charges in the underlying action. I find the dissent unpersuasive.
So why, I hear you say Dear Reader, does Publius Fred find this obscure case to be an example of the ass-ness of the law? The answer lies in the nature of those three underlying felonies which were, and I quote from the opinion, "forgery, uttering, and attempting to obtain money by false pretenses. All three charges stemmed from allegations that Johnson had altered a check written by a third party and attempted to cash it." (Emphasis added.) The Brits have a term for this, it's called "laddering." Laddering is when the police or the prosecution charge a defendant with mutiple offense for what is essentially one crime.
In case you, Dear Reader, are unfamiliar with the gapping hole in the doctrine of Double Jeopardy against multiple punishments for the same crime when the charges are tried in a single case, let Publius Fred attempt to enlighten you: The bar against multiple punishments for the same offense prevents an end-run around the prohibition against repeated prosecutions after acquittal or conviction. When multiple offenses are prosecuted at a single trial, the Double Jeopardy Clause "prevents the sentencing court from prescribing greater punishment than the legislature intends." Missouri v. Hunter, 459 U.S. 359, 366 (1983)(Emphasis added). If, however, it is clear that the legislature intended for the ac.s of forging a check, presenting it for payment (for that is essentially what "uttering" means), and seeking to receive cash in exchange, the be punished separately, well then poor Johnson can be charge with three offenses.
Now I wish to be crystal clear that I do not disagree with the premise that Johnson was guilty of all three offenses (actually, come to think of it, the opinion never says what result was obtained for the underlying offenses). Nor do I beleive that his being charged with all three was in any way a violation of Double Jeopardy. No, Publius Fred simply takes exception to the practice of laddering (or piling on, if you prefer). There are two main reasons to ladder charges. First, the staffing for police agencies, prosecutor's offices, and criminal courts is, in large part, determined by the number of serious criminal cases they handle. It's simple math -- more felonies, more money for police, prosecutors and the courts.
The other reason is more insidious. Most criminal cases never go to trial. They get settled by a plea bargain. Over time, prosecutors have learned that the more they have to bargain with, the more likely they are to get a favorable plea deal from a defendant. My guess is that if Johnson had shown up for the preliminary hearing, he likely would have been offered a deal to plead to one of the three charges with the other two "nolle prossed" (dismissed) and probably little or no actual time to serve. I'd even venture a guess that he was offered the same deal later, and that the 1 for 6 sentence he received for failure to appear was just icing on the Commonwealth's case.
Publius Fred -- December 11, 2016
So why, I hear you say Dear Reader, does Publius Fred find this obscure case to be an example of the ass-ness of the law? The answer lies in the nature of those three underlying felonies which were, and I quote from the opinion, "forgery, uttering, and attempting to obtain money by false pretenses. All three charges stemmed from allegations that Johnson had altered a check written by a third party and attempted to cash it." (Emphasis added.) The Brits have a term for this, it's called "laddering." Laddering is when the police or the prosecution charge a defendant with mutiple offense for what is essentially one crime.
In case you, Dear Reader, are unfamiliar with the gapping hole in the doctrine of Double Jeopardy against multiple punishments for the same crime when the charges are tried in a single case, let Publius Fred attempt to enlighten you: The bar against multiple punishments for the same offense prevents an end-run around the prohibition against repeated prosecutions after acquittal or conviction. When multiple offenses are prosecuted at a single trial, the Double Jeopardy Clause "prevents the sentencing court from prescribing greater punishment than the legislature intends." Missouri v. Hunter, 459 U.S. 359, 366 (1983)(Emphasis added). If, however, it is clear that the legislature intended for the ac.s of forging a check, presenting it for payment (for that is essentially what "uttering" means), and seeking to receive cash in exchange, the be punished separately, well then poor Johnson can be charge with three offenses.
Now I wish to be crystal clear that I do not disagree with the premise that Johnson was guilty of all three offenses (actually, come to think of it, the opinion never says what result was obtained for the underlying offenses). Nor do I beleive that his being charged with all three was in any way a violation of Double Jeopardy. No, Publius Fred simply takes exception to the practice of laddering (or piling on, if you prefer). There are two main reasons to ladder charges. First, the staffing for police agencies, prosecutor's offices, and criminal courts is, in large part, determined by the number of serious criminal cases they handle. It's simple math -- more felonies, more money for police, prosecutors and the courts.
The other reason is more insidious. Most criminal cases never go to trial. They get settled by a plea bargain. Over time, prosecutors have learned that the more they have to bargain with, the more likely they are to get a favorable plea deal from a defendant. My guess is that if Johnson had shown up for the preliminary hearing, he likely would have been offered a deal to plead to one of the three charges with the other two "nolle prossed" (dismissed) and probably little or no actual time to serve. I'd even venture a guess that he was offered the same deal later, and that the 1 for 6 sentence he received for failure to appear was just icing on the Commonwealth's case.
Publius Fred -- December 11, 2016
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