dishonorable discharge from public service, How To?
Silence DoGood
to explain how a "dishonorable discharge" can be a punishment in a
military court of law for charges sounding in conduct unbecoming an
officer but not against public servants including Officers of the
Court.
I would like to know how Reagan fired the air-traffic
controllers for violation of oath if such is not a legal issue.
I would like someone to explain why Dr. Franklin & company specified
that
oaths be taken by public servants if a breach was not intended to be
punishable as perjury.
I suggest a public servant indicted for succumbing to temptation
whether
by neglect of duty, or exceeding authority ought to expect to pony up
an
ASSERTIVE explanation, not merely Ha! Ha! where is your quid-pro-quo?
After all, does an oath grant permission or restrict it?
At the close of the Miracle of Philadelphia, Benjamin Franklin, when
asked
by an eager young reporter what kind of government had been created,
answered simply: "A Republick, if you can keep it."
If the public fails to hold its public servants answerable, Franklin's
scenario of leaks in the ship of state sinking it may be at hand.
mm
<Silence...@angelic.com> wrote:
>I would like someone who believes that honor is not a legal issue
>to explain how a "dishonorable discharge" can be a punishment in a
I thought the punishment was the discharge, and "dishonorable" was
just a description of it. Of course if someone wants to be
discharged, that's not much of a punishment, but it sometimes includes
loss of pay, loss of rank, and imprisonment first, and it's much
harder to get a job afterwards (although some people can go work for
their parents or brother or be self-employed)
>military court of law for charges sounding in conduct unbecoming an
>officer but not against public servants including Officers of the
>Court.
Because the military has higher standards in some cases, especially
wrt "conduct unbecoming".
>I would like to know how Reagan fired the air-traffic
>controllers for violation of oath if such is not a legal issue.
I thought it was not for violating an oath but for violating a law
which said that people in their job could not strike.
A very interesting related point. In the 70's, the NYC Police took a
union vote and struck and there were big problems because of that, and
I think the union president was prosecuted maybe, and years later it
turned out that the police force had actually voted not to strike, but
the company hired to count the vote had on purpose reported the vote
incorrectly. I'm forgetting but the only reason I can think of now is
that the union officer that hired them said that's what he wanted.
But if he was tried, I don't think I read in the paper about this
until years after the trial..
The company was called the "Honest Ballot Association". Ironic, huh?
Last I looked a year or two ago, there was nothing on the Web
describing this, which shows that the web is good for things that have
happened since the Web was created, but spotty for things that
happened earlier. Maybe it's in the NYTimes archives, but it didn't
show up with Google.
>I would like someone to explain why Dr. Franklin & company specified
>that oaths be taken by public servants if a breach was not intended to be
>punishable as perjury.
Well, the Constitution only requires an oath or affirmation, and only
for the office of President, but there are many other places where an
oath or affirmation is required and I suppose violating an
affirmation as a witness is also considered perjury in the law.
But afaik, only faiilure to testify accurately is ever considered
perjury. Failure to properly fulfill the duties of a job is never
considered perjury, even if one swore to do so.
>
>I suggest a public servant indicted for succumbing to temptation
>whether by neglect of duty, or exceeding authority ought to expect
> to pony up an ASSERTIVE explanation, not merely Ha! Ha! where is your quid-pro-quo?
When this is prosecuted, it's not for violating an oath, it's for
violating the law against taking bribes, and to show a bribe, one
element of the crime that has to be shown is that the defendant did
something in return for the "bribe". Just accepting money could be
made illegal, but discussing that is beyond me in the space here.
>After all, does an oath grant permission or restrict it?
All these things could be made illegal because they represent
violations of the oath or affirmation, but I"m not sure what advantage
that would have over just making them illegal. I'm not law-writer or
experienced anti-bribe-law interpreter, but off-hand it seems simpler
and easier to prosecute if certain acts are illegal, and the oath or
affirmation is left out of it. One major thing, the oath or
affirmation the President and many others take includes "to the best
of my ability". So the prosecutor would have to prove that it was
within the defendant's ability not to "exceed authority" even "by
neglect". These are your standards above, as to what should be
prosecuted. And the defendant would try to show that it wasn't.
Current laws against bribe taking, not striking, etc. don't include
anything like that. Being negligent is grounds for being fired and
sued, but rarely if ever grounds to be criminally prosecuted. I can
only think of criminally negligent homicide, which is not a
job-related transgression and isn't preceded by any oath or
affirmation.
.....
D.F. Manno
<37cea130-04c5-4639...@o36g2000yqh.googlegroups.com>,
Silence DoGood <Silence...@angelic.com> wrote:
> I would like someone who believes that honor is not a legal issue
> to explain how a "dishonorable discharge" can be a punishment in a
> military court of law for charges sounding in conduct unbecoming an
> officer but not against public servants including Officers of the
> Court.
Because public servants and officers of the court are not subject to the
Uniform Code of Military Justice.
> I would like to know how Reagan fired the air-traffic
> controllers for violation of oath if such is not a legal issue.
It's called "breach of contract."
--
D.F. Manno
dfm...@mail.com
Stuart A. Bronstein
> I would like someone who believes that honor is not a legal issue
> to explain how a "dishonorable discharge" can be a punishment in a
> military court of law for charges sounding in conduct unbecoming
> an officer but not against public servants including Officers of
> the Court.
Just calling it a dishonorable discharge isn't the punishment. There
are other things that go along with it, such as loss of pay, loss of
pension and sometimes time spent in jail.
> I would like to know how Reagan fired the air-traffic
> controllers for violation of oath if such is not a legal issue.
It was made legal by statute. In some cases it is, in others it's not.
> I would like someone to explain why Dr. Franklin & company
> specified that oaths be taken by public servants if a breach was
> not intended to be punishable as perjury.
It could be "punished"as a breach of contract.
> I suggest a public servant indicted for succumbing to temptation
> whether by neglect of duty, or exceeding authority ought to expect
> to pony up an ASSERTIVE explanation, not merely Ha! Ha! where is
> your quid-pro-quo? After all, does an oath grant permission or
> restrict it?
I have no idea what you are getting at here. But you can't force
someone to incriminate himself, if that's what you're talking about.
Stu
Barry Gold
><37cea130-04c5-4639...@o36g2000yqh.googlegroups.com>,
> Silence DoGood <Silence...@angelic.com> wrote:
>
>> I would like someone who believes that honor is not a legal issue
>> to explain how a "dishonorable discharge" can be a punishment in a
>> military court of law for charges sounding in conduct unbecoming an
>> officer but not against public servants including Officers of the
>> Court.
>
>Because public servants and officers of the court are not subject to the
>Uniform Code of Military Justice.
Yes, and "Conduct Unbecoming an Officer" is a specifically _military_
crime. By and large there is no equivalent crime for civilians. Nor
for an Enlisted Man; the closest equivalent would be "insubordination"
or some such.
Note, however, that some public employees can be fired (but not
convicted of a crime) for similar things, e.g. inappropriate conduct
by a police officer.
>> I would like to know how Reagan fired the air-traffic
>> controllers for violation of oath if such is not a legal issue.
D.F. Manno <dfm...@mail.com> wrote:
>It's called "breach of contract."
Even more than that, there was a law that specifically banned strikes
by air controllers, just as there is one against strikes by police and
firefighters. The latter doesn't seem to be enforced, but Reagan
enforced the law against PATCO.
--
Barry Gold, webmaster:
Alarums & Excursions, Xenofilkia: http://places.to/xeno
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Steve Bartman
>On Fri, 20 Mar 2009 12:59:12 -0700 (PDT), Silence DoGood
><Silence...@angelic.com> wrote:
>
>>I would like someone who believes that honor is not a legal issue
>>to explain how a "dishonorable discharge" can be a punishment in a
>
>I thought the punishment was the discharge, and "dishonorable" was
>just a description of it.
No, the punishment is whatever the general court martial assigns. The
DD is allowed by the UCMJ, but it doesn't have to be assigned to any
particular charge so far as I recall. It's available, as is a Bad
Conduct Discharge. A DD has to be a result of a GCM, and it's
considered a federal felony conviction. It usually comes with military
prison time, always with loss of all VA benefits, loss of all pay,
rank, and active duty benefits. The dischargee is banned from owning
firearms under federal law. In some states he's not permitted to vote.
Getting a job is no picnic either, as military discharge records are
trivial to verify.
Of course if someone wants to be
>discharged, that's not much of a punishment, but it sometimes includes
>loss of pay, loss of rank,
A DD always includes these. I believe the process is reduction to E-1
for the duration of the prison time (have to be "in" the military to
be subject to the UCMJ), with the E-1 pay 100% forfeited. It's then
not really a paygrade so much as an administrative label.
>and imprisonment first, and it's much
>harder to get a job afterwards (although some people can go work for
>their parents or brother or be self-employed)
If the self-employment doesn't require getting a loan, carrying a
bond, or a weapon. One might be banned from getting certain types of
licenses as well--SEC Series 7, teaching, day care, etc. A DD is a Big
Deal.
Steve
Mike Jacobs
> I would like someone who believes that honor is not a legal issue
> to explain how a "dishonorable discharge" can be a punishment in a
> military court of law for charges sounding in conduct unbecoming an
> officer but not against public servants including Officers of the
> Court.
Without getting too deeply into the fascinating issues other MLM
posters have raised about the UCMJ, the ATC strike, and other points,
IMO no one has yet answered OP's actual question.
To paraphrase, OP says, in effect, "soldiers can be kicked out of the
army as punishment for misconduct that may OR MAY NOT have anything
directly to do with performance of their official duties - e.g. for
things they do while off-duty. Can anything similar be done to other
public servants, including Officers of the Court (by whom I presume he
means "attorneys")?"
The answer is, YES. Something similar can be done.
Judges, legislators, and elected executives (governors, mayors,
presidents) can be impeached. Impeachment is not a conviction of a
crime, it is simply a removal from office for cause - simple
incompetence is not enough, but something indicating a violation of
the public trust must occur. At least, that's how I read the rubric
"high crimes and misdemeanors" in that context. Short of that, some
of the above officeholders may be publicly shamed into resigning, or
simply passed over for re-election when the circus comes around again.
Attorneys may be disbarred (stripped of their rank and status as
members of the Bar) for misconduct unbecoming to a member of the Bar
even if it is not something they did while formally acting as a
lawyer. A lawyer is a lawyer 24/7.
As someone else mentioned, other kinds of public servants (even
members of the classified civil service, nonpartisan bureaucrats as
opposed to political appointees who serve only at the pleasure of the
politician who appointed them) can be removed from their jobs (fired)
for cause also. But that's a bit different from membership in the
bar, which is not a job per se, but rather a license and a privileged
status accorded by the government to those who meet the
qualifications, a privilege which the government may withdraw if
information comes to their attention that the person no longer lives
up to the high standards which the public has every right to expect of
people holding that status.
So yes, there is such a thing as "conduct unbecoming an attorney" and
the punishment can be similar.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Silence DoGood
> But afaik, only faiilure to testify accurately is ever considered
> perjury. Failure to properly fulfill the duties of a job is never
> considered perjury, even if one swore to do so.
Comments to my original posting have been made regarding the firing of
federal public servants, self incrimination, the comparison of breach
of public duty to breach of contract, the President's oath being
spelled out in the Constitution, and a public servant's right against
self-incrimination. Failure to prosecute in the past does not make for
precedent. Is there precedent? Do we need high profile prosecutions?
Are we ready?
At a news conference on Aug 4, 1981 President Ronald Reagan announced
the firing of thousands of unionized air-traffic controllers (PATCO)
by citing and reading the oath of office they took promising not to
participate in any strike.
Did PATCO sue to get their jobs back and did the courts opt to
generally affirm the authority of a President to fire striking federal
employees leaving the oath itself in the arena of unsettled law? I
encourage you to read the full text of Reagan's press conference as
posted in multiple places on the web which I hope will make clear that
had it not been for that oath, Reagan might well have worked something
out.
Prosecutions for oath involve aliens and naturalized citizens who,
unlike those born in America, are required to take oaths that may
constitute the legal basis for deporting undesirables. In a criminal
or family court one could enter into an agreed injunction or condition
of probation via sworn statement thereby making violation of the
PROMISE punishable. The period of service in the military extends from
the taking of oath to discharge. We might well regard all military
prosecutions as falling under the umbrella of violation of voluntary
pledge to follow military rules.
Article VI of the U.S. Constitution specifies that all legislators,
executive, and judicial officers take oaths (or affirmations) to
support the Constitution. Congress has the power to enact legislation
to enforce this provision including to set the exact text of the oath
and to make additions. The States can likewise make additions but not
grant exemptions. Since the constitution guarantees citizens of the
several states a representative form of government the oath inherently
vows submission to locally elected representatives.
An Officer of the Court swears to ethics that define any APPEARANCE of
impropriety as something that should be avoided. I see no
justification, legally or morally, for the position seemingly taken
that a military officer, alien, or parolee could be punished for not
doing what he should whereas other public servants cannot be held to
general behavioral guidelines in compliance with their oaths.
They say contracts are made to be broken and pivot on measurable loss.
Vows are made to be kept and involve immeasurable faith and trust. I
see limits to comparing Breach of Contract with Breach of Trust. I
suggest that when you take an oath you waive the defense that
violation does not "matter".
As for forcing someone to incriminate himself, consider being charged
with possession of drugs. If they were in your car you need to explain
it. The lawyers in the Rodney King trial presented a textbook
assertive defense suggesting that poorly trained and over-reactive
behavior did not prove beyond a reasonable doubt that those involved
failed to do their best in an unexpected and irreversible situation.
Notice that if they do exactly the same thing again, they could easily
be convicted.
Public service like military service is a privilege requiring courage
and sacrifice. When people fail in their duties, they need to be
removed. When it's egregious, they need to be publicly punished. Tired
soldiers who abandon guard duty are subject to summary execution. Who
works for the government without guarding something?
Mike Jacobs
wrote:
> On Mar 21, 1:19 pm, mm <mm2...@bigfoot.com> wrote:
>
> > But afaik, only faiilure to testify accurately is ever considered
> > perjury. Failure to properly fulfill the duties of a job is never
> > considered perjury, even if one swore to do so.
<snip>
> At a news conference on Aug 4, 1981 President Ronald Reagan announced
> the firing of thousands of unionized air-traffic controllers (PATCO)
> by citing and reading the oath of office they took promising not to
> participate in any strike.
They weren't fired for LYING (perjury); they were fired for doing
something the law forbade persons holding their job to do (strike),
and which they had promised (under oath) not to do, as a condition of
getting that job.
A promise is mostly neither true nor false in a factual sense; it is a
statement of present _intent_ with future operative consequences
whether or not you "really meant it" when you said it. So long as the
person making it genuinely intended to fulfill it at the time he made
it, it is not a lie. If he had _no_ intention of fulfilling it when
he made it, that could be fraud and, if there were any way to prove it
(I can't think of any, other than the person's own admission), I
suppose it could also be prosecuted as perjury. However, if he made
the promise in good faith, and only later broke it, that act may
subject him to whatever contractual consequences apply to that breach
(in the PATCO controllers' case, being fired), but it is _not_
perjury.
> In a criminal
> or family court one could enter into an agreed injunction or condition
> of probation via sworn statement thereby making violation of the
> PROMISE punishable.
Um, I'm not aware of typical injunctions, conditions of probation or
family court decrees that rely on the oath of the parties for
support. They are COURT ORDERS and enforceable as such; a criminal
defendant is not under oath when he agrees to the terms of a probation
entered upon a plea bargain, it is just a simple contract between him
and the court for which he will suffer the natural consequences (as
stated in their agreement) if he later breaks his terms of probation.
It is the act he had promised not to do that gets him punished; this
is not an example of perjury.
> The period of service in the military extends from
> the taking of oath to discharge. We might well regard all military
> prosecutions as falling under the umbrella of violation of voluntary
> pledge to follow military rules.
Um, maybe. I'm not sure where you're going with this.
> Article VI of the U.S. Constitution specifies that all legislators,
> executive, and judicial officers take oaths (or affirmations) to
> support the Constitution. Congress has the power to enact legislation
> to enforce this provision including to set the exact text of the oath
> and to make additions. The States can likewise make additions but not
> grant exemptions.
Okayyyy, and? Still don't know where you're going with this.
> Since the constitution guarantees citizens of the
> several states a representative form of government the oath inherently
> vows submission to locally elected representatives.
Whoah. "Submission?" by whom? To whom? Are you trying to argue
that all Federal officers are beholden to, subservient to, must follow
the orders of, LOCAL officers? That's sure what it sounds like.
That's not the law.
> An Officer of the Court
You're referring to attorneys, now? Or what? We raised that issue
before but you still haven't clarified what you mean by that term.
> swears to ethics
Sounds like you're talking about members of the bar, all right.
> that define any APPEARANCE of
> impropriety as something that should be avoided.
Okay. And that is relevant to Reagan's PATCO speech, how?
I pretty much agreed with you in my last post on this thread, where I
pointed out that attorneys are "on duty" 24/7 and must avoid "conduct
unbecoming" which I thought was the point of your original post. But
I just can't follow your logical steps nowfrom A to B. Connect the
dots for us, could you?
> I see no
> justification, legally or morally, for the position seemingly taken
> that a military officer, alien, or parolee could be punished for not
> doing what he should
They are punished not for perjury, but for their breach of duty, the
duty they have voluntarily undertaken, and which they are bound to
observe on pain of punishment even if they legitimately and honestly
change their mind after taking the oath.
Except. where did "alien" come from, in that mix? AFAIK that's the
first time in the whole thread you have mentioned them. You don't
have to take an oath to be an alien - if you happen to be one, you
just _are_ one. Right? It's not like being a soldier, or an
attorney, or an elected politician, where you have to take an oath to
become one.
And parolees, like probationers, are not under oath AFAIK, merely
under contract. If they breach that contract, back they go to jail -
swearing an oath has nothing to do with it.
> whereas other public servants cannot be held to
> general behavioral guidelines in compliance with their oaths.
It's so hard to tell what you're talking about when you write in such
generalities. Let's get down to cases? Who, and what, are you
really talking about? Give us an example, other than the PATCO
strike of nearly 30 years ago, of what has recently put this bee in
your bonnet.
> They say contracts are made to be broken
The cynic's "definition" is not a REAL definition. Contracts are
made to be KEPT; that's the whole basis of trust and law on which the
economy is built. Although, these days, it's a bit hard to see that,
as the faith in capitalism, and capitalism itself, teeter on the
edge. It's still the truth, however, and we would be in a far
_bigger_ mess if we REALLY decided that future promises were worthless
and nobody could trust anybody in anything other than an arm's length,
cash-on-the-barrelhead sales or barter transaction for immediate
delivery. We would in fact be thrown back to a late Stone-Age level
economy of small, local circles of trade only, with very little
specialization and a lot of subsistence farming and nomadic herding
(for those who survived, that is, and didn't starve, since such an
economy can't possibly support as large a population as we currently
have based on an economy of extreme specialization of labor,
globalized credit and trade, and trust).
> and pivot on measurable loss.
Damages are one kind of remedy for breach of contract. Specific
performance, and other equitable remedies, may be available for other
kinds of breaches.
> Vows are made to be kept and involve immeasurable faith and trust. I
> see limits to comparing Breach of Contract with Breach of Trust.
There is an implied covenant (promise) of good faith and fair dealing
in every contract. Although not sworn under oath, as is the
undertaking to perform most solemn public offices, every private
business deal is, or at least SHOULD BE, based on the same principles
of sacred trust or else the whole economy is in danger of collapse.
> I suggest that when you take an oath you waive the defense that
> violation does not "matter".
Gotta give us examples here, please. Who, and what, are you talking
about specifically? And what are the implications you are driving at
from that general, abstract statement?
> As for forcing someone to incriminate himself, consider being charged
> with possession of drugs. If they were in your car you need to explain
> it.
No, you don't. You have no legal obligation to talk to the cops at
all about what they found in your car. Whether you talk about it and
explain it later, at trial, is up to YOUR attorney, if he thinks doing
so is a good idea, but you have no legal OBLIGATION in which the STATE
can force you to talk about it.
> The lawyers in the Rodney King trial
You mean the trial of the cops who beat up Mr. King but got acquitted
of violating his civil rights?
> presented a textbook
> assertive defense suggesting that poorly trained and over-reactive
> behavior did not prove beyond a reasonable doubt that those involved
> failed to do their best in an unexpected and irreversible situation.
IOW, I believe the finding was they had established the factual
predicate for "qualified immunity" from 1983 liability.
> Notice that if they do exactly the same thing again, they could easily
> be convicted.
Yes, they very well could have. IMO, probably should have. But I
wasn't on their jury.
> Public service like military service is a privilege requiring courage
> and sacrifice. When people fail in their duties, they need to be
> removed.
This is the point I thought you were making in your original post, and
which I mostly agreed with in my previous reply. But, what exactly
_are_ you talking about, if that wasn't it? Impeachment of public
officials exists as an available remedy. Attorneys can be disbarred
for conduct unbecoming an attorney. What else are you driving at?
It sounds like you are suggesting some change in the law. What do you
want to change? Help us out here to understand instead of just
talking in vague generalities.
> When it's egregious, they need to be publicly punished.
Give us a specific example of some wrongful act or conduct by an oath-
taking officeholder, what its current possible punishments are under
the law, and of what you feel its punishment should be expanded to
include, if you are pushing for a change in the law. Generalities
tell us nothing.
> Tired
> soldiers who abandon guard duty are subject to summary execution.
Okay, there's an example. But that is due to the exigencies of war
and the immediate physical danger of annihilation into which their
dereliction of duty placed their entire garrison. And, as you note,
the law already provides for that remedy.
> Who
> works for the government without guarding something?
Whoay, another logical leap. Surely you're not suggesting that it's
OK to summarily execute any public office holder or attorney who
commits an impeachable or disbarment offense and that the law should
be expanded to provide this remedy for their derelictions? Of couse
not. So tell us what you're really asking for, how you want the law
to change in this regard. Then we can have a debate. Right now I
can't even tell what you are asking for. Regards,
Robert Bonomi
Silence DoGood <Silence...@angelic.com> wrote:
>to explain how a "dishonorable discharge" can be a punishment in a
>military court of law for charges sounding in conduct unbecoming an
>officer but not against public servants including Officers of the
>Court.
*TRIVIALLY* simple to explain -- different legal standards apply. The UCMJ
is _not_ identical to U.S. Criminal law (Title 18 USC)
There is also a sound 'practical' reason for the near-absolute immunity
from prosectorial actions given to the Courts. To wit, the 'alternative'
is *MUCH* less desirable.
The occasional error (yes, they _do_ happen, but they *are* quite rare) by
the Court system is far, *FAR* less damaging to society than the rampant
abuses that do occur when the courts are subject to, shall we say, "political"
oversight.
>I would like to know how Reagan fired the air-traffic
>controllers for violation of oath if such is not a legal issue.
Breach of the "terms and conditions of employment" -- of which the oath is
simply an acknowledgement by the giver of the oath of the seriousness of
full compliance with the aforesaid "terms & conditions" -- as well as an
acknowledgement of 'notification' that certain portions of Federal labor law
regarding collective bargaining, etc. are _not_ applicable to that job
position.
_Anyone_, whether a government employee *or* in the private sector, who makes
a materially false statement as part of the process of being hired *IS*
subject to disciplinary action for that false statement (*whenever* it is
discovered that that statement was 'false') -- up to and including having
that employment (gained under false pretenses) terminated.
There are numerous cases on record in the private sector where an executive
has been summarily dismissed because it was discovered that they 'lied' on
their initial job application _decades_ earlier.
The only 'unique' things about the Air Traffic Controller situation were the
number of persons involved (if it had only been a handful of people acting
illegally, and fired for so doing, there would have been nothing 'newsworthy'
about the situation), and that the government acted "swiftly, decisively, and
effectively", in dealing with the situation (rather than with the 'usual and
expected' long drawn-out paperwork of a major bureaucracy).
Note: I was, and am, sympathetic to the issues that PATCO was trying to
remedy, but I have *NO* sympathy for the 'means' that they chose to attempt
to gain their goals.
>I would like someone to explain why Dr. Franklin & company specified
>that oaths be taken by public servants if a breach was not intended to be
>punishable as perjury.
An 'oath of office' is _not_ a 'statement of fact', but a "statement of
intentions". As such, *IF*AND*ONLY*IF* the oath-giver intended to breach
that oath _at_the_time_the_oath_ was_given_ do you have the requisite
'known falsity' of the statement WHEN IT WAS MADE, necessary to support a
charge of perjury.
Note: you might want to look up 'malfeasance in office'.
Deadrat
4a15-8318-4...@v6g2000vbb.googlegroups.com:
> On Mar 21, 1:19 pm, mm <mm2...@bigfoot.com> wrote:
>
>> But afaik, only faiilure to testify accurately is ever considered
>> perjury. Failure to properly fulfill the duties of a job is never
>> considered perjury, even if one swore to do so.
>
> Comments to my original posting have been made regarding the firing of
> federal public servants, self incrimination, the comparison of breach
> of public duty to breach of contract, the President's oath being
> spelled out in the Constitution, and a public servant's right against
> self-incrimination. Failure to prosecute in the past does not make for
> precedent. Is there precedent? Do we need high profile prosecutions?
> Are we ready?
>
> At a news conference on Aug 4, 1981 President Ronald Reagan announced
> the firing of thousands of unionized air-traffic controllers (PATCO)
> by citing and reading the oath of office they took promising not to
> participate in any strike.
Ronald Reagan was an actor. He was reading a script in which he was the
hero, and the union was the villain.
> Did PATCO sue to get their jobs back and did the courts opt to
> generally affirm the authority of a President to fire striking federal
> employees leaving the oath itself in the arena of unsettled law? I
> encourage you to read the full text of Reagan's press conference as
> posted in multiple places on the web which I hope will make clear that
> had it not been for that oath, Reagan might well have worked something
> out.
This is utter nonsense. Reagan saw an opportunity to break a public
union, and he took it. There was never any consideration of "working
something out." I worked with one of the fired ATCs. He was on
authorized vacation after the union was fired en masse. He tried to
return to work as scheduled and was told he'd been dismissed. He didn't
break his oath and it didn't matter.
> Prosecutions for oath involve aliens and naturalized citizens who,
> unlike those born in America, are required to take oaths that may
> constitute the legal basis for deporting undesirables. In a criminal
> or family court one could enter into an agreed injunction or condition
> of probation via sworn statement thereby making violation of the
> PROMISE punishable. The period of service in the military extends from
> the taking of oath to discharge. We might well regard all military
> prosecutions as falling under the umbrella of violation of voluntary
> pledge to follow military rules.
>
> Article VI of the U.S. Constitution specifies that all legislators,
> executive, and judicial officers take oaths (or affirmations) to
> support the Constitution. Congress has the power to enact legislation
> to enforce this provision including to set the exact text of the oath
> and to make additions. The States can likewise make additions but not
> grant exemptions. Since the constitution guarantees citizens of the
> several states a representative form of government the oath inherently
> vows submission to locally elected representatives.
>
> An Officer of the Court swears to ethics that define any APPEARANCE of
> impropriety as something that should be avoided.
Please back up this bold claim. My brief look at the rules of conduct
for members of the California bar fails to find anything about the
appearance of even the APPEARANCE of impropriety. Go here:
http://calbar.ca.gov/calbar/pdfs/rules/Rules_Professional-Conduct.pdf
This document does not contain the word "appearance." A search of the
site reveals that specific rules are set to avoid the appearance of
impropriety, but it's also easy to find that courts reject such a rule as
a standard. See Addam v. Superior Court (4th Dist. 2/3/2004) 116
Cal.App.4th 368, 10 Cal.Rptr.3d 39.
> I see no
> justification, legally or morally, for the position seemingly taken
> that a military officer, alien, or parolee could be punished for not
> doing what he should whereas other public servants cannot be held to
> general behavioral guidelines in compliance with their oaths.
This seems to be simply a matter of semantics. People who take an oath
to do something may be punished for not doing that something. When the
oath is general (as in "support the Constitution"), we still demand some
concrete act of non-support. So what?
> They say contracts are made to be broken and pivot on measurable loss.
> Vows are made to be kept and involve immeasurable faith and trust. I
> see limits to comparing Breach of Contract with Breach of Trust. I
> suggest that when you take an oath you waive the defense that
> violation does not "matter".
If a violation of an oath requires proof of incompetence or malfeasance,
the what does it matter whether you're dismissed for violating the oath
or for the incompetence or malfeasance? If a violation of a oath doesn't
require some specific act, then who determines that you've violated the
oath and how do they determine it?
> As for forcing someone to incriminate himself, consider being charged
> with possession of drugs. If they were in your car you need to explain
> it.
No, you don't. Given the presumption of law, it might be easier to
obtain an acquittal if you could explain it. But no one is obligated to
put on a defense. Throwing doubt on the prosecutions case may be all
that is necessary.
> The lawyers in the Rodney King trial presented a textbook
> assertive defense suggesting that poorly trained and over-reactive
> behavior did not prove beyond a reasonable doubt that those involved
> failed to do their best in an unexpected and irreversible situation.
> Notice that if they do exactly the same thing again, they could easily
> be convicted.
The lawyers in the Rodney King trial presented a textbook defense that no
matter what cops do to black people, Simi Valley jurors are likely to
accept it. Notice that if they do exactly the same thing again and are
tried elsewhere, they could easily be convicted. What's your point?
That the cops didn't break their oaths to serve and protect?
> Public service like military service is a privilege requiring courage
> and sacrifice. When people fail in their duties, they need to be
> removed. When it's egregious, they need to be publicly punished. Tired
> soldiers who abandon guard duty are subject to summary execution. Who
> works for the government without guarding something?
Nobody in the United States military is subject to summary execution, and
I defy you to find a recent instance of falling asleep on guard duty
charged as a capital offense.
What *operational* change to procedure do you want to introduce? I can't
tell what you're suggesting or even if you're suggesting anything.
Barry Gold
>> But afaik, only faiilure to testify accurately is ever considered
>> perjury. Failure to properly fulfill the duties of a job is never
>> considered perjury, even if one swore to do so.
Silence DoGood wrote:
> Comments to my original posting have been made regarding the firing of
> federal public servants, self incrimination, the comparison of breach
> of public duty to breach of contract, the President's oath being
> spelled out in the Constitution, and a public servant's right against
> self-incrimination. Failure to prosecute in the past does not make for
> precedent. Is there precedent? Do we need high profile prosecutions?
> Are we ready?
A lot of questions. My answer: no we don't, we're not ready, and I
doubt if a prosecution would be successful.
[Discussing the PATCO firings]
> Did PATCO sue to get their jobs back and did the courts opt to
> generally affirm the authority of a President to fire striking federal
> employees leaving the oath itself in the arena of unsettled law? I
> encourage you to read the full text of Reagan's press conference as
> posted in multiple places on the web which I hope will make clear that
> had it not been for that oath, Reagan might well have worked something
> out.
The Air Traffic Controllers were under Civil Service. This provides a
lot of protection for jobs, but even Civil Service employees can be
fired for repeated failure to report to work without a valid excuse.
Another factor: the NLRA makes it illegal for an employer to fire
employees for engaging in a valid labor action. This presumably applies
to the Federal Government as well. So simply striking would not be
valid grounds for firing them. However, the oath (or even "pledge") of
no strikes gave Reagan grounds for the firing.
It also gave him political cover for a decision that could have proved
very unpopular. He got what he wanted -- an end to the strike (and as a
side effect a great weakening of the labor movement in the US). But he
also fired the vast majority of ATCs, and there weren't very many
replacements available -- not surprising: virtually the only employers
of Air Traffic Controllers are the FAA and the US military (or
equivalent agencies in other countries). As a result, we had to make do
with less than 50% staffing in most control towers, and there were
flight delays all over the place.
> Prosecutions for oath involve aliens and naturalized citizens who,
> unlike those born in America, are required to take oaths that may
> constitute the legal basis for deporting undesirables. In a criminal
> or family court one could enter into an agreed injunction or condition
> of probation via sworn statement thereby making violation of the
> PROMISE punishable. The period of service in the military extends from
> the taking of oath to discharge. We might well regard all military
> prosecutions as falling under the umbrella of violation of voluntary
> pledge to follow military rules.
No, no, and no. Those oaths do not carry legal penalties for failure to
keep them. In legal terms, there is no "enabling act". (The Volstead
Act was the "enabling act" for prohibition. Without it, the 18th
amendment would have been a mere pious declaration.)
And what you are proposing is the legal equivalent of reaching behind
your head to scratch your left ear with your right hand. Why prosecute
somebody for violating their oath when there is already a law that
defines the penalty for a particular act.
If a naturalized citizen violates the law, he can be punished under the
law he violates. If a legal resident alien violates the law, he can be
punished under it and also deported. If a soldier violates the UCMJ, he
is punished under the terms of the UCMJ, and his oath has nothing to do
with it.
Almost the _only_ time that violating an oath carries a punishment is
perjury. There is a specific crime, perjury (see what I said about
enabling acts). It has four elements:
1. making a false statement
2. under oath
3. knowing it is false (or without good reason to believe it true),
4. the statement is material, that is, it "matters" -- makes a
difference in how the court proceeds or the outcome of the case.
That is why the majority of Americans were against the proposed
impeachment of Clinton. I don't think anybody believed that he told the
truth, or that his false statement wasn't under oath, or that he didn't
know it to be false. But most people thought it was completely
irrelevant and immaterial to Paula Jones's lawsuit for sexual harrassment.
> Article VI of the U.S. Constitution specifies that all legislators,
> executive, and judicial officers take oaths (or affirmations) to
> support the Constitution. Congress has the power to enact legislation
> to enforce this provision including to set the exact text of the oath
> and to make additions.
Actually, the Constitution specifies the exact wording of the
President's oath of office. That's why Pres. Obama took the oath again
after Chief Justice Roberts bobbled it. (What kind of idiot can't read
35 words when he has had 2 months to prepare for it?)
> An Officer of the Court swears to ethics that define any APPEARANCE of
> impropriety as something that should be avoided.
An Officer of the Court is held to those standards of ethics by an act
of the Legislature, not by the mere oath.
When you come down to it, at law an oath is simply a promise, with no
more legal meaning than any other promise. Again, the witness's oath is
an exception _by statute_.
> I see no
> justification, legally or morally, for the position seemingly taken
> that a military officer, alien, or parolee could be punished for not
> doing what he should whereas other public servants cannot be held to
> general behavioral guidelines in compliance with their oaths.
The law specifies the punishment for violating the UCMJ, a specific
criminal law, or parole. The law does _not_ specify the penalty for
"other public servants". (I also take issue with "other", since the
alien or parolee is not a "public servant" to be contrasted with.)
> They say contracts are made to be broken and pivot on measurable loss.
> Vows are made to be kept and involve immeasurable faith and trust. I
> see limits to comparing Breach of Contract with Breach of Trust. I
> suggest that when you take an oath you waive the defense that
> violation does not "matter".
But that's not what the law says. The perjury law _specifically_ says
that it's only perjury if the false statement "matters".
> As for forcing someone to incriminate himself, consider being charged
> with possession of drugs. If they were in your car you need to explain
> it.
No you don't. You can let the state put on its case and never open your
mouth. You may get convicted of drug possession because you failed to
explain it away, but your failure to speak up cannot be considered by
the jury. [The distinction may seem a fine one, but it's quite clear.
The jury may _not_ reason, "he didn't defend himself so he must be
guilty." But they are also not supposed to make up hypotheticals for
which no evidence is presented. If the defendant does not explain how
the drugs got there, they may take the available evidence -- drugs found
in the defendant's car -- as meaning that he had control over them and
hence was in possession. If the defendanto offers an alternate
explanation by evidence (testimony or physical), the jury should
consider the credibility of his evidence vs. that presented by the
prosecution. For example, if he testifies that he did not know about
them, and that he just picked up the car from a garage, the jury _might_
believe him, and if they do they should find him not guilty.]
> Public service like military service is a privilege requiring courage
> and sacrifice. When people fail in their duties, they need to be
> removed. When it's egregious, they need to be publicly punished. Tired
> soldiers who abandon guard duty are subject to summary execution. Who
> works for the government without guarding something?
Our system already provides that people can be removed from office in a
variety of ways. Politicians and judges can be impeached. In some
states they can be recalled. They can be voted out at the next
election. Civil Servants can be disciplined, even fired for violating
the rules -- failing to show up, not doing the job, handing out goodies
that people are not entitled to, or not handing out goodies that people
_are_ entitled to.
The problem with your approach is that you have, in effect, turned every
misbehavior by a government employee, military person, parolee, alien,
or naturalized citizen into a _single_ crime: violating their oath.
That means that _all_ those misbehaviors would be subject to the same
punishment (or range of punishments).
Do you really want to impose the same punishment for smoking in the
office as for taking a $1million bribe? For breaking your campaign
promises to fix the unfixable as for intentionally executing an innocent
man?
Or are you going to divide things up into "first degree oathbreaking,
second degree oathbreaking, etc." If so, what is the advantage over
the current system of punishing people for violating specific laws.
Please note that if you are thinking about possible punishment of
members of the GWBush administration for violating their oaths of
office, nearly every one _could_ be prosecuted under other laws *if*
the current administration chose to do so.(*). War crimes. Illegal
wiretaps. Torture almost certainly violates both civilian law and the
UCMJ. etc.
As the saying goes, Be careful what you wish for. YOu might get it.
(*) And, much as I hated what Bush, Cheney, et al did the to the
United States and our Constitution, I hope they will not. The notion
that an outgoing administration will be prosecuted for doing things
that turned out to be unpopular (or turned out badly and then _became_
unpopular) would be a bad precedent, and could spell the end of over
200 years of Presidents peacefully leaving office and turning the job
over to a new President, who may have radically different policies.
mm
wrote:
>That is why the majority of Americans were against the proposed
>impeachment of Clinton. I don't think anybody believed that he told the
>truth, or that his false statement wasn't under oath, or that he didn't
>know it to be false.
Actually, I have no idea what the statement in question was. I paid
attention to most of that stuff, but I still don't know what it was.
> That's why Pres. Obama took the oath again
>after Chief Justice Roberts bobbled it. (What kind of idiot can't read
>35 words when he has had 2 months to prepare for it?)
He didn't try to read it. He didn't have a copy of it in front of him.
He thought he knew it by heart! The arrogance of being smart.
>
>> They say contracts are made to be broken and pivot on measurable loss.
I think the expression is "Promises are made to be broken" and the
only people who say that are those who have broken their promises.
>> Vows are made to be kept
So are promises and contracts. There is no distinction on this
point.
>> I
>> suggest that when you take an oath you waive the defense that
>> violation does not "matter".
Who has said it doesn't matter? That someone can't be prosecuted for
violating an oath or affirmation doesn't mean it doesn't matter in
other ways.
>But that's not what the law says. The perjury law _specifically_ says
>that it's only perjury if the false statement "matters".
>
> [The distinction may seem a fine one, but it's quite clear.
>The jury may _not_ reason, "he didn't defend himself so he must be
>guilty." But they are also not supposed to make up hypotheticals for
>which no evidence is presented.
Do they go over all these details every time the defendant doesn't
testify?
I think maybe their should be charge to the jury before the trial
begins, so they can use the information while they are listening to
testimony, and then another charge afterwards that might repeat much
or all of what was said, just before they deliberate.
>(*) And, much as I hated what Bush, Cheney, et al did the to the
>United States and our Constitution, I hope they will not [be prosecute]
I do hope the Congress continues to pursue Myers and Rove and one
other who didn't merely refuse to testify, but didn't even bother to
appear before Congress when subpoenad, who claim in some cases that
what they know is covered by Executive Privelege, when Bush says it
was never discussed by him with them (so how could it be Executive
Privlege).
And I hope that the U.S Attorneys whereever those three people live
cooperate with the Congress in arresting them for disobeying a
subpoena, and in fact I hope that the committee that reviews the
nomination of the US Attorneys extracts a promise that each will
cooperate. (IIRC, Eliot Richardson and maybe a second one resigned
as Attorney General?, sort of because he had promised the committee
that he would not fire Archibald Cox, and then Nixon told Rich. to
fire Cox. Since he had promised that he wouldnt', he didn't, but he
resigned iiuc because he wasn't doing what Nixon wanted. Actually,
this was presented by the news as resigning because he had promised
Congress (that is, the committee), but he didn't violate his promise
to Congress.
Robert Bonomi
>>On Mar 21, 1:19 pm, mm <mm2...@bigfoot.com> wrote:
>
>
>The Air Traffic Controllers were under Civil Service. This provides a
>lot of protection for jobs, but even Civil Service employees can be
>fired for repeated failure to report to work without a valid excuse.
>
>Another factor: the NLRA makes it illegal for an employer to fire
>employees for engaging in a valid labor action. This presumably applies
>to the Federal Government as well. So simply striking would not be
>valid grounds for firing them. However, the oath (or even "pledge") of
>no strikes gave Reagan grounds for the firing.
Note: there are *exceptions* to the aforementioned NLRA prohibition for
certain kinds of 'critical' public-sector jobs. Specifically regarding
the 'right' to strike. Air traffic control _is_ one such position.
Police and firemen are similarly prohibited from striking -- this leads
to various kinds of labor actions designed to accomplish a similar end
but without being an actual 'strike' -- e.g., the 'blue flu' (where *large*
numbers of police officers call in 'sick' on the same dates). Unless
"management" (the gov't) can prove conspiracy regarding this 'concerted
action', those doing it --- and those who instigated it, if it really _was_
instigated :) -- *are* within the 'letter of the law', although in clear
violation of the 'spirit' thereof.
Steve Bartman
<Silence...@angelic.com> wrote:
The period of service in the military extends from
>the taking of oath to discharge.
This is not correct. For enlisted member, who are not officers of the
Executive branch, military service is by contract. Normally the
statutory oath is administered concurrent with the signing of the
contract, but it's the contract that places the member under the UCMJ.
And it's the contract that spells out when the obligated military
service is completed. This may be at discharge, or it may be after
discharge from active duty as well as after discharge from obligated
reserve duty, even if that reserve duty is in the IRR and does not
involve drilling, maintaining military standards of fitness or
haircut, or being paid (except for mileage to appear once per year at
a Reserve Center.)
Officers' service extends from the date of their acceptance of a
commission from the President. Again, this is normally done concurrent
with taking the statutory oath, but doesn't have to be, especially in
battlefield conditions. Obligation extends to the time the officer's
resignation is accepted (the President's "pleasure" is that the
officer be released from service), the commission is revoked either by
the President or through law as approved by the President (example, a
RIF), by action under the UCMJ, or the officer dies. Former officers
are subject to involuntary recall until, I believe, age 60, or older
in extraordinary circumstances.
We might well regard all military
>prosecutions as falling under the umbrella of violation of voluntary
>pledge to follow military rules.
As others have noted, the UCMJ, federal statute, is the umbrella
you're looking for. The oath has nothing to do with it.
Tired
>soldiers who abandon guard duty are subject to summary execution.
Despite what you see in the movies, this isn't true. There are NO
offenses--not mutiny, not cowardice in the face of the enemy, not
sedition, not abandoning one's post--where an officer is authorized to
execute the service member without himself having to face UCMJ
repercussions. A court martial can award death; an officer cannot
himself be judge, jury, and executioner.
Steve
Stuart A. Bronstein
> bg...@nyx.net (Barry Gold) wrote:
>
>>That is why the majority of Americans were against the proposed
>>impeachment of Clinton. I don't think anybody believed that he
>>told the truth, or that his false statement wasn't under oath, or
>>that he didn't know it to be false.
>
> Actually, I have no idea what the statement in question was. I
> paid attention to most of that stuff, but I still don't know what
> it was.
It was something along the lines of:
Q: Did you have sex with Monica Lewinsky:
A: No, I did not have sex with that woman.
Clinton apparently interpreted the question as meaning, did he have
sexual intercourse with her?
> So are promises and contracts. There is no distinction on this
> point.
No, promises by themselves are not contracts. They are legally
enforceable only if the other person gives or promises something in
return, or does something that reasonably relies on the promise that
will cause problems if the promise is not fulfilled.
>>But that's not what the law says. The perjury law _specifically_
>>says that it's only perjury if the false statement "matters".
It's perjury if it was not true at the time made. If someone meant
it when he said it but later changed his mind, that doesn't make it
perjury.
> Do they go over all these details every time the defendant doesn't
> testify?
It's part of the normal jury instructions.
Stu
mm
<spam...@lexregia.com> wrote:
>mm <mm2...@bigfoot.com> wrote:
>> bg...@nyx.net (Barry Gold) wrote:
>>
>>>That is why the majority of Americans were against the proposed
>>>impeachment of Clinton. I don't think anybody believed that he
>>>told the truth,
Afaik about what was said, I think he told the truth. See below.
>> or that his false statement wasn't under oath, or
>>>that he didn't know it to be false.
I think it was true and that he believed it to be true. See below.
When I've discussed these seven lines, from the start of the post till
here, with my ex-girlfriend, she thought the same thing.
>> Actually, I have no idea what the statement in question was. I
>> paid attention to most of that stuff, but I still don't know what
>> it was.
>
>It was something along the lines of:
>
>Q: Did you have sex with Monica Lewinsky:
>
>A: No, I did not have sex with that woman.
For the sake of believing in the system, I was hoping the line in
question was something other than that.
>Clinton apparently interpreted the question as meaning, did he have
>sexual intercourse with her?
Yes, that's what he took the question to mean. But what exactly were
the words of the question, and much more importantly, what exactly
were the words of the answer?
At one point, although I don't know if he was under oath then, or if
this is what brought the perjury complaint, he said "I did not have
sexual relations with that woman". I don't think he ever said "I did
not have sex with that woman." I think younger people who are not in
the habit of using the term "sexual relations" and use the term "sex"
in its place are constantly misquoting him. But I could be wrong.
I don't know what people mean by "sex". I think it is a word with
more than one meaning that could fit sentence like the one in
question. It may well for some be much broader than the meaning of
sexual relations. And by changing his words from "sexual relations"
to "sex" they cause people to think he said something broader than
what he said.
I'm the same age as Clinton and grew up in Western Pa. and
Indianapolis, and went to college in Chicago. To me, based on how the
words were used in front of me, mostly by my mother I think, "sexual
relations" has always meant and still means sexual intercourse,
coitus, and nothing else. And no one has claimed he had coitus with
her, and one source said specifically that they didn't. Because
Clinton had resolved not to commit adultery, and sexual activities
short of coitus are not adultery. (Even though they may well still be
"cheating". I think it is certain that one can cheat on a spouse
without committing adultery.) So afaic, Clinton's statement was true.
I do believe he told the truth. (I disapprove of him messing around
with Monica, but that doesn't mean one may call his statement perjury
if it wasn't.)
I have seen other examples of this involving people other than
Clinton: I don't think people know how to ask a good question, and
when someone answers the question they actually asked, the questioners
conclude that the answerers are lying. And later when it's an issue,
they refuse to re-examine the meaning of their questions and keep
asserting that the answerer lied. To accept that they didn't ask the
question correctly means in some cases that the answerer made a fool
out of the questioner, and people don't want to admit that, even to
themselves.
Another example of this that involves Clinton was "Is there a special
relationship between you and Monica Lewinsky". He said No. Later they
claimed he was lying. He said there *was* a special relationship but
it had ended [many months ago, or whatever], and now there is not one.
That's when he said "It depends on what the meaning of 'is' is." It
was a tactical mistake probably to say that line, but he's right. And
other people know this and have taken steps to avoid the problem.
That's why Joseph McCarthy would ask "Are you now or have you ever
been a member of the Communist Party?". Because if he had asked "Are
you a member of the Communist Party?", everyone who had quit would
have said No. In fact, all but the devoted would quit the day before
they were to testify, and then they would say No. And they would all
be telling the truth.
If Andy used to date Brenda and they had no children, and you asked
Andy, "Do you have a special relationship with Brenda?", he'd likely
say, "Well, I used to, but I don't anymore. We used to date. But we
stopped dating and I haven't seen her in months. [And if he hadn't
talked to her: I don't talk to her anymore, and] we have no
relationship.
He usually wouldn't say, "Oh, yes, I have a relationship with her.
I'm her ex-boyfriend." People would laugh at him if he called that a
relationship. Some would say that he was a nerd trying to prove he
once had a girlfriend,
One line restored:
>>> Vows are made to be kept.
>> So are promises and contracts. There is no distinction on this
>> point.
>
>No, promises by themselves are not contracts.
Of course they aren't. But what I was saying is that promises and
contracts are like vows, which Silence said are made to be kept. They
are all made to be kept. Silence had said a) that they say contracts
are made to be broken and b) vows are made to be kept. Point a is
only sarcasm anyhow (people who say it don't mean it seriously, even
if they are in the process of breaking a contract), and the same
people who are sarcastic about contracts are probably sarcastic about
vows and promises, when they want to break one of those.
I don't think Silence had brought up legal enforceability. At any
rate, I wasn't addressing that.
>> Do they go over all these details every time the defendant doesn't
>> testify?
>
>It's part of the normal jury instructions.
Good.
>Stu
Barry Gold
>>
>>>That is why the majority of Americans were against the proposed
>>>impeachment of Clinton. I don't think anybody believed that he
>>>told the truth, or that his false statement wasn't under oath, or
>>>that he didn't know it to be false.
Stuart A. Bronstein <spam...@lexregia.com> wrote:
>It was something along the lines of:
>
>Q: Did you have sex with Monica Lewinsky:
>
>A: No, I did not have sex with that woman.
Ah. Like too many other people you didn't pay attention to all the
details. One of the questions asked was whether he had ever touched
Lewinsky's breasts. He answered that he had not but later admitted
that he had.
I agree that "have sex" can be ambiguous. People of my generation
(60+) are likely to include any penetration (or in some cases any
direct genital contact, e.g., a hand-job), while teens-30s are likely
to consider that it means only penis-in-vagina intercourse. (I'm not
sure what standards they would apply for a same-sex couple.)
>>>But that's not what the law says. The perjury law _specifically_
>>>says that it's only perjury if the false statement "matters".
>
>It's perjury if it was not true at the time made
*and* if it is material.
>If someone meant
>it when he said it but later changed his mind, that doesn't make it
>perjury.
Very true. *Only* statements about the past (or the immediate
present) can be false in the sense used in perjury law. (Example: are
you masturbating under that table? No. If it can be shown that the
witness _was_ fondling his/her genitals with sexual intent, that would
be perjury -- if material.)
Silence DoGood
> See Addam v. Superior Court (4th Dist. 2/3/2004) 116
> Cal.App.4th 368, 10 Cal.Rptr.3d 39.
Is this available over the internet? So far, I can find only
references to it. I am eager to read this, as many of the comments
appear to have more to do with tradition than formal legal precedent.
Generally speaking, no governmental body would have authority to
exempt a public servant from an oath and/or duties that are mandated
in a constitution.
On the other hand, the idea of an enabling act rings with logic which
begs the question of a possible indictment, trial, and conviction for
violation of oath, perhaps even a sentencing, then an appellate
reversal of jail time saying the court had no authority to impose
sentence. To my mind, that might still be well worth it.
Silence DoGood
>Silence had said a) that they say contracts
> are made to be broken and b) vows are made to be kept. Point a is
> only sarcasm anyhow (people who say it don't mean it seriously, even
> if they are in the process of breaking a contract), and the same
> people who are sarcastic about contracts are probably sarcastic about
> vows and promises, when they want to break one of those.
Definition 2 of contract in my unabridged dictionary calls a contract
"an agreement enforceable by law" but the *first* definition refers
only to to doing or not doing something specified.
So, when an owner and a coach hold a news conference displaying a
signed contract which says both that the coach will head the team for
five years AND that he will be paid 1 million per year and then the
owner fires him after the first year, under modern jurisprudence if
the owner pays five million, he could likely get a breach of contract
suit dismissed, yet most people would still say the contract had been
"broken" and the sportscasters would say it had been made to be boken.
In at least some states, the enabling act for such a dismissal is
highly questionable, but as a practical matter the administrator may
have full authority to limit an award, and if the dismissal shows an
intent to limit it to what has already been paid, the aggrieved has
nothing to gain by questioning the dismissal.
A vow, on the other hand, may pledge specific behavior, but also
service, or a condition. "I pledge allegiance to the flag..." is a
vow, not a contract. A nun who becomes pregnant by consent might not
owe monetary damages to the church, but clearly breaks her vow.
Any teen who pledges at 7pm Friday to be home at midnight and instead
rolls in at 1:30am had better come up with better than "I made that
promise yesterday," to avoid punishment from the parents I know.
When public servants take an oath, they pledge to put service to the
public ahead of personal interest.
There might also be a current test for this. A Grand Jury appears to
have the power to place anyone under oath and ask them anything. So,
they could haul in an official and ask if s/he still believed and
supported the oath and the constitution. If s/he says "Yes", then s/he
could be subject to perjury on that statement, and anything less would
be cause for the Grand Jury to request his/her resignation.
Suppose a Grand Jury were to indict for perjury based on violation of
an oath of office? I see nothing yet that would stop that, nor any law
or precedent (as opposed to tradition) that would allow a judge to
dismiss such a case beyond for possible lack of evidence. This is not
to underestimate the difficulty of proving such a case.
Deadrat
4d6f-9cb7-c...@h28g2000yqd.googlegroups.com:
> On Mar 31, 11:53�am, Deadrat <a...@b.com> wrote:
>> �See Addam v. Superior Court (4th Dist. 2/3/2004) 116
>> Cal.App.4th 368, 10 Cal.Rptr.3d 39.
>
> Is this available over the internet? So far, I can find only
> references to it. I am eager to read this, as many of the comments
> appear to have more to do with tradition than formal legal precedent.
Sorry, I ran across the case when I looked at the site listing and
explaining the California code of ethics for attorneys. As I recall, I
did a site search on the word "oath."
> Generally speaking, no governmental body would have authority to
> exempt a public servant from an oath and/or duties that are mandated
> in a constitution.
Reading your posts gives me a headache. Perhaps from slapping my
forehead in disbelief and frustration. Here you have a statement that is
either wrong or null. For the purposes of your topic of discussion,
generally speaking, there are no "constitutions." There are individual
constitutions, each with a body of precedent and tradition that go into
interpeting it. *Specifically speaking* for instance, we have the US
Constitution, which is defined to be the supreme law of the land and
which all officials are supposed to follow. In this document, one of the
officials is the President, and one of his mandated duties is the
appointment of USAs. Yet a governmental body (the legislature)
temporarily exempts the President from filling a vacant USA post by
allowing a federal judge to fill the vacancy.
> On the other hand, the idea of an enabling act rings with logic
On the other hand? What was the first hand? The "Generally speaking
lack of authority" mentioned above. How exactly is that a
counterbalancing notion to an enabling act?
Ideas don't usually ring. And things that ring usually don't ring with
logic. Oratory might ring;oratory might ring with, say, pride. An
enabling act? To enable what? You don't say. Criminal sanctions for
oath violation?
Does this mean "I think it logical that ..."
> which
> begs the question of a possible indictment, trial, and conviction for
> violation of oath, perhaps even a sentencing,
If you'd written "that begs the question," then I'd know that you were
talking about the logic doing the begging; If you'd written ", [comma]
which begs the question," then I'd know that you were talking about "the
idea of an enabling act" doing the begging. But to beg the question
means for an argument to assume the proposition that it's trying to
demonstrate. And I can't get that to make sense here. Do you mean
"invites the consideration"?
> then an appellate
> reversal of jail time saying the court had no authority to impose
> sentence.
Appellate courts don't reverse jail time; they reverse decisions of their
subordinate courts. This may mean vacating a punishment. But when would
an appellate court determine that a suborindate court had "no authority
to impose sentence"? if the court had authority to conduct a trial, the
sentence would be spelled out in law.
But it's worse than this. You have an apodosis ("then an appellate
reversal") which not only has no main verb, it has no prodosis (preceding
"if" clause). So I have a mystery consequence, and no idea of the
hypothetical situation that entails the conclusion, whatever it is.
To my mind, that might still be well worth it.
To be sure, failure of transmission is not always the fault of the
transmitter. Perhaps it's just me as receiver. That you get a number of
facts wrong leads me to believe that it's not entirely my fault.
Daniel R.Reitman
<Silence...@angelic.com> wrote:
>On Mar 31, 11:53 am, Deadrat <a...@b.com> wrote:
>> See Addam v. Superior Court (4th Dist. 2/3/2004) 116
>> Cal.App.4th 368, 10 Cal.Rptr.3d 39.
>
>Is this available over the internet? So far, I can find only
>references to it. . . .
>. . . .
Cases can sometimes be located online in free archives for the general
public. Sometimes, they cannot.
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY-CLIENT RELATIONSHIP
INTENDED.
Barry Gold
>On the other hand, the idea of an enabling act rings with logic which
>begs the question of a possible indictment, trial, and conviction for
>violation of oath, perhaps even a sentencing, then an appellate
>reversal of jail time saying the court had no authority to impose
>sentence. To my mind, that might still be well worth it.
And which prosecutor and judge would be stupid enough to pull this
stunt, do ya think?
Prosecutors work for DAs (or USAttorneys). DAs get reelected,
elected to higher office, and/or appointed to be judges by winning
cases -- and especially significant, newsworthy cases. USAs get to
keep their jobs or be appointed to higher positions the same way.
Getting slapped down by the first appellate court that takes a look at
the case is _not_ going to look good on his record. The Governor or
President is going to say, "This guy is a loose cannon. I'm not
appointing him to anything." Or if a DA is running for election, his
opponent is going to point to him wasting taxpayer resources on a case
that was obviously meaningless.
It's even possible he would be disbarred.
Same thing for the judge. The judge would like to keep his job.
Ideally, he'd like to be named to the appellate bench, and maybe
someday to the Supreme Court if he's lucky, smart, and keeps his nose
clean.
So this prosecutor, this defense lawyer, and this judge walk into a
courtroom. The prosecutor says, "He broke his solemn vow." The
defense lawyer says, "No enabling act. Move for dismissal." The
judge asks the prosecutor for an explanation, the prosecutor mumbles
something about, "Silence Dogood thought it would be a good idea."
The judge calls counsel into his chambers, reams the prosecutor a new
one, tells him if he ever pulls a stunt like that he'll recommend
disciplinary action to the state bar. Then they all go back to the
courtroom, the judge says, "The people have not stated a valid cause
of action. Case is dismissed."
End of joke.
Cy Pres
<Silence...@angelic.com> wrote:
>There might also be a current test for this. A Grand Jury appears to
>have the power to place anyone under oath and ask them anything. So,
>they could haul in an official and ask if s/he still believed and
>supported the oath and the constitution. If s/he says "Yes", then s/he
>could be subject to perjury on that statement, and anything less would
>be cause for the Grand Jury to request his/her resignation.
You appear to have vast delusions about the purpose and function of a
grand jury and the purpose of an oath of office.
>Suppose a Grand Jury were to indict for perjury based on violation of
>an oath of office? I see nothing yet that would stop that, nor any law
>or precedent (as opposed to tradition) that would allow a judge to
>dismiss such a case beyond for possible lack of evidence. This is not
>to underestimate the difficulty of proving such a case.
No, wrong again. A judge could dismiss it because such a claim is not
cognizable in law.
Mike Jacobs
> Definition 2 of contract in my unabridged dictionary calls a contract
> "an agreement enforceable by law" but the *first* definition refers
> only to to doing or not doing something specified.
You've lost me already. What EXACTLY did def #1 in your dictionary
say? I can't understand your paraphrase.
However, that's not the definition Merriam-Webster uses; see
http://www.merriam-webster.com/dictionary/contract
where the legal definition (an agreement enforceable at law) is
primary.
Whose "unabridged" are you using?
> So, when an owner and a coach hold a news conference displaying a
> signed contract which says both that the coach will head the team for
> five years AND that he will be paid 1 million per year and then the
> owner fires him after the first year, under modern jurisprudence if
> the owner pays five million, he could likely get a breach of contract
> suit dismissed,
If the owner pays the coach $5m he has FULFILLED the contract without
requiring (or permitting, if you are cynical) the coach to do anything
further as to fulfillment of the coach's end of the bargain opther
than packing up and walking away, which the contract probably DOES
require coach to do, if owner so requests. Most employees would be
happy to be paid for not working, and the law says that is sufficient
- he got paid for doing nothing for 4 more years, and probably didn't
even have to refrain from coaching anybody _else_ during all that
time. In fact you can bet your booties that the terms of such a
multimillion dollar contract likely INCLUDED a provision for what
would happen BY CONTRACT in the event the owner was dissatisfied with
the coach's services and wanted to replace him with somebody else.
Of course, "it depends" on what the contract actually says, but if it
does say so, then by fulfilling those terms of the contract, the owner
was NOT in breach, and any such suit rightfully WOULD be dismissed -
but it probably wouldn't even be brought, since the coach would know
he had zero chance of winning as he had no claim or right by contract
to CONTINUE COACHING that team - which seems to be the assumption on
which OP is basing his common sense understanding.
The only rights at issue here are those of the only 2 contracting
parties involved (the team owner, and the coach) who are perfectly
happy with the way in which (out of many possible options, all
provided for in the contract) they have fulfilled their obligations to
each other. OP, you seem to be thinking as if the team's FANS somehow
had some legal say in the matter, or that the coach had contracted
with THEM to lead their team for 4 more years, but get over that
quick. The fans have no legal say in the matter whatsoever, even
though they are the ones who will complain down at the corner bar that
"they got sold out" when the owner "broke" the coach's contract.
If you've been following the unrelated "duress/prostitution" thread
going on currently on MLM, you would know that a contract for personal
services cannot be enforced by a positive injunction - the court
cannot FORCE the coach to work for another 4 years if he doesn't want
to, since that would amount to slavery in violation of the 13th
amendment - but if the coach is the one who breaches his agreement by
walking out and leaving the owner in the lurch, owner may be able to
get a negative injunction (preventing him from coaching anywhere else
in the league, for the remaining duration of the original contract)
and/or may sue for damages. But in the actual example you gave,
NEITHER party is in breach if the owner decides, after 1 year, to end
the relationship and to pay coach the compensation to which he would
be entitled BY THE CONTRACT'S OWN TERMS in that eventuality. In that
sense, the coach's contract is kind of like an enforceable pre-nuptial
agreement - the coach is getting all he has agreed he is entitled to,
which is 4 more years worth of MONEY, not the RIGHT to coach the team
for another 4 years if owner doesn't want him to. It's the OWNER's
team, not the coach's, or the fans'.
> yet most people would still say the contract had been
> "broken" and the sportscasters would say it had been made to be boken.
"Most people" and sportscasters are not parties to the contract. What
they mean when they say that is simply that the relationship of the
parties (owner and coach) was terminated prematurely by one of the
parties, but that fact alone says nothing about whether those parties
did so in a manner that complied fully with THEIR AGREEMENT WITH EACH
OTHER and the applicable law. They are speaking as disappointed fans
with no legal stake in the matter.
> In at least some states, the enabling act for such a dismissal is
> highly questionable,
You've lost me again. Are we back to talking about impeachment of
public officials, or still going on about the coach's contract?
There is no "oath" required of a signing coach requiring him to vow to
remain with the team the full 5 years. If you thought there was, you
were simply naive or willfully blind to what the contract really says,
and what it is really about, which is MONEY changing hands, pure and
simple, although it will change hands differently depending on which
contractual option the parties choose to follow.
> but as a practical matter the administrator may
> have full authority to limit an award, and if the dismissal shows an
> intent to limit it to what has already been paid, the aggrieved has
> nothing to gain by questioning the dismissal.
Totally lost me there. Care to try again to rephrase that? Are you
still talking about the coach's contract? Who is the
"administrator?" What "award" are you talking about? What do you
mean by the double-entendre word "dismissal" - dismissal OF THE COACH
(i.e. Owner to Coach: "You're fired") or dismissal of THE CLAIM you
hypothesize the coach should be able to bring in court after being
fired but paid (Judge to Coach: "Case dismissed")?
> A vow, on the other hand, may pledge specific behavior, but also
> service, or a condition. "I pledge allegiance to the flag..." is a
> vow, not a contract.
And that vow CANNOT be enforced by any law, or compelled as a "loyalty
oath." That would violate our most basic freedoms, even though such
fascist-tending ideas have cropped up repeatedly throughout US
history.
> A nun who becomes pregnant by consent might not
> owe monetary damages to the church, but clearly breaks her vow.
And your point is? That broken vow is a religious, not a legal,
matter.
A vow is a future behavioral promise you make to your G-d, not to
another human being, although that vow may relate to, and be
coextensive with your obligations under a contract with, another
human. The law has remedies for breach of your contract with that
human, but not for breach of your promise to G-d - that part is
between you and G-d. Keep in mind that, even religiously, breaking a
vow is not the sin of "lying" (and therefore not legally "perjury"
either) if the person making the vow fully intended to keep his
promise at the time it was made, but just changed his mind or was
prevented by circumstances from fulfilling it before it was completed
(vows may by their own terms be time-limited, or may be eternal, of
course).
> Any teen who pledges at 7pm Friday to be home at midnight and instead
> rolls in at 1:30am had better come up with better than "I made that
> promise yesterday," to avoid punishment from the parents I know.
Why do you assume anyone doubts this? The point MM (and I, in a
separate post a few days ago) was making is that _both_ contracts, and
vows, are made to be KEPT, at risk of punishment (of SOME kind, either
temporal or spiritual) if they are broken. So, I still don't see your
point. The curfew-breaking teen will not be subject to a lawsuit by
his parents in which he could owe them money damages at law for
breaking his promise to be home by a certain time, even though he may
get other punishment from THEM (including, maybe, getting his
allowance taken away) OR from his religious beliefs, which may condemn
him to eternal punishment of his eternal soul if he dies with this sin
on his record without confessing and having it wiped clean, but that
is not the same thing. I presume you know that the law, as a
fallible, limited human institution, doesn't reach that far, or try
to.
> When public servants take an oath, they pledge to put service to the
> public ahead of personal interest.
Okay. We're on the same page there. But, your point is?
If they break that pledge, they get punished for what they DID that
violated the public trust, not for "breaking their oath"
> There might also be a current test for this. A Grand Jury appears to
> have the power to place anyone under oath and ask them anything.
True, but they can't compel an ANSWER in violation of the 5th
Amendment privilege against self-incrimination.
> So,
> they could haul in an official and ask if s/he still believed and
> supported the oath and the constitution. If s/he says "Yes", then s/he
> could be subject to perjury on that statement, and anything less would
> be cause for the Grand Jury to request his/her resignation.
I'm going to quit arguing with you now, OP. You are going to get
nowhere with this hobby horse of prosecuting public officials for
perjury every time they are guilty of some malfeasance or misfeasance
or nonfeasance of their office. As someone else said here a few days
ago, if that were all there was to it, why do we need any of these
other laws? Not gonna happen.
> Suppose a Grand Jury were to indict for perjury based on violation of
> an oath of office? I see nothing yet that would stop that,
The 5th Amendment? Due process? Right against self-incrimination?
> nor any law
> or precedent (as opposed to tradition) that would allow a judge to
> dismiss such a case beyond for possible lack of evidence.
Yes, he would probably dismiss on that ground, or on ground that the
entire prosecution was unconstitutional. Even if the witness
responded and did not "take the 5th," how can the prosecution EVER
prove that the officeholder was lying when he said to the grand jury
that he DID support the Constitution of the US and its laws? That is
totally within his own heart, and can never be proven or disproven by
anyone except G-d. What you are proposing sounds an awful lot like
bringing back the Spanish Inquisition to force "heretics" to recant
and admit their past evil THOUGHTS and accept the "true faith" and be
punished for their past transgressions as LIES rather than as whatever
those sins really and specifically were, if any. We can't compel a
person to testify against himself in this country, so long as we have
a viable 5th Amendment privilege, long may it live. So, even if the
Grand Jury could conceivably want to ask that question, they could not
compel an answer, nor could they ever find any evidence that would
contradict the officeholder's statement that he WAS "loyal" to the
Constitution even if the officeholder (for PR reasons, maybe, in a Joe
McCarthy kind of era) _did_ choose to answer and affirm his loyalty
and faithfulness to "the true path". Such inquests, and
prosecutions, are almost identical to what you now seem to be
proposing; haven't we already realized for decades that the nasty
little senator's anti-Commie probes and the HUAC hearings and all
their works were unconstitutional, un-American, and disloyal to the
principles of liberty and justice we really stand for, in and of
themselves? G-d forbid we go back.
> This is not
> to underestimate the difficulty of proving such a case.
Isn't "difficulty of proving" the same thing as "lack of evidence"?
Stuart A. Bronstein
>> �See Addam v. Superior Court (4th Dist. 2/3/2004) 116
>> Cal.App.4th 368, 10 Cal.Rptr.3d 39.
>
> Is this available over the internet?
You can find it at http://lp.findlaw.com
Stu
Silence DoGood
> Merriam-Webster uses...
Here is what I read there for Contract:
1 a: a binding agreement between two or more persons or parties ;
especially : one legally enforceable
Ergo, an agreement could be "binding" and presumably "broken" without
legal redress.
> MONEY changing hands, pure and simple...
Marriage is a contract, right? I think it's illegal for money to
change hands. An earlier post said military service starts
with a contract.
>Who is the "administrator?"
The person who usually sits on the bench and wears robes, commonly
called the "judge", is technically a judicial
administrator who is there to apply the law, not to pass judgement.
> That would violate our most basic freedoms...
Doesn't history show that Confederates were made to take loyalty oaths
as a prerequisite to full social priviledge
after the Civil War?
>True, but they can't compel an ANSWER in violation of the 5th
>Amendment privilege against self-incrimination.
You can't plead the fifth in a military court can you? You waive that
right, and many more, when you take the oath of
service.
> why do we need any of these other laws?
A cop can write a ticket for reckless driving partly because driving
is not a right and neither is violating an oath.
>The 5th Amendment? Due process? Right against self-incrimination?
If applicable, these might prevent a conviction, but I asked how it
could stop an *indictment*. Ken Lay was convicted on his own
testimony, according to jurors, having taken the stand over the advice
of his attorneys.
> Spanish Inquisition
I'm not talking about religion, torture, burning at the stake, or
confiscating property without recompense. I'm talking
about getting somebody out of office that the public doesn't like no
matter which fellow government officials, even
when elected ones and/or prosecutors, would like to keep and protect
them. This is close to a last resort, and might
not be "fair" but it's peaceful. If we ask someone to justify what s/
he did on the job and get no answer, that seems to
me a confession to not doing one's best.
>Isn't "difficulty of proving" the same thing as "lack of evidence"?
Suppose the prosecutor presents two scenarios which both lead to
convict an accused and the defense attorney
comes up with a third possibility. That's reasonable doubt unless the
prosecutor can show that would also show
guilt, and that would be losing the case for forgetting to cover all
bases, not for lack of evidence.
Mike
> On Apr 6, 2:18 pm, Silence DoGood <Silence_DoG...@angelic.com> wrote:
>> Definition 2 of contract in my unabridged dictionary calls a contract
>> "an agreement enforceable by law" but the *first* definition refers
>> only to to doing or not doing something specified.
>
> You've lost me already. What EXACTLY did def #1 in your dictionary
> say? I can't understand your paraphrase.
I think this was it.
http://dictionary.reference.com/dic?q=contract&search=search
con-tract
-noun
1. an agreement between two or more parties for the doing or not doing
of something specified.
Dictionary.com Unabridged
Based on the Random House Dictionary, (c) Random House, Inc. 2009.
Mike
> So this prosecutor, this defense lawyer, and this judge walk into a
> courtroom.
Now that sounds like the setup for some bad lawyer joke:)
Silence DoGood
> There are individual constitutions, each with a body of precedent and tradition that go into
> interpeting it.
Consider this: A prosecutor notices that his conviction rate exceeds
80% for violent crimes, under 30% for perjury, and lower for abuse of
power. Should security in office have anything to do with decisions
made?
History records that in July, 1787 it had been agreed that
congressmen, judges, the President, and other officers should swear
oaths to support the Consitution over objections from James Wilson who
opined that a good government did not need oaths (See _Miracle of
Philadelphia_ pg 214),
What I have seen in this thread is a lot of general agreement with Mr.
Wilson but that is not the same as precedent and tradition against
prosecution which, in any case, ought not trumph plain language.
Let's turn it around. Would it be a crime for a citizen to bring a
complaint to a Grand Jury and for the Grand Jury to return a true bill
if it later turned out that some judge dismissed the case on the basis
that the alleged wrong was not a crime?
Where is the oath that says: "I promise not to commit a crime while in
office,"???
Deadrat
4186-8b42-9...@s20g2000vbp.googlegroups.com:
>
>
>
>> Merriam-Webster uses...
>
> Here is what I read there for Contract:
> 1 a: a binding agreement between two or more persons or parties ;
> especially : one legally enforceable
>
> Ergo, an agreement could be "binding" and presumably "broken" without
> legal redress.
>
>> MONEY changing hands, pure and simple...
>
> Marriage is a contract, right?
So you think "love, honor, and obey" is a contractual obligation? No,
marriage is not a contract. States have written into law certain
arrangements regarding the division of property upon dissolution of
marriages.
> I think it's illegal for money to change hands.
As in, "I'll agree to marry you if you give me a $5000 ring?"
> An earlier post said military service starts with a contract.
>
>>Who is the "administrator?"
>
> The person who usually sits on the bench and wears robes, commonly
> called the "judge", is technically a judicial
> administrator who is there to apply the law, not to pass judgement.
What do you think judges do in a bench trial?
>> That would violate our most basic freedoms...
>
> Doesn't history show that Confederates were made to take loyalty oaths
> as a prerequisite to full social priviledge after the Civil War?
AS a prerequisite for release from prison, Presidential pardon, or for
holding subsequent office. A Missouri law requiring all attorneys to
take a retroactive loyalty oath before practicing law was struck down as
a bill of attainder.
>>True, but they can't compel an ANSWER in violation of the 5th
>>Amendment privilege against self-incrimination.
>
> You can't plead the fifth in a military court can you? You waive that
> right, and many more, when you take the oath of service.
Good Lord! Where do you get this? No, you don't waive the 5th in a
court martial. Enlistment doesn't entirely waive the 1st either. See
the "Impeach Nixon" case.
>> why do we need any of these other laws?
>
> A cop can write a ticket for reckless driving partly because driving
> is not a right and neither is violating an oath.
>
>>The 5th Amendment? Due process? Right against self-incrimination?
>
> If applicable, these might prevent a conviction, but I asked how it
> could stop an *indictment*. Ken Lay was convicted on his own
> testimony, according to jurors, having taken the stand over the advice
> of his attorneys.
Indictments are almost entirely creatures of the executive, covered by
prosecutorial discretion. So there's no place to stop an indictment from
being issued. But indictments may be quashed by a court if, for example,
a defendant had been forced to testify before a grand jury in violation
of his 5th Amendment rights.
>> Spanish Inquisition
>
> I'm not talking about religion, torture, burning at the stake, or
> confiscating property without recompense. I'm talking
> about getting somebody out of office that the public doesn't like no
> matter which fellow government officials, even
> when elected ones and/or prosecutors, would like to keep and protect
> them.
In this country, this is called an election, an impeachment, or a recall.
> This is close to a last resort, and might
> not be "fair" but it's peaceful.
All of these things are "fair," in that known procedures are specified in
advance, and all of them are peaceful.
> If we ask someone to justify what s/
> he did on the job and get no answer, that seems to
> me a confession to not doing one's best.
Who's "we"? And why should "we" take any note of what seems right to
you?
>>Isn't "difficulty of proving" the same thing as "lack of evidence"?
>
> Suppose the prosecutor presents two scenarios which both lead to
> convict an accused and the defense attorney
> comes up with a third possibility. That's reasonable doubt unless the
> prosecutor can show that would also show
> guilt, and that would be losing the case for forgetting to cover all
> bases, not for lack of evidence.
Let me see if I have this straight. Suppose a DA discounted the
possibility of the presentation of a theory of the crime, because in his
professional judgment, the judge would preclude the presentation as a
matter of law or the defendant would avoid the presentation as a matter
of risk. And the defendant asked to present the theory anyway, the judge
agreed to allow it, and the jury bought it and acquitted.
You would claim that the DA failed to uphold his oath? Why not the
judge? Or the jurors?
Barry Gold
>> So this prosecutor, this defense lawyer, and this judge walk into a
>> courtroom.
Mike <prab...@shamrocksgf.com> wrote:
>Now that sounds like the setup for some bad lawyer joke:)
It was supposed to...
Barry Gold
>Here is what I read there for Contract:
>1 a: a binding agreement between two or more persons or parties ;
>especially : one legally enforceable
>
>Ergo, an agreement could be "binding" and presumably "broken" without
>legal redress.
Legal maxim: A right without a remedy is not a right. I think the
same would apply to a contract. AFAIK, if there is a legal contract
and one party breaches it, the courts will always do their best to put
the non-breaching party in the position he would have been in had the
contract not been breached. That is, to "make him whole".
That basic idea, to "make (the plaintiff) whole" is behind almost all
the civil litigation in this country (and other countries that use
Common Law, and to some extent Civil Law countries like France).
See the duress/prostitution thread. In a state where prostitution is
legal, if the customer pays the prositute and she then refuses the
contracted services, the court will almost certainly order her to
refund his money. In some circumstances, they might also order that
she pay him the price of another, equally "good" prostitute (if she
had charged him an unusually low price, say as a "loss leader" to
attract new business).
Some people here think the court might even order the prostitute to
refrain from plying her trade with anybody else until she has
fulfilled her contract with the customer. I'm not convinced, but it
has happened with other types of contracts of employement.
>> MONEY changing hands, pure and simple...
>
>Marriage is a contract, right? I think it's illegal for money to
>change hands.
AFAIK it's not "illegal" in the sense of a crime. There are a lot of
ways for money to "change hands":
1. Joe pays Sally $20,000 in return for her promise to marry him
This is "legal", but the courts won't enforce the contract for
reasons of "public policy": there were too many lawsuits for
"breach of promise" and the courts decided that too many were
unfounded (brought as a form of blackmail) and a bad idea even if
valid.
2. Joe agrees to pay Sally $20,000 from his separate property upon
her marrying him
AFAIK this is a valid contract. If Sally marries Joe and he
refuses to pay her, the courts can enforce the contract.
3. Joe gives Sally $20,000 as they leave the wedding chapel.
This is a gift, and perfectly legal. No contract is involved,
however.
> An earlier post said military service starts
>with a contract.
Nowadays it does. Until the mid-70s, it often started with a notice
from a draft board that began, "From the President of the United
States: Greeting:".
>Doesn't history show that Confederates were made to take loyalty oaths
>as a prerequisite to full social priviledge
>after the Civil War?
That was because the engaged in Treason, as defined in the
Constitution: Making War upon the United States.
And what Congress wanted was a public declaration from the former
rebels that they renounced their rebellion and wouldn't do it no more.
It had no real legal effect, any more than the loyalty oaths of the
1950s et seq did.
>>True, but they can't compel an ANSWER in violation of the 5th
>>Amendment privilege against self-incrimination.
>
>You can't plead the fifth in a military court can you? You waive that
>right, and many more, when you take the oath of
>service.
Nope. You *still* have the right not to incriminate yourself. And to
be "secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures", although the interpretation of
that is different -- if you live in a military barracks, your
footlocker and suchlike are subject to routine inspections, and if an
inspection turns up contraband, it can be used in court. You also
have the right to a lawyer (and you can use a civilian lawyer if you
can afford to hire one). And to a speedy trial and to confront the
witnesses against you.
>> why do we need any of these other laws?
>
>A cop can write a ticket for reckless driving partly because driving
>is not a right and neither is violating an oath.
A cop can write a ticket for reckless driving because there is a
_specific law_ against reckless driving, which defines what
constitutes "reckless driving". The fact that driving is "a
privilege" instead of a right doesn't diminish your right to due
process if the cop gives you a ticket: you are still entitled to a
trial (although in most places you get a judge, with no option for a
jury), to have the witness (the cop) show up to be questioned, etc..
>>The 5th Amendment? Due process? Right against self-incrimination?
>
>If applicable, these might prevent a conviction, but I asked how it
>could stop an *indictment*. Ken Lay was convicted on his own
>testimony, according to jurors, having taken the stand over the advice
>of his attorneys.
Irrelevant. Even an indictment is supposed to follow due process. I
particular, it's supposed to specify what law you are accused of
violating. An "indictment" that fails to do so will never make it
past the judge.
>> Spanish Inquisition
>
>I'm not talking about religion, torture, burning at the stake, or
>confiscating property without recompense. I'm talking
>about getting somebody out of office that the public doesn't like no
>matter which fellow government officials, even
>when elected ones and/or prosecutors, would like to keep and protect
>them.
Oh, this is getting worse and worse. We have at least three ways of
getting officials out of office:
1. Vote them out at the next election
2. Impeachment by the legislature
3. Conviction of a felony (except for the President and US Judges)
In addition, some states provide for recall of politicians who are
sufficiently disliked.
Oh, and for officials like the President or those close to him, we
also have the mechanism of Special Prosecutors.
Now really. If no prosecutor wants to prosecute, and the legislators
aren't sufficiently offended to throw the bastard out, exactly _what_
mechanism do you think should be used?
>This is close to a last resort, and might
>not be "fair" but it's peaceful. If we ask someone to justify what s/
>he did on the job and get no answer, that seems to
>me a confession to not doing one's best.
Did you ever listen to a speech by GWB (or Clinton, if you lean toward
the Republican side)? A politican will always be able to come up some
justification for why whatever he did (or didn't do) was the right
thing.
So in the final analysis, what you are proposing is that somebody
(who?) put them on the witness stand and ask them to justify
themselves. Which they will do, glibly. It will all be waste of
taxpayer money.
I think I'm going to join those who refuse to comment to you, because
this is getting awfully close to, "I don't know what I want, but I
want it and I'd better get it or else."
Silence DoGood
wrote:
Shouldn't it be publicly available?
Mike
> But indictments may be quashed by a court if, for example,
> a defendant had been forced to testify before a grand jury in violation
> of his 5th Amendment rights.
Question for the lawyers: how much, if anything, that gets said before a
grand jury can then be used in an actual trial or do they only return a
"we recommend a trial for this person" (or whatever it is that they say)
and nothing else (much like trial jury deliberations are also secret/off
the record as to what's said, etc?)
E.g. if I went in front of the grand jury and admitted "yes, I robbed
the bank" can the DA then put me on the stand (or otherwise use a
transcript) to say to the trial jury "See? He admitted to the crime.
Find him guilty." Or would he have to use other evidence and/or hope I
take the stand myself and then question me and hope to get an admission?
Also, if I took the stand and said "I did not rob the bank" could the
grand jury testimony be used to support perjury, even if it can't be
used in the actual trial itself to convict me of the robbery?
Mike
> Mike <prab...@shamrocksgf.com> wrote:
>> Now that sounds like the setup for some bad lawyer joke:)
>
> It was supposed to...
Yeah, I need to learn to read the whole thing before knee-jerking a
reply*sigh*
mm
<Silence...@angelic.com> wrote:
> If we ask someone to justify what s/
>he did on the job and get no answer, that seems to
>me a confession to not doing one's best.
What happened to "Innocent until proven guilty"?
And also, less important, how many people do their best all the time?
If one doesn't do his 100% best 100% of the time, isn't it fair to say
he hasn't done his best?
OTOH if "doing one's best" takes into consideration that people
normally don't do their 100% best 100% of the time, and takes into
consideration that they may not do their best when they are sick, or
when they are up late taking care of someone who is sick, or when
there are marital problems or their parent is dying, how would one
decide where the boundary is between doing one's best or not?
Steve Bartman
>> Marriage is a contract, right?
>
>So you think "love, honor, and obey" is a contractual obligation? No,
>marriage is not a contract. States have written into law certain
>arrangements regarding the division of property upon dissolution of
>marriages.
"2008 Minnesota Statutes
517.01 MARRIAGE A CIVIL CONTRACT.
Marriage, so far as its validity in law is concerned, is a civil
contract between a man and a woman, to which the consent of the
parties, capable in law of contracting, is essential. Lawful marriage
may be contracted only between persons of the opposite sex and only
when a license has been obtained as provided by law and when the
marriage is contracted in the presence of two witnesses and solemnized
by one authorized, or whom one or both of the parties in good faith
believe to be authorized, so to do. Marriages subsequent to April 26,
1941, not so contracted shall be null and void."
That said, I was taught that marriage here is a special kind of
contract in that money consideration will not be overtly permitted as
a matter of public policy. Given that, I think the contract language
was done for more overt political reasons, to ensure that the public
understood that no religious involvement is required for a legal
marriage to be formed, but even so the plain language of at least one
state indicates that marriage is a contract.
Steve
Barry Gold
>Consider this: A prosecutor notices that his conviction rate exceeds
>80% for violent crimes, under 30% for perjury, and lower for abuse of
>power. Should security in office have anything to do with decisions
>made?
Should? Maybe not. Would? ALmost certainly. Nor is this entirely
wrong. If a prosecutor decides that he has only a 20% chance of
convicting a defendant for "abuse of power," is it really right for
him to go ahead and prosecute, force the defendant to spend time in
court and money on lawyer's fees, only to have the jury return a "Not
Guilty" verdict? Would you want this done to you, if somebody
_thought_ you might have violated some oath?
Gold's Law: What's sauce for the goose is good for the gander.
>What I have seen in this thread is a lot of general agreement with Mr.
>Wilson but that is not the same as precedent and tradition against
>prosecution which, in any case, ought not trumph plain language.
Nobody here is suggesting that public officials should not take an
oath of office. But oaths are, ultimately, between the swearer and
God.(*) They are outside the scope of The Law (human law).
(*) Except for a the witness's oath, which carries a penalty of
perjury.
>Let's turn it around. Would it be a crime for a citizen to bring a
>complaint to a Grand Jury and for the Grand Jury to return a true bill
>if it later turned out that some judge dismissed the case on the basis
>that the alleged wrong was not a crime?
No. But (a) random citizens don't get to bring complaints to the Grand
Jury: that's the prosecutor's job, (b) the judge is likely to have
harsh words for whoever wasted the court's, the GJ's, etc. time.
Note that in some states, Grand Juries also have a general investiga-
tive function, in addition to or instead of bringing indictments. In
CA, county GJs investigate the functioning of the government, and can
bring their findings to the Board of Supervisors, the various City
COuncils, and/or the press. But none of this results (directly) in a
criminal trial. It may lead to changes in how things are done, new
laws, etc. Or possibly just to some embarrassed officials.
>Where is the oath that says: "I promise not to commit a crime while in
>office,"???
Not needed. *Everybody* is under legal obligation to not commit
crimes - while in office or just in daily life.
Stuart A. Bronstein
> "Stuart A. Bronstein" <spamt...@lexregia.com> wrote:
>> Silence DoGood <Silence_DoG...@angelic.com> wrote:
>> > Deadrat <a...@b.com> wrote:
>> >> See Addam v. Superior Court (4th Dist. 2/3/2004) 116
>> >> Cal.App.4th 368, 10 Cal.Rptr.3d 39.
>>
>> > Is this available over the internet?
>>
>> You can find it at http://lp.findlaw.com
>
> Shouldn't it be publicly available?
Two things. First, published cases are publicly available, just not
necessarily on the internet.
Second, the case is new enough to see at findlaw.com, and there it is
free.
Finally, a simple Google search brought up at least two full copies of
the opinion on the internet. Please don't ask us to do ALL your work
for you for free.
Stu
Deadrat
> On Apr 7, 9:48 pm, Deadrat <a...@b.com> wrote:
<context>
<restore>
> Generally speaking, no governmental body would have authority to
> exempt a public servant from an oath and/or duties that are mandated
> in a constitution.
... Here you have a statement that is
either wrong or null. For the purposes of your topic of discussion,
generally speaking, there are no "constitutions."
</restore>
>> There are individual constitutions, each with a body of precedent and
>> tradition that go into interpeting it.
</context>
>
> Consider this: A prosecutor notices that his conviction rate exceeds
> 80% for violent crimes, under 30% for perjury, and lower for abuse of
> power. Should security in office have anything to do with decisions
> made?
You need to slow down and make sense. I have restored the context of my
comment about individual constitutions. My point was that it's useless
to talk about constitutions "[g]enerally speaking." One must choose a
particular constitution and frame a discussion around that document and
the law that amplifies it.
You are free to dispute this assertion as false or dismiss it as obvious.
But it has nothing to do with your hypothetical prosecutor. Such non
sequiturs make it difficult to follow your argument.
Taking your hypothetical on it's own doesn't help much. What does
security in office have to with "decisions"? Is the prosecutor throwing
many cases of perjury and almost all cases of "abuse of power." You
don't say. Is the prosecutor worrying about his own tenure in office?
How can you tell that from conviction rates?
> History records that in July, 1787 it had been agreed that
> congressmen, judges, the President, and other officers should swear
> oaths to support the Consitution over objections from James Wilson who
> opined that a good government did not need oaths (See _Miracle of
> Philadelphia_ pg 214),
>
> What I have seen in this thread is a lot of general agreement with Mr.
> Wilson but that is not the same as precedent and tradition against
> prosecution which, in any case, ought not trumph plain language.
Far more important than oaths of office is the precept that there is no
crime but that which the legislature has specifically defined. Early on
in our history, the Supreme Court ruled thus. So there's your "precedent
and tradition." If you want to argue that there *should* be laws that
criminalize oath breaking in and of itself, then fine. But that
discussion belongs on something like alt.politics.something
>
> Let's turn it around. Would it be a crime for a citizen to bring a
> complaint to a Grand Jury and for the Grand Jury to return a true bill
> if it later turned out that some judge dismissed the case on the basis
> that the alleged wrong was not a crime?
First of all, citizens don't bring complaints to grand juries. There is
no private action for criminal offenses. A citizen may go to a DA and
ask the DA to bring the charge before a grand jury. If a judge had
dismissed with prejudice an indictment because the alleged wrong was not
a crime, then any DA bringing the indictment again would risk contempt of
court.
>
> Where is the oath that says: "I promise not to commit a crime while in
> office,"???
Let's suppose that violating the law is covered by "preserve, protect,
and defend."
So what?
Mike Jacobs
> > Merriam-Webster uses...
>
> Here is what I read there for Contract:
> 1 a: a binding agreement between two or more persons or parties ;
> especially : one legally enforceable
>
> Ergo, an agreement could be "binding" and presumably "broken" without
> legal redress.
Morally binding, maybe, but not legally binding unless it's something
for which the courts can provide legal redress.
> > MONEY changing hands, pure and simple...
>
> Marriage is a contract, right? I think it's illegal for money to
> change hands. An earlier post said military service starts
> with a contract.
Sir, my quote which you take out of context was referring to the
FOOTBALL COACH'S contract that _you_ brought up as an example. I did
NOT say or imply that ALL contracts are just about "money changing
hands." That coach's contract IS just about money, if the owner
decides he doesn't want the coach anymore; the coach has no right to
continue coaching the team after he is fired, he just has a right to
be paid.
> >Who is the "administrator?"
>
> The person who usually sits on the bench and wears robes, commonly
> called the "judge", is technically a judicial
> administrator who is there to apply the law, not to pass judgement.
Okay, I can't do anything with that. It is such a basic
misunderstanding of what judges do that there is no sense trying to
discuss this line of thought any further with you. I promised myself
I would do that yesterday, but I broke that promise by making this
post. I'll sign off now and try to keep my promise from now on.
Deadrat
> Silence DoGood <Silence...@angelic.com> wrote:
>>Consider this: A prosecutor notices that his conviction rate exceeds
>>80% for violent crimes, under 30% for perjury, and lower for abuse of
>>power. Should security in office have anything to do with decisions
>>made?
>
>
> Should? Maybe not. Would? ALmost certainly. Nor is this entirely
> wrong. If a prosecutor decides that he has only a 20% chance of
> convicting a defendant for "abuse of power," is it really right for
> him to go ahead and prosecute, force the defendant to spend time in
> court and money on lawyer's fees, only to have the jury return a "Not
> Guilty" verdict? Would you want this done to you, if somebody
> _thought_ you might have violated some oath?
>
> Gold's Law: What's sauce for the goose is good for the gander.
>
>>What I have seen in this thread is a lot of general agreement with Mr.
>>Wilson but that is not the same as precedent and tradition against
>>prosecution which, in any case, ought not trumph plain language.
>
> Nobody here is suggesting that public officials should not take an
> oath of office. But oaths are, ultimately, between the swearer and
> God.(*) They are outside the scope of The Law (human law).
I think this is an unsupportable assertion for a secular government. Are
atheists not supposed to take oaths? Or are we not supposed to believe
them? An oath is a memorialization of the seriousness of taking public
office. We regard it as mostly ceremonial, although the first article of
the proposed impeachment of Richard Nixon mentioned the violation of his
oath of office. The violation of such oaths generally don't carry
criminal penalties since this would be either redundant (in the case of
lawbreaking) or too vague to define, in which case we have other
procedures to deal with the problem.
I get that the OP is upset and that his ire is directed at public
officials. I can't yet understand what he proposes to do about oaths and
how his solution would work.
> (*) Except for a the witness's oath, which carries a penalty of
> perjury.
>
>>Let's turn it around. Would it be a crime for a citizen to bring a
>>complaint to a Grand Jury and for the Grand Jury to return a true bill
>>if it later turned out that some judge dismissed the case on the basis
>>that the alleged wrong was not a crime?
>
> No. But (a) random citizens don't get to bring complaints to the Grand
> Jury: that's the prosecutor's job, (b) the judge is likely to have
> harsh words for whoever wasted the court's, the GJ's, etc. time.
>
> Note that in some states, Grand Juries also have a general investiga-
> tive function, in addition to or instead of bringing indictments. In
> CA, county GJs investigate the functioning of the government, and can
> bring their findings to the Board of Supervisors, the various City
> COuncils, and/or the press. But none of this results (directly) in a
> criminal trial. It may lead to changes in how things are done, new
> laws, etc. Or possibly just to some embarrassed officials.
>
>>Where is the oath that says: "I promise not to commit a crime while in
>>office,"???
>
> Not needed. *Everybody* is under legal obligation to not commit
> crimes - while in office or just in daily life.
Everybody (in theory) is supposed to incur the penalty for committing
crimes, but in my view we're not under any obligation to obey the law in
general: there's no crime of being a lawbreaker; just crimes of breaking
particular laws. You may consider this to be a distintion without a
difference.
Barry Gold
>Question for the lawyers: how much, if anything, that gets said before a
>grand jury can then be used in an actual trial or do they only return a
>"we recommend a trial for this person" (or whatever it is that they say)
>and nothing else (much like trial jury deliberations are also secret/off
>the record as to what's said, etc?)
With a few exceptions, _anything_ you say before a grand jury can be
used. Which is why you can refuse to answer questions. If you admit
you robbed the bank, the DA can introduce that testimony (but he can't
put you on the stand unless you waive your right not to testify).
ANd if you say one thing to the grand jury and a different thing at
trial, _yes_ your GJ testimony can be used to support a charge of
perjury.
Barry Gold
>That said, I was taught that marriage here is a special kind of
>contract in that money consideration will not be overtly permitted as
>a matter of public policy. Given that, I think the contract language
>was done for more overt political reasons, to ensure that the public
>understood that no religious involvement is required for a legal
>marriage to be formed, but even so the plain language of at least one
>state indicates that marriage is a contract.
I think marriage _is_ a contract in all states. But _any_ contract
can be broken, if you are willing to do whatever is required to "make
the other party whole" for your breach. Sometimes that can include
"specific performance" (the court orders you to fulfill the contract),
as in a contract to sell land or a unique piece of artwork. Sometimes
it's a negative injunction -- a baseball player who refuses to play
for his team is barred from working for any other team for the
duration of his contract. Most often it's money damages. These can
be determined in court, or the contract can specify the amount of
damages (liquidated damages).
Marriage is a contract where the _law_ specifies the damages, subject
to modification (e.g., by a pre-nuptial agreement). The property is
divided "equitably" (as defined by the laws and courts of that
state), "spousal support" may be ordered to compensate the partner who
"made" a home for the wage-earner, thereby giving up the opportunity
to improve their skills by working in the job market, and custody of
the children, if any, will be awarded according to a state formula
(usually "the best interests of the children").
So, marriage is a contract, with a specified exit clause. Just like a
typical coaching contract: the team owner can dismiss the coach and
simply pay a specified amount (often the salary for the rest of the
term, but it could be some other amount).
Timothy Horrigan
>
> E.g. if I went in front of the grand jury and admitted "yes, I robbed
> the bank" can the DA then put me on the stand (or otherwise use a
> transcript) to say to the trial jury "See? He admitted to the crime.
> Find him guilty." Or would he have to use other evidence and/or hope I
> take the stand myself and then question me and hope to get an admission?
>
> Also, if I took the stand and said "I did not rob the bank" could the
> grand jury testimony be used to support perjury, even if it can't be
> used in the actual trial itself to convict me of the robbery?
This type of situation shows why defense lawyers typically do not put
the defendant (their client) in the witness box. And it also explains
why the USA has a 5th Amendment protecting citizens (and illegal
aliens, for that matter) from being forced to self-incriminate.
It would be more common to have a confession extracted long before the
grand jury proceedings, during the police investigation of the bank
robbery. One good defense when the defendant confesses to the crime
would be to claim that the confession was obtained under duress.
Sometimes people actually do confess to things they didn't actually
do.
Silence DoGood
> What do you think judges do in a bench trial?
re: judge
Consider the phrase: "Let History be the Judge." Does history have a
duty to be open or fair?
By contrast, a court proceeding openly applies the rules of due
process. Failure to do so results in Frontier Justice, travesty,
"kangaroo" proceedings, or an appearance of impropriety, and threatens
the peace.
In the USA the highest authority is the Constitution of the United
States followed by other forms of black-letter law, established
principles such as "best interests of the child", community standards,
and the like.
In my lifetime, it has never once occurred to me to question the
biases or integrity of an FAA official investigating an airplane
crash. Why should the sex, race, financial dealings, or political
preferences cross my mind following virtually every court-issued
judgment?
>AS a prerequisite for release from prison, Presidential pardon, or
for
> holding subsequent office. A Missouri law requiring all attorneys to
> take a retroactive loyalty oath before practicing law was struck down as
> a bill of attainder.
re: bill of attainder
You speak of a *retroactive* loyalty oath *before* practicing law
being struck down as a "Bill of Attainder". The "Bill" part of "Bill
of Attainder" implies something done outside of the courtroom. The
"Attainder" part implies capital punishment, otherwise it would be
called a "bill of pains and penalties."
What you seem to suggest is that a penalty is applied for something
that was legal when it happened based on an oath that was forced after
the occurrance.
I would love to know more about that if you can cite the case, but it
seems tangental to an argument for prosecution of a violation
subsequent to an oath which was taken volunarily.
Speaking of pardons, it is interesting that if someone commits a crime
and the criminality is later repealed, the de-facto-criminal might get
a pardon from the governor to escape punishment but by section 10,
article I of the US constitution, it would seem the governor has no
authority to excuse the wrongdoer of civil liability.
> Indictments are almost entirely creatures of the executive, covered by
> prosecutorial discretion. So there's no place to stop an indictment from
> being issued. But indictments may be quashed by a court if, for example,
> a defendant had been forced to testify before a grand jury in violation
> of his 5th Amendment rights.
re: cafeteria prosecution
No prosecutor could pursue all apparent crimes, but when a prosecutor
chooses not to prosecute ex-police officers who get security work from
banks for perjury such prosecutor nullifies the Law and violates the
oath of office and will answer to G-d. If that is all, I want to see
what law says so, and begin to organize the community to get the law
changed otherwise I want to figure out how to prosecute without
leaving any loopholes in a very hard case to prove.
re: malfeasance and reasonable doubt
Recently a former city coucilman was released from prison after eight
years. His explanation to the public that the 50g's cash [marked
bills] in the paper bag was really just a bonus for a bill he already
favored. He was quite believeable and I don't think I would have voted
to convict him of not doing his best to do his job. Turns out there
was a law against an elected official carrying cash over $1,000 in a
paper bag. Ignorance of the law is no excuse. He knew what was in the
bag. There was no reasonable doubt as to his possession and the law
did not require proof of intent or result.
I bring up the instance because I believe it reflects that in the
main, malfeasance laws aim to avoid an appearance of impropriety not
to create a subset of oath violations which can be prosecuted.
> In this country, this is called an election, an impeachment, or a recall.
re: election, impeachment, recall
These are my preferred ways yet I believe the founders understood
these too could fail. I believe the times call for us to dig deeper.
We are facing a de-facto sit-down strike regarding public duties. I
sympathize with trapped individuals, but succumbing to temptation is
not a crime of passion. Society can rid itself of these crimes with
effective accountability.
> You would claim that the DA failed to uphold his oath?
re: DA failed to uphold oath
I would pride myself on living in a society which has decided it is
better to let 99 guilty go free than to convict one innocent, I would
look for improvement from the DA. I would hope that the trial had
brought important matters to public attention. The increased
professionalism in police forces comes as a direct result of "failed"
prosecutions. Whereas individuals may be found not guilty the
institution may remain under indictment and scrutiny.
Silence DoGood
>precept
In old French law, according to Black, a "precept" was an order from
the king to do or tolerate things contrary to law. This seems to be
what you suggest--that a judge can exempt an official from
consequences of failing to follow the oath. If there are actually
published opinions which serve as legal precendent, please cite some.
Mike
> On Apr 11, 7:32 am, Mike <prabb...@shamrocksgf.com> wrote:
>
>> E.g. if I went in front of the grand jury and admitted "yes, I robbed
>> the bank" can the DA then put me on the stand (or otherwise use a
>> transcript) to say to the trial jury "See? He admitted to the crime.
>> Find him guilty." Or would he have to use other evidence and/or hope I
>> take the stand myself and then question me and hope to get an admission?
>>
>> Also, if I took the stand and said "I did not rob the bank" could the
>> grand jury testimony be used to support perjury, even if it can't be
>> used in the actual trial itself to convict me of the robbery?
>
> This type of situation shows why defense lawyers typically do not put
> the defendant (their client) in the witness box. And it also explains
> why the USA has a 5th Amendment protecting citizens (and illegal
> aliens, for that matter) from being forced to self-incriminate.
I realize that it's usually not a good idea to take the stand as a
defendant. But this was just asking what, if anything, could be taken
from the grand jury into the open court room.
> It would be more common to have a confession extracted long before the
> grand jury proceedings, during the police investigation of the bank
> robbery. One good defense when the defendant confesses to the crime
> would be to claim that the confession was obtained under duress.
> Sometimes people actually do confess to things they didn't actually
> do.
But let's say the police investigated John and the grand jury was
considering indicting him and I was dragged before them to testify and I
let it slip that it was actually I who did it (or that I helped him.)
That would be one (possibly fairly rare) case where the cops were NOT
looking to me for a confession before the grand jury session. These sort
of things, I'm sure, do happen on occasion.
Cy Pres
<Silence...@angelic.com> wrote:
>You speak of a *retroactive* loyalty oath *before* practicing law
>being struck down as a "Bill of Attainder". The "Bill" part of "Bill
>of Attainder" implies something done outside of the courtroom. The
>"Attainder" part implies capital punishment, otherwise it would be
>called a "bill of pains and penalties."
No. A "bill of attainder," under American constitutional law, is
simply any legislative act declaring a person or group of persons
guilty of some offense without a trial. While it derives from the
attainder penalty for traitors or felons imposed under English common
law, i.e. forfeit of land and title, and incapacity to transmit such
by will or title, and was intended to prohibit legislative acts
accomplishing the same effect, this isn't what is prohibited by Art.
I, sec. 9, cl. 3 of the United States Constitution. What is
prohibited by the Constitution is ANY legislative act usurping the
judicial function of trial (other than the specific judicial functions
explicitly assigned to the Congress by Art. I such as impeachment).
Corruption of blood for treason, another aspect of the same legal
framework, is also prohibited to the courts, under Art. III, sec. 3,
cl. 2.
Deadrat
> On Apr 9, 12:01 pm, Deadrat <a...@b.com> wrote:
>
<restore context>
> The person who usually sits on the bench and wears robes, commonly
> called the "judge", is technically a judicial
> administrator who is there to apply the law, not to pass judgement.
</restore>
>> What do you think judges do in a bench trial?
>
> re: judge
>
> Consider the phrase: "Let History be the Judge." Does history have a
> duty to be open or fair?
You have once again snipped the context of my rhetorical question. You
claimed (see above) that a judge is not "there .. to pass judgement
[sic]." Yet judges are "there" in bench trials to do preciselly that. It
is beyond me what the metaphorical use of "judge" has to do with this.
> By contrast, a court proceeding openly applies the rules of due
> process. Failure to do so results in Frontier Justice, travesty,
> "kangaroo" proceedings, or an appearance of impropriety, and threatens
> the peace.
OK.
> In the USA the highest authority is the Constitution of the United
> States followed by other forms of black-letter law, established
> principles such as "best interests of the child", community standards,
> and the like.
You left out treaties and Supreme Court decisions, but OK.
> In my lifetime, it has never once occurred to me to question the
> biases or integrity of an FAA official investigating an airplane
> crash. Why should the sex, race, financial dealings, or political
> preferences cross my mind following virtually every court-issued
> judgment?
I don't know why you should think these things. Do you have a point? If
so, is it related to due process or the hierarchy of authority?
> >AS a prerequisite for release from prison, Presidential pardon, or
> for
>> holding subsequent office. A Missouri law requiring all attorneys to
>> take a retroactive loyalty oath before practicing law was struck down
>> as a bill of attainder.
>
> re: bill of attainder
>
> You speak of a *retroactive* loyalty oath *before* practicing law
The law required Missouri attorneys to attest to their loyalty to the Union
during the Civil War before they were allowed to practice after the Civil
War.
> being struck down as a "Bill of Attainder". The "Bill" part of "Bill
> of Attainder" implies something done outside of the courtroom.
That's right, it denotes a law passed by Congress.
> The
> "Attainder" part implies capital punishment, otherwise it would be
> called a "bill of pains and penalties."
Been reading Black's again, eh? In US legal parlance, a bill of attainder
is any law that punishes extra-judicially a class of persons for their
memebership in the class. The class may have a cardinality of one.
>
> What you seem to suggest is that a penalty is applied for something
> that was legal when it happened based on an oath that was forced after
> the occurrance.
No, the penalty was applied to what was essentially sedition when it
happened.
> I would love to know more about that if you can cite the case,
How hard would it be to google the topic? Here:
Cummings v. Missouri, 71US277 (1867)
> but it
> seems tangental to an argument for prosecution of a violation
> subsequent to an oath which was taken volunarily.
Please, please, please, stop snipping the context. If it seem tangential,
then why did *you* bring it up?
<restore>
> Doesn't history show that Confederates were made to take loyalty oaths
> as a prerequisite to full social priviledge after the Civil War?
</restore>
History does *not* show that Confederates had to take oaths to regain "full
social priviledge [sic]."
> Speaking of pardons, it is interesting that if someone commits a crime
> and the criminality is later repealed, the de-facto-criminal might get
> a pardon from the governor to escape punishment but by section 10,
> article I of the US constitution, it would seem the governor has no
> authority to excuse the wrongdoer of civil liability.
That's because a pardon is remission by the state only for the "damage"
done to the state by the criminal act pardoned.
>> Indictments are almost entirely creatures of the executive, covered
>> by prosecutorial discretion. So there's no place to stop an
>> indictment from being issued. But indictments may be quashed by a
>> court if, for example, a defendant had been forced to testify before
>> a grand jury in violation of his 5th Amendment rights.
>
> re: cafeteria prosecution
>
> No prosecutor could pursue all apparent crimes, but when a prosecutor
> chooses not to prosecute ex-police officers who get security work from
> banks for perjury such prosecutor nullifies the Law and violates the
> oath of office and will answer to G-d.
I talked to God this morning. He said it was OK to spell out His full
name.
Answering to God is beyond the scope of the legal system. Is your ex-
police, security work, perjury, banks thing a hypothetical? Or do you have
actual events in mind?
> If that is all,
What is the antecedent to "that"?
> I want to see what law says so,
Says so about what?
> and begin to organize the community to get the law changed
At least you've got the right venue in mind.
> otherwise I want to figure out how to prosecute
I'll save you the time. Until and unless you become a DA, there is no way
for you to prosecute anyone.
> without leaving any loopholes in a very hard case to prove.
What case?
> re: malfeasance and reasonable doubt
>
> Recently a former city coucilman was released from prison after eight
> years. His explanation to the public that the 50g's cash [marked
> bills] in the paper bag was really just a bonus for a bill he already
> favored. He was quite believeable and I don't think I would have voted
> to convict him of not doing his best to do his job. Turns out there
> was a law against an elected official carrying cash over $1,000 in a
> paper bag. Ignorance of the law is no excuse. He knew what was in the
> bag. There was no reasonable doubt as to his possession and the law
> did not require proof of intent or result.
Please cite this law. I doubt very much that it is illegal for an elected
official to carry $1K of his own money in paper bag.
>
> I bring up the instance because I believe it reflects that in the
> main, malfeasance laws aim to avoid an appearance of impropriety not
> to create a subset of oath violations which can be prosecuted.
Malfeasance laws aim to punish malfeasance.
>> In this country, this is called an election, an impeachment, or a
>> recall.
>
> re: election, impeachment, recall
>
> These are my preferred ways yet I believe the founders understood
> these too could fail. I believe the times call for us to dig deeper.
> We are facing a de-facto sit-down strike regarding public duties. I
> sympathize with trapped individuals, but succumbing to temptation is
> not a crime of passion. Society can rid itself of these crimes with
> effective accountability.
Sorry, but I have no idea what you're talking about. Except that you think
you're smarter than the founders. Or at least a deeper digger.
>> You would claim that the DA failed to uphold his oath?
>
> re: DA failed to uphold oath
>
> I would pride myself on living in a society which has decided it is
> better to let 99 guilty go free than to convict one innocent, I would
> look for improvement from the DA. I would hope that the trial had
> brought important matters to public attention. The increased
> professionalism in police forces comes as a direct result of "failed"
> prosecutions. Whereas individuals may be found not guilty the
> institution may remain under indictment and scrutiny.
Please, please, please, .... Oh, never mind.
<restore src="your supposition">
> Suppose the prosecutor presents two scenarios which both lead to
> convict an accused and the defense attorney
> comes up with a third possibility. That's reasonable doubt unless the
> prosecutor can show that would also show
> guilt, and that would be losing the case for forgetting to cover all
> bases, not for lack of evidence.
</restore>
I'll ask again. Is it your claim that in this case the DA failed to uphold
his oath?
Barry Gold
>Timothy Horrigan wrote:
>> This type of situation shows why defense lawyers typically do not put
>> the defendant (their client) in the witness box. And it also explains
>> why the USA has a 5th Amendment protecting citizens (and illegal
>> aliens, for that matter) from being forced to self-incriminate.
>
>I realize that it's usually not a good idea to take the stand as a
>defendant. But this was just asking what, if anything, could be taken
>from the grand jury into the open court room.
Just like the Miranda warning says: Anything you say can and will be
used against you in a court of law.
Silence DoGood
> That would be one (possibly fairly rare) case where the cops were NOT
> looking to me for a confession before the grand jury session.
How would the cops get testimony from secret Grand Jury proceedings?
Wouldn't the press have to be allowed the same access?
In general, prosecutors should be aware that if I be on a jury, I will
expect corroborating evidence.
I have a relative who confessed to me that he never would have left
his wife had he known it would kill her.
Confession notwithstanding, the coroner said she died of a heart
attack with genetic predisposition. What makes
my cousin think if he had stayed and kept arguing, she might not have
died even sooner?
The trend (see Martha Stewart) seems to be to put a suspect under oath
after having been advised
of his/her rights against self-incrimination. The suspect then
voluntarily waives the
right against self-incrimination in order to get it over with it. If
you did ANYTHING wrong, and maybe
even if you didn't, that's a bad idea.
If you confessed to a crime in front of a Grand Jury and they believed
it, why didn't they indict you?
It would sure look to me as if they had granted you immunity.
Speaking of Grand Juries, why didn't an LA Grand Jury demand that
prosecutors show exactly how,
when, where, and why what started as a legitimate arrest turned into a
bash-fest before finding
that a prima facie case of abuse of power against police officers had
been established?
Deadrat
4aef-a25b-f...@s20g2000yqh.googlegroups.com:
It is considered impolite to snip all context in your reply. I'll restore
it for you:
<quote>
> Far more important than oaths of office is the precept that there is
> no crime but that which the legislature has specifically defined.
> Early on in our history, the Supreme Court ruled thus. So there's
> your "precedent and tradition." If you want to argue that there
> *should* be laws that criminalize oath breaking in and of itself, then
> fine. But that discussion belongs on something like
> alt.politics.something
</quote>
This conversation isn't in Old French, and we're not discussing French law,
old or new. The word "precept" arrives in modern in English from Middle
English via the Latin word "praeceptum," meaning advice or rule. That's
what it means in my reply. Our Constitutional rule is that there is no
crime except that which the legislature defines in law.
Nowhere in my post do I suggest that a judge can exempt an official from
following an oath, but it is not possible for a judge to convict or punish
an official unless that official has broken a specific law. If you wish to
lobby for laws that specify what it means for public officials to break
oaths and what the punishments should be, then call your representatives in
the legislature.
What isn't clear about this?
Stuart A. Bronstein
> This conversation isn't in Old French, and we're not discussing
> French law, old or new. The word "precept" arrives in modern in
> English from Middle English via the Latin word "praeceptum,"
> meaning advice or rule. That's what it means in my reply. Our
> Constitutional rule is that there is no crime except that which
> the legislature defines in law.
I don't believe the Constitution says exactly that. It says that no
one shall be convicted of an ex post facto offense, meaning that
nothing shall be made a crime after it is committed. Some states (at
least the last time I checked) still criminalize common law crimes even
though they may not be defined by statute. The issue is notice and
retroactivity, not the statutes.
> Nowhere in my post do I suggest that a judge can exempt an
> official from following an oath, but it is not possible for a
> judge to convict or punish an official unless that official has
> broken a specific law. If you wish to lobby for laws that specify
> what it means for public officials to break oaths and what the
> punishments should be, then call your representatives in the
> legislature.
Without researching the issue I'd guess that you are correct as far as
it goes - that violation of an oath of office is not criminal unless a
statute makes it so. However it might leave someone open to
impeachment or even civil liability.
Stu
Barry Gold
>On Apr 14, 10:58 am, Mike <prabb...@shamrocksgf.com> wrote:
>
>> That would be one (possibly fairly rare) case where the cops were NOT
>> looking to me for a confession before the grand jury session.
>
>How would the cops get testimony from secret Grand Jury proceedings?
>Wouldn't the press have to be allowed the same access?
First of all, I'm not sure how "secret" GJ proceedings are. That
probably varies from state to state. In places where GJs are routinely
used for indictments, the GJ meets in secret, partly so that suspects
won't know that they a possible indictment is coming. But at the end
of the GJ session(*), the proceedings _may_ become public record.
In any case, the Prosecutor is _present_ at the GJ session, so he
knows what is going on. And _he_ can bring in the transcript and use
it in the trial.
(*) Might be as long as a full year.
>In general, prosecutors should be aware that if I be on a jury, I will
>expect corroborating evidence.
>I have a relative who confessed to me that he never would have left
>his wife had he known it would kill her.
>Confession notwithstanding, the coroner said she died of a heart
>attack with genetic predisposition. What makes
>my cousin think if he had stayed and kept arguing, she might not have
>died even sooner?
Kind of irrelevant. Leaving your wife is not a crime, even if people
are _sure_ that it caused her death (e.g., she leaves a note about
it and slits her wrists).
>The trend (see Martha Stewart) seems to be to put a suspect under oath
>after having been advised
>of his/her rights against self-incrimination. The suspect then
>voluntarily waives the
>right against self-incrimination in order to get it over with it. If
>you did ANYTHING wrong, and maybe
>even if you didn't, that's a bad idea.
Yes. I'm sure Martha had already discussed her options with her
lawyer, and the lawyer had told the court she was waiving her fifth-
amendment right against self-incrimination. What happened on the
stand was then a formality, to get it into the record that she was
voluntarily testifying in spite of her right under the 5th.
>If you confessed to a crime in front of a Grand Jury and they believed
>it, why didn't they indict you?
I don't know about other states, but California has a two-part test
for conviction of a crime.
1. Proof that a crime was committed, (the "corpus delecti" in CA
law)
2. Proof that the defendant "did it"
The defendant's testimony/confession can be used for part 2, but the
corpus delecti must be established by other evidence.
So if you go into court and say, "I murdered a man on I-10 last night",
the GJ might refuse to indict(+) if no evidence was found that such a
murder occurred. No body, no missing person that matches your
timeline, etc.
(+) And the prosecutor might not even ask for a bill of indictment.
>It would sure look to me as if they had granted you immunity.
Immunity is granted only by judges and prosecutors. The GJ doesn't
have that power, AFAIK.
>Speaking of Grand Juries, why didn't an LA Grand Jury demand that
>prosecutors show exactly how,
>when, where, and why what started as a legitimate arrest turned into a
>bash-fest before finding
>that a prima facie case of abuse of power against police officers had
>been established?
The LA Grand Jury does not consider criminal cases. In CA, a criminal
case starts with an "information." The prosecutor alleges that person
P committed crime C. There is then a "preliminary hearing," where P
can be represented by a lawyer. The prosecutor presents his evidence,
the defense _may_ present evidence (but for strategic reasons usually
doesn't), then a judge decides whether there is "probable cause" to
have a full trial.
You seem to have a vast misunderstanding of the role of juries in the
US legal system. A jury is generally presented with some evidence and
then is allowed to answer "yes" or "no", like a true-false question on
a Middle School exam. For a petit (regular) jury, that's either
"Guilty" or "Innocent" (or sometimes "guilty but insane"). For a
Grand Jury, it's either "True bill" (an indictment) or "No bill".
If the prosecutor does not ask the GJ to indict person P, they
(usually) cannot do so on their own.
Now... Grand Juries in Los Angeles County (and I suspect the rest of
CA) are different. They are general investigating bodies, similar to
a Congressional Committee. They can call witneses on their own (as
opposed to hearing only those the prosecutor calls), and exercise a
sort of oversight on the functions of government in the County.
So the LA County GJ _could_ have called in the cops and other
witnesses. *If* they decided to investigate Police use-of-force. Or
maybe not even then. IIRC, that was a case involving _city_ police,
and the County GJ investigates _county_ government. (I think.)
In any case, if they felt that use-of-force has already been
investigated to death (sado-necro-equi-philia), they might have
decided that their time was better spent investigating other
problems.
And if the LA GJ _did_ decide to investigate that particular arrest,
they would have been limited to publicizing their findings and
recommending changes in the way the government is run. They do _not_
have the power to bring an indictment. Of course, if they make a big
enough stink, it is possible that the DA will then start a
prosecution. But even then it's a political/judgment decision, not
something he is required to do.
Deadrat
> On Apr 14, 10:58 am, Mike <prabb...@shamrocksgf.com> wrote:
>
>> That would be one (possibly fairly rare) case where the cops were NOT
>> looking to me for a confession before the grand jury session.
>
> How would the cops get testimony from secret Grand Jury proceedings?
> Wouldn't the press have to be allowed the same access?
By court order, of course. Defendants are also routinely given grand
jury testimony of witnesses who appear at trial.
> In general, prosecutors should be aware that if I be on a jury, I will
> expect corroborating evidence.
I'm sure they're taking notes.
> I have a relative who confessed to me that he never would have left
> his wife had he known it would kill her.
> Confession notwithstanding, the coroner said she died of a heart
> attack with genetic predisposition. What makes
> my cousin think if he had stayed and kept arguing, she might not have
> died even sooner?
Guilt?
> The trend (see Martha Stewart) seems to be to put a suspect under oath
> after having been advised of his/her rights against
> self-incrimination.
Martha Stewart was accused of lying to investigators; she wasn't under
oath
> The suspect then voluntarily waives the right
> against self-incrimination in order to get it over with it. If you did
> ANYTHING wrong, and maybe even if you didn't, that's a bad idea.
>
> If you confessed to a crime in front of a Grand Jury and they believed
> it, why didn't they indict you?
If you confessed to a crime other than the one they were considering?
> It would sure look to me as if they had granted you immunity.
Grand juries don't grant immunity.
> Speaking of Grand Juries, why didn't an LA Grand Jury demand that
> prosecutors show exactly how,
> when, where, and why what started as a legitimate arrest turned into a
> bash-fest before finding
> that a prima facie case of abuse of power against police officers had
> been established?
Non-investigative grand juries can't demand anything from prosecutors.
Daniel R.Reitman
<spam...@lexregia.com> wrote:
>Deadrat <a...@b.com> wrote:
>
>> This conversation isn't in Old French, and we're not discussing
>> French law, old or new. The word "precept" arrives in modern in
>> English from Middle English via the Latin word "praeceptum,"
>> meaning advice or rule. That's what it means in my reply. Our
>> Constitutional rule is that there is no crime except that which
>> the legislature defines in law.
>
>I don't believe the Constitution says exactly that. It says that no
>one shall be convicted of an ex post facto offense, meaning that
>nothing shall be made a crime after it is committed. Some states (at
>least the last time I checked) still criminalize common law crimes even
>though they may not be defined by statute. The issue is notice and
>retroactivity, not the statutes.
>>. . . .
>. . .
If I recall correctly, Michigan prosecuted Jack Kevorkian under a
common law definition of murder, but I could be wrong.
Daniel Reitman
Deadrat
news:Xns9BEF805DBADDBs...@130.133.1.4:
> Deadrat <a...@b.com> wrote:
>
>> This conversation isn't in Old French, and we're not discussing
>> French law, old or new. The word "precept" arrives in modern in
>> English from Middle English via the Latin word "praeceptum,"
>> meaning advice or rule. That's what it means in my reply. Our
>> Constitutional rule is that there is no crime except that which
>> the legislature defines in law.
>
> I don't believe the Constitution says exactly that.
No, of course not. It's the Supreme Court that says exactly that in
United States v. Hudson and Goodwin, 11US32 (1812). This is applicable
to federal crimes only.
> It says that no
> one shall be convicted of an ex post facto offense, meaning that
> nothing shall be made a crime after it is committed. Some states (at
> least the last time I checked) still criminalize common law crimes even
> though they may not be defined by statute.
You're correct at the state level. My statement was too broad, and I
suppose the OP can look to a commmon-law crime of breaking a state oath
of office. I should have been more careful.
> The issue is notice and retroactivity, not the statutes.
I think the OP would try to make the case that notice is given by the
utterance of the oath, and that breaking an oath has always been an
offense, even though it's never been prosecuted. I think he would fail
in this attempt.
>> Nowhere in my post do I suggest that a judge can exempt an
>> official from following an oath, but it is not possible for a
>> judge to convict or punish an official unless that official has
>> broken a specific law. If you wish to lobby for laws that specify
>> what it means for public officials to break oaths and what the
>> punishments should be, then call your representatives in the
>> legislature.
>
> Without researching the issue I'd guess that you are correct as far as
> it goes - that violation of an oath of office is not criminal unless a
> statute makes it so. However it might leave someone open to
> impeachment
Absolutely. Even when grounds for impeachment is given (as in HC&M),
it's the eventual vote that counts. One of the articles of impeachment
prepared for Richard Nixon mentioned the violation of his oath of office.
> or even civil liability.
Liability will turn on duty and negligence. It's hard for me to see how
the violation of an oath in itself, absent some other harmful action,
could lead to liability. But that would be an excellent topic for the OP
to address.
> Stu
Silence DoGood
> How hard would it be to google the topic? Here:
>
> Cummings v. Missouri, 71US277 (1867)
re: Cummings v Missouri 1867 U.S. Supreme Court
During the Civil War the state of Missouri divided on itself
with a renegade legislature going with the Confederacy.
Some people were not happy about that and sought
vengeance by coming up with a new constitution which
required an oath that you never sided with the rebels,
or really even thought about it. If you didn't take the
oath you were subject to imprisonment, if you did
you could be prosecuted for PERJURY for lying
about something you did when it was legal. If you
did not take the "exculpatory" oath you couldn't
go about the business you had been doing.
Mr. Cummings was a Roman Catholic priest. He did not
take the oath, continued to perform sacraments, and was
jailed. The Supreme Court let him out because it was an
ex post facto law. No wait, it was a Bill of Attainder. Well,
anyhow in matters we all agree on...
The court voted 5 to 4 to mandate the release of the
prisoner "without delay."
As fascinating as it all is, it offers no direct precedent
to what I asked. The court didn't say that one who takes
and violates an oath could never be prosecuted for
perjury, they just said that Father Cummings could
not be jailed or restricted from going about his business
as before.
So, my question remains. Where is the "precept" that
directs that a public servant who volunatrily takes an
oath with his/her fingers crossed and then willfully
pursues personal interests exempted from Grand
Jury indictment for perjury, and possible conviction
and jail?
Silence DoGood
> See Addam v. Superior Court (4th Dist. 2/3/2004) 116
> Cal.App.4th 368, 10 Cal.Rptr.3d 39.
re: Addam v Superior Court February, 2004, California
This was an appeal over a lower-court ruling requiring that
an ex-husband in a custody dispute get a new lawyer over
"an appearance of conflict" because the lawyer he picked
was married to the ex-wife's obstetrician.
I did not see enough deference to the ruling in the lower
court for my tastes and too much ridicule of the wife's
low-budget response to the appellate challenge.
Nevertheless, allowing the lower-courts to evaluate every
complaint against the ex-spouse's attorney would grind
the system to a halt. That was never my suggestion.
We might consider these three possibilities:
1) An ex-wife complains about the *ex-husband's* abusive choice of
lawyer.
2) An ex-wife complains to the court about the *lawyer's* behavior in
accepting the case.
3) An ex-wife, and/or any of the officers of the court or
anyone who happens to know about it calls for an inquiry
into the ethics of the lawyer through the bar or a Grand Jury.
The cited case falls into category #1.
I'm looking for precedent covering category #3, that is, direct
criminal
pursuit against an Officer of the Court for behavior outside of
the Oath of Office.
P.S. The first line here is: "On Mar 31, 11:53 am, Deadrat
<a...@b.com> wrote:"
You can use that to find the full post. I feel that is sufficient, but
I'm ready to
adapt to fit any consensus.
Deadrat
4f0f-9789-c...@k41g2000yqh.googlegroups.com:
> On Mar 31, 11:53 am, Deadrat <a...@b.com> wrote:
>
>> See Addam v. Superior Court (4th Dist. 2/3/2004) 116
>> Cal.App.4th 368, 10 Cal.Rptr.3d 39.
>
> re: Addam v Superior Court February, 2004, California
>
> This was an appeal over a lower-court ruling requiring that
> an ex-husband in a custody dispute get a new lawyer over
> "an appearance of conflict" because the lawyer he picked
> was married to the ex-wife's obstetrician.
>
> I did not see enough deference to the ruling in the lower
> court for my tastes and too much ridicule of the wife's
> low-budget response to the appellate challenge.
>
> Nevertheless, allowing the lower-courts to evaluate every
> complaint against the ex-spouse's attorney would grind
> the system to a halt. That was never my suggestion.
Wrong. That is *exactly* your stated suggestion:
<restore>
You: An Officer of the Court swears to ethics that define any APPEARANCE
You: of impropriety as something that should be avoided.
</restore>
An officer of the court, at least in California, swears to no such thing.
And as Addam v Superior Court shows, not "any APPEARANCE of impropriety"
will constrain an attorney.
> We might consider these three possibilities:
>
> 1) An ex-wife complains about the *ex-husband's* abusive choice of
> lawyer.
> 2) An ex-wife complains to the court about the *lawyer's* behavior in
> accepting the case.
> 3) An ex-wife, and/or any of the officers of the court or
> anyone who happens to know about it calls for an inquiry
> into the ethics of the lawyer through the bar or a Grand Jury.
>
> The cited case falls into category #1.
I'm sorry, but I don't understand the fine distinctions you're making here.
I'm not even sure what an "abusive" choice is. And what does the
respondent's choice of a lawyer have to do with this? The respondent isn't
charged with the burdens of a code of ethics. That falls on the lawyer.
The bar investigates complaints of ethical violations all the time. They
have special committees to handle it.
> I'm looking for precedent covering category #3, that is, direct
> criminal
> pursuit against an Officer of the Court for behavior outside of
> the Oath of Office.
Are you asking for examples of officers of the court indicted for criminal
offenses, all of which would constitute "behavior outside of
the Oath of Office"?
> P.S. The first line here is: "On Mar 31, 11:53 am, Deadrat
> <a...@b.com> wrote:"
> You can use that to find the full post. I feel that is sufficient, but
> I'm ready to adapt to fit any consensus.
Good. Here's the consensus: When you respond to a portion of a post,
leave that portion in your response. Most newsreaders will mark quoted
material.
Stuart A. Bronstein
> As fascinating as it all is, it offers no direct precedent
> to what I asked. The court didn't say that one who takes
> and violates an oath could never be prosecuted for
> perjury, they just said that Father Cummings could
> not be jailed or restricted from going about his business
> as before.
First of all you can only establish it would be perjury if you can
prove he didn't intend to follow his oath when he took it. Then you'd
have to establish that the oath was made in a situation where he was
making it under penalty of perjury. It would be very unlikely that you
could prove both of those, or even that they existed.
> So, my question remains. Where is the "precept" that
> directs that a public servant who volunatrily takes an
> oath with his/her fingers crossed and then willfully
> pursues personal interests exempted from Grand
> Jury indictment for perjury, and possible conviction
> and jail?
I don't know that there is such a general precept. Have you tried
google?
Stu
Barry Gold
[regarding a case of an ex-wife asking the court to force the
ex-husband to get another lawyer because the current lawyer may be
privy to the ex-wife's confidences or otherwise have a conflict of
interest.]
>We might consider these three possibilities:
>
>1) An ex-wife complains about the *ex-husband's* abusive choice of
>lawyer.
>2) An ex-wife complains to the court about the *lawyer's* behavior in
>accepting the case.
>3) An ex-wife, and/or any of the officers of the court or
>anyone who happens to know about it calls for an inquiry
>into the ethics of the lawyer through the bar or a Grand Jury.
>
>The cited case falls into category #1.
>
>I'm looking for precedent covering category #3, that is, direct
>criminal
>pursuit against an Officer of the Court for behavior outside of
>the Oath of Office.
Again, you miss the point. There must be a specific law that the
lawyer broke. When the case goes to court, the prosecutor needs to be
able to say, "the defendant is charged with violating Section
umphty-umph of the Criminal Code (or Health and Safety Code, or...),
specifically that he did xxx."
Without that specification of a section of the law that the defendant
is alleged to have violated, you have no criminal case.
Besides, we already have a penalty for a lawyer who acts unethically:
he can be disbarred. Or if the bad things he did weren't _that_ bad,
he can be:
. reprimanded (which stays on his record for all to see)
. suspended for a period of days, months, or even years
. required to pay damages and/or a fine
Barry Gold
>So, my question remains. Where is the "precept" that
>directs that a public servant who volunatrily takes an
>oath with his/her fingers crossed and then willfully
>pursues personal interests exempted from Grand
>Jury indictment for perjury, and possible conviction
>and jail?
1) An oath of office is not normally given under penalty of perjury.
Only the witness's oath and related stuff(*) are given under that
penalty. Of course, the legislature _could_ enact a law providing a
penalty for taking the oath of office with intent to break it.
2) To get a conviction, the prosecution would have to _prove_, in
court and beyond a reasonable doubt, that the "public servant"
_intended_ to break the oath _at the time he took it_. That's the
problem with oaths about future behavior: you need to prove intent _at
the time_ the oath was taken. THe "public servant" can change his
mind one minute after taking the oath, and that doesn't make the oath
false.
In any case, we _already_ have laws against using a public office for
ones own personal benefit in specified ways (e.g., accepting bribes to
do or not do something, awarding contracts to a company that you have
an interest in, etc.)
This gets us back to the principle that IT'S ONLY A CRIME IF THE
LEGISLATURE SAYS SO. Some others have mentioned states that used the
common-law definition of murder and/or larceny. The legislature had
to have first passed a law specifying the penalty. Even when they
don't specify the "elements" of the crime -- because past court
decisions do -- theyre still needs to be a law saying, "larceny is
punishable by X months in jail". (Or X months if less than $A, Y
months if more, etc.)
To do otherwise would be an ex post facto law. "Oh, yeah, we've
discovered that you stole from the public, which is a common law
crime. So now we're going to put you in prison for 20 years." BZZT!
The courts will throw that out faster than a Sandy Koufax fastball.
Why? Because the Constitution says, "No Bill of Attainder or ex post
facto Law shall be passed." That means
1) The government can't wait until _after_ you do something to
decide it's a crime, and
2) THey also can't increase the penalty after you do it. If they
try you for it, you are subject to the old penalty rather than the
new. (I think, though, that if they _lower_ it, you can take
advantage of the lower penalty.)
The initial penalty for something with no explicit law against it is
"nothing", any attempt to specify a penalty after the fact would be
raising the penalty and hence an Ex Post Facto law.
Let's take a related situation.
Say I put a copy of a rare book up for sale on EBay. You bid, win,
and send me the money. I don't send you the book. Will I be
prosecuted for fraud? Probably not, because the prosecution would
have to prove that I intended to cheat _at the time_ I put the listing
up. My defense lawyer will say, "Hey, he just changed his mind after
the sale, because the winning bid wasn't as high as he hoped." Or
even, "He was going to send it, but it just kept slipping his mind."
(This latter defense works better if I arrange to ship you the book
sometime after they arrest me.)
In order to get a conviction for fraud, they would want more, e.g., I
listed 20 items for sale on EBay and didn't ship any of them. Or I
listed the book but never had a copy. (Even then, if I put it up and
then started scouring local bookstores hoping to find a copy to
sell...)
Without that proof, it's simple "Breach of contract," which is a civil
matter: you sue me in court for damages.
Here's what it comes down to: if you think that a particular act
should be punished as a crime, you should write your Representative
and Senator (or State equivalents) and suggest they introduce a law to
that effect. Or if you live in California or some other state with the
INitiative, you can ciruclate a petition to get it on the ballot(+).
Oh, and be sure to run it by a lawyer to make sure you write something
that is sufficiently specific to pass Constitutional muster. "If you
take an oath of office and then do something wrong" will be thrown out
as _way_ too vague.
(*) e.g., if you have to respond to interrogatories, the answers are
normally "under penalty of perjury". Also, some (not all) notarized
statements contain a "penalty of perjury" clause -- I recently signed
3 of them.
(+) To get the required signatures, yOu'll need either really great
organizing skills, or about $2million to spend on paid signature
gatherers. Be prepared to spend several $million more on advertising
to get the thing passed.
Daniel R.Reitman
wrote:
>. . . .
>This gets us back to the principle that IT'S ONLY A CRIME IF THE
>LEGISLATURE SAYS SO. Some others have mentioned states that used the
>common-law definition of murder and/or larceny. The legislature had
>to have first passed a law specifying the penalty. Even when they
>don't specify the "elements" of the crime -- because past court
>decisions do -- theyre still needs to be a law saying, "larceny is
>punishable by X months in jail". (Or X months if less than $A, Y
>months if more, etc.)
>
>To do otherwise would be an ex post facto law. "Oh, yeah, we've
>discovered that you stole from the public, which is a common law
>crime. So now we're going to put you in prison for 20 years." BZZT!
>The courts will throw that out faster than a Sandy Koufax fastball.
>Why? Because the Constitution says, "No Bill of Attainder or ex post
>facto Law shall be passed." . . .
>. . . .
Incorrect. The courts in many states have declined to recognize
common law crimes, and many states have prohibited them by statute,
but the Ex Post Facto Clause has never been held by the Supreme Court
to prohibit common law crimes, and some states still recognize them.
Dr. Kevorkian was prosecuted several times for common law murder
(although not convicted; it took a specially enacted assisted suicide
statute before a jury would convict for a subsequent offense).
Daniel Reitman
Barry Gold
>>To do otherwise would be an ex post facto law. "Oh, yeah, we've
>>discovered that you stole from the public, which is a common law
>>crime. So now we're going to put you in prison for 20 years." BZZT!
>>The courts will throw that out faster than a Sandy Koufax fastball.
>>Why? Because the Constitution says, "No Bill of Attainder or ex post
>>facto Law shall be passed." . . .
Daniel R.Reitman <drei...@spiritone.com> wrote:
>Incorrect. The courts in many states have declined to recognize
>common law crimes, and many states have prohibited them by statute,
>but the Ex Post Facto Clause has never been held by the Supreme Court
>to prohibit common law crimes, and some states still recognize them.
>Dr. Kevorkian was prosecuted several times for common law murder
>(although not convicted; it took a specially enacted assisted suicide
>statute before a jury would convict for a subsequent offense).
I guess I wasn't clear enough.
The courts in some states will recognize common-law crimes. But there
still needs to be a defined _penalty_ for that crime.
Kevorkian could be prosecuted under the common-law definition of
murder, but the legislature had already defined the penalty for
murder.
Now let's take a hypothetical. Everybody knows stealing is wrong.
There is a well-accepted common-law definition of "larceny". But
suppose the legislature had neglected to pass a law against larceny,
(and all its sub-forms) and therefore there was no defined penalty
for it.
So Joe Doakes walks into a store, slips something valuable into his
pocket, and walks out. A guard spots him and grabs him on the way
out. They haul Joe down to the station, book him, and he pleads
guilty to "common law larceny".
Now what? How many days, months, or years should the court sentence
him to? How long a probation period? Fine him $how much? Is it a
felony, a misdemeanor, or just an infraction?
Now do you see the problem, and why we can't just say, "violating your
oath of office is a common-law crime, so we'll sentence you
accordingly"?
Mike
> On Apr 21, 11:29 pm, "Daniel R.Reitman" <dreit...@spiritone.com>
> wrote:
>
>> Dr. Kevorkian was prosecuted several times for common law murder
>> (although not convicted; it took a specially enacted assisted suicide
>> statute before a jury would convict for a subsequent offense).
>
> Kevorkian (the prosecutor had to dredge it up from 1800s case law, and
> I recall that it was a real stretch too). He was never convicted of
> that, under either common law or statute. His acquittal(s) and at
> least one mistrial (in Ionia County) were the results of insufficient
> evidence and excellent advocacy by his lawyer (Geoff Fieger).
>
> Dr. Kevorkian was finally convicted in Oakland County of plain old 2nd
> degree murder under statute (MCL 750.317), and of delivering a
> controlled substance. He made the prosecutor's case by videotaping
> himself in 1998 pushing the fatal drug into a victim and then
> defiantly giving the tape to national TV news, which predictably
> broadcast it during prime-time.
Yes, I do believe you are correct on all that. Basically, the way I
understand it was that they kept trying to get him convicted for his
role in setting up the equipment, etc. but the kicker was always that
the person would actually push the button themselves so he wasn't really
guilty of murder (the other person always made the final decision.) But
in the last case, he did the button-pushing himself and thus HE was the
one who actually killed the person. (He said "but the person really
wanted to die," however, the law doesn't say "you can shoot another
person if they really wanted to die but you can't if they don't." It
simply says "you can't shoot another person." Well, maybe not in those
exact words but..........:) )
Daniel R.Reitman
wrote:
>I guess I wasn't clear enough.
>
>The courts in some states will recognize common-law crimes. But there
>still needs to be a defined _penalty_ for that crime.
At common law, the penalties were defined.
>. . . .
Dan, ad nauseam
Barry Gold
>>The courts in some states will recognize common-law crimes. But there
>>still needs to be a defined _penalty_ for that crime.
Daniel R.Reitman <drei...@spiritone.com> wrote:
>At common law, the penalties were defined.
Oh? What was the _common law_ penalty for larceny? For simple assault?
Daniel R.Reitman
wrote:
>> bg...@nyx.net (Barry Gold) wrote:
>>>The courts in some states will recognize common-law crimes. But there
>>>still needs to be a defined _penalty_ for that crime.
>
>Daniel R.Reitman <drei...@spiritone.com> wrote:
>>At common law, the penalties were defined.
>
>Oh? What was the _common law_ penalty for larceny? For simple assault?
Larceny, at common law, was generally a capital offense. I'd have to
check on assault.
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY CLIENT RELATIONSHIP
INTENDED.
Silence DoGood
wrote:
> At common law, the penalties were defined. �
It has been said that Common Law "is law made by judges, rather than
legislatures" and that "American law is based on English common law"
as changed by legislation and by the courts.
Benjamin Franklin resigned the office of Justice of the Peace shortly
after accepting it in 1749 saying: "More knowledge of the common law
than I possessed was necessary to act in that station with credit."
Was accountability for government officials a hot-button issue to be
avoided then as now?
We have the simple understanding today that "the people" bring
criminal charges via a public prosecutor and that all else goes to
"civil" court where it doesn't "matter" unless there is a potential
monetary award and by some form of magic the public prosecutor, as
exclusive agent, is empowered to repeal laws by omitting prosecutions.
I continue to ponder the depths to the meaning of "Grand" in "Grand
Jury". They say the opera is not over 'till the fat lady sings. Isn't
the Grand Jury our fat lady? Does not the Grand Jury have the ultimate
say as to when we are ready to "move on"?
Can anybody cite anything beyond: "It's just not how we do it,"?
Mike Jacobs
> Daniel R.Reitman <dreit...@spiritone.com> wrote:
> >At common law, the penalties were defined. �
>
> Oh? �What was the _common law_ penalty for larceny? �For simple assault?
DEATH. Or, something lesser.
Don't you remember all those stories about poor urchins in smoggy old
England, being hanged for stealing a loaf of bread? They didn't
have, or think they needed, no stinkin' "juvenile justice" system back
then. (with apologies to Treasure of the Sierra Madre, and Blazing
Saddles)...
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Stuart A. Bronstein
> We have the simple understanding today that "the people" bring
> criminal charges via a public prosecutor and that all else goes to
> "civil" court where it doesn't "matter" unless there is a
> potential monetary award and by some form of magic the public
> prosecutor, as exclusive agent, is empowered to repeal laws by
> omitting prosecutions.
>
> I continue to ponder the depths to the meaning of "Grand" in
> "Grand Jury".
It's "grand" as opposed to a petit or petty jury - the kind that finds
facts in courts where there is a judge and competing lawyers.
> Can anybody cite anything beyond: "It's just not how we do it,"?
What's that in reference to? I have no idea what that means. If you
mean bringing criminal charges, it's only the government that does that
in the US, though that is not the rule throughout the world. In
England, even, individuals can bring criminal prosecutions. It can be
expensive to do so - especially if the defendant is acquitted, and it
is seldom done.
Stu
Barry Gold
>DEATH. Or, something lesser.
>
>Don't you remember all those stories about poor urchins in smoggy old
>England, being hanged for stealing a loaf of bread? They didn't
>have, or think they needed, no stinkin' "juvenile justice" system back
>then. (with apologies to Treasure of the Sierra Madre, and Blazing
>Saddles)...
Yes, but my recollection is that those cases were based on acts of
Parliament -- that Parliament had gradually applied the death penalty
to lesser and lesser crimes, presumably in response to complaints by
merchants of losses to theft.
The real question is, what would the penalty have been in the absence
of an enabling act of Parliament. AFAIK, acts of Parliament are _not_
part of the common law -- the common law is a record of decisions by
(mostly appellate) judges, in cases where the law was not previously
clear or where two or more laws appeared to be in conflict.
Deadrat
4f86-bc4e-1...@n7g2000prc.googlegroups.com:
<snip/>
> We have the simple understanding today that "the people" bring
> criminal charges via a public prosecutor and that all else goes to
> "civil" court where it doesn't "matter" unless there is a potential
> monetary award and by some form of magic the public prosecutor, as
> exclusive agent,
This isn't some form of magic. It's part of *representative* democracy.
We the people don't have an individual right to prosecute criminals on
our own. Is the reasonability of this unclear to you?
If you don't like the local DA, vote him out of office.
> is empowered to repeal laws by omitting prosecutions.
The DA is an officer of the court, and as such, he has numerous duties,
one of which is prosecute cases that he thinks he can win within the
rules and drop cases that he thinks are sure losers. This will
inevitably result in "omitting prosecutions." Aren't you the one who's
big on public officials following their oaths of office?
If you don't like the local DA, vote him out of office.
> I continue to ponder the depths to the meaning of "Grand" in "Grand
> Jury".
Ponder no more. It just means "big," as in more members than a trial or
petit jury, which just means "small."
> They say the opera is not over 'till the fat lady sings. Isn't
> the Grand Jury our fat lady? Does not the Grand Jury have the ultimate
> say as to when we are ready to "move on"?
Let's leave aside grand juries with investigative powers. Grand juries
decide whether to hand up indictments on those bills presented to it by
the DA. When they do, we are ready to "move on" to trial.
>
> Can anybody cite anything beyond: "It's just not how we do it,"?
Can you tell us what topic anybody is supposed to find a cite for?
What is your complaint about? Prosecutorial discretion?
Barry Gold
Silence DoGood <Silence...@angelic.com> wrote:
>We have the simple understanding today that "the people" bring
>criminal charges via a public prosecutor and that all else goes to
>"civil" court where it doesn't "matter" unless there is a potential
>monetary award and by some form of magic the public prosecutor, as
>exclusive agent, is empowered to repeal laws by omitting prosecutions.
I suppose you could read it that way. In practice, a prosecutor who
neglects to prosecute a crime that offends the public can expect to be
looking for another job after the next election. Sooner if he is
appointed and serves "at the pleasure of" the appointing authority.
Keep in mind that prosecutors, like other people, have limited
resources available. The DA (or USA for federal cases) has X lawyers
working for him. Each lawyer can handle Y cases. Exceed that load,
and something doesn't get done in time, and the case gets dismissed
for lack of a speedy trial or some other failure to do the right thing
in the allotted time. Time is very important in the court system --
see the threads involving Hilary for examples.
So, that means the DA's office can handle, at any given time, say 20
murder cases, or 50 larceny cases, or 100 DUI cases. So, in comes a
report that Smith lost his temper and punched Jones, after both had
several drinks and a heated argument in which "fighting words" were
exchanged. Should the DA charge Smith with Assault and Battery?
If he does so, he may have a murder case come in that he can't handle.
Or if one comes in he may have to just nolle pros. ("I do not choose to
pursue") the A&B case.
And similarly, all the way down the line.
So, here comes a case where it is alleged that a Public Servant
(politician) failed to do something that his Oath of Office required
him to do, or did something that the OoO said he shouldn't done. Not
something obvious, like taking a bribe -- there are already laws
against that. But, say, the City Attorney writes a memo saying that
it's OK for the City to do X, when _most_ sensible lawyers would say,
"no, it's *not* OK for the City to do X." (E.g., the torture memos.)
Should the DA file charges against the City Attorney? A sensible DA
will weigh the following factors:
1. How badly has the city (or trust in the City government) been
damaged?
2. What will the public think if he goes ahead an file charges?
Will people say, "Good, the guy deserves to go to jail for that?"
Or will they say, "What a waste of taxpayer money? We're not all
that sure that the City Attorney was wrong, and if he _was_ wrong,
it wasn't all that bad."
3. What are his chances of _winning_ the case. If there's anything
a DA hates, it's filing a high-profile case and then _losing_.
A lot of the time when the DA doesn't file charges in a high-profile
case (e.g., cops accused of beating up a suspect), it's because he
thinks his chances of winning aren't all that great. He'll still do
it, if the public outcry is loud enough, but for the most part he is
the best person to judge whether the evidence is strong enough to get
a conviction.
It also makes sense from the point of view of Justice. It wouldn't be
right to prosecute a defendant for a crime when you know you can't get
a conviction. In fact, it's a tort: Malicious Prosecution, and the
defendant can win damages for it. And most people would say that a
prosecutor who files cases he can't win is overzealous and/or using
his office to harrass innocent people.
>I continue to ponder the depths to the meaning of "Grand" in "Grand
>Jury". They say the opera is not over 'till the fat lady sings. Isn't
>the Grand Jury our fat lady? Does not the Grand Jury have the ultimate
>say as to when we are ready to "move on"?
>
>Can anybody cite anything beyond: "It's just not how we do it,"?
Well, I suppose not. A lot of the Constitution is based on "that's
[not] how we do it" Or "That's [not] how we did it before Lord North
changed the laws to make it easier to convict colonists." Virtually
every clause in the Bill of Rights is there because the English
Government did something that the colonists thought was "against the
way things are supposed to be (traditionally were) done."
All of the "common law" that people have been discussing is a
compilation of "how we do it."
Silence DoGood
wrote:
>If you
> mean bringing criminal charges, it's only the government that does that
> in the US, though that is not the rule throughout the world. �In
> England, even, individuals can bring criminal prosecutions. �It can be
> expensive to do so - especially if the defendant is acquitted, and it
> is seldom done.
If individuals can bring criminal prosecutions in England, then I
expect they could also have done so in the colonies and in the
individual states under the Articles of Confederation.
If such can no longer happen in the U.S. I would think there must
have been a time when one could do so, and then a minute later
when one could no longer do so as black-letter-law came into
effect.
So when was that change? Was that done separately in all fifty
states?
In regards to prosecutor discretion mentioned repeatedly, what
would be the general objection to having yearly inquiry
by a grand jury?
Stuart A. Bronstein
>>DEATH. Or, something lesser.
>>
>>Don't you remember all those stories about poor urchins in smoggy
>>old England, being hanged for stealing a loaf of bread? They
>>didn't have, or think they needed, no stinkin' "juvenile justice"
>>system back then. (with apologies to Treasure of the Sierra
>>Madre, and Blazing Saddles)...
>
> Yes, but my recollection is that those cases were based on acts of
> Parliament -- that Parliament had gradually applied the death
> penalty to lesser and lesser crimes, presumably in response to
> complaints by merchants of losses to theft.
According to Britannica on line, with respect to the common law,
"Serious wrongs were regarded mainly as public crimes rather than as
personal matters, and the perpetrators were punished by death and
forfeiture of property."
It goes on to say,
"Whereas the common-law courts punished �hanging crimes,� such as
murder and robbery, the Star Chamber dealt with more-sophisticated
offenses, such as forgery, perjury, and conspiracy. Fines and
sentences of imprisonment were the usual punishment."
I think the earliest treatise on the common law was Coke on
Littleton, written in the 17th century if you're interested in
looking into it more.
> The real question is, what would the penalty have been in the
> absence of an enabling act of Parliament. AFAIK, acts of
> Parliament are _not_ part of the common law -- the common law is a
> record of decisions by (mostly appellate) judges, in cases where
> the law was not previously clear or where two or more laws
> appeared to be in conflict.
The punishment was probably whatever the judge thought reasonable
under the circumstances.
Stu
Silence DoGood
> Silence DoGood <Silence_DoG...@angelic.com> wrote in news:193db445-ce83-
> > I continue to ponder the depths to the meaning of "Grand" in "Grand
> > Jury".
>
> Ponder no more. �It just means "big," as in more members than a trial or
> petit jury, which just means "small."
I'm wondering if it means more like "grandfather" or "Grand Marshall"
an
uber position of authority and control.
You do not mention a power of inquiry generally attributed to a Grand
Jury.
Deadrat
4d07-a94d-6...@v1g2000prd.googlegroups.com:
> On Apr 28, 10:31�am, Deadrat <a...@b.com> wrote:
>> Silence DoGood <Silence_DoG...@angelic.com> wrote in news:193db445-ce83-
>
>> > I continue to ponder the depths to the meaning of "Grand" in "Grand
>> > Jury".
>>
>> Ponder no more. �It just means "big," as in more members than a trial or
>> petit jury, which just means "small."
>
> I'm wondering if it means more like "grandfather" or "Grand Marshall"
> an uber position of authority and control.
Nope. It's just comparative of the number of the members on the panels.
>
> You do not mention a power of inquiry generally attributed to a Grand
> Jury.
Most states don't have grand juries. The BoR imposes them on the feds, but
this has never been incorporated against the states.
Some states have investigative grand juries that act as watchdogs on
governmental matters. In California, these grand juries issue reports, but
it's up to the DA to issue indictments or ask the grand jury to return a
true bill based on the investigation.
Grand jurors who consider bills can question witnesses about what happened
and the prosecutor's office about the law, but they're pretty much
restricted to the information provided by the DA or USA.
Barry Gold
As others have mentioned, the function of the Grand Jury varies by
state and sometimes county. California does not use GJs in criminal
cases -- instead, the DA issues an "information" followed by a
Preliminary Hearing to determine if there is "probable cause" to hold
a full trial.
OTOH, in states & counties where the GJ is part of the criminal "due
process", that GJ usually does not have an investigative function. The
DA presents evidence, and the GJ produces either a "true bill" (an
indictment) or "no bill" (refuse to indict).
It is possible that those states/counties _also_ have an investigative
GJ, but the odds are that the investigative GJ does not play a part in
the criminal trial process. All the investigative GJ can do is report
what it thinks is inefficiency, misconduct, or just plain
wrong-headedness by various public officials. They then hope that
their report will either prompt the DA to begin criminal proceedings,
or embarrass somebody into making some changes. This has even been
known to happen from time to time.
Silence DoGood
wrote:
> The punishment was probably whatever the judge thought reasonable
> under the circumstances.
...in the days when a judge was a JUDGE! Hey, if we're talking common
people or outlaws, why would the King care?
Daniel R.Reitman
wrote:
>As others have mentioned, the function of the Grand Jury varies by
>state and sometimes county. California does not use GJs in criminal
>cases -- instead, the DA issues an "information" followed by a
>Preliminary Hearing to determine if there is "probable cause" to hold
>a full trial.
>
>OTOH, in states & counties where the GJ is part of the criminal "due
>process", that GJ usually does not have an investigative function. The
>DA presents evidence, and the GJ produces either a "true bill" (an
>indictment) or "no bill" (refuse to indict).
>. . . .
In Oregon, grand juries are used for felonies only, and the DA
controls the evidence provided. If the grand jury refuses to indict
(which has been known to happen), no felony charges may be brought,
but the DA is free to file a misdemeanor complaint.
This led to an interesting case recently. A grand jury returned no
bill, but no one read it carefully, and the prosecution proceeded. The
defendant plea-bargained, served a few months, and was released on
subsequent probation. At this point, one of the grand jurors learned
about the prosecution, and notified the DA. The conviction was
vacated, and the state then brought a misdemeanor charge.
The defendant has sued the state, the county, and the public defender.
At last report, the suit was dismissed and an appeal is pending.
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY-CLIENT RELATIONSHIP
INTENDED.
Wayne Mitchell
>California does not use GJs in criminal
>cases -- instead, the DA issues an "information" followed by a
>Preliminary Hearing to determine if there is "probable cause" to hold
>a full trial.
I don't live in CA but something here doesn't add up. It's my
understanding that Tom Sneddon used a Santa Barbara grand jury to get an
indictment against Michael Jackson on evidence that would have been
unlikely to survive a preliminary hearing.
--
Wayne M.
Deadrat
news:03tlv4h1t2t2na9aa...@4ax.com:
You're right. The correct statement should have been "California rarely
uses grand juries to obtain indictments."
Sneddon claimed that he wanted to avoid a circus by using (secret) grand
jury testimony as opposed to an (open) preliminary hearing. It no doubt
crossed his mind that the prospective defendant has more rights in the
latter, adversarial procedure.
Seth
> 2) THey also can't increase the penalty after you do it. If they
> try you for it, you are subject to the old penalty rather than the
> new.
Except they often do. Two examples are sex crimes (where someone,
long after prison release, is prevented from living in certain areas
that he legally lived in before the penalty increase) and firearms
possession.
Seth
Seth
Cy Pres <c.p...@yahoo.com> wrote:
>No. A "bill of attainder," under American constitutional law, is
>simply any legislative act declaring a person or group of persons
>guilty of some offense without a trial.
That can't be the full meaning; suppose, instead of passing a law that
says "Cy Pres is guilty" they pass a law that says "It's a felony to
be Cy Pres". Under that law, you'd be entitled to a trial before you
could be convicted of being Cy Pres, but I believe that's still a bill
of attainder.
Seth
John F. Carr
>> bg...@nyx.net (Barry Gold) wrote:
>>>The courts in some states will recognize common-law crimes. But there
>>>still needs to be a defined _penalty_ for that crime.
>
>Daniel R.Reitman <drei...@spiritone.com> wrote:
>>At common law, the penalties were defined.
>
>Oh? What was the _common law_ penalty for larceny? For simple assault?
Assault is a misdemeanor, traditionally punished by jail, so it
would have to be no longer than a year or so (the traditional
maximum jail sentence).
I don't know about simple larceny though I suspect it was a
misdmeanor too. Robbery and burglary were common law felonies.
This sort of question actually arises in modern Massachusetts,
where common law crimes and punishments remain. State statute
says:
If no punishment for a crime is provided
by statute, the court shall impose such
sentence, according to the nature of the
crime, as conforms to the common usage
and practice in the commonwealth.
A man pleaded guilty to soliciting murder, an uncodified common law
crime, and was sentenced to 6-10 years in prison. He appealed citing
an 1839 case that defined solicitation of a felony as a misdemeanor.
Misdemeanors can not be punished by imprisonment in state prison.
He won.
http://masscases.com/cases/sjc/424/424mass737.html
--
John Carr (j...@mit.edu)
John F. Carr
Silence DoGood <Silence...@angelic.com> wrote:
>If individuals can bring criminal prosecutions in England, then I
>expect they could also have done so in the colonies and in the
>individual states under the Articles of Confederation.
Some states still allow private prosecutions, at least for
minor crimes. In Oregon you can charge a police officer
with speeding and take him to court. In the case I read
about the private prosecutor lost because he didn't know
how to present a proper case proving all the elements of
the offense. Where I live any person has the right to apply
for a criminal complaint but has no right to prosecute the
case or have it prosecuted.
--
John Carr (j...@mit.edu)
Silence DoGood
> Keep in mind that prosecutors, like other people, have limited
> resources available. �
A recent headline relates: "Tyra Banks'
Stalker Convicted in NYC."
I tried to find out where a prima facie
case of a violation of any penal code
was made against Brady Green and
where he was allowed to defend against
that charge to a jury of his peers.
Instead Manhattan Criminal Court Judge
said HE found that Green had been
"hounding" Banks! If it were legal, I
would wager that no legislature ever
made "hounding" part of the definition
of stalking, or any dictionary, nor any
common law precedent.
Does anyone else see an appearance of
impropriety that ought to result in Judge
Burke, Assistant DA Sean McMahon
losing their jobs and pensions if not worse?
>From what I see, a man's life has been
destroyed without a hint of due process
based on celebrity law which says there
is no such thing as bad publicity.
Do we need more accurate reporting, do
I need new glasses, or just what is going
on here?
Deadrat
> On Apr 28, 12:58�pm, bg...@nyx.net (Barry Gold) wrote:
>
>
>> Keep in mind that prosecutors, like other people, have limited
>> resources available. �
>
> A recent headline relates: "Tyra Banks'
> Stalker Convicted in NYC."
>
> I tried to find out where a prima facie
> case of a violation of any penal code
> was made against Brady Green and
> where he was allowed to defend against
> that charge to a jury of his peers.
It was a bench trial. Either Green wasn't entitled to a jury trial, as
the penalties for his conduct were too small, or he waived his right to
a jury trial. Do you know which?
> Instead Manhattan Criminal Court Judge
> said HE found that Green had been
> "hounding" Banks! If it were legal, I
> would wager that no legislature ever
> made "hounding" part of the definition
> of stalking, or any dictionary, nor any
> common law precedent.
How much will you bet me? Warning: it's a sucker bet. Here's the
section from the New York statutes:
<quote src="NY Statures" section="120.45" title="Stalking in the fourth
degree"> A person is guilty of stalking in the fourth degree when he or
she intentionally, and for no legitimate purpose, engages in a course of
conduct directed at a specific person, and knows or reasonably should
know that such conduct:
1. is likely to cause reasonable fear of material harm to the physical
health, safety or property of such person, a member of such person`s
immediate family or a third party with whom such person is acquainted;
or
2. causes material harm to the mental or emotional health of such
person, where such conduct consists of following, telephoning or
initiating communication or contact with such person, a member of such
person`s immediate family or a third party with whom such person is
acquainted, and the actor was previously clearly informed to cease that
conduct; or
3. is likely to cause such person to reasonably fear that his or her
employment, business or career is threatened, where such conduct
consists of appearing, telephoning or initiating communication or
contact at such person`s place of employment or business, and the actor
was previously clearly informed to cease that conduct. </quote>
</quote>
> Does anyone else see an appearance of
> impropriety that ought to result in Judge
> Burke, Assistant DA Sean McMahon
> losing their jobs and pensions if not worse?
Of course not. The judge, as the trier of fact, determined that Green
caused Banks to fear for her well being by forcing his attention on her
and attempting to force his presence. He had her testimony to that
effect.
>>From what I see, a man's life has been
> destroyed without a hint of due process
> based on celebrity law which says there
> is no such thing as bad publicity.
The man wasn't even sentenced to jail, but told to get psychiatric help
in some other city.
> Do we need more accurate reporting, do I need new glasses, or just
> what is going on here?
Since you asked, you and the stalker both need to get a life.
Cy Pres
Courts would tend to look at the substance of it rather than whether
you technically held a "trial" to determine some trivial fact. You
couldn't get around it either by stating "It's a felony to possess ice
cream while being Cy Pres" or "It's a felony to walk on a sidewalk
while being Cy Press" or some similar combination.
Also, and maybe rather than reaching the issue of whether such a law
were a bill of attainder, the court would simply treat it as an
unconstitutional "status offense," i.e. a law which criminalizes your
identity, and does not require any actus reus, without which it is
unconstitutional to convict of a crime, i.e. "being a drug addict."
Barry Gold
>>No. A "bill of attainder," under American constitutional law, is
>>simply any legislative act declaring a person or group of persons
>>guilty of some offense without a trial.
In article <gtssmg$6pm$1...@reader1.panix.com>, Seth <se...@panix.com> wrote:
>That can't be the full meaning; suppose, instead of passing a law that
>says "Cy Pres is guilty" they pass a law that says "It's a felony to
>be Cy Pres". Under that law, you'd be entitled to a trial before you
>could be convicted of being Cy Pres, but I believe that's still a bill
>of attainder.
I'm not sure of this. I suspect it would violate the general rule
that a crime is either an act or an omission. That is, either you did
somethin' you weren't s'posed'ta, or you didn't do somethin' you
_were_ s'posed'ta.
Looking at various laws, you will see that, e.g., it is illegal to
possess or use drugs, but not to "be" a drug addict. Before Lawrence
v. Texas, it was illegal in some states to engage in certain kinds of
sex (anal intercourse and/or fellatio). But it was _not_ illegal to
_be_ a homosexual.
Making a state of being illegal is a "status crime," and the courts do
not like such laws. There may be some status crime somewhere that has
passed constitutional muster, but offhand I can't think of any. We
*do* have some laws that come awfully close to status crimes, though.
For example, a person convicted of child molestation may be barred
from living in certain areas. In California, those areas are so large
(anywhere within 2000 ft of a school or park where children gather)
that offenders must either move to rural areas or become homeless (it
appears there are a few freeway overpasses in Los Angeles that satisfy
the requirements). So, in effect, the law makes it a crime to be a
convicted child sex offender in a city.
That law is being applied to offenders who have previously been convicted
but have not yet completed their sentences. IMHO this violates the Ex
Post Facto rule, but the courts have ruled otherwise.
Silence DoGood
> How much will you bet me?
The appearance is that Mr. Green has been
convicted of low status as a result of trial-
by-label based on the testimony of an out-
ranking, portly, starlet.
After this, it appears, a law against "hounding"
was discovered in the mind of the judge (See
why I don't like the word "judge"?) who finds
Mr. Green had *already confessed* to activities
all done in the open air and light of day presented
as evidence that he was *not* devious or
stealthy begging a circular question regarding
self-incrimination under ex-post-facto law.
As I say, this is how it appears to me and I call
upon those in control to remove this appearance
of impropriety or remove themselves from authority.
I want to know how a problem I would consider
an occupational hazard became a matter of public
concern, and how Tyra's hysteria over the fact
that SHE was annoyed, inconvenienced, and
delayed, was prioritized over the plight of
thousands who legitimately fear for their lives.
If Mr. Green was found guilty of any existing
criminal statute. I want an explanation of when
and how the charge was presented, who the
accusers were, and if and how hearsay was
used to convict over sworn denials.
Out of deference to Mr. Green, I remind that
his lawyer clearly stated an intent to appeal
and request that he not be referred to as
guilty until that process is completed.
In addition, please check your compliance
with the rules regarding posting of quoted
material from outside sources.
Does anyone have access to actual court
records?
One more thing, is it not within the discretion
of the court to call a jury to listen in and offer
advice?
Timothy Horrigan
> >
> > Looking at various laws, you will see that, e.g., it is illegal to
> > possess or use drugs, but not to "be" a drug addict. Before Lawrence
> > v. Texas, it was illegal in some states to engage in certain kinds of
> > sex (anal intercourse and/or fellatio). But it was _not_ illegal to
> > _be_ a homosexual.
> >
> > Making a state of being illegal is a "status crime," and the courts do
> > not like such laws. There may be some status crime somewhere that has
> > passed constitutional muster, but offhand I can't think of any. We
> > *do* have some laws that come awfully close to status crimes, though.
Our political commentators do speak a lot about "illegals"-- although
technically an illegal is just someone who is violating immigration
law. It is interesting that conservatives like to refer to them as
"illegal aliens" (i.e., someone who by definition is against the law
and doesn't belong here) and liberals like to refer to them as
"undocumented immigrants" (i.e., someone who merely entered the
country without filing the right paperwork.)
Barry Gold
>Our political commentators do speak a lot about "illegals"-- although
>technically an illegal is just someone who is violating immigration
>law. It is interesting that conservatives like to refer to them as
>"illegal aliens" (i.e., someone who by definition is against the law
>and doesn't belong here) and liberals like to refer to them as
>"undocumented immigrants" (i.e., someone who merely entered the
>country without filing the right paperwork.)
Neither is quite right, of course.
The problem with "illegal alien" is that it makes it seem like a
status crime -- it's illegal for you to be here because you are an
alien.
The problem with "undocumented immigrant" is, as you say, that it
implies that "all" the UI did was fail to file the required papers.
I suppose the right term would be "illegal immigrant", that is,
somebody who _entered_ the country illegally. That is the crime they
committed, and for which they can be imprisoned or deported. Or some
other, more complicated term for those who enter the country legally
(e.g., on student or tourist visas) but then overstay the time on
their visa.
Stuart A. Bronstein
> After this, it appears, a law against "hounding"
> was discovered in the mind of the judge (See
> why I don't like the word "judge"?) who finds
> Mr. Green had *already confessed* to activities
> all done in the open air and light of day presented
> as evidence that he was *not* devious or
> stealthy begging a circular question regarding
> self-incrimination under ex-post-facto law.
It's known as stalking, and if it gets intense enough that the
subject of the hounding fears for his or her safety, it is, in fact,
illegal, and not just in the mind of the judge.
> I want to know how a problem I would consider
> an occupational hazard became a matter of public
> concern, and how Tyra's hysteria over the fact
> that SHE was annoyed, inconvenienced, and
> delayed, was prioritized over the plight of
> thousands who legitimately fear for their lives.
Sometimes stalkers injur or even kill their victims. Should we
ignore those who attempt murder in general, as long as they don't
complete the crime, as a personal matter and of no concern to the
public?
> If Mr. Green was found guilty of any existing
> criminal statute. I want an explanation of when
> and how the charge was presented, who the
> accusers were, and if and how hearsay was
> used to convict over sworn denials.
You'll have to go to the courthouse and read the courts file for
that. You may also have to order a trial transcript, but be prepared
to pay for it if you want it.
> Does anyone have access to actual court
> records?
You do. Go to the court and ask.
> One more thing, is it not within the discretion
> of the court to call a jury to listen in and offer
> advice?
The jury doesn't offer advice. The jury finds facts, the judge
determines what the law is and applies that law to those facts.
Stu
Silence DoGood
wrote:
>It's known as...
If the defendant was a stalker, he would have jimmied
the stage door, snuck in at night, and hid with a knife
until Ms Banks showed up instead of going to the
office in broad daylight and asking for a ticket
to her show in response to inducements to do
exactly that.
> Should we ignore those who attempt murder...?
We should have evidence of intent presented to a
Grand Jury who will determine if a prima-facie case
has been established and then a trial to proceed based
on the presumption of innocence. The controversial
subject of intent should be decided by a jury.
> be prepared to pay for it if you want it.
I expect the State of New York to come clean
but if someone else wants to make excuses for
them, I'm all ears, but I am not required to trust
them. They have a duty to resist temptation.
>Sometimes...
"Sometimes" should apply to calling the cops.
"Sometimes" should apply to a police investigation.
Please answer my main question: Why should
Ms Banks case get priority treatment?