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Note to Prosecutors:
Before filing charges, make sure that what the defendant did was actually a crime. Thanks to Ken Lammers for the link.
RR Ryan (mail):
Something a certain Mr. Fitzgerald might consider.
11.18.2005 3:37pm
max pinchick:
Something a certain Mr. Fitzgerald might consider.

Ha ha, ROTFL!!!! Too true!!! Perjury and obstruction of justice are just like Buspirone!
11.18.2005 3:45pm
Samuel Ventola (mail) (www):
Oy vey! The prosecutor was in my law school class! Will have to give him a hard time at the next reunion.
11.18.2005 3:45pm
toady (mail):
Actually, something a Travis County, Texas District Attorney should consider.
11.18.2005 3:51pm
Steve:
Yes, if the defendant files a brief arguing that the alleged conduct doesn't constitute a crime, then he must be correct! Why even bother waiting for the judge to rule.
11.18.2005 3:53pm
DelVerSiSogna:
Eh, they're all guilty of something, anyway, right?
11.18.2005 3:55pm
Greedy Clerk (mail):
In this administration, you don't even need to charge a crime. Just call them a "terrorist" and that's that. No need for evidence, lawyers, charges, anything, just the word of the executive branch that they think someone is a terrorist. Habeas corpus, schmabeas corpus. And the best thing about it is that no one mentions it. We just all pretend that it's OK to take an American citizen, caught on US soil, throw them in jail for three years now and it's no big deal, because, hey, the Preznent says he was a terrorist. (The President also said that there were WMD in Iraq, but let's not mention that.)
11.18.2005 3:59pm
Scipio (mail) (www):
I sense a legal malpractice claim. Public defender caught napping.
11.18.2005 4:34pm
guest:
The prosecutor who brought the bogus charges should be disciplined by the bar. His conduct was unethical to say the least.
11.18.2005 5:53pm
MikeC&F (mail):
Guest: I agree. The defense lawyer should also be disciplined. Per the article:

The defense attorney who represented Isaac in the first case was also baffled. "I don't have an answer," assistant public defender John Burkey said. "Nobody caught it. The police were saying it was a controlled substance."


Imagine having a lawyer who doesn't research the law to see if whether what you're charged with is actually a crime. Heck, it's good enough that the police said it was illegal. Very distressing...
11.18.2005 6:00pm
Guest2 (mail):
Orin, thanks for posting this. I'm doing a research-and-writing presentation for our junior associates next week, and I'm now going to use this story as a cautionary tale. (I.e., don't assume that somebody else has already checked and confirmed something.)
11.18.2005 6:57pm
A Guest (mail):
Isn't buspirone prescription-only? Did the accused have a prescription for it? If not, isn't there some kind of law being broken somewhere? (Otherwise, what do we have doctors for?)
11.18.2005 7:01pm
Visitor Again:
Isn't buspirone prescription-only? Did the accused have a prescription for it? If not, isn't there some kind of law being broken somewhere? (Otherwise, what do we have doctors for?)

But the defendant wasn't charged with and convicted of unlawful possession of a prescription drug, only unlawful possession of a controlled substance. It's a basic principle of due process, of course, that a conviction for one offense cannot be sustained on the basis of evidence of guilt of another offense that was never charged (with the possible exception of a lesser included offense).
11.18.2005 7:21pm
Visitor Again:
In this administration, you don't even need to charge a crime. Just call them a "terrorist" and that's that.

In this administration, you don't even need to believe they are terrorists. In fact, you don't even need to believe they are guilty of anything. The Government continues to hold men it has already found not guilty by military tribunal, it keeps them incommuniucado from family and friends, who believe they are dead, it conceals their status from their lawyers and the courts, and it expects us to be satisfied with the prospect that something unspecified will be done to change things at some unspecified time. This isn't something required by the exigencies of the time; this is pure evil. No wonder the Government wants to severely limit habeas corpus.

Anyone interested in what this Government is trying to get away with should read this. It is long, but well worth reading.
11.18.2005 7:48pm
Conrad (mail):
The defense attorney who represented Isaac in the first case was also baffled.

I don;'t think "baffled" is the right word. "Grossly incompetent maybe. Especially considering this:

"Isaac pleaded guilty last year to possession of Buspirone, which she had obtained through a prescription."

Your client is charrged with possession of a drug, which is not illegal to possess and which she obtained under a prescription, and you allow her to plead guilty?!?

Good Lord. Please revoke this bozo's law license forthwith.
11.18.2005 11:37pm
markm (mail):
In partial defense of the PD, his client may have been too mentally ill to tell him it was by prescription, let alone keep track of that little piece of paper. Also, I suspect that most everyone caught with some pills will claim to have got them by prescription, and it appears that many PD's just plain don't have time to investigate each case. Or even talk to their "clients" for more than a few minutes. OTOH, the client was obviously mentally ill and was carrying pills the PD had never heard of - didn't this justify first two minutes with Google to find out the pills are used to treat mental illness, and then a little research to see if she was under treatment already? Even if only to ensure that treatment she needed continued while she was in jail?
11.19.2005 11:56am
pbswatcher (www):
"In this administration, you don't even need to believe they are terrorists. In fact, you don't even need to believe they are guilty of anything."

That's why it's called a war.
11.19.2005 12:51pm
Dave Hardy (mail) (www):
Had a case like that. Gun dealer, ATF raids and seizes entire inventory. Search warrant affidavit alleges that a licensed dealer must comply with all local "published ordinances," and his city has an ordinance requiring sellers of used property to get a special permit, and he sold a few used guns without such a permit.

I pointed out that the definitions section of the Gun Control Act defines "published ordinances." It's not any ordinance in print, but rather those the agency has recognized as particularly applicable to the firearms trade, and published in the Federal Register and in a booklet given to dealers. The ordinance in question isn't in there.

After months of dallying, and a lawsuit, he got his guns back. But if he'd been routed to a PD who didn't constantly deal in the Gun Control Act? Neither the agents nor the US Attorney nor the magistrate (assuming he actually read the affidavit before signing the search warrant) was familiar with that point.
11.19.2005 1:04pm
Visitor Again:
"In this administration, you don't even need to believe they are terrorists. In fact, you don't even need to believe they are guilty of anything."

That's why it's called a war

Err, they were found by a military tribunal to be noncombatants.
11.19.2005 2:21pm
prosecutor (mail):
I'm a city prosecutor in a large midwest city, and have had officers insist that we charge people for all sorts of things that I later find are not crimes. One example being an officer who swore up and down that dealer plates were illegal after 9pm. A thorough search of city and state codes showed he had zero legal basis for the ticket he'd written and demanded we go to trial on...
11.19.2005 5:54pm
NYU Jew (mail):
When I don't know something (trust me, it happens a lot), I often go to Wikipedia. HERE is what Wikipedia told me about Buspirone:

"Bristol-Myers Squibb gained FDA approval for Buspirone in 1986. The drug went generic in 2001."

This search took less than 2 minutes (it took longer to write this post).
11.19.2005 9:31pm
mls (mail):
When I clerked for a state intermediate appellate court, I had to deal with a case like that. The defendant was charged with, and pleaded guilty to, possession of phenylacetone on a particular date, with the intent to manufacture methamphetamine. Problem was, it wasn't a crime on that date to possess phenylacetone alone with intent to manufacture. On the date alleged, it was only a crime to possess phenylacetone together with another precursor element with intent to manufacture. Now, the law had changed so that at the time he pleaded it was a crime to possess it alone. But not on the day he was arrested . . . .

Funny thing was that no one at trial had caught it, and the defense didn't raise it on appeal -- I found it pretty much by accident. And state law had so thoroughly gutted fundamental error doctrine that we had to practically stand on our heads to reverse the conviction. Thank goodness my judge was an upright sort, but it sure took some talking to get the other two judges to join. It's kind of a career-limiting move for elected judges to reverse criminal convictions, especially by reaching out to grounds no one had appealed on! Never mind that it was obviously the right thing to do. . . .
11.19.2005 10:41pm
pbswatcher (www):
"Err, they were found by a military tribunal to be noncombatants."

Noncombatant does not equal releasable.

That's why it's called a war.
11.19.2005 11:06pm
b.trotter (mail) (www):
I just checked every pill bottle I have (and I have some prescriptions that are on the controlled list...) Hmmm... they all have... My name, as the recipient, the name of the Pharmacy that dispensed them, the name of the Dr. who prescribed them, the dosage instructions... and they all came with very informative warnings and indications.. It would seem to me that a PD would just need to supina the Pharmacy for a copy of the prescription... and case dismissed... Even if the client was at the time mentally unstable... it's the PD's job to represent the interests of the client, as there is a fundamental presumption that the defendant is NOT aware of his or her rights, and NOT aware of the legal mechanisms available. Sadly, the more I read, the more it appears that many PDs are gristmills, representing the State's interests, not the defendants... (this may be a bit of a broad brush I'm painting... but... if you were on trial... which would you rather have sitting next to you... a pricey defense attorney that you liquidated your entire estate for or a PD?)
11.20.2005 10:53pm
hey (mail):
b.trotter:

I'll take the PD. I mean, sure they're overworked, sleep through capital trials, frequently bill impossible hours... but they're committed to justice! unlike those lazy fatcats that expect their clients to pay. capitalist pigs! I say always go for the committed types at PD or legal clinic offices. Some say that they are incapable of getting a job as even a real estate or family lawyers, I say they are just committed to fighting the man. At least, they're committed to posturing like they're fighting the man, and that's really all that counts, your posture and intent, not your actual results.

PDs, like leftists and liberals everywhere, focusing on intent and posture rather than results.
11.21.2005 12:28am
Roger Schlafly (www):
Here is an NC news story today:
A man was jailed late Friday on felony charges of selling cooked flour as crack cocaine.

Police say they found a large "rock" of flour, plus six individually wrapped small "rocks" of the substance on John Lemarcus McLaurin, 23, of 218 Northwood Circle.

McLaurin was charged with possession with intent to sell or deliver counterfeit controlled substances and was being held Saturday in lieu of $4,000 secured bond, warrants said.
I hope that someone is checking to see whether it is a crime to sell flour in suspicious packages.
11.21.2005 1:46am
Visitor Again:
"Err, they were found by a military tribunal to be noncombatants."

Noncombatant does not equal releasable.

That's why it's called a war.


Noncombatants who were innocent of any misconduct. We will see how the federal court rules. From the transcript, it does not look good for your position.
11.21.2005 3:06am
pbswatcher (www):
"From the transcript, it does not look good for your position."

I agree. As hard as it may be to understand, especially for readers of a blog such as this one, my position is that not all of human activity is governed, or governable, by laws and lawyers. There comes a point when survival must take over, when civilized platitudes get inverted, and it is better that ten harmless men be imprisoned or killed than that one dangerous one go free. The only valid point of discussion is to determine when that point is reached, at least among the list of cultures and societies which survive to have discussions such as we are having. For example the nation, society and culture that used to be called France may soon have to be removed from the list. My position is that we not delete ourselves from the list. A war run by lawyers is not a war. That's why its called a war.
11.21.2005 4:49pm