He argues that there is hope for justice because of these reasons:

1.  Even though our new Attorney General, Mr. Sessions, believes that marijuana is as deadly as heroin and he plans to start prosecuting violators (even though many states have legalized the possession of marijuana, federal law still makes it illegal to posses), in reality most of the criminal justice activities are handled by state and local governments.  They also pay for over-crowded prisons and have to deal with the mess that comes from incarcerating low-level offenders when they are finally released.  As a result, many states have re-thought the penalties for low-level crimes and how they handle offenders.  (Prison vs. probation, for instance)  The results can give us all hope for justice in this country.
2. There have always been reformers who have advocated a modern approach to the criminal justice system in light of new research.  Today, more ex-offenders are coming forward to tell the voting public what it’s like to be incarcerated and its effects on the entire family.  Their stories are causing legislators and local boards to re-think the old ideas of how to deal with crime and criminals.
3. There’s hope for justice in America because many of the local prosecutors (who prosecute 90% of the crimes in this country—not the federal government) recently elected are open to re-thinking what the impact of a criminal prosecution has on not only the accused but also the extended families—and the cost to taxpayers.
4. What about the victims?  Shouldn’t we consider their pain and suffering?  Of course.  But the interesting thing local prosecutors and defense lawyers have discovered is that, if given the choice between prison for 20 years or some kind of rehabilitative alternative, many victims want the criminal rehabilitated.  This is great because not only are the offenders treated differently, but victims are also given a role in the outcome of the process—something to give us all hope for justice in America.

If you get a chance, read Mr. Forman’s essay.  Instead of the vision of America as a post-apocalyptic wasteland that will be helped only by locking up more and more people that comes from those in the White House, here’s a refreshing essay about the significant changes being made in our local communities.   It gives us all hope for justice in America.

The post There’s Still Hope for Justice in America appeared first on Colin T. Nelson.

Most tourists visit the capitol and and the White House.  Very few stop at the Supreme Court.  (It sits across the street from the capitol)  So, if nothing else, it won’t be crowded and is worth the time to tour it.  Here’s what impressed me about my recent visit:

1. Constructed in the 1930’s, the present building is almost identical to the Parthenon in Athens, Greece.  It’s the same shape with columns in front of a wide series of marble steps that lead inside.  Once inside, it resembles the Parthenon also with a long, rectangular room and more columns along the sides.  Everything is made of bright white marble.
2. Instead of leading to the statue of a Greek god, the hallway leads to a small courtroom.  There’s an audience area facing a semi-circle of judicial seats—nine of them.  Other than a few offices and conference rooms, that’s all there is to the court.
3. Justices are appointed for life without any mandatory retirement age.  Hopefully, this gives each of them independence from political and social influences.  Often, after sitting on the court, a justice will change his/her philosophy and rulings that are contrary to what people expected from the justice when first appointed.  (Keep this in mind when the politicians and media worry about who goes on the court)
4. There’s a short and informative film you can watch that details how the Supreme Court works.  Contrary to the public’s understanding, there is no constitutional right to have the Supreme Court decide you case.  In fact, they only hear less than 5% of the requests for judicial review.
5. Here’s how the the Supreme Court works:  each justice gets a copy of the lawyer’s brief (written arguments) prior to the public hearing in the courtroom.  After questioning the lawyers, the justices file into a beautiful wood-paneled conference room.  They are alone in there without even their clerks.  Each justice must tell the others what he is thinking about the case.  No one can respond a second time until everyone else has the opportunity to speak.
6. If it appears that a least five justices can agree, sort of, on a decision one of the justices is assigned to write the majority opinion.  The other justices may join in later or may disagree and write their own opinion.  What impressed me about how the Supreme Court works is that one justice cannot dictate to the others what the decision should be.
7. All of the justices interviewed in the film expressed how serious and important their work is—without any mention of partisan politics.

If you get to Washington D.C. a tour of the building is quick but impressive and will give you a good idea of how the Supreme Court works.

The post How the Supreme Court Works appeared first on Colin T. Nelson.

Is this self defense or murder?

This situation really happened in Minneapolis and it’s troubled many people.  Let’s look at their concerns:

1.  The shooter is another example of “vigilantes.”  Untrained but armed citizens who “take the law into their own hands.”

2.  This is a Good Samaritan who tried to rescue a victim and stop the attacker.  He provided a public service, and when the attacker turned on him the rescuer acted in self-defense.

As a criminal lawyer myself, clearly the rescuer is within his rights to help the victim.  Also to try and recover the stolen purse.  To even chase the attacker.  He was also licensed to carry a gun.  But once the attacker turned and ran away, the rescuer doesn’t have a duty to chase him.  What about self-defense?

But he did choose to run after the attacker.

Under the law, this is considered a separate incident from the original crime.  At this point, if the rescuer uses force against the attacker, the rescuer may be committing the crime of assault.  Because the original crime was not directed at the rescuer.  Strange as it may sound, if the attacker feels threatened by the rescuer, he has a right to defend himself against the rescuer!

In Minnesota, the right of self-defense is defined as:

Taking of the life of another is authorized when necessary in resisting or preventing an offense in which the actor reasonably believes exposes the actor to great bodily harm or death to himself.

In the real case we have only the rescuer’s version since the attacker died from the gunshot.  It’s possible that either man acted in self-defense.  The rescuer could be charged with some level of homicide, although the prosecuting attorney has said he will not do so.

One concern that I have is the “vigilante” aspect of this incident.  For all I know, the rescuer acted as a Good Samaritan and only when he was threatened with death himself, reluctantly pulled out his own gun and shot the attacker dead.  But what if his intention from the start was to act as law enforcement, knowing he was armed and ready to shoot at the smallest reason?

As a society, we license law enforcement to use force—only after rigorous training and education about weapons and violent situations.  Most of us, even if we’re licensed to carry a weapon, lack similar training and may act in a rash, wrong, and deadly way.

What do you think?

The post Self Defense or Murder?? appeared first on Colin T. Nelson.

What happened?  What does the Grand Jury really do?  Let’s continue with some interesting points:

1.  What did the Grand Jury consider in Ferguson, MO?  They heard over 60 witnesses.  The prosecutor called all these people.  It sounded like he tried to cover every detail.  He would also instruct the Grand Jury about what the legal definition of various, possible homicide crimes could be, such as manslaughter or murder in the first degree.  The jurors had to apply the evidence to the legal definitions.  After days of deliberating, they decided the evidence did not fit any of the legal definitions for a crime to have been committed.  No indictment of Officer Darren Wilson.

2.  When we look at the news, it appears that Office Wilson was armed and Michael Brown was not—how could the Grand Jury come back with the decision they did? Because under most state laws, the prosecutor must present evidence that the officer acted with “malice and without a good-faith belief that the shooting was justified.”  It’s a tough burden to overcome and obviously, the Grand Jury felt the evidence didn’t overcome the burden.  They didn’t issue an indictment.

3.  If the Grand Jury in Ferguson, MO had issued an indictment, is that the same as a finding of guilty for Officer Darren Wilson?  No.  if the Grand Jury had indicted Office Wilson of manslaughter, for instance, he would be presumed innocent until proven guilty in a regular trial before twelve new jurors.  He would have the right to not testify and would have a defense lawyer—things he didn’t have before the Grand Jury.

4.  Do the citizens of Ferguson, MO have any alternatives now?  They could go to the federal prosecutor and try to get a civil rights criminal charge filed against Officer Darren Wilson.  It’s an accusation that he deprived Michael Brown of his civil rights—to life.  However, the burden on the prosecutor here is even more difficult—it essentially requires proof beyond a reasonable doubt that Officer Darren Wilson intended to deprive Michael Brown of his civil rights.  A tough hurdle to get over.

5.  Is the Grand Jury a fair process?  This is really the question the angry people in the streets are asking.  People who worry about uncontrolled police violence, don’t think so, of course.  I don’t know the answer to this question but consider this: the prosecutor chooses what evidence to present, which witnesses to call—or not call.  He also instructs the jurors on what the law calls for and is alone with them in secret.  There aren’t any defense defense lawyers to challenge or correct the prosecutor.  Is there be a possibility the prosecutor could sway the Grand Jury one way or the other?

What do you think?

The post What About the Grand Jury in Ferguson, MO? Part II appeared first on Colin T. Nelson.

1.  Being arrested means you have a right to make a phone call to your loved one.

It’s seen in the movies.  Why?  It’s a dramatic point.  But not in real life.  There’s no constitutional or procedural right to make any calls.  Besides, modern jails probably don’t have land-line phones any more!

2.  Being arrested without your Miranda rights.

It’s known as the Miranda warnings: the right to remain silent, the right to a lawyer, etc.  Just being arrested doesn’t mean the police must read these to you under all circumstances.

For instance, you must be in police custody.  They must have focused on you as the main suspect.

But what if the police really violate your rights by failure to warn you?  Does you case get tossed?  Not necessarily.  It means any confession you’ve given will be thrown-out.  But if there’s other evidence of your guilt, the prosecutor may still go after you.

3.  After being arrested, if you don’t have a prior record, you’ll get out quickly.

Most courts today have a form they use to evaluate a person for release.  A clerk will read the form to you.  He’ll check off boxes to questions like: are you a homeowner?  How long?  Are you working?  How long?  Are you married?  Any prior record?

Based on your answers, the clerk adds up your score.  And based on the score, the judge will make a decision to release you or not.

4.  The police discriminated against you when you were arrested.

Unfortunately, bad police practices persist against many people.  Your case probably won’t be thrown out as a result.  Look at the Rodney King case or O.J. Simpson. Both claimed discrimination but they still had to go through a trial.  Discriminatory treatment is not a defense to a criminal charge.  So, what can you do?  You can sue the police department for a violation of your civil rights.  Get them where it hurts most—money!

5.  While you were being arrested, the police beat you up.

Refer to #4.  Some police are “thumpers.”  It’s also not a defense to a criminal charge.  Your recourse is to sue them for the same reasons as #4.  See Rodney King get beat.  http://www.youtube.com/watch?v=SW1ZDIXiuS4

6.  You should be honest and tell the police what you did.

“The cops told me if I cooperated, it’d be easier for me.”  I hear it all the time. It’s true up to a point.  You should do what the police tell you. Don’t argue with them, don’t try to escape or fight them.  But keep you mouth shut.  Remember the Miranda warning:  Whatever you say may be used against you in court.

7.  After being arrested for no reason, I’ll tell the judge who will agree.

Sorry—no one cares much except, maybe, your kids. The judge has limited powers to do anything about your case anyway.  Better for your lawyer to talk with the prosecutor and who knows?  The prosecutor may understand the injustice and give you a break!

The post 7 Myths about Being Arrested appeared first on Colin T. Nelson.