Category Archives: writing about legal issues

Green Conflict — Marijuana Businesses and the Law, Part 1

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Green Conflict — Marijuana Businesses and the Law, Part 1

In life, and fiction, the growing (ha ha) business of marijuana is complicated—and so are the legal issues. I recently attended a CLE (continuing legal ed) seminar on Marijuana Business Legal Considerations. In this two-part post, I’m summarizing some of the key issues and suggesting a few areas with story potential. (As with all my posts, all comments here are intended solely to alert fiction writers to issues that may give them story ideas or suggest where further research is needed; for advice in real life situations, consult a lawyer admitted in your state.)

The status of the law: Basically, the field is an evolving, squishy, mish-mash of a mess—which makes writing about it both tricky and intriguing. Short version: Because Congress has not legislated the issue, the federal response to the increasing acceptance and state-legality of both medical and recreatiional marijuana is primarily regulation by policy. The federal government still views marijuana use and possession as illegal, but will not enforce anti-drug laws where the states have adequate regulation and enforcement. That, of course, varies tremendously. Currently, twenty-three states and the District of Columbia have legalized some form of medical marijuana. Four have legalized recreational use, which has created new regulation structures. (Even within a state, the medical and recreational regulations may vary widely, as in Colorado, where, for ex., some communities chose not to allow recreational licensing.) The federal priorities—set out in the 2013 Cole memorandum—include keeping the pot and associated money away from kids, the black market (including organized crime and criminal gangs), and other states, and preventing violence, drugged driving and public health problems, and grow operations on public lands.

Will that change with a new attorney general? Maybe, maybe not. The current nominee, Loretta Lynch, chaired the advisory committee when the 2013 “Cole memorandum” stating current policies was issued, but that’s no guarantee that she agrees with all its provisions.

Enforcement and its impact: Common enforcement avenues include raids and arrests, letters to landlords, enforcement partnerships with municipal authorities, and seizure/civil asset forfeiture procedures. Lots of story potential here. During a brief period in Montana, when medical marijuana looked more like the Wild West than the Race for a Cure, green entrepreneurs seemed to be setting up business on every corner. Few state laws reined them in. The feds stepped in—to the astonishment of some and the relief of others—with raids and arrests that created some genuine confusion. Most of the shops disappeared as quickly as they sprouted, and the state legislature and courts continue to struggle to develop a system that carries out the intent of the voters when we approved medical marijuana years ago but doesn’t allow every ex-jock with a bum knee a medical pot card.

Consider a character who owns rental property—commercial or residential—and gets a letter warning of potential legal action, including loss of the property, for knowingly renting to tenants engaged in illegal activity. What if a couple owns the property jointly—and one knows of the tenant’s illegal activity, but the other doesn’t? What about a couple who owns their own home and forfeiture raises its head—can an innocent spouse prevent a forfeiture, or lose her home and major asset? In the seminar, the Colorado attorney speaker said no rental properties have been seized; one of the Washington lawyer speakers said three property owners there have lost buildings to asset forfeiture, but each was involved in the illegal business. But in all states, the risk creates fear for landlords and lenders. How will those fears and risks affect your characters?

Other issues: Can a medical marijuana cardholder legally own a gun? Yes. Can he legally buy a gun? No. According to the speakers, the dealers eventually sought policy clarification; what’s evolved is a version of “don’t ask, don’t tell.”

What’s the effect of marijuana usage on other government benefits, such as housing assistance? One speaker told of a client who lost her federal Section 8 housing voucher because she had a medical marijuana card; she got it back, but the situation points out that the various state and federal housing assistance agencies have had to work out their approach and establish policies as well. Obviously, the problem of access by kids comes up here, and the evolution of recreational access complicates things even further.

If you’re writing a story set on or near an Indian reservation, look at tribal control. The basic federal policy applies there as well, but of course, tribes are sovereign states. So far, the federal government seems to be allowing tribal regulation consistent with the regulations in the state where the tribe is located.

In the states, medical and recreational use are regulated differently. Colorado seems to have the most evolved systems, although they differ. For example, recreational marijuana undergoes testing and tracking not currently required of medical marijuana. Colorado initially required “vertical integration” or “seed to sale” control within one business, but that’s already changing, in part because of the expansion into recreational use, and because that model forced growers and sellers to merge or form partnerships that did not always work out. Caps on amounts a user can purchase may change.

Follow the money—or the water. Is the local water board okay with a cultivation facility locating there? What about state health department regulations, including sanitary standards? Are water and other waste products being properly disposed of? Beware the sanitation inspector with a citation pad and a grudge.

Banking issues are potentially huge. Some banks have feared making loans to marijuana businesses and even feared holding deposit accounts, because of the risks of being held criminally liable for aiding and abetting criminal activity. But in the modern world, no business can function without a bank account—some mandatory government payments, such as payroll taxes, can’t be made in cash. There are now federal guidelines—again, not laws—addressing money laundering that may come into play. A banker character may allow you to introduce all kinds of personal and legal conflicts.

Maybe the banking regulations—or the fear of running afoul of them—mean your character can’t get a loan, whether to finance a marijuana greenhouse or to expand a plant building grow lights commonly used in the pot industry. Does that make him vulnerable to predatory lending? (Usury rates typically don’t apply in commercial context.) What about an unsavory venture capitalist? (Colorado has strict requirements that licensees and investors in fact live in the state.) Your story facts may create fertile ground for that organized crime element that the federal policy wants to prevent.

Another big issue? Taxation. Colorado has an intricate taxation system; is your fictional pot business following, or flouting, the law? Remember Al Capone: The notorious criminal went to prison for tax evasion. “Trafficking” technically includes marijuana businesses, even if state-legal, so under IRS provision 280(e), those businesses could not take business deductions—meaning they were taxed on gross receipts. That was challenged; businesses can now deduct the cost of goods sold, though not other business deductions. Easier for wholesalers and growers than for retailers, who can only deduct their wholesale costs and not the costs of rent, equipment, advertising, and the like. There will be state tax issues as well—and the speakers made clear that Washington and Colorado take very different approaches. As one speaker, Jeffrey Gard of Colorado, said, legislators across the political spectrum agree that the marijuana industry should be taxed to the state’s benefit. So your fictional marijuana dealer will need a good accountant and a tax attorney.

A new federal wrinkle? After I wrote this but before it went up, I learned of a new provision in a congressional spending bill that would prohibit the Dept of Justice from spending money to prevent states from “implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” The New York Times reports that one California man, a medical marijuana seller, convicted under federal law has asked the Ninth Circuit to order DOJ to stop working on his case, arguing that spending any money on his case would violate the law. The Times says “But the Justice Department strongly disagrees, asserting that the amendment does not undercut its power to enforce federal drug law. It says that the amendment only bars federal agencies from interfering with state efforts to carry out medical marijuana laws, and that it does not preclude criminal prosecutions for violations of the Controlled Substances Act.”

Changes in state law: And then there’s this, passed so recently I haven’t read the article, let alone the bill, changing medical marijuana in Washington State.

Stay tuned.

We’ll wrap this up in two weeks.

What happens in an inquest after an officer-involved shooting

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I regularly read the Seattle Police Department Blotter for news on local investigations and on the police department itself. Check your story state and city for a comparable source; you’ll get info and ideas on all points of the horror-to-humor scale.

What caught my eye today was this blog entry outlining the investigation and inquest that followed a shooting death by an officer of a man who had led him on a chase and whom he believed posed a threat. The entry includes a copy of the list of questions given to the jury and other details, including video. If you write about cops, whether or not you plan to write about a shooting, I think you’ll find it interesting.

When the officer ordered the man to come out a shed where he was hiding, the man yelled that he had a pistol. He then aimed it at the officer, who fired several shots and killed him. Turned out to be a pellet gun with the tell-tale orange tip removed. The jury decided the shooting was justified, because the officer reasonably believed the man posed a threat of imminent threat of death or serious injury to him or other officers.

Stolen Evidence

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I’m continuing to reprint a few articles from my website, to keep them available after a redesign. This one was originally published in 2009.

STOLEN EVIDENCE: Is stolen evidence admissible in court–and how will it affect the case?

In a mainstream novel I recently read–and enjoyed–a legal secretary tells the protagonist that an object he took from a murder victim’s home can’t be used because stolen evidence is inadmissible.

Now that’s just pure fiction. Nothing in the Rules of Evidence precludes the use of stolen evidence–unless it was stolen by the police, which is a whole ‘nuther matter, and not one we’ll talk about today.

So, what should have happened when the client’s son walked into the lawyer’s office with stolen evidence? First, the secretary should have been very careful what she discussed with him. While it’s tempting to share information with family members, the attorney-client relationship is with the client, not the family. The lawyer’s obligations are to the client–regardless who’s paying the bill. That may mean drawing some lines–not always easy, or comfortable. More often, it means seeking and accepting information from relatives, while exercising extreme care in what is said in return. The client gets to make the final decision, and should be consulted before critical information is shared. Revealing information to a non-client could also violate the attorney-client privilege, which belongs to the client and is waived if the information is shared with a third person. As well, relatives don’t always have the same goals and interests–especially if the evidence could implicate them, or someone else close to them. Ratchet up conflict by creating relatives who refuse to be left out of the loop.

Keep in mind that staff are bound by the same rules as lawyers on issues like confidentiality and conflicts of interest.

Next problem: The secretary should not have made a pronouncement about what’s admissible in court and what isn’t. Experienced legal secretaries can be very knowledgeable, but good ones are careful not to step into the role of the lawyer and to avoid offering legal opinions. To her credit, the fictional secretary did tell the client’s son to show the object to the lawyer, and he promptly did. The lawyer quickly recognized its significance to the defense. That’s when things get tricky.

An object has evidentiary value because of what it demonstrates or suggests–that is, whether it makes the existence or non-existence of a material fact more or less probable. Whether the object was stolen won’t usually affect that determination. But the theft may raise other questions: where has the item been, has it been tampered with, why was it stolen, and is the thief credible? In other words, as lawyers say, “it goes to the weight” of the evidence, not its admissibility–that is, how much credence and value the jurors should give it.

In that story, the criminal investigation was incomplete, but far enough along that the crime scene had probably been released. The police either did not find the object–or more likely, given its nature, didn’t think the item had any evidentiary value. Under the U.S. Supreme Court decision in Brady v. Maryland (1963), prosecutors have an obligation to disclose to the defense any “exculpatory evidence”–meaning material evidence helpful to the defense–even without a specific request. Failure to do so is reversible error, if the appeals court concludes that the evidence was material and could well have created a reasonable doubt about guilt. In Brady, a murder case, the prosecution withheld a co-defendant’s statements admitting the actual killing. Failure to disclose was clearly reversible error. In the fictional case, if prosecutors had the object and knew its potential impact, they would have been required to disclose it.

But the defense lawyer quickly recognized the object’s import. So what are his obligations? Brady doesn’t apply to the defense. Why? Because in a criminal case, the government has the burden of proving its case beyond a reasonable doubt, while the defense doesn’t have to prove–or disprove–a thing.

Still, defense counsel may be required to disclose the evidence in the discovery process, and even if not, may choose to do so for other reasons. “Discovery” is the legal process of exchanging information about the case. In olden days, trial was often by surprise, but in the modern era, with codification of the Rules of Civil and Criminal Procedure and the Rules of Evidence, the system trends toward disclosure. Discovery is limited to facts–neither party has to reveal its strategy or arguments.

In some states, the rules require reciprocal discovery. Others require advance disclosure of persons known to have relevant information, or of witnesses, exhibits, and physical evidence the parties intend to use at trial. Written notice of certain defenses may be required, most notably the intent to rely on an alibi. Disclosure allows the other side to investigate and respond appropriately. Disclosure also promotes “judicial economy”–meaning that trials will proceed more smoothly and quickly, and unnecessary trials will be avoided.

Plus, disclosure could give defense counsel sufficient grounds for dismissal, or for negotiating a plea to a lesser charge.

Back to the fictional case: If the crime scene hadn’t been released, the defendant’s son could be charged with tampering with evidence–or the equivalent local crime. Prosecutors could charge him with theft. Make it more or less likely depending on how much heat you want to put on your character. The lawyer could also be charged with receipt of stolen property, another reason why he or she would probably report the incident to the prosecutor. Receipt of stolen documents may be one charge in a possible prosecution against WikiLeaks, for publication of documents known to have been obtained without authorization.

Bottom line: Be careful with your assumptions. Stolen evidence may be admissible–if it’s relevant. Problems in its acquisition go to weight, not admissibility. Court rules and ethical obligations bind staff as well as lawyers. An attorney’s obligations are to the client, not the family. Prosecutors must disclose “exculpatory evidence.” Local rules on disclosure of other evidence vary–check them out. And remember that there may be good reasons for disclosing information even when not required, if it can help the client. At any point along the way, things can go wrong–and for a fiction writer, that’s good.

Domestic Abuse

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I’m continuing to reprint a few articles from my website, to keep them available after a redesign. This was originally published in 2009.

DOMESTIC ABUSE: Legal issues to keep in mind when writing about this all-too-common situation

A writer whose plot involves domestic abuse posed several questions.

Consider this scenario: 
A woman is in a violent marriage that’s getting worse. Her husband assaults her one night and is arrested. At his initial appearance in court the next morning, bond is set at $1,000. He posts bond by credit card and after spending one night in jail, goes home. Later, as a condition of a plea agreement, he agrees to attend anger management classes and AA. His wife reconciles with him, but is angry with her family and friends for making clear that they do not trust him and think she should leave him. As a result, she becomes more isolated, and one night, when he decides he’s tired of the wagon, of people telling him what to do, and of her disapproval, he drinks a half-rack of beer and most of a fifth of whiskey and beats her badly. The oldest child, just twelve, calls 911, and police and EMTs respond. She’s taken to the hospital, he’s taken to jail, and the kids are taken to a neighbor’s house to wait for their grandparents to arrive from out of town.

What’s going on, and what’s next? 
Pre-trial release: The amount of bail and other terms will depend on the charges and circumstances. In this scenario, the charge is probably a misdemeanor and a first offense. Potential charges in domestic violence vary widely, depending on the facts. Some are misdemeanors, others are felonies of several types, each with its own elements–the minimum facts that must be proven in court. Terms also vary: is it partner assault, domestic assault, family assault, simple or aggravated, first or second degree, or something else? Check the law in your story state.

Many factors affect pre-trial release, but the amount of the bail bond might be low if the victim isn’t seriously injured, the accused is particularly contrite, and no drugs, alcohol, or weapons are involved. Another factor is whether the accused has a steady job and ties to the community–not because that makes him less culpable, but because the primary purpose of bail is to ensure that a defendant shows up for later court appearances and those ties make him less of a flight risk.

And yes, some courts do indeed accept credit cards.

Release on bond typically involves numerous conditions. The main one: no contact with the victim. But if she tells the prosecutor she doesn’t want that–that she’s sure it won’t happen again, he’s really a good man but was upset over a problem at work or with one of the kids or she made him mad–the prosecutor won’t request that condition, because it’s clear she wouldn’t honor it. And the prosecutor wants her trust–there’s no point alienating the victim. If she’s in court, the judge might ask her if she wants him ordered to stay away. Some women genuinely believe the problem won’t recur. Others fear that a no-contact order would just make things worse. Some want limited involvement with police, courts, or government agencies for their own reasons; some fear the possibility of a Child Protective Services investigation; and others worry about finances or keeping their children from their father. Other typical conditions of release: refrain from drinking or using drugs, attend AA or NA, make all court appearances, and cause no further trouble.

Protective orders: I want to distinguish between a no-contact order issued after criminal charges have been filed or after a criminal conviction and a protective order. The purpose of a p.o. is to prevent future violence. According to statistics reported by the ABA (link below), 86% of women who received a protection order state the abuse either stopped or was greatly reduced.

The requirements and terms depend on the law in your story state, but a p.o. typically requires a showing that violence has occurred in the past and could occur in the future. (See the state-by- state info in the ABA summary of statutes, link below.) It does not require criminal charges or a criminal conviction. Common terms prohibit contact with the applicant and any minor children, including phone calls and emails as well as physical contact, harassment, and going to or near a school or day care that a minor child attends or to an adult’s work place or church. Protective orders may also prohibit use or transfer of real or personal property, and in some states, can be used to establish temporary child support. The person to be protected must apply for the order by going to the local prosecutor, legal aid office, or court–usually justice court. You can’t get a p.o. for someone else, except that a parent may obtain a p.o. covering minor children. A violation doesn’t trigger arrest; the person who obtained the order must go to court to request that the person restrained be found in contempt and fined or jailed.

All too often–again, because of the complicated relationships–the person getting the order ignores violations, or ignores it herself, which makes later enforcement much harder.

Going to trial: So charges are filed and the case is set for trial. Cooperation problems can crop up again. If a victim refuses to testify or threatens to recant her story, then prosecutors must weigh the evidence and decide whether they have enough to make the case without her testimony. Police investigation, eyewitness testimony, and medical reports may be enough–especially with photographs. Jurors will wonder why they’re not hearing from the victim, but most will be savvy enough to figure it out.

It’s not uncommon for a woman to testify at trial and recant her prior reports of violence. Some courts allow experts, such as social workers or psychologists working in the field of domestic violence, to testify that this is typical behavior. The expert can’t comment on the witness’s credibility or say that she was actually assaulted–both are decisions for the jury–but can offer a explanation for inconsistencies in testimony.

Note that the spousal privilege does not apply in criminal cases involving charges of violence against a spouse or the minor children of either spouse. (My column on spousal privilege discusses it in some detail; see my website.)

Sentencing: As I mentioned previously, the charges possible in domestic violence vary widely. So do the sentencing ranges and options. Some states give courts a wide degree of discretion in sentencing; others dictate mandatory minimums and establish aggravating factors. The particular circumstances are critical. What happened? What injuries occurred? First offense or repeat? Was a weapon involved? What about drugs or alcohol? Were both partners violent, or just one? Some couples develop a relationship based on mutual abuse and violence, making intervention much harder, and complicating the legal situation.

Suspended sentences are common, either on a plea agreement or after a conviction at trial. Release will include extensive conditions, such as successful completion of a drug or alcohol treatment program, anger management sessions, and restitution.

Other options: What do prosecutors do when faced with a woman who needs the financial support her husband or partner provides to care for herself and their kids? This is a tough one. The biggest problem prosecutors face is lack of cooperation from the victim. Because of the complicated emotional situation in abusive relationships, many women are reluctant to end these relationships. Often, the victim doesn’t want the man jailed–she just wants the violence to stop. If an assault has caused serious injuries, it’s hard for a prosecutor to accept a plea agreement that doesn’t involve jail time. A typical solution is a plea agreement with a sentence length appropriate under the statutes and circumstances, but with most of the time suspended. That way, the defendant serves some time in prison but will be released with supervision by local probation officers. If he violates the terms of his release, or commits another assault, he can be charged with violating those terms as well as for any new crimes–a strong incentive to keep one’s nose clean.

Prosecutors often refer victims to social services. These run the gamut, from counseling services to assistance with food and housing to organizations that supervise visitation or transfer of children between estranged or hostile parents.

The “battered wife defense:” Some women strike back. The “battered wife defense” to a homicide charge is a variation of self-defense, and requires proof that the accused was in imminent danger, and that her own actions were intended to protect herself.

Resources:
National Coalition Against Domestic Violence http://ncadv.org/
American Bar Association Commission on Domestic Violencehttp://new.abanet.org/domesticviolence/Pages/default.aspx survey of recent statisticshttp://new.abanet.org/domesticviolence/Pages/Statistics.aspx including prevalence, stalking, same-sex violence, recidivism, and workplace violence, as well as breakdowns by race and ethnicity, and age. Its resources pagehttp://new.abanet.org/domesticviolence/Pages/Resources.aspx includes a summary of state statutes and resources for survivors and attorneys.

 

Can a child testify in a criminal trial?

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One more bonus reprint; was originally published several years ago in First Draft, newsletter of the SinC Guppies chapter, then lived on my website in the Questions of the Month.

Can a child testify in a criminal trial? 

Yes, but very young children must first be found competent to testify. In Idaho, Joseph Duncan was set to stand trial for murdering a woman, her boyfriend, and her teenage son, and kidnaping her two younger children for sex; he later killed the younger boy but was captured in Montana with the girl, then nine. Idaho law requires a judge to interview privately any child under ten to determine competency. Days before trial, the judge found the girl competent to testify.

Some states establish competency review requirements by statute, while others rely on case law. Most states require that witnesses under ten be interviewed to determine their competency, either before trial or during trial but outside the presence of the jury. Older children’s competency may also be challenged, if the lawyer opposing the testimony files a motion asking the court to determine competency. In the Duncan case, the nine year old is the only living witness to a triple homicide; the judge determined her competency before trial because of the potential effect on plea discussions and trial if she were unable to testify.

The issue in determining competency is whether the minor witness has the ability to 1) understand the obligation to tell the truth, and 2) to accurately relate events seen, heard, or experienced. (The same rules apply to adult witnesses whose mental capacity is in question.) Those criteria are broken down further into these elements:

• Capacity to observe.
• Sufficient intelligence.
• Adequate memory.
• Ability to communicate.
• Awareness of the difference between truth and falsehood.
• Appreciation of the obligation to tell the truth in court. Judges are trained to use age-appropriate terms and measures. A young child may say that if she lies she’ll be punished, or if he doesn’t tell the truth, God won’t love him any more. In most cases, that’s enough.

In Washington State, a three year old was allowed to testify about abuse that occurred when she was two, because she met the basic criteria for competence as to the subject of her testimony. Obviously, she could not be asked more complex questions that a seven or ten year old could understand and respond to, but she demonstrated her understanding of the difference between the truth and a lie, and the importance of telling the truth; the judge concluded that she had the necessary ability to observe and communicate what had happened to her. However, it’s entirely possible that another three year old or an older child might not be found competent.

When a child is unable to testify, their prior statements to parents, counselors, doctors, or law enforcement may be admissible at trial under some circumstances. I’ll look at that issue in another column.

As a direct result of the Idaho court’s competency decision in Duncan’s case, on the day jury selection was scheduled to begin, Duncan pled guilty in state court to three charges of first degree homicide and three charges of first degree kidnaping. He was immediately sentenced to life in prison without parole on the kidnaping charges. Federal prosecutors plan to try him on additional kidnaping and homicide charges for taking the two young children to Montana where he molested both and killed the boy. If he is not sentenced to death on the federal charges, Idaho may still seek the death penalty on the Idaho homicides. Duncan said he wanted to spare the family and community any more pain. It’s unlikely that he would have pled guilty without the nine year old’s testimony. Two other states are still considering charges for unrelated crimes.

The possibility that a child will testify can add a lot of drama and tension to a case. You can use that possibility, the competency evaluation, and the trial testimony to complicate your plot and add layers to your story.

The Duncan case is discussed in several Q&A in my book, Books, Crooks & Counselors.

May a person be convicted of homicide if the victim’s body is never found?

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The bonus reprints continue; this was originally published several years ago in First Draft, newsletter of the SinC Guppies chapter, then lived on my website in the Questions of the Month.

May a person be convicted of homicide if the victim’s body is never found? 

Yes. With no body, prosecutors must rely on other evidence to establish that the crime alleged occurred and the defendant committed it. Both direct evidence–such as confessions and eyewitness testimony–and circumstantial evidence–such as blood stains and testimony of related events–may be used.

The U.S. Supreme Court first acknowledged that a person could be convicted of homicide without a body in 1834. Of course, in modern cases, DNA evidence may be critical.

In a recent Montana case, prosecutors alleged that Martell severely beat the victim, Red Dog, then threw his body into the mostly frozen Missouri river. Witnesses testified to the beating. Searchers were unable to find Red Dog’s body, but did find his ripped jacket and bloody sweatshirt. A hunter testified to seeing blood stains in the road where the beating occurred. Prosecutors also relied on Martell’s written statement admitting that he instigated the fight and had told his partner in the beating that they “couldn’t let [Red Dog] go” alive.

In another case, prosecutors alleged that Moore shot Brisbin in Moore’s camper. Witnesses said Moore had called Brisbin and asked him to come to the camper; he hadn’t been seen since nor his body found. Within two days of Brisbin’s disappearance, Moore cleaned blood from his camper, discarded bullets and carpet, covered and repaired bullet holes, and spilled battery acid in the camper in an effort to cover and clean stains. A bullet was found under the floor of the camper. (The shooting and conviction occurred before DNA analysis became available.) On appeal, the court agreed with prosecutors that Moore’s actions showed consciousness of guilt, much like evidence of flight after a crime, and the evidence was relevant to the jury’s decision because it “tended to prove” both the commission of the crime and Moore’s responsibility.

Other cases have turned on testimony about death threats and years of domestic abuse, blood-spatter evidence, a bloodstained revolver, bits of tissue, recent life insurance purchases on the victim, and elaborate lies told to explain the victim’s disappearance.

In your stories, keep in mind that where there is no body, you must show that the crime occurred–that is, the victim is probably dead–as well as showing that your character committed the crime. The evidence you rely on must go directly to the heart of the case, the res gestae or “things done.” Put the missing person in direct contact with the defendant, as with Martell’s beating of Red Dog, or Moore’s phone call to Brisbin. If you use physical evidence from the homicide scene, put both victim and killer together at or near the scene. Complicate matters by involving another person, as in Red Dog’s murder, or with evidence suggesting that the victim often disappeared on his own for weeks at a time. Show that the killer had the opportunity to dispose of the body–or frustrate detectives with evidence that he had no time to hide it.

Because bodyless cases are hard to prove, they often turn cold. Your story may benefit from a tenacious detective or prosecutor, a forensic analyst, or a determined relative. Find ways to put your witnesses in a position where they need to talk–or need to stay silent. In real life, no body sometimes means no conviction. But in fiction, it can make for a terrific story.

Emoticons as evidence?

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The Law and Fiction blog is back up and running — I hope! To test that theory, I’m sharing a piece I heard on NPR yesterday that may sound like it came from The Onion, but I promise you, this is real stuff. Next Witness: Will the Yellow Smile Face Take the Stand? http://www.npr.org/2015/02/08/384662409/your-honor-id-like-to-call-the-smiley-face-to-the-stand

The piece mentions concerns over how to interpret an emoticon, and suggests that the author of the text or email be asked to state what he meant by the emoticon. Some texts or emails might come in to evidence through the recipient — like letters received, they would be admissible under an exception to the hearsay rule — but the recipient can only testify about what she understood the emoticon to mean, not what the writer meant, which would be speculation and hearsay.

Jurisdiction — Who’s the Law Where?

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flathead-kalispell-courthouseThe bonus reprints continue; this was originally published several years ago in First Draft, newsletter of the SinC Guppies chapter, then lived on my website in the Questions of the Month.

Jurisdiction — Who’s the Law Where?

A writer asks for clarification of the jurisdiction – that is, the authority – of city, county, and state law enforcement agencies. Variations abound, but a few general definitions apply:

  • city law enforcement agencies, usually called the Name-the-City Police Department, have authority within the city limits. In larger cities, police departments run their own jails, while in others, detention services are contracted to the county. A very small town may contract with the county sheriff for full-time or part-time services, e.g., for weekend or vacation shifts.
  • county agencies, typically called Name-the-County Sheriff’s Department or Office, have jurisdiction in the unincorporated areas of the county – that is, everywhere except the incorporated cities and towns. The term sheriff derives from the medieval English shire, or county, and reeve, or official, meaning a local official responsible for executing legal processes and court orders.
  • state agencies, home to most variation. Some states have state police departments with broad investigative authority; others have highway patrol agencies, whose authority is generally limited to traffic investigations and violations. Most states also have some kind of criminal investigation agency that assists local agencies, especially those in smaller towns, or when a key member of a department has a conflict of interest.

Another option – a consolidated city-county department – works well when a city occupies the bulk of a county, leaving the county with a law enforcement obligation, often over widely scattered areas, but a limited tax base to support its budget.

In many areas, 911 and dispatch services are consolidated to avoid duplication and improve coordination of law enforcement, emergency medical services, and fire protection.

Inter-agency cooperation is a must, and takes many forms. When a chase approaches jurisdictional limits, nearby agencies are notified and asked to stand ready to assist; a suspect may be arrested in one community but turned over to another where he will be held and tried. Major case investigations often cross city or county lines. While a Seattle police officer, for example, could legally question a suspect in Bellevue, professional courtesy dictates that local law enforcement be notified – particularly helpful if the situation deteriorates into violence or requires an arrest. Other interagency cooperation is more formal, via written agreement.

Joint task forces are formed to address shared problems. Several counties in northwest Montana formed a Joint Drug Task Force to deal with regional drug manufacturing and distribution; it also includes representatives of ICE, the U.S. Customs and Immigration Enforcement agency, and tribal police.

Photo: This image of the old Flathead County Courthouse, now a county administration building that sits literally in the middle of the road, comes from the Montana State Historical Society collection of historic postcards. 

Who Can Represent Defendants in Death Penalty Cases?

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OldMTPrisonA bonus post this month — I’m continuing to republish a few of the “Questions of the Month” from my website as it undergoes a lovely redesign. This was originally published several years ago in First Draft, the newsletter of the SinC Guppy chapter. 

Who Can Represent Defendants in Death Penalty Cases?

A writer reminds me that a subplot in the movie “My Cousin Vinnie” involves the qualifications of an out-of-state lawyer hired to represent the defendant in a death penalty case. So, she asks, what are those qualifications?

Federal courts and most states with the death penalty require that when a defendant is charged with a crime eligible for the death penalty, at least one member of the defense team meet certain standards. Although prosecutors are not required to declare whether they will seek the death penalty when they file charges, the American Bar Association’s 2003 Guidelines recommend that qualified counsel be appointed as soon after arrest as possible – even before the defendant has been formally charged or found eligible for a public defense. As far back as 1932, the U.S. Supreme Court acknowledged that a person facing criminal charges “requires the guiding hand of counsel at every step in the proceedings against him.”

Why? Because the stakes are never higher. The primary goals, of course, are to make sure that the process is fair, that convictions are reliable, and that the sentence imposed is appropriate. A great deal of recent publicity has underscored the too-frequent inequities and outright errors in capital – or death penalty – cases. Those cases involve many of the same decisions and issues as other criminal cases – issues of witness credibility, forensics, aggravating and mitigating factors in sentencing. But in capital cases, those issues may be more acute, and others also arise. Should the defendant undergo a psychiatric examination? How should potential jurors be questioned about their attitudes toward capital punishment? Should the method of execution be challenged?

As the law evolves – and it always does – keeping up gets harder. Capital cases often involve psychiatric issues not present in other cases. Prosecutors and defense counsel need a working knowledge of both mental competence – the defendant’s ability to understand the charges and help with his own defense – and mental illness. A high percentage of capital defendants suffer from some degree of mental illness. Lawyers on both sides – and judges – have to evaluate whether mental illness is a defense in the case, a factor in sentencing, both, or neither.

The enormous responsibilities of defending capital cases place huge pressures on counsel – emotional and psychological pressure, as well as the need to organize their time, case files, and staff efficiently.

Such highly specialized skills can be hard to find. In states with smaller populations, death penalty cases are less common, and it may be difficult to find a lawyer with sufficient experience who is able to take on the case. In that situation, the court may appoint an out-of-state lawyer with death penalty experience to work with an experienced local criminal lawyer.

What of a defendant who chooses to represent himself? The death penalty complicates the already messy question of pro se defense. The defendant’s mental status and competence to represent himself is crucial – and for that reason, pro se capital cases are rare. Backup or standby counsel will be appointed to assist and advise the defendant, and take over if necessary.

So what is required to be a capital defense lawyer? The federal courts have adopted a specific procedure for certification, as have many states, following the ABA Guidelines. I can’t begin to summarize the various rules, but at the minimum, they involve the following considerations:

  • experience preparing, negotiating, and trying complex criminal cases, preferably including other capital cases;
  • knowledge of the applicable law, both substantive and procedural;
  • experience and skill working with expert witnesses, especially on issues such as  forensics, DNA, ballistics, and psychiatry;
  • skill in research, analysis, and drafting documents, and in oral advocacy;
  • skill in investigating, preparing, and presenting evidence on mental status;
  • experience managing complex cases, including staff (other lawyers, investigators, and clerical personnel), physical evidence, and documentation;
  • experience investigating and presenting mitigating factors – those aspects of a case and a life that warrant a sentence less than death;
  • ability to work and communicate with a client who may be mentally impaired or socially dysfunctional;
  • a limited workload.

And, I would add, empathy, unquestionable ethics, and a passion for justice.

The ABA publishes Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (rev. 2003).

Photo: the Old Montana State Prison, now a museum; credit to the Museum Society.

When crime taints a house

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Update: Just today the NY Times reports that the Newtown Legislative  Council will vote tonight, Wed Jan 21, on a proposal to raze the house and keep the land as open space. The Council is expected to vote to “yes.” 

How do you and your characters handle a tainted house, one damaged or stigmatized by trauma? A house where a murder occurred, or one owned by a killer? Or one that’s both, as described in this New York Times article on the home in Newtown, CT where Adam Lanza plotted his crimes against school children and killed his mother?  The town bought the property for one dollar after Nancy Lanza’s estate and her surviving son gave the property, and its  $400,000 mortgage, back to the bank. But now what? Some locals want to tear the house down and turn it back into woods.

The article profiles a real estate broker and appraiser, Randall Bell, who advises banks and estates on handling traumatized properties. He notes the layers of emotion such places carry. His first action at the Lanza house was to dispose of all the contents, including the furniture and backyard playset, to avoid the emergence of ghastly “souvenirs” in the future. The bank, which doesn’t even have a local branch, had already replaced the damaged doors and kept the lawn and garden maintained, so it wouldn’t become an eyesore, further traumatizing the neighborhood. He’s now discussing other options with the town council.

In my legal work, I’ve worked with appraisers who have been  asked to determine whether a property’s value is affected by stigma—in my cases, usually previous fire or water damage, but association with a crime could also stigmatize a property. Appraisers say they can’t ethically call a property stigmatized until it’s been on the market for longer than the time it should be expected to take to sell AND potential buyers have turned it down because of its history. Putting a dollar value on the discount, or deduction, for stigma is tough—how low would the price have to go before it would sell? And how much time will that take? Few “comps”—truly comparable properties, that have experienced similar problems and sold—will exist. Appraisers typically make an educated guess, and could be wrong.

Many states require sellers to disclose crimes known to have occurred in a house. Past physical damage usually must be disclosed only if “material;” that is, the knowledge would affect a reasonable person’s decision. If a drainage problem or fire damage has been thoroughly repaired, disclosure isn’t usually necessary.

Think about the story implications for your characters, whether they’re family, neighbors, real estate professionals, ghosthunters, or gossips.

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