Glibertarians.com 2019 Archive

Author: ElspethFlashman

  • Mentally Incompetent to Stand Trial – What does it mean?

    There’s a few concepts about mental states, and how they affect a defendant during legal proceedings.

    Let’s cover the first : Mentally Incompetent to Stand Trial. What does that mean?

    Here’s the scenario: State of Michigan is charging that the Defendant committed a crime (duh). Defendant meets with attorney. After the first meeting, the attorney wonders a few things about the defendant, based on the D’s behavior.

    Such as: he can’t remember facts of the alleged crime. Sure, he could have been too intoxicated . . . . however, he can’t remember where he lived before he moved here. He knows he’s in jail, and he doesn’t like that, but can’t really seem to keep the conversation going to help his attorney understand his version of events. And maybe he has a few odd gestures, expressions. (More signs of mental illness are listed here, from the national alliance for mental illness).

    You see, the idea of “due process” is broad. It includes that the defendant, to have due process, has to understand the proceedings and be able to assist his attorney in defending the case. If the D can’t do that, then he is mentally incompetent.  And if a defendant is  mentally incompetent, then the proceedings are halted (but not dismissed).

    Any questions about a D’s competence should be raised by the attorney as soon as apparent. (However, the prosecutor or the judge can raise the issue as well). The defense attorney should make a motion regarding competence that asserts that 1. the D can’t assist his attorney in defending the case and 2. possibly, the D lacked the capacity to appreciate that his conduct was wrong, or didn’t conform to requirements of law. That last sentence is the lead-in for the affirmative defense of NGI, or not guilty by reason of insanity. Also called “legally insane.”

    After that motion is made, the court will refer the D to an interview by a forensic psychologist to make a determination of competency. The report of the psychologist is then released to the court, attorneys, etc.

    Option 1: the Defendant is found not competent. Just because a D is found incompetent does not mean that there will never be a trial. Instead, the next step is that the D has to have mental health treatment – and the court issues an order for this – so that he will become competent to stand trial, at a later date.

    This idea seems to also offend the D’s right to speedy trial, as guaranteed in the Sixth Amendment. However, dismissing the case based on competence is not fair to the state (sadly). Also, the speedy trial right has never been interpreted to have a definite deadline by the Supreme Court. For example, the Supreme Court hasn’t ruled that “any delay to trial longer than 24 months would prejudice justice.” Michigan however, does limit the amount of time a D can be treated, (MCL 330.2034) to no longer than 15 months, or 1/3 of the maximum sentence which the D would have if convicted, whichever is shorter.

    Also, technically speaking, the D is not being punished by receiving treatment, as he is no longer in jail, he’s in the hospital, receiving treatment.

    Option 2: Defendant is found competent. If a defendant is interviewed, and found to be competent, an alternative to halting trial for D’s treatment  is a “no contest” plea, which would be based on the idea that he was too intoxicated/ abusing substances, etc, to be able to recall the crime. But use of alcohol /substances is not a defense, and does not make a person legally insane at the time of the crime.

    Also, some crimes are open to alternative sentencing, through mental health treatment courts. This is a diversion program, that is essentially the same as sobriety court. It requires that the offender plead to a crime, then complete mental health treatment for a period of months. In exchange, the state will “nolle prosse” the charges, once the program is completed by the offender. The likelihood of repeat offenses goes down significantly when the program is completed. However, it is much like intensive outpatient, and requires a lot of participation by the offender, such as 3-4 weekly appointments at counseling, group therapy, probation /parole appointments, and regular medication review.

    Next installment: legally insane – or Not Guilty by reason of Insanity.

  • Prison / Jail slang -You Got Me Bang to Rights, Guv’nor

    Be aware of what the people say! And interpret their slang so you feel, cool, and shit.

    I get to hear and read a lot of slang in my line of work, so bear with me while I provide a guide to prison/ jail slang.

    Snitch / Plant: One inmate trying to tell on another, in order to get a better plea deal. Advice to new inmates is often: be careful who you talk to, it could be a snitch.

    Kite: a jail letter. This can be between inmates, or from an inmate to a department in the jail, or his or her attorney. If it’s a kite between inmates, its a tiny paper football, with tiny writing on it, that sometimes is “shot” between cells. Inmates also pass them to other inmates while they are walking to meals, etc.

    If it’s a kite to a jail department, then it is usually about something the inmate needs to have done. For example “I kited a letter to accounting because I think they have my out date wrong. I should get credit for more good time.”

    Out date: This is the date an inmate will be released. Inmates often write to their attorneys, the court, etc regarding their out dates.

    Good time: No, this is not what the inmate did to get in jail. This is “credit” toward the out date. For example, a month in custody (with no incidents) usually results in 4 days “good time.”

    Get a play, do a play: This means sell /buy some drugs.

    Rillo, rello: These are the small cigars that party stores sell. Users often rip off the cigarello, and use the plastic tip that’s left  to smoke a controlled substance.

    On paper: This means on probation, or on parole. If you are on paper, don’t go posting facebook photos of yourself with money, guns, or drugs, as your PO will see that shit, and bust you for a PV.

    PO: probation /parole officer. PV: probation violation, parole violation. Sometimes the inmate is PV, parole violator.

    Trusty/ trustees. These are the inmates who get to 1. wear more comfortable clothing and 2. do jobs in the jail. The jobs can earn them more credit sometimes, or commissary. Plus the inmate gets a little more freedom, can sometimes leave the facility, as long as they report back at the scheduled time.

    Color code (not a slang term) There’s also a clothing color code that goes along with inmate status. Low-level inmates are usually in the bright orange/  teal. Trustees get comfy brown scrubs to wear instead, or even a plain white tee to wear with the scrub bottoms. If you’re being transported to court, you might have to wear the traditional “stripes” uniform. If you’ve been caught fighting, then you might go back to orange/ teal and be put in lockdown /solitary. Sometimes called “greens.”

    Lockdown: This is what it sounds like: the section an inmate stays in is “locked down” due to an infraction. Lock down means no activities, no phone calls – for the whole section – until the lock down status is clear. Infractions can be something dumb, like toothpaste on the walls, messy cells, etc. Or it could be fighting, or contraband in the cells.

    Chore Boy: Users put this in pipes to smoke crack with. It keeps the crack in one place. So when users are arrested, the search often reveals Chore Boy in the pockets, vehicle, etc.

    Bond! This is something set at arraignment, depending on the case. Typical bonds are between $1,000 to 100,000 or more. $1,000 might be set for a simple (non-aggravated) assault case, while  $100,000 or more might be set for a rape/ CSC charge. PR Bond means “personal recognizance,” or the defendant is not a flight risk, and needs only to show up at court.  PR bonds can still have an amount attached to them, so if Defendant no-shows at court, then the cash has to be paid. 10% bond means that the bond is set at $5,000 but the defendant can get a bail bondsman to guarantee it, so the defendant only has to pay $500. C/S is short for Cash/surety – defendant has to put up the whole amount.

    Usually bond has other conditions. For example, a defendant can submit to SCRAM, tether/ surveillance or GPS monitoring to make sure conditions are kept.

    Bid: this is the term or sentence an inmate has. 5 year bid = 5 year sentence.

    Well, that’s all I got for now folks. Enjoy!

  • Talk to the Cops!? Are You Crazy ? Part 2: When Do Constitutional Rights “Attach?”

    So you’ve always been wondering, (I’m sure you have) when it comes to criminal procedure when does a person’s individual rights, under the Constitution, “attach” to a situation. . . haven’t you?

    In an earlier Part One, (view Part One here), I talked about how cops try to help themselves in the future, and prosecutors as well, by the way police reports are written. It’s a good guy/bad guy set up, which makes it easier to get a conviction.

    Trust me, I have seen it happen. And even when a defendant has eloquent and thorough defense counsel, and some facts in his or her favor, juries want to see “justice” for the alleged victim, which is why prosecutors have such a high rate of success. “  . . . . About 90 percent of the cases end with a plea bargain, and of those cases going to trial, about 90 percent end in a guilty verdict,” says a former U.S. attorney. (sorry -paywall, Dallas news). Perhaps that is grist for another article.

    Anyhow, the thing is, you do have rights under the constitution, which say that you’re not required to provide evidence against yourself, or “self-incriminate.”

    The idea comes from the Fifth Amendment, that tells us “no person . . . shall be compelled in any criminal case to be a witness against himself,” among other protections for persons accused of a crime.

    Simply put, a person can’t be compelled (forced, coerced, etc) to give evidence against him or herself. The problem having been that in earlier times, forced confessions were common, in fact, they could have been the rule rather than the exception. I guess that the idea being that confession is good for the soul. . . so forcing a confession would mean you were helping someone get closer to his or her Maker.

    This idea also works in conjunction with the Sixth Amendment, which states that a defendant also can “have the Assistance of Counsel for his [or her] defense.”

    To illustrate the Fifth Amendment: Let’s go back to our earlier scenario from Part 1, where a police officer calls someone to “assist him” in inquiries about an assault. Police Officer tells Joe Defendant, “Well, Mr. Johnson said you went after Tom with a carving knife.”

    Thoughts are racing through Joe Defendant’s mind, and at this point he should realize he has options. Option 1: invoke the Fifth. Option 2: invoke the Sixth. Option 3: get the whole thing off his chest, because it is bugging him all night long.

    In other words, the idea that Joe’s rights are at issue is correct! They are at issue immediately! And Joe may invoke his rights as soon as he thinks it is appropriate. So let’s hope Joe goes with Option 1, or Option 2.

    One way to say this is “I’m not sure officer, are you accusing me of a crime? I might talk to you, but only once my lawyer is with me.”

    To illustrate the Sixth amendment: Once Joe Defendant says “I might talk to you, but only once my lawyer is with me,” he is also invoking that he has the right to an attorney.

    Anecdotally I have seen this actually work for a client. I had been representing the client in a divorce. The wife moved out a few months after filing for divorce, then decided to charge my client with the crime of non-consensual sex. First, she got a personal protection order, then she called the cops, and “reported” the incident. Cops called the client – whose best friend, Ron, is a defense attorney (and my pal from law school). Client has Ron call the cops back for him. The gist of that phone call was “we have nothing to say at this time.” I call the client and tell him “listen to Ron! He’s right!”  No charges were issued.

    But this is why, when officers question someone, the legal requirement is that they get a consent signed that Joe Defendant is aware of, and voluntarily waives,  his Miranda rights – to remain silent,  the right to an attorney, and that whatever testimony he gives may be used against him.

    I may be preaching to the choir here, but Joe’s right attach as soon as he thinks 1. anything he says may be used in proceedings against him or 2. he is being interrogated in custody (aka “custodial interrogation.”)

    Where does custodial interrogation occur? Wherever police are present, is my answer. Street scene where a brawl has taken place? Police are present? Police are talking to witnesses (or potential suspects)? Even if a person is not in a squad car, handcuffs, or police department interview room, then the police may be interrogating him or her.

    If the person does not feel “free to leave” the scene, then interrogation may be taking place, and rights to counsel, to silence, etc. can be asserted.

     

     

  • Pinch-hitter Friday PM links

    I saw a need for link -pinch – hitting (due to weather, move, etc). So I offered, and the offer was accepted!
    Thanks for the chance to enter the battlefield of PM links, honorable site Admins! *bows deferentially*
    Notable events that happened on February 1 in history (with my comments and/ or snark added, if needed):
    In 1790 – The U.S. Supreme Court convened for the first time in New York City. Marbury v. Madison wasn’t decided until 1803, which confirmed the Supreme’s power as the final say in judicial matters. .  . I joked when I took Con Law I, that I would base my exam book on Marbury and a dairy case that the prof argued in front of the Supremes. . . . but I didn’t.

    In 1861 – Texas voted to secede from the Union as part of the War Between the States.  . . . Texas hasn’t really talked about secession lately, or has it?

    My dad had a few “Songs of the Civil War” records when I was little, so this song was kind of worn into my frail little mind. On Feb 1, 1862 “The Battle Hymn of the Republic,” by Julia Ward Howe was first published in the “Atlantic Monthly.”

    In 1999 – Former White House intern Monica Lewinsky gave a deposition that was videotaped for senators weighing impeachment charges against U.S. President Clinton.  . . .no comment needed
    And born on this day: (which I culled from this site, tends to be male- dominated birthdays, I should boycott them for not recognizing more notable female birthdays, way to other . . . )
    1791 Charles J Sax, Belgian music instrument builder . . . which makes me think of the Simpsons, when it was still funny. 
    1895 John Ford, American director (Stagecoach, Air Mail, Quiet Man), born in Cape Elizabeth, Maine (d. 1973)
    1921 Peter Sallis, British actor (Wallace and Gromit, Last of the Summer Wine), born in Twickenham, England (d. 2017)
    1948 Rick James, bitch!  [James Ambrose Johnson, Jr.], American funk musician (“Super Freak”), born in Buffalo New York (d. 2004) 
    1956 Exene Cervenka, American musician, born in Chicago, Illinois.

     

     

    Now onto  . . . the Links! Which I realize are just an opening for off-topic comments, so go ahead.

    Enforcing immigration law – bad idea, or what?

    A judge, a prosecutor and a law professor agreed that arresting undocumented immigrants at American courthouses scares away witnesses and crime victims and must be stopped. The three made their case at a program Jan. 25 at the American Bar Association’s Midyear Meeting in Las Vegas titled “Putting ICE on Ice?”

    I guess there’s some game going on this weekend? I’d go to a watch party if I knew of one, otherwise weekend plans chez Humungus/Flashman are swimming, painting, and wine /whiskey consumption. Anyhoo, here’s a sport link for you all:

    Last year, Nevada sportsbooks took in a record $158.5 million in handle on the Super Bowl — a number that’s expected to be shattered this year. Our comprehensive Super Bowl LIII betting guide is below to help you with all of your wagering needs.

    A presidential campaign featuring another public figure? Ah well, it’s nothing without marketing, and getting employees to handle some of the campaign spin shouldn’t hurt, right? Sorry, from Huffpo. Here’s a tip: How about answering “I just work here ” ?

    Starbucks is doing what it can to prepare employees for potentially uncomfortable customer encounters as anger grows at former CEO and chairman Howard Schultz, who is considering running for president as an independent centrist candidate.

    The coffee chain’s “Barista Need-To-Know” update for the week of Jan. 21-27 included instructions on how to “diffuse [sic] the situation” should anyone “share aggressive political opinions,” as well as what to do if someone asks about Schultz’s “political intentions.”

    Yup, probably covered in earlier links, but this story doesn’t bode well for Free expression. However, the cafe isn’t a state actor, so . . . why not ban Che Guevara shirts, while they’re at it too? Banning the expression of supporting communists would surely start a dialogue on communism, amiright?

    SAN MATEO, Calif. (AP) –  An award-winning cookbook author and California restaurant owner says anyone wearing a red “Make America Great Again” baseball cap will be refused service at his restaurant.

    Diners interviewed by the newspapers said they understood Lopez-Alt’s stance but questioned the hat ban and said he could have found a way to start a dialogue on the issue. On Twitter, many criticized the so-called tolerance of the liberal Bay Area.

    And that’s all I got for you. Have to catch up on the crap that piled up in snowmageddon, ttyl glibertariat!