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#141
09-21-2007, 01:24 PM
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Re: It\'s Very Simple Really
[ QUOTE ]
In this case that's probably true. But, there are certainly cases where it would be a factor in what charges to levy. Say, for example, you have a white man with a history of hate crime convictions. Then the white man is caught beating up a black man --- would the prior convictions make it more, less, or no more no less likely that you would charge him under applicable hate crimes statutes (versus run-of-the-mill assault statutes)? [/ QUOTE ] His previous convictions could speak to intent, but a white man beating up a black man in and of itself isn't a hate crime. That he has prior convictions for same doesn't make the new one any more so...it has to be judge on it's own merits. In a more simplified example.....in this case, it is being asserted that Bell's previous record may justify the harsher charge. But the harsher charge, by LA law, is distinguishable by the prescence of and use of a deadly and dangerous weapon. That he has previous convictions for battery related to getting into fights does not serve as ample justification that his sneakers are to be considered deadly weapons......and the abscence of previous convictions does not mean they aren't. In short, his previous record has absolutely no bearing on whether or not a dangerous and deadly weapon was used during this crime, nor can his previous record magically turn a pair of running shoes into a commonly accepted deadly weapon. 
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#142
09-21-2007, 01:43 PM
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Re: It\'s Very Simple Really
[ QUOTE ]
Honestly, i have not seen a better breakdown and more fair analysis of the Jena 6 incident than what Red Bean has posted throughout this thread. [/ QUOTE ] Mostly agree, though I think his "dangerous weapon" analysis is off the mark by quite a bit. Louisiana case law has interpreted "dangerous weapon" to include: *an instrumentality used in a manner likely to cause death or great bodily injury (holding that a car can be a dangerous instrumentality) *dousing a victim with rum (where a lighter was nearby) *not limited to inherently dangerous items; dangerousness of an item is a jury determination *pellet gun was a dangerous weapon *stick dangerous weapon (based on location of attack on body - head - and size of stick) * Rubber-soled tennis shoe which defendant was wearing when he kicked his victim constituted a "dangerous weapon" for purposes of committing aggravated battery; eyewitness testified that defendant kicked victim in head so forcefully that impact lifted victim's body off ground and physician who operated on victim characterized victim's attack as brutal -- State v. Munoz 575 so2d 848 I think the key is that, by statute a dangerous weapon are instrumentalities which in the manner in which they are used are likely to create great bodily injury (LA ST 14:2(3))
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#143
09-21-2007, 02:01 PM
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Re: It\'s Very Simple Really
[ QUOTE ]
I think the key is that, by statute a dangerous weapon are instrumentalities which in the manner in which they are used are likely to create great bodily injury (LA ST 14:2(3)) [/ QUOTE ] A competent defense attorney would argue that the prescence of the tennis shoes did not significantly escalate the damage caused from the kicks, for example, kicking a person in the head with and then without shoes. In short, the tennis shoes themselves do not attach a more significant degree of fatality on the attack than if they were not present. For example, kicking someone in the head while they are down with bare feet does not meet the LA code standards for aggravated battery, and it could be argued that the introduction of tennis shoes does not significantly increase the lethality of the kicks. Similar to punching someone in the face while wearing a common ring does not attach significat lethality to warrant an aggravated assault, but wearing brass knuckles would. In contrast, hitting someone across the head with a baseball bat as opposed to hitting them with a closed fist is a significant difference in the degree of potential lethality. The baseball bat easily attaches a more significant risk of harm, and can easily be considered a deadly weapon. A jury could very well find that tennis shoes in this case were used and inteded to be deadly weapons. I would disagree, but that is certainly within the scope of their potential findings based on the wording of the law. However, as I said, I find it problematic that they were not allowed to consider a lesser charge of second degree battery, in the case they found the defendant guilty of battery, but couldn't find the tennis shoes to be considered deadly weapons. Instead of given both choices, they were presented with limited options. Either find guilt with deadly weapon, or not guilty. The difference is significant, all other things considered the same. 1. Second degree battery is a max of 5 years. 2. Second degree aggravated battery (requires use of deadly weapon) is a max of 15 years. The DA should have sought #1, or at the very least, the jury be instructed to have the option to choose between the two, instead of just #2 or not guilty.
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#144
09-21-2007, 02:05 PM
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Re: It\'s Very Simple Really
[ QUOTE ]
[ QUOTE ] I think the key is that, by statute a dangerous weapon are instrumentalities which in the manner in which they are used are likely to create great bodily injury (LA ST 14:2(3)) [/ QUOTE ] A competent defense attorney would argue that the prescence of the tennis shoes did not significantly escalate the damage caused from the kicks, for example, kicking a person in the head with and then without shoes. [/ QUOTE ] But that's not the standard. You're changing the standard to fit your argument. The question is whether the tennis shoes (kicking someone) was likely to create great bodily harm. As I mentioned, at least one LA court has held that tennis shoes can be considered a dangerous weapon. By the way, I happen to think that findings of shoes, feet, hands, etc. being a "dangerous weapon" is ridiculous and leads to precisely the type of absurdities that we are seeing here.
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#145
09-21-2007, 02:31 PM
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Re: It\'s Very Simple Really
[ QUOTE ]
But that's not the standard. You're changing the standard to fit your argument. [/ QUOTE ] There is no standard. Dangerous and deadly weapon is not explicitly defined, it's a matter for the jury, and it is perfectly reasonable for a competent defense attorney to argue against tennis shoes being considered such at trial. [ QUOTE ] The question is whether the tennis shoes (kicking someone) was likely to create great bodily harm. [/ QUOTE ] That isn't the question at all. The question is whether or not tennis shoes can be considered a dangerous or deadly weapon in this case. Second degree battery covers physical assault, including unconciousness, up to resulting in near death, and could be achieved on the merits alone without the need to show tennis shoes as a dangerous weapon, and if doing so causes an excessive punishment in comparision t the actual crime committed. The only factor in the higher charge is the consideration of tennis shoes as a dangerous weapon, and a much stiffer sentence. [ QUOTE ] As I mentioned, at least one LA court has held that tennis shoes can be considered a dangerous weapon. [/ QUOTE ] And that ruling is often cited regarding violations of the 8th amendment of LA state constitution. Curious as to why you didn't similarly cite the appeal of that decision, or mention that it is often cited in a variety of cases since as precedent for overturning excessive sentences that do not fit the crime. The higher court ruled that tripling the length of the sentence based on the finding that rubber-soled tennis shoes were a deadly weapon and the resulting sentence to be excessive and not indicative of the crime.
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#146
09-21-2007, 03:33 PM
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Re: It\'s Very Simple Really
[ QUOTE ]
There is no standard. Dangerous and deadly weapon is not explicitly defined [/ QUOTE ] It is explicitly defined in the statute. [ QUOTE ] it's a matter for the jury, and it is perfectly reasonable for a competent defense attorney to argue against tennis shoes being considered such at trial. [/ QUOTE ] There's the rub. You can't argue out of one side of your mouth that it was prosecutorial abuse to charge them with the agravated second degree battery because a shoe can't be a weapon (when it has been held to fall within the definition in the past) and then say "well that's for the jury to decide." [ QUOTE ] The question is whether the tennis shoes (kicking someone) was likely to create great bodily harm. [ QUOTE ] That isn't the question at all. [/ QUOTE ] [/ QUOTE ] Look at the statute --- that is precisely the issue [ QUOTE ] Second degree battery covers physical assault, including unconciousness, up to resulting in near death, and could be achieved on the merits alone without the need to show tennis shoes as a dangerous weapon, and if doing so causes an excessive punishment in comparision t the actual crime committed. [/ QUOTE ] So could hitting someone with a bat, but they have a different statute when you use a dangerous weapon (and a shoe has been held to be a dangerous weapon in the past.) [ QUOTE ] The only factor in the higher charge is the consideration of tennis shoes as a dangerous weapon, and a much stiffer sentence. [/ QUOTE ] Yes --- and the standard (in the definition section of the statute) for whether something is a dangerous weapon is, if in the manner it was used, it was likely to cause great bodily harm. [ QUOTE ] Curious as to why you didn't similarly cite the appeal of that decision... [/ QUOTE ] Because appeal was not granted. Writ was denied on 4/26/1991. I have no idea what case you're looking at --- I gave the cite for the one I was looking at. [ QUOTE ] or mention that it is often cited in a variety of cases since as precedent for overturning excessive sentences that do not fit the crime. [/ QUOTE ] There is only one case that discusses Munoz in a negative way and it is an Alabama case that distinguishes the assault in Munoz because in the Alabama case there was not a showing of serious injury. If you can find all those negative cases talking about Munoz, I'd be glad to read them but so far my reseach hasn't come up with LA cases saying what you are suggesting. I honestly can't tell if you're trying to pull my leg here and making sh*t up or if you have someone uncovered documents that I haven't. I consider myself a good legal researcher as I have spent the better part of my professional career conducting legal research, designing/working on product development for the largest legal reseach website in the country, and training people on its use...
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#147
09-21-2007, 04:14 PM
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Re: It\'s Very Simple Really
[ QUOTE ]
It is explicitly defined in the statute. [/ QUOTE ] To clarify, I meant tennis shoes are not explicitly defined as dangerous weapons. The definition of dangerous weapon is explicitly defined, to which one could reasonably argue at trial that tennis shoes in this case do not meet that defintion. [ QUOTE ] There's the rub. You can't argue out of one side of your mouth that it was prosecutorial abuse to charge them with the agravated second degree battery because a shoe can't be a weapon (when it has been held to fall within the definition in the past) and then say "well that's for the jury to decide." [/ QUOTE ] As for prosecutorial abuse, can you tell me with a straight face that you don't find his charges to be overzealous, and it would be consistent if the defendants were white? My contention is that the jury was not given an option to consider a lesser charge, it was aggravated or bust. [ QUOTE ] Because appeal was not granted. Writ was denied on 4/26/1991. I have no idea what case you're looking at --- [/ QUOTE ] You're right, my apologies. In my haste I trusted a non-credible source. No excuses, other than to say Chester Williams is a gigantic [censored]. [ QUOTE ] I gave the cite for the one I was looking at.....There is only one case that discusses Munoz in a negative way and it is an Alabama case that distinguishes the assault in Munoz because in the Alabama case there was not a showing of serious injury. [/ QUOTE ] Do you think in Jena case there was serious injury? Do you think a 16 year old kid deserves 15-30 years of hard time for punching and kicking someone in a fight....just because he had his shoes on? Do you find it odd that if he took his shoes off, he'd be looking at a max of 5 years instead? Do you see a problem that the jury had no option for the lesser charge? Most importantly, do you believe the charge and potential punishment to be "excessive" in relation to the actual crime committed? [ QUOTE ] I consider myself a good legal researcher as I have spent the better part of my professional career conducting legal research, designing/working on product development for the largest legal reseach website in the country, and training people on its use... [/ QUOTE ] Nice to know, I'll keep you in mind if I need some help one day. The extent of my knowledge on US caselaw is gleaned from skimming over some books in the prison law library.
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#148
09-21-2007, 04:29 PM
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Re: It\'s Very Simple Really
[ QUOTE ]
As for prosecutorial abuse, can you tell me with a straight face that you don't find his charges to be overzealous, and it would be consistent if the defendants were white? [/ QUOTE ] No, I think it is over-charged. I think the prosecutor is reaching and not for noble/good reasons. I also think that the statute allows it. [ QUOTE ] My contention is that the jury was not given an option to consider a lesser charge, it was aggravated or bust. [/ QUOTE ] There's no problem with that. The prosecutor doesn't have to charge all lesser included offenses. It happens all the time and is well within the discretion of the prosecutor (see Phil Spector case.) It can hurt the prosecutor as much as the help in that it can often lead to a hung jury or an acquital. [ QUOTE ] Do you think in Jena case there was serious injury? [/ QUOTE ] Don't know --- clearly a fact question for a jury to decide after hearing all of the evidence. [ QUOTE ] Do you think a 16 year old kid deserves 15-30 years of hard time for punching and kicking someone in a fight....just because he had his shoes on? [/ QUOTE ] No, I think the statute is stupid/poorly worded and the interpretations of the statute are wrong. [ QUOTE ] Do you find it odd that if he took his shoes off, he'd be looking at a max of 5 years instead? [/ QUOTE ] Very. [ QUOTE ] Do you see a problem that the jury had no option for the lesser charge? [/ QUOTE ] No, I think the prosecutor has the right to make this judgement call --- it's a gamble and one that hurts as often as it helps. [ QUOTE ] Most importantly, do you believe the charge and potential punishment to be "excessive" in relation to the actual crime committed? [/ QUOTE ] Absolutely. If I were in the area, I would be tempted to demonstrate.
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#149
09-21-2007, 04:33 PM
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Re: It\'s Very Simple Really
I haven't been paying attention to this story, but everyone is complaining about the black kids getting overcharged with attempted murder instead of assault or something less minor because they were black? What I don't get is that when this goes to trial, won't overcharging them absurdly end up backfiring on the prosecution because they can't prove attempted murder?
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#150
09-21-2007, 04:44 PM
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Re: It\'s Very Simple Really
[ QUOTE ]
I haven't been paying attention to this story, but everyone is complaining about the black kids getting overcharged with attempted murder instead of assault or something less minor because they were black? What I don't get is that when this goes to trial, won't overcharging them absurdly end up backfiring on the prosecution because they can't prove attempted murder? [/ QUOTE ] It might. The problem is that there is a decent likelihood of jury bias that would work against the defendants. Would you say the same about the Duke Rape case? That the defendants could very well get acquited, therefore, Nifong acted appropriately???
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