Category Archives: LEGAL ISSUES

HEARSAY

It is a generally understood legal concept that testimony in court should be firsthand – what the testifying witness herself saw, heard, and knows.  That witness can then be cross-examined to determine their veracity, memory, reliability, etc.  With few exceptions, witnesses are not allowed to come in and say what someone else said or saw, because there is no way to  cross-examine the original witness when the jury hears the evidence second-hand.  In general, it is considered unfair to allow this kind of evidence into court, so it is not admissible.  This is known as the hearsay rule, and as soon as someone in court starts to repeat what someone else said, a lawyer is likely to pop up and say, “Objection! Hearsay!”

The court rules for the state where I live allow for an astounding 23 exceptions to the hearsay rule, but very few apply to the cases I deal with.  The exceptions include many outdated things, like the ability of witnesses to speak as to the legitimacy of a child born into the family, or where a property line was historically considered to be, or to quote a deceased person about their last words regarding their will.  But for the criminal cases that I mainly interpret for, there are currently two common exceptions to the hearsay rule, and they center around 911 calls and police interviews that often take place during or directly after an event.  The two exceptions which allow hearsay to be presented in the courtroom for jury consideration are  known as “excited utterance” and “present sense impression”.

What is an excited utterance?  “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”  This definition fits in well for a 911 call.  It also allows for what a crime victim says directly after the commission of the crime to be admissible in court, even if the crime victim has become fearful of testifying by the day of trial.  By policy, most domestic violence assault cases are dismissed on the day of trial if the crime victim fails to appear and testify.  But with these hearsay exceptions, the prosecutor can play the 911 call, show a police interview video, and then have the police testify as to what they observed.  In this way, they can still prosecute the assailant, without the witness having to cooperate.

What is present sense impression?  Very similar.  “A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”  Rather than having to be emotional or upset at the time, it is simply a real-time or immediate report.  On a 911 call, the victim will frequently call and say for example the assailant is at the door, trying to break in, holding a kitchen knife, armed with a gun, in the next room and threatening, or has just caused bodily harm and then fled the scene.  Many people just don’t call until the danger is immediate, the assault is in progress, or has actually occurred.   So a 911 call stating the assault in progress, or a police video showing the interview with the victim moments after the assault, may be admitted under this exception to the hearsay rule.

Why are excited utterances and present sense impressions allowed in court, even if the witness can be forced to appear in court and could testify afresh?  The idea behind it is that at the moment of crisis, when a person calls 911 or is being interviewed by police directly after the event, there is no time for fabrication, and perhaps more importantly, no one has had the chance to persuade the witness to say something different.  It is real time – it is immediate – and it is considered more valid and probably more accurate than what a witness might choose to recall some months down the line, after the spouse’s family puts the pressure on, or after the victim has decided to give the perpetrator one more chance.

From the point of view of the crime victims, I think of these exceptions as a way for our past self to come forward and protect our current self, even when that current self has lost heart and is not brave enough to do so at the time.  There is something sweet about your past self, at a moment of such crisis, still being able to protect your present self from caving and allowing the perpetrator to walk.  It gives the perpetrator a chance to get some much-needed help and treatment, along with appropriate punishment, and it gives the crime victim a respite during the length of the no-contact order to delve into what kind of relationship is desirable.

Of course, I never know what crimes have actually occurred, or the specific circumstances surrounding any case.  It is not my job to know or judge.  But I have felt frustrated at times that cases get dismissed simply because the crime victim doesn’t show up, because it almost encourages families to put pressure on domestic violence victims to shut them up.  So I am glad that crime victims don’t always have to testify in order for the defendant to face trial.  I am glad that their voice, even if it is second-hand, can be heard under these limited and very special circumstances.  The jury still have the option to disregard the testimony, if they do not find it credible.  But so far, I have not personally seen that happen.  Excited utterances and present sense impressions have an immediacy and an emotional impact that a reluctant recollection some months down the line cannot easily match.

ALFORD PLEA

There once was a case called North Carolina vs. Alford.  People in the legal field are very familiar with this case and its consequences.  A person who wanted to avoid the death penalty pled guilty to murder, but then appealed his own guilty plea.  He claimed he only pled guilty to avoid the gas chamber, and wished to maintain his innocence on the record.  Basically, he was saying he didn’t do it, but he knew he would get convicted.  Long story short, people now have the right to make an Alford Plea – officially pleading guilty, and being sentenced, without admitting to having committed the crime.

When law students and others first hear about this concept, it is a little puzzling.  Why would you plead guilty to something you didn’t do?  There is only one good reason I can think of – because the evidence the government has against you is so strong that you are pretty much guaranteed to lose at trial.  And you want to take advantage of some kind of offer that the government is making you in exchange for your pleading guilty.   In essence, although you did not commit a crime, the weight of the evidence is against you.  So to avoid even more dire consequences, you accept some kind of deal, in which you plead guilty to a crime you did not commit.

The underlying concept is even stranger and more baffling, but there is no remedy for it.  You have the right to a fair and impartial public trial before a jury.  You have other rights, such as the right to counsel and the right to remain silent, to hear and witnesses who testify against you, and to have witnesses brought on your behalf.  But what you don’t have is the right to the correct outcome.  I cannot stress this enough.  You do not have the right to be exonerated and released, even if you did not commit the crime.  You have the right to due process – the procedures must be followed.  But you can, legally, be convicted of a crime you did not commit.

Let’s take an Alford Plea case and see how this plays out.  Say you are walking to work, about a mile and a half, to the same job you have had for some years.  You have your backpack with your lunch and your work clothes, and a baseball cap on to shade your eyes as you walk in the sun.  You are sweating a little.  You want to get to work on time, and your youngest kid kept asking you to pick her up for one more hug goodbye.  You are not a US citizen, but you have it pretty good.  You have a steady job, and you can support your family in a simple way.  You walk with headphones on, and a bit of a smile.  Just a day like any other.

Around the corner, unbeknownst to you, my friend, there is a drama playing out.  In broad daylight, while another man sits in his living room,  his basement window breaks.  Someone is going to force their way into his place!  Such a scary moment for anyone, to be inside our own home and have someone break in and maybe rob and even kill us.  We all want to be safe in our homes.  The homeowner runs downstairs to confront the intruder.  But the man at the window must have heard his steps, because he has stood up and is starting to run away.  He has a backpack and a baseball cap on and he looks – well, the homeowner isn’t sure if he saw his face but maybe he slightly turned around and anyway he had on a dark jacket, a backpack and a baseball cap.

The cops cruise the neighborhood and a couple blocks away who do they see but – you.   You don’t hear the sirens with your music on.  You are bopping along to the beat, thinking about your willful little girl who demanded one more hug.  Haha, she is just like her mother.  A strong character.  A good heart.  You smile again.  You are walking briskly to the beat uphill toward your job.  You have to get to work on time.  The cops seem to come out of nowhere and you are face down on the ground and being cuffed.  You didn’t hear when they told you to freeze and put your hands up.  So they are being rough with you, thinking you were resisting.  What is going on?  What is happening?  Oh my God.

The cops take you in handcuffs to the homeowner’s house.  They tell him, we caught this guy sweating and half-running a couple blocks from here.  Is this him?  Is this the guy?  We think this is the guy.  Right?  It’s the guy.  The homeowner sees you, really sweating now, already in cuffs, with your backpack and your dark jacket that one of the cops is holding.  It’s you.  You are the guy who tried to break into his house in broad daylight.  You are the criminal we all fear and hate.  Thank God the bad guy is caught and we are safe again.  Thank God.  Yes, that’s him, the homeowner says.  That’s him.  It was him.

You are taken to jail and booked for criminal trespass.  That charge is up to a year in jail and a $5,000 fine.  If you don’t hurry up and plead guilty to that, they may also end up charging you with residential burglary, which is a Class B Felony and carries a maximum penalty of ten years in prison and a $20,000 fine.  You are not going to show up for work today, and your boss is going to be worried about you, because you always show up.  You do a good job, and your boss will never believe that you stopped on your way to work to break into a house in the middle of the day.  But what if a local jury does believe it?  Do you want to take that risk?  It is up to you.

You think about it.  You are sitting in jail because you don’t want your family to use their rent money to bail you out, and your boss says if you can get out within a couple weeks he will hold your job for you.    You think about it.  You have a lot of time to think about it.  Because you are in jail, away from everyone, not working, not having dinner with your family, not walking to work a couple minutes late – what if you had left on time?  Would any of this have happened?  But it did, and now you think and think again.  What is the best thing for you and your family?  Trial and a possible acquittal?  Yes, but at the risk of ten years in prison followed by deportation?  Or take a misdemeanor deal and be done with it?  But then you are admitting to something you didn’t do, and you will have a record.  Think and think again.

Your lawyer comes with bad news after interviewing the crime victim.  He was unshaken, completely convinced and ready to testify that it was you, and only you, who tried to get into his house.  The lawyer tried to create some doubt – he reminded him that he never saw your face.  That your dark jacket and baseball cap and backpack are so common.  But the homeowner just cut him off and said he knows what the lawyer is trying to do and he isn’t going to fall for it.  He knows it was you and he will testify under oath that you turned around – he saw your face – he would know you anywhere.  He is happy to testify – he is looking forward to it.  It pisses him off that someone would break his window in broad daylight and he wants you punished.

The lawyer lays out the options once again:  We can argue to the jury that the way they identified you was wrong – they shouldn’t have brought you to the house but should have done a real line-up, but the guy is really convincing.  I think the jury will believe him.  We can bring your boss in to say he doesn’t think you would do that, and that you were due at work. But your boss wasn’t there – the homeowner was.  The prosecutor sat in on the interview with the homeowner, and he says he is even more confident now that they will get you on the felony residential burglary, a deportable offense.  They plan to file it within the week, unless you plea out to the lesser charge.

The lawyer tells you he hates to say it, but you may be found guilty in a fair and impartial trial.  the jury members might believe the police and the homeowner, and really think you did it.  They might be convinced that you did it, beyond a reasonable doubt.  It isn’t really about whether you did it.  It is about whether the jury believes you did it.  They get to decide if the government proved their case.  So you should probably very strongly consider making an Alford Plea.  You will be saying that you didn’t do it, but you believe you will be convicted anyway, so you opt to plead guilty to a lesser charge.  It is up to you, but you need to decide pretty much right now.

This, my friends, is an Alford Plea.  Yes, you have the right to a fair and impartial trial.  But you do not have the right to a fair outcome.  So it is absolutely legal for you to be convicted of something you did not do.  And it is legal for you, in wishing to avoid the dire consequences of that, to plead guilty to something you did not do.

 

WAIVING SPEEDY

“Did he waive speedy?” is a frequent question that I am called upon to interpret.  I sometimes wonder what new interpreters make of this and so many other common shortcuts for longer phrases.  I also sometimes wonder why the courts insist on calling it “speedy”.  I only say that because of the frequency with which trials are delayed.  The phrase itself, of course, comes from our Bill of Rights, an amendment to the US Constitution that was ratified in 1789.  So what is “speedy”?

In the United States, a person accused of a crime has the right to be brought to trial within 60 days if they are in custody on that charge, or within 90 days if they are not in custody on that charge.  If they are not brought to trial by that date, with very few exceptions, they would have to be released.  So the government has to work very hard to get people to trial, especially on more serious charges.  But our basic government stance is that we are all innocent until proven guilty.  So the idea behind this right to speedy trial is that a (presumed) innocent person accused of a crime should not be held for years without a trial.   Political prisoners or “enemy combatants” are not included within this rule, sadly for them.  Neither are migrants awaiting deportation.

But within criminal law, at least, the idea is that we should not hold people for months or years on end without any trial to prove beyond a reasonable doubt that the person held has in fact committed the crime.  So a couple months is the idea of how long a person should be held without the government “knowing” that they are guilty.  The problem with that time frame is that a defendant may not be well served by rushing to trial if the case is complex and has many witnesses, or needs experts for the defense.  The defendant may be best served by extending his trial date.

In complex cases, attorneys will frequently ask for several continuances.  This could be because they have not yet received something like the police videotape, or the lab results.  It could be they have not been able to schedule defense interviews with the main witnesses.  Or they have not had time to get an expert to review the evidence and prepare their testimony.  Then for a larger trial, there has to be a time found when all the witnesses, including experts and law enforcement and of course both attorneys, are available during the same time period.  This can easily be months out.

So, as the defense usually explains it, you the accused have the right to go to trial within 60 days if in custody on this case, or within 90 if you are out of custody.  However, every time the defense asks the court for more time, we have to give the prosecution more time as well, so the speedy trial clock is reset to today, or in some courts, to the date of your next hearing, and starts to run again from that new date.

Thus, the theoretical right to a speedy trial is truly theoretical when it comes down to it.  You always have the right to a speedy trial.  But if you are accused of a major crime, and you need time to prepare your defense so you have a better chance to prevail at trial, you may end up signing three or four times – or more – to “waive speedy” and start the 60 or 90 day clock ticking again.  It is a strange concept to explain to someone in jail:  You have the right to go to trial within 60 days, but the start date of those 60 days might change several times.  Thus, you always have the right to go to trial within 60 days, but not from a date certain.

Get it?  If you are held by the US government because you have been accused of a crime, you have an absolute right to go to trial within 60 days – of a date that keeps on changing.  That is called “speedy trial”. When your lawyer needs to change the start date, we call it “waiving speedy”.  Or as we say in my target language, you have the right to go to trial without delay, but we are going to delay it.  Just one of many strange and mysterious concepts that people in jail have plenty of time to try and wrap their minds around.  And the rest of us can luxuriously ignore, unless and until arrested.

 

 

 

 

NEGLIGENT

I thought about just skipping my weekly post, but it seemed like it would be negligent of me.  Then again, what does negligent even mean?  Does it mean careless, lazy and sloppy?  Not legally speaking.

Negligence is a very specific concept.  Four elements must be found before a cause of action can be sustained.  Oops.  I have been hanging out with too many lawyers.  Let me speak English.  I mean you have to prove four things before you can sue somebody for negligence and win.

  1. There must be a duty owed to the complaining party.  And for my international readers, I am not talking about someone who complains.  The complaining party is the person who sues for damages.  And by damages, I mean money.
  2.  There must be a breach of that duty.  As a homeowner, for example, I have a duty to keep certain things in shape, like my front stairs.  If I fail in that duty, visitors might fall through them, and I will have to pay the visitors money, if they can prove two more things.
  3. There has to be a resulting injury.  If you fall through my stairs but sustain no injury, you have nothing to ask me for.  You don’t need a doctor; you are not even bruised.  Of course, you could argue that the fall caused you emotional distress, and that could be an injury.
  4. There must be a proximate cause between the breach and the injury.  Proximate cause is also called the “but for” element.   Would you have been injured even if I had not been negligent?  If so, then don’t blame me, or at least don’t sue me for money.  Going back to the steps, if a visitor falls down my steps because he had too much to drink, and not because his foot ended up in the rotten step, he has no one but himself to blame.  Well, okay, he also has me, the lazy homeowner to blame, but he will probably not be able to prove that I was negligent, in the legal meaning, if he would have fallen anyhow.

Unless I, as hostess, plied him with alcohol, which was the proximate cause of his falling, and there we go again, running off to court.

The duties we owe each other are countless.  The ways in which we can fail in performing those duties are endless.  Injuries happen every day.  Pointing fingers at each other and blaming each other for our injuries and suffering is a national pastime.  I am guilty of having done so myself.  And yet proving that the harm one has suffered is solely the result of someone else’s failure to fulfill a duty is often harder than it would seem.  All of which serves to explain why I have not been sued – yet.

 

DONNING AND DOFFING

As we don the new year and doff the old one, it occurs to me that interpreters have to know many archaic terms, such as don, doff, and for that matter, archaic.  Archaic means old and somewhat out of date.  Donning means putting clothes on, and doffing is taking them off.  It comes from contracting the phrases “do on” and “do off” that came into use during  the Middle Ages.  These terms dropped out of use a few hundred years later, because language is constantly growing and renewing itself.  But archaic terms like don and doff live on in our written laws, and are argued about all the way to the US Supreme Court.  Why?

With the exception of a few time-limited laws, such as a five-year bridge levy,  our laws live on in perpetuity (another legal term) without ever dying – unless and until the law or some section of it is actually killed.  It has to be voted out of law, and almost always replaced with another version covering the same area.  With the over-arching goal of written laws bringing stability to our legal and social systems, it is rather hard to change a law.  Any overhaul takes years of studies, massive negotiations, and in the end, often fails to pass.  Think of all the promises and threats of immigration reform, and how rarely meaningful changes actually happen.

I was interpreting for a rather large civil case related to employee rights, and one question that came up was the degree to which workers must be paid to “don and doff” which by which they meant changing  clothes and possibly putting on certain protective gear.  What if the company doesn’t want you “on the clock” until you are going to be actively productive?  Do you as a worker have the right to be paid for putting on clothes at work?  As usual, the legal answer is “it depends”.  And mostly it depends on how we define the terms.

The US Supreme Court recently decided that union workers putting on their protective gear did not have to be compensated as a matter of law.  Instead, it was open to be negotiated at collective bargaining.  But the way the Supreme Court decided this was to unanimously rule that “donning and doffing” means “changing clothes” under the relevant law.  The union bringing the law suit claimed that “changing clothes” and “donning and doffing” are not the same thing because putting on (or donning) protective gear should be compensated even if changing clothes is not.

The US Supreme court chose to define donning and doffing as synonymous with changing clothes.  They further ruled that “clothes” means – er – clothes, and includes “items that are both designed and used to cover the body and are commonly regarded as articles of dress.”  They then had to continue down the rabbit hole of words and definitions, and further rule, for example, that a “hardhat” is “clothes” but that “earplugs” are not “clothes”.  By the end of their ruling, they had a long list of “clothes” and a very short list of items that are “not clothes”.  So they decided that “donning” the short list of items was not a substantial enough matter of time to support a ruling that it should be compensated as work, as a matter of law.

Are you confused yet?  If so, you are not alone, because very few people follow the lawyers down these underground tunnels, curves and turns.  But interpreters have to.  It is our job to follow their logic, comprehend what they are saying, and quickly render it into our target language.  We have to keep up as best we can.  Trying to stay just a word, a half a thought, the inkling of an idea behind them, running along like a scared rabbit, hitting the walls of the tunnel, clawing and panting, heart racing, in my personal case, at the worst of times.

So if you ever walk past a courthouse and see an interpreter emerge and blink confusedly in the daylight, do not be surprised.  We have been donning our protective gear, girding our loins with the strength of our vocabulary and legal knowledge,  and following lawyers into the labyrinth of words and definitions, as closely as we can manage.  So when we finally come up for air, give us a moment to readjust to the everyday world – where people play loosely with language, and toss around words interchangeably.  And we don’t have to repeat what anybody says.  Whew.

 

YOU HAVE THE RIGHT TO PLEAD GUILTY

It is part of our national psyche that accused persons have the right to plead “not guilty” to any criminal charge.  The government has the burden to prove beyond a reasonable doubt each element of the crime.  If the government fails to meet that burden of proof, the accused cannot be found guilty.  So almost everyone pleads “not guilty” to almost any charge at the start of their case.  We are within our rights to do so.  And we can change our minds at any time – or can we?  What is much less understood, it seems, is the right to plead “guilty”.  This is only your right at arraignment, the hearing at which the charges are read to you.  After that, it is something you have to negotiate with the prosecution.  Who knew?  Very few of us, apparently.

It is only on a handful of occasions out of thousands of times that I have heard an attorney directly inform a defendant at the time of their arraignment that they have the right to plead guilty.  And most importantly, that this is the ONLY hearing at which they have the right to plead guilty as charged.  After years in the field, I am still wrapping my head around this concept, and now I will attempt to wrap yours around it.

In the vast majority of cases, pleading “not guilty” makes perfect sense.  You have just been arrested.  Everything is up in the air.  You are probably in custody and in shock.  A guard calls out your name from a holding tank where you and others wait behind bars.  You come out into another secure area, still in handcuffs, and a lawyer you have never seen walks up to you and says, “I am your lawyer for this hearing only.  This is your arraignment.  You are being charged with… [fill in the blank].  You will get screened later to see if you qualify for a public defender”.  So far so good.

Usually what follows is something along the lines of this:  “We don’t have time to go over your case or the facts.  The prosecutor is going to tell you what you are charged with and then I will say we waive formal reading, acknowledge receipt, and request to enter a plea of ‘not guilty’.  Later on, you can meet with your attorney and go over the facts of the case.   Then you can plan your defense and maybe negotiate some kind of deal with the prosecutor.  They are offering you x [weeks/months/years] if you plead today, but I don’t recommend it.  You can probably get a better deal later.  So let’s go on the record.”

This will make sense for the vast majority of defendants.  You haven’t even seen the police report, unless the defense attorney of the day has time to read part of it to you in “the tank” before your arraignment hearing.  You have not viewed any video or audio collected.  You have not interviewed any witnesses.  You may not even know who the witnesses will be.  How can you just give all that up, and plead guilty, without knowing what your defenses could be, and what kinds of weaknesses there might be in the prosecution’s case?  Without the opportunity to go over the facts of your case in detail with advice of counsel?  So you plead “not guilty”and then hope you get released on your personal recognizance (without having to post bail) and then you set up a meeting at your attorney’s office and start planning your defense.

This works great, as I said, in most cases.   But I was just talking to one of our defense attorneys who was filing an appeal based on ineffective counsel, when one of his colleagues followed exactly the above procedure.  Why?  Because his client had the right to plead guilty to a misdemeanor charge at his arraignment, but he wasn’t told that and he didn’t do it.  He pled not guilty, as his lawyer of the day advised him.  Then the city gathered more evidence against him, and realized hey, this case is actually a felony.  So they sent it on to the county, and he was charged with a felony.

Once he was charged with a felony, the city dropped the charges, something they have a right to do – unless you plead guilty as charged at your arraignment.  When you plead guilty to a misdemeanor, and your plea is accepted by the judge, you are thereby convicted of the crime, so no one can ever again charge you in felony court or anywhere else for the same act.  Why?  Because of a little thing called Double Jeopardy.  We cannot be charged twice with the same crime.  Not even in two different courts.  Once the case is tried, or a person pleads guilty, the case is over.  Of  course, if there is a hung jury, the case has not been resolved, and the prosecutor may choose to set it for a new trial.  But once there is a conviction, including when you plead guilty, you can never again be charged with that same crime.  Not in the US.

In the case at hand, the individual had been facing up to twelve months, the misdemeanor maximum, for the original charge in municipal court.    He had been offered a six-month sentence, but his lawyer of the day had told him, as is customary, that it was too early to settle.  They didn’t have all the evidence, so he should just plead not guilty and meet with his lawyer to try and get a better deal.  But he never got a better deal.  Why?  Because while he was taking his time to have his lawyer look into the case, the city prosecutor noticed that the case was actually a felony.  And duly passed the case on to the county for felony charges.

So now we have a defendant sitting in county jail, facing five years in prison, after turning down six months in jail, not understanding that this could even happen.  And a lawyer, who simply did what almost all the lawyers do almost all the time, being cast as ineffective counsel.  It may even be malpractice, even though it is the community standard and happens all day long, every day, perhaps across the country.  So wrap your head around it if you can.  I am still trying to.  And so is the guy sitting in jail wondering if he is headed for prison.

WOOL SOCKS

Were you ever cold enough to be tempted to steal a pair of socks?  I met someone who was, and many others in similar situations.  The way different stores deal with shoplifters varies wildly.  At my local grocery store, the manager simply has the person return the item and warns them that they are not allowed back into the store.  Only if they are caught again does he inform the police.  I was told he has very few repeat offenders, usually the chronically needy or people with mental health issues.

For some misdemeanor offenses such as property damage, shoplifting and even some car accidents, the criminal charge may be dropped through an alternative called a compromise of misdemeanor.  In effect, the person who causes the damage pays for it with money to the victim of the crime (the store, property owner or car owner).  The idea is that the victim has received satisfaction, so there is no societal need for further punishment.  The prosecutor monitors these cases and once all the money is paid, the charges are usually reduced to something minor, or even dropped.

This kind of idea is not unique to the United States.  In several countries a person accused of a crime can pay money instead of going to jail.  It may be a formal procedure.  You might be sentenced to  thirty days OR a thousand dollars, for example.  In other areas, the payment may be informal.  You pay someone off or make a donation to a fund and let’s forget this ever happened.  In any case, I have interpreted for many defendants who ask if they can “just pay” instead of being prosecuted.

This adds to the confusion when shoplifters of very low-cost items are told by the store guard that they can pay to be let off.  One of the major so-called charities in our area is well known in the court system for having a large private security force policing their stores of donated items.  They then catch shoplifters and have them sign a “civil agreement” to pay usually a few hundred dollars in “damages” to the store – while giving back the items they may have stolen, which are usually worth a couple dollars.

In the cases where I have interpreted, there is a very consistent story.  A poor person tries to shoplift an item.  The store security catches them and takes them to an office.  They have to give back the item.  They are photographed.  They have to show their identification.  They are told they cannot leave.  Then they are offered what sounds like a compromise of misdemeanor.

The guard explains to the shoplifter that if she agrees to pay a special fee to the store of several hundred dollars, the shoplifter and the store can sign an agreement, and that will “settle the case”.  The shoplifter will then call around to friends and family, desperate to stay out of jail and avoid possible deportation for having tried to steal a donated item worth a couple dollars.  Their loved ones show up over the next few hours and hand over cash.  End of story, and lesson learned?  Well, no.  Because in this particular charity, the security guard (or loss prevention officer) then calls the police and has the shoplifter arrested anyway.

No, I am not a fan of the Five Finger Discount and I don’t think that what’s mine is mine and what’s yours in mine.  But I do think the punishment should be more commensurate with the crime.  I don’t know why this huge charity store chooses to deal with shoplifting by pressing the person to pay hundreds of dollars, photographing them, taking the items back, trespassing them (with a trespass order) having them cough up what for them and their loved ones is a small fortune, then calling the police on them after all.  In addition to all that, shoplifters are now ordered to go to a class that is intended to teach them about the impact of shoplifting on “our” community.

I was so surprised the first time I heard the story along the above lines.  I thought it was an anomaly until I had heard it a few dozen times.  Some days I would hear five or six stories about this same situation playing out in the same store on the calendar where I interpret for shoplifting.  It has been a while so I don’t know if the policy has changed.  I hope so.

One attorney was asking the client in the jail holding area why he had stolen the particular item that led to his arrest.  It was documented in the case file as a pair of wool socks for 99 cents.  There was a photo attached – a used pair of wool socks.

“So why did you steal them?” the attorney questioned.

“Well you see I am homeless – I sleep in the streets.  And my feet get wet and then I am so cold. I even got bronchitis.  The clinic doctor told me I need to stay warm or I will get pneumonia.  And I have to be able to work.  That’s why I’m here.  I can’t afford to be sick.  Then one of my buddies told me that wool socks, socks made of wool from sheep, stay warm even when they are wet.  That’s why I was hoping to get a pair of wool socks.  But I only had the dollar and it wasn’t enough for the tax and I guess I was tempted so I just put them in my backpack and then I got arrested and they took the socks back. ”

This particular young man was sometimes in a shelter and sometimes on the street. He had no family in the area and had illusions about how easy it would be to get work in this area without papers or language skills.  He described himself as a hard worker.  His friends had put together the 250 dollars that the charity demanded for what he thought was his release.  He was feeling bad that his friends would now have less money to send to their families – especially since it didn’t really help him.

The sock stealing worker kept saying he knew he had done wrong, and he wanted to tell the judge so.  And then explain about his wet feet, and the temptation, and that he knew he shouldn’t have done it, but he was still hoping for mercy.  He was hoping so much that the ultimate punishment for trying to get a pair of wool socks would not end up being jail and then deportation.  He still owed the coyote several thousand dollars for helping his cross the border, and he wasn’t sure what might happen if he got deported and couldn’t pay.  He seemed more bewildered than anything else.  He was trying to make sense of something that makes so very little sense to me.

I am not an economist and I do not claim that I can place a monetary value on everything that happens around me.  But as a human being, I just wonder how useful it is to arrest poor people for trying to get things like a donated pair of used socks and then hold up their friends and family for a couple hundred dollars.  Follow that by having the taxpayers pay a several thousands dollars in court costs on each case by the time you add up the cost of lawyers, judges, probation and the rest.

I doubt many of us donate our clothing expecting it to be used as a lure to extort money from the poor.  Could we possibly have more clothing banks where  folks with good clothes could donate more directly in service of the poor?  This may be possible through our food banks.  I plan to be more thoughtful about where I donate in future.

Some cases stay with you.  I never put on a pair of wool socks without thinking of that young, hopeful, bewildered man.  And the millions of others who are in similar circumstances.  I hope  for the sake of all of us, that we can reach a less brutalizing global economy within our lifetime.

PS: Quite a few readers contacted me to ask if the store chain in question is a for-profit.  No.  It is a charity.  Do your research.

CRIMINAL INTENT

I have a  touching memory regarding criminal intent.  My mother was getting milk for my two very young children.  My son grabbed eagerly at the glass and dropped it on the kitchen floor.  My mother began to scold him vehemently, as she had done with us.  She meant well – this was how she had been trained and she was trying to make sure the grandchildren turned out decent.  “How could you be so careless?  Shame on you!”

I was in the next room, deciding whether to come into the kitchen, when I heard the equally vehement voice of my three-year-old daughter, coming to baby brother’s defense, more eloquently than I could have.   So I just sat smiling to myself and listening.  I could see my daughter through the door with her hands on her hips and a very serious face.

“Mormor!  You cannot get mad at him for a mistake!  It is an accident.  That is our rule!  You are not ALLOWED to get mad at someone for making a mistake!  It’s OKAY to make a mistake.  That is an accident!”

My mom repeated several versions of why my son was deserving at least of a good scolding.  She talked about him spilling.  You cannot just pour milk on the floor and expect to get away with it!  What is the world coming to?  Milk doesn’t grow on trees!  It was a sort of a due caution argument, leaning toward negligence even.  Would a more reasonable one-year-old in his position have exercised more caution and avoided the spill?  Or was it, as his young defender argued, simply an accident with no malintent, and thus unpunishable?

My son quite wisely and precociously took the Fifth Amendment to the United States Constitution and said nary a word.  As a young philosopher, he was fairly certain that a second glass of milk would eventually be forthcoming.  He was mellow enough to wait it out, and let older and wiser people make the arguments for each side.

My mother explained at length the many reasons why my son was wrong to spill his milk.  She even mentioned the societal consequences – what if everybody, she posited, went around spilling their milk and throwing food on the ground?  What the heck would we eat then?  We would all starve!  It was the floodgate argument, so common in the courtroom.  If we allow this, then all hell will break loose and our society will float off its underpinnings.  Nothing less than anarchy will be the result.

My daughter simply repeated each time, firmly and without wavering: “We cannot get in trouble for an accident.  That is our family rule!”

There was some muttering on my mother’s part, and my son had to sit at the table to receive his second glass, but in the end, Mom was unable to persuade her young audience that there had been criminal intent, and so she could not prevail against our family rule .  You cannot get punished for doing something on accident.

This is not a rule I made up for the benefit of my children.  It is actually the law.  There are several levels of criminal intent.  Accident is not one of them.  The following is a basic summary, which will vary from state to state.

INTENT is when you act with the objective or purpose to accomplish a result which constitutes a crime:

 You did it on purpose.

KNOWINGLY is when you are aware of facts or circumstances that result in a crime as defined by statute, or when you have information that would lead a reasonable person in the same situation to that conclusion:

You either knew, or you should have known.

RECKLESS  is when you know of and disregard a substantial risk that a wrongful act may occur, when such disregard is unreasonable:

You knew there was a risk and didn’t care.

CRIMINAL NEGLIGENCE is when you fail to be aware of a substantial risk that a wrongful act may occur where it is unreasonable to be unaware:

You should have known there was a risk.

ACCIDENT is when an eager little fellow grabs at a glass of milk and it slips out of his hands.  This, my friends, is not a crime.

My daughter and my mother had a very close and beautiful relationship that lasted until my mother’s dying day.  I believe it was cemented on the day of the milk accident.  Not just because my mother could see that my daughter cared about fairness and justice, and was willing to fight for the (at that tender age) voiceless.  But also because my mother could listen to a young child and discuss this issue as equals.  What an act of kindness!

I think the fact that I came in and mopped the floor helped my mother to really hear the argument that many people in the general public cannot seem to grasp – an accident is not criminally punishable by law or by Grandma.  There has to be some level of intent to turn an accident into a crime.

 

 

BURGLARY

Let’s talk about burglary.  I know you think you know what it means. Someone breaking into your house to steal your things.  Right and wrong.  It means that and yet so much more.  In my state code, a person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling.

Why does this matter?  Because the elements of a crime, as written into code, form the very basis of what the government has to prove in order for a person to be convicted of a crime.  For burglary, the government does not have to prove that you stole anything.  They do not even have to prove that you intended to steal anything.

They have to prove that at a time and place within their jurisdiction, you entered OR remained unlawfully in a dwelling (with criminal intent).  This means that you could have been invited over for dinner and then simply stayed after you were told to leave.  This may come as a surprise to many daters (not ALL – don’t get mad at me!) but you are actually NOT allowed to stay as long as you wish at someone’s home, simply because you had been invited over.  You are there by the permission of the owner or resident, and that permission can be revoked at any time.  Including when you start to get creepy, or midnight rolls around.

In addition to proving that you entered or remained unlawfully in a dwelling, the government needs to prove that you intended to commit a crime against a person or property.  That is an awfully broad definition.  It could mean intending to steal something, of course.  But what about intending to assault someone?  Or to kidnap your own child in a custody dispute?  Vandalize the apartment?  Look through someone’s underwear drawer?  (I hope that’s a crime – it should be!)  Or stand naked in front of the window in a display to (perhaps more interested) neighbors across the way?  I submit that all of these various activities could fall within the definition of burglary.

So what does it mean to “intend” to commit a crime?  According to our code, intent to commit a crime means that a person does any act which is a substantial step toward the commission of that crime.  I think the key point in proving beyond a reasonable doubt that a person “acted”.  This means the person has to have actually DONE something in forwarding their criminal plan, and not just thought about it.

Otherwise, if we are going to be jailed or punished for our thoughts alone, we are all at very high risk indeed.  Especially the curious date who wants to look in the underwear drawer.  So please avoid taking a substantial step in that direction.