Category Archives: Law and Justice

Does Sexual Immorality and the Drain on the System Prompt Us to Intervene?

Trending in the news right now is a story of the once young-and-free Nick Olivas who claims that when he was 14, he had an inappropriate affair with a 20 year-old woman. Though the news headlines say, ‘Rape Victim Forced to Pay Child Support’, a real eye-catcher, the story is much more complex.

In 2012, a woman applied for public assistance and noted that Nick Olivas was the father of her 10 year-old daughter. This, of course, led to the State of Arizona ordering he pay child support – current and 10 years in delinquent payments – a total of $15,000, plus money for birth expense reimbursement and 10% interest.  That’s quite a judgment. Especially for a college grad working as a medical assistant.

Reports claim that Mr. Olivas is excited to be a part of his daughter’s life and has no problem paying current child support. His contention is with the back payments when he “didn’t know his daughter existed.”

No doubt that this is a messy, sticky case. While the tag line is great for sensationalizing, the sad reality is this: Each of these cases have their own set of circumstances that change what a reasonable outcome should be. We also can’t base decisions on possible crimes that may have happened. Certainly in this case, with a tangible child, a paternity test, and simple math, we can deduce that Mr. Olivas is, in fact, the father and was not of the age of consent (15, in Arizona) when these events occurred. But Mr. Olivas never pressed charges or even filed a report. So while it is evident that a crime was committed, there is no legal system track record to prove it. 

Every time a case cycles through the system, we set a precedent. In 1993, the Kansas Supreme Court ruled that a 13-year old boy who got his 17-year-old girlfriend pregnant was liable for child support payments even though he was not of the age of consent. In California, the same thing happened with a 15-year-old and a 34-year-old despite the fact that the woman was convicted of statutory rape.

In a changing culture of society – which is clearly having negative impacts on everyone involved– we are now dealing with men who go years completely unaware they have a child and the system eventually catches up with them. By unaware, I mean the mother admits she did not share the information with the father nor did she make a diligent effort to go through the court system to track him down and go through the proper channels.

Age issues aside, this also gets into the weeds of ‘responsible sexual activity’ and what is reasonable responsibility for both parties. Is it on the woman to inform the father immediately? Or just sometime before birth? Or within a year of birth? Should the man be held responsible for ‘not following up’ to see if he impregnated a woman from a one-night-stand? Or do we sit idly and wait for the system to catch up to everyone? Because it will. More often than not, a woman in this situation will be forced onto some type of public assistance and the number of people affected by situation will continue to grow – welfare benefits, the court system to ensure payment, and so on.

Unfortunately, no matter how hard we try, we cannot legislate morality but we our society is nurturing a culture that is sucking the life out of just about every government program we have in place.

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Judges, Doctors Trumping Legal Contracts?

I will admit that sometimes I forget to keep up with news. Many days I rely solely on Facebook and Twitter for my ‘headlines’ and then go find out what’s going on. I don’t recommend this plan for information as you will generally miss out on many “non-trending” newsworthy items. So if, like me, you hadn’t been closely following the Jahi McMath case, you likely haven’t mulled over the legal ramifications of what is actually happening in the case.

A quick overview of the Jahi McMath illustrates a truly devastating case of a 13-year old girl put under for basic removal of adenoids and tonsils. After surgery, she began bleeding and went into cardiac arrest. She was later declared “brain-dead” by two physicians and one court-ordered physician (where this court-ordered physician came in, I’m still researching). Her heart and lungs continue to operate but she lacks brain activity. These functions are how cessation of life is determined and are also the cause of the conundrum in this case.

Little Jahi has been living (according to her family) in a ‘dead’ (according to medicine) state for 26 days (as of publishing). During a time when her family is not only grieving the damage to their daughter, they are amidst a legal battle which includes a restraining order [which is actually set to expire today at 5pm] against the Children’s hospital at which Jahi was originally admitted. She has since been transferred to an undisclosed location and is receiving intravenous nutrients as you read this.

I remember the Terry Schiavo case, though I was young for much of it, and I remember the legal battle and the slaughtering of both involved parties in the news for years and years. The problem then and the problem now is a moral one, not a legal one…and we ALL know you cannot legislate morality. Life care, medical decisions, these have personal consequences. And when no formal arrangements are made for their care, these things happen. Of course loved ones are going to hold on for as long as they possibly can. Parents have the right to do this for their minor children. Husbands and wives have the right to make these decisions, too. Any one designated as the ‘medical power of attorney’ has the right to do this. It is essentially a legal contract.

At the present time, the McMath family is not costing the California any money, either. Because Jahi was declared ‘dead’, insurance will not cover medical costs, however, pro-life and Catholic organizations as well as the Terry Schiavo Foundation have all funneled money to help cover costs.

My final concern doesn’t really warrant too long of an explanation but it is one of the most important questions we must ask: If the practiced religion of the McMath’s prohibit the removal of life support measures, should a Judge have the discretion and power to override that?

And what about the right to privacy?

It makes sense that this is one of the reasons the Affordable Care Act is so frightening. Any type of government intervention –on any level, for any reason– is a slippery slope. Where do we draw the line? Court ordered out-patient counseling? Judicial supervision and mandates for in-patient rehabilitation? Sterilization? Refusal of care against familial wishes that ultimately determine life or death?

I don’t know about you but I struggle with the desire for a legal responsibility and legal contract to be upheld and the complete insensitivity on behalf of the courts to demand people ‘pull the plug’. You cannot ask yourself what you would do in a similar situation because every case has different circumstances, emotions and religious beliefs that come into play. The question here is simple, but not simply defined: How much State is too much State?

Commuted Sentences by Executive Order?

It’s no secret that I believe Barack Obama to be the worst president of my life time. And while I’m young and often times cynical about his decision making skills, I’ll give credit where credit is due. Just last week I commended him for switching from pleated pants to flat front pants. These are positive strides.

Also last week, which I will admit I missed when it was ‘news’, was the announcement of commuted sentences for 8 convicted felons by President Obama. One of the gentleman, Jason Hernandez, was sentenced to life in prison for a drug conspiracy charge when he was 18 years old on a charge that occurred when he was 15. According to a full story by Huffington Post, Hernandez was convicted when the disparity between crack charges and cocaine charges was much more vast (100-1 versus today’s 18-1). For these reasons, I believe the commuted sentence was proper, but it does give rise to three very separate issues:
1) Despite being explicitly stated in the Constitution, does the role of the executive circumvent the judiciary by commuting sentences?
2) Do we really support the idea of commuted sentences through executive power even if it is under the right circumstances?
3) The ridiculousness of victimless crimes and the subsequent sentences is ever so present.

I’ll start with the first one. Obviously my first reaction is that the sentence is simply outrageous and even with several “priors” as a juvenile, previous charges and convictions do not compile the same way some states apply “three strikes” laws or point systems for adults.
I also believe the justice system should exemplify its name…it should be just.
Executive orders and sentence commuting seem to circumvent the justice system and though we are a system of checks and balance, I struggle with whether or not this type of action is an overreach.
According to the US Department of Justice Pardon Attorney website:

Under the Constitution, the President has the authority to commute sentences for federal criminal convictions, which are those adjudicated in the United States District Courts. In addition, the President’s clemency power extends to convictions adjudicated in the Superior Court of the District of Columbia. However, the President cannot commute a state criminal sentence. The President’s clemency power includes the authority to commute, or reduce, a sentence imposed upon conviction of a federal offense, including the authority to remit, or reduce, the amount of a fine or restitution order that has not already been paid. This form of clemency is different from a pardon after completion of sentence.”

The list of of commuted sentences and pardons which should not have occurred is more than likely long. Commuted sentences can illustrate significant discretion but that discretion is not stemming from the judiciary. Is that fair and just? Bleeding into #2, the issue arises on equality. Every case has its own facts and circumstances but at what point is it just for one person to have a commuted sentence and not another? The justice system is flooded with mistaken facts, wrongful accusations and improper trials. Certainly each and every case can’t be examined by the Pardon Attorney. Is this an efficient avenue to ensure justice? If the idea is based on principle, consistency is key.

Number three goes a lot deeper, and victimless crimes could span a whole series of blogs, but to keep it short and simple…conspiracies surrounding drug crimes do not warrant life in prison. Who was harmed? Does a lifetime in jail offer retribution to society on behalf of Mr. Hernandez? Does the punishment fit the crime?
The way in which these questions are answered calls for further evaluation of the laws on the books, not necessarily review by the executive branch. It also brings to the light the problems associated with minimum mandatory sentences and the ambiguity that stems from such statutes. Life in prison. Based on minimum mandatory sentences and victimless crimes. Life. In. Prison.

So to sum up firm position between a rock and a hard place…
I believe Jason Hernandez’s sentence was unreasonable, unwarranted and unjust, however, I question the justification for use of executive authority by the president to commute this sentence (and others). And I simply don’t know how to go about fixing any of it.

Discuss.

Innocence Denied in a Victimless Crime

It’s that icky topic that makes you cringe when you even hear the term: child molestation. It’s a devastating and disgusting crime, one that society condemns so much, we often convict the accused in our hearts and minds before we even hear the evidence. Often times these are just and sound assertions, but what about the times when it is not?

What would you do if the police showed up at your door and accused you of child molestation? What would you do if you were then arrested for charges that spawned because of the actions of someone else? And how would you handle being incarcerated for two years with 18 left to serve? And after conviction, would you find faith to push forward to continue to fight for your freedom and the vindication of you and your innocence? And one last thing to ponder: how would you cope if you were denied a new trial after the evidence used to convict you was found to be false?

If we were to fog bubble back in time to 2011 when this whole debacle began, we would meet a gentleman named Scott Dean. Scott and his wife Renee had a quiet (as political ones can be), quaint life in Columbia County where Dean served as a Harlem City Council member before being elected as a County Commissioner. Dean and his wife had two biological sons and five adopted children from Guatemala. Life was simple and though Dean had some indiscretions at work, Dean was well-liked in the community and a charitable man of faith. Cue mirror-shattering moment.

In February of 2011, Dean was accused of exposing himself by dropping a towel (though the accuser did later state she wasn’t sure if Dean even saw her in the room when he dropped the towel) and inappropriately touching his adopted teenage daughter. He was charged with child molestation. (The link to the child molestation section of the Georgia code is here. It is worth reviewing so you may analyze the “parallel” between code terminology and the acts asserted in this case.)

From the get-go, it was evident the State was on a one-track mind. The prosecutor made it known that he planned to introduce evidence of “similar acts” from the past. ADA Parks White referenced a supposed 1984 Virginia incident (when Dean was just 14 years old and two young females (age 12) with a group of other young females) that was never pursued or prosecuted. No charges were ever filed. The prosecutor presented this information to the public before the Judge ever ruled on the admission of such at trial. It was ultimately permitted at trial but what went ignored were the “similar acts” of the victim and her prior false claims against another guardian, as well as her use of similar allegations to have her and her sister removed from their home in Guatemala. It seems the young lady simply used false allegations to leave a home whenever she was unhappy…and she was truly unhappy with her adopted mother, Renee Dean.

In 2011, Scott Dean was convicted of two counts of child molestation of his adopted teenage daughter based on her statements and the ‘inappropriate act’ as a 14 year old boy with a 12-year-old girl. He was sentenced to 20 years in prison (the maximum) followed by 20 years probation.

A few months after the conviction (but prior to the sentencing), daughter Silda Dean told a DFCS worker that the allegations were a lie. The social worker informed her supervisor and DFCS legal counsel but no further action was ever taken. In March of 2013, Dean’s adopted daughter formally recanted (in a letter) her statements claiming he sexually assaulted her, admitting everything was a lie. Testifying in early October that her allegations were indeed false was legally not enough to grant a new trial.

Scott Dean made a couple bad decisions. He chose to wonder outside of his marriage and away from his wife in an inappropriate relationship with a county employee and he chose to rub some folks the wrong way as a politico in Augusta, but neither of these acts render the incessant persecution of a man for such heinous crimes. We utilize due process and the presumption of innocence for a reason. When we allow a case to spiral out of control without discretion and checks, lives are destroyed. The Court of Appeals claimed that “Absolute Proof” isn’t required. Instead, the judges believe that the testimony of the two witnesses met that burden of proof. That testimony has since been retracted. Now what?

There is still an opportunity to rectify the situation. We must question the District Attorney, the Judge, the Courts and demand an answer as to why, in light of such vindicating, game-changing evidence, a man still sits in prison with no hope and no chance of a new trial. If a now ADULT victim, freely and willingly admits that no improper acts occurred , why is a man in prison? How can a man be charged with a serious, life-changing felony with no victim? I charge you to consider if this man was your husband, your brother, your father. At a minimum, you would want a fair and just trial with the pertinent evidence. If the prosecution’s case is airtight, a second trial should yield the same result.

Keep in mind that if the Courts fail to seek justice, even just once, the wheels will eventually fall off wagon for the entire legal system. While you mull that over, Mr. Dean waits in Georgia State Prison in Reidsville.

Confusing Justice with Closure

I read a follow up article this morning about Artiston Waiters, the 19-year old who was shot and killed by a policeman after an altercation back in December. Just yesterday, a grand jury decided not to indict the Union City police officer because, according to reports, Mr. Waiters was attempting to take the gun of Office Lewis and altercation ensued. Mr. Waiters was shot and killed in the scuffle. The WSBtv article said the deceased’s mother ‘is heartbroken over the decision’ stating “Freda Waiters is devastated. It is hard to describe the pain that she is in at this point”.

I found this to be a particularly interesting statement because I wonder what Mrs. Waiters cause was driven by: Justice or Closure?

Our justice system is a tricky one. But it is just that: a system that seeks justice. It is not a system that was created to provide emotional comfort. That comes from God and your family. It is not a system created to invoke retaliation.  That kind of judgement comes, again, from God. The justice systems seeks to hold criminals accountable for breaking the law.

In the case of Trayvon Martin, George Zimmerman experienced a prosecution and conviction by the media and by minority activist groups. Whether George Zimmerman is guilty or not is now irrelevant because he has already been tried in an emotionally chaotic public court. Surfacing evidence matters to few because the liberal left has already established an opinion. Martin family members and supporters have pushed for public crucifixion and take minimal account of any other circumstances because their son is dead. But that’s just it: He isn’t coming back.

In the case of Artison Waiters, we may never know the full extent of the story because witnesses were lacking. But the officer held an impeccable record with the police department and had outstanding marks from all of his superiors. Should we trust his story based on the oath he took or should we be skeptical? The decision has been made by the grand jury and again, Mr. Waiters isn’t coming back.

Both these cases have a strong resemblance to the Casey Anthony trial. Many of us, in our hearts, felt she was guilty beyond a reasonable doubt. A jury did not and they used the Constitutional procedures pre-set to evaluate the case. And Andrea Sneiderman, the woman having an affair with the man who killed her husband. What about her? All of these cases have one thing in common: they stir up emotion. But being angry doesn’t bring them back. Being angry won’t get you a conviction. And being angry won’t make you feel better. As frustrating as it is, the system has loopholes but we mustn’t convict people publicly by media harassment when the correct forum for that is a court room. Remember the Centennial Olympic ‘Bomber’, Richard Jewell? A man wrongly accused suffered greatly for months because the media annihilated him before facts came to light.

I’m not saying we shouldn’t have a justice system that prosecutes and I’m certainly not saying we should be more lenient on seeking justice for those who become the voiceless victim. I am, however, saying that it is important to stay focused. There is no room for emotion in a court room. Cases should be tried based on facts and evidence, not on maintaining a memory of a loved one or attempting to fill a void of a loss. Far too often we see convictions overturned after years and years of wasted time and tax dollars because of emotionally-fueled investigations, emotionally-fueled indictments and emotionally-fueled trials.

The Real Detriment to Society

One of the things I’ve enjoyed most while writing this blog is exploring my own views. Trying to explain WHY I feel the way I do about certain issues has really forced me to delve into my own morals and foundations. I’ve always been conservative but I just continue to move further right as each day, regulation and policy passes.

As someone who has never tried it and has no desire to try it, I feel as though I can offer an unbiased, logical argument as to why the motion to legalize marijuana should be exercised.

Some may say this is against several conservative values. It’s not. Consider the TRUE foundations of what conservatism is supposed to be: freedoms and choices.

People seem to think that if something is ‘legalized’ that means everyone will do it. That’s simply not the case. The people who smoke marijuana will do so whether it is legal or not. Fact. So all we are really doing is creating a database of millions of extremely minor offenders and flooding our criminal justice system with pricey maintenance, paperwork and overcrowding.

The National Organization to Reform Marijuana Laws (NORML) reported that in 1965, there were 2 marijuana arrests an hour in the United States. In 2008, there were ~100 arrests per hour. HOW RIDICULOUS. Did you know that the majority of marijuana arrests are related to other charges like loitering and speeding? Everyone preaches about ‘victimless crimes’ yet the government monitors them through jail time and probation like they are sexual predators. Why? Police and justice system resources could be allocated to more serious violent crimes instead of needlessly sending ‘offenders’ into the system for victimless crimes.

Now, some say that medically it’s detrimental. According to the National Commission on Marijuana, “No significant physical, biochemical or mental abnormalities could be attributed solely to their marijuana smoking…Neither the marijuana user nor the drug itself can be said to constitute a danger to public safety…” Regardless of the overabundance of research saying it doesn’t, let’s say that marijuana did cause a plethora of health problems…so does excessive alcohol use, cigarette smoking, many FDA-approved prescription drugs, McDonalds (and other fast food restaurants), pollution and sticking your head in an oven…but they are all legal and people do them. So please, government, don’t tell us you’re looking out for our best interests. And what happened to choices?

I’m surprised democrats aren’t jumping for joy to support this. The logical, financial side of legalization? Like everything else in the United States, we could just tax it. The lottery, cigarettes, alcohol…what’s the difference? Those are legal now and marijuana isn’t. (Recall that the lottery and alcohol were once illegal, though). They’d also be able to regulate it. Marijuana is a $36 billion a year industry. Illegal marijuana ‘trading’ right now funds gangs, a real problem in many areas of the country. MJLegal.org says, “We currently spend billions of dollars every year to chase peaceful people who happen to like to get high. These people get locked up in prison and the taxpayers have to foot the bill”. It’s expensive to keep up with roughly 900,000 ‘offenders’ every year!!

Now I’m not suggesting that we advertise on billboards or sell it at the local Publix and BP Stations or allow people to light up at Chili’s. But people should be allowed to do as they please on their own time in the privacy of their own property when they are not affecting others.

Marijuana’s actual impact on society does not justify a social policy designed to seek out and firmly punish those who use it. So it’s true, the real detriment to society is the War on Drugs. And it’s not just a detriment, it’s a complete and utter failure.

Troy Davis & The Death Penalty: Race, Cost & Repercussions

The execution of Troy Davis on September 21st has fueled a lot of discussion on the death penalty in recent days. Of course there are the extremists who call for the abolition of the death penalty all together.  There are the moderates who believe that the death penalty needs some tweaking, like more appeal opportunities, longer death row time, etc.  And then there are the hooligans who think Troy Davis was only convicted because he was a black man who killed a white man.

In evaluating the death penalty, there are several aspects that one must take into consideration.  First and foremost, the death penalty is NOT a deterrent for crime.  It is a punishment for committing a crime.  The death penalty, like many other foundations of America, is based on Biblical values.  And in actuality, the death penalty has become so humane, that it is no longer feared.  Criminals are lucky that they aren’t executed in the same fashion by which they took a life.

Death row is often times considered to be a “second punishment” in addition to the actual execution.  But how is this any different from a life sentence? And isn’t it a bit hypocritical to say that jail time is punishment, when the same groups are extending the length of time in jail by appeals and stays and retrials?  Craig Haney, a professor of psychology at the University of California, Santa Cruz said, “People on death row live under the threat of death, which is of course an extraordinary psychological trauma, and they are denied most of the ways that people make life in prison more tolerable: meaningful social activity,
programming of any kind, activities,” but again, prison is a punishment so why must it be tolerable, or comfortable, or enjoyable? The conditions are pretty nice. All states offer television and a limited number of states offer educational training and group recreation time.

Some interesting facts about the death penalty, for those who are so against it:

  • On average, 13 years elapses between the time a death sentence is handed down
    and carried out. (1)
  • In Kentucky, more people on death row have died of natural causes than have been executed in the last 30 years. (1)
  • Almost all people facing the death penalty cannot afford their own attorney. The state must assign them two public defenders, and pay for the costs of the prosecution as well. (2)
  • The rate at which death penalties are handed down at sentencing has gone down dramatically over the last twelve years, with slow-downs occurring in almost every state that still allows the death penalty, including the southern region (4)

Dragging on the process of appeals is costly.  It costs $90,000 more annually to house a death row inmate than it does someone sentenced to life imprisonment.

Another misconception? African Americans make up the majority of death row. Wrong. According to the Death Penalty Information Center (DPIC), 43.68% of inmates on death row are white, 41.77% are African American, 12.12% are Latino and the remaining 2.43% are categorized “other”.  Further, many believe that the South is more likely to sentence a black man to death row than a white man, but Alabama has equal numbers of both, and Florida, Kentucky and Tennessee have more white men on death row (3).

You don’t have to support the death penalty. You can certainly move to one of the 16 states that has banned it: Alaska, Hawaii, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North Dakota, Rhode Island, Vermont, West Virginia or Wisconsin. Or better yet, another country.

Sources
1. http://www.google.com/hostednews/afp/article/ALeqM5hOcn1bXU7W_NbP0JN80LCNIVFa7A
2. http://www.deathpenaltyinfo.org/costs-death-penalty#financialfacts
3. http://www.deathpenaltyinfo.org/race-death-row-inmates-executed-1976
4. http://deathpenaltyfacts.org/facts-about-the-death-penalty/