[kenrexford]

Just to share why my head exploded today. Warning -- yours may too.

There is a charge called "Weapons Under Disability." The gist is that a felon cannot possess a firearm, lest he serve 1-5 years for that offense.

To be guilty, you have to be in possession of the weapon while either a convicted felon or under indictment with a pending case.

So, my guy is what appears to be a convicted felon. He gets arrested for weapons under a disability and posts bond. While waiting for the indictment, he gets a new gun and hangs out. One day, the police try to serve him with a warrant for the new indictment that results, and he takes off running, ditching his gun before they catch up with him to serve him the warrant.

So, he now has two charges of weapons under a disability. Bad news, eh?

Well, it turns out that his 2006 case resulted in diversion, which he screwed up. When that happened, his earlier plea resulted in the judge finding him guilty, sentencing him to prison, signing the entry, filing the entry, and sending him on his way. However, in that specific entry, the judge said he was found guilty but did not say, in the entry, that he was found guilty because he entered a plea of Guilty. because of that, under the rulings from the Ohio Supreme Court, the entry is void. Thus, there is no final appealable order. Thus, his case is not over, such that he does not have any prior conviction and is not yet a felon.

So, you say, what about being under indictment? The first charge is no good for that reason. And, he wins on the second one because he ditched the gun before they served the warrant, such that he "had no knowledge" because knowledge of being under indictment requires service.

So, if the old case is not yet done, isn't he still technically under indictment for that case? No. For two reasons. First, because he thought he went to prison (which he did) as a result of a sentence (technically wrong, it turns out) and was released, he thought the case was over. so, he thought he was not under indictment. Thus, the "mens rea" element fails.

Well, so he walks. Now, can't we just fix the old entry so this guy cannot do this again?

Nope. Since he served a "de facto" sentence and was released, he was "punished." The punishment bars a new sentence for Double Jeopardy reasons. So, apparently there is nothing that can be done. Punished, but no conviction. (Reminds me of a Stripes line...)

Well, what about the drugs they found in his house? Well, it was his girlfriend's house, and his prints are not on the drugs, and his DNA is not on the drugs, so the drugs could have been hers. No good there either.

What about the drugs he sold in a school zone to a confidential informant? Well, the first problem there is that he did not know he was in a school zone because you have to include the property from the torn-down school, which is an empty field. (That part makes some sense.) Plus, the cops jumbled up the evidence so badly that this evidence is inadmissible.

Well, what about the other time he sold a wee bit of drugs to an undercover?

Yep -- got him there. That's up to 1 year, instead of 17 1/2, But, the law specifically presumes no prison time.

Plus, good luck getting that entry done right.

[fred]

Here is further proof the law is whacked:

Link to bridge hand

Fred Gitelman
Bridge Base Inc.
www.bridgebase.com

[Lobowolf]

kenrexford, on Jul 21 2009, 04:53 PM, said:

Just to share why my head exploded today. Warning -- yours may too.

There is a charge called "Weapons Under Disability." The gist is that a felon cannot possess a firearm, lest he serve 1-5 years for that offense.

To be guilty, you have to be in possession of the weapon while either a convicted felon or under indictment with a pending case.

So, my guy is what appears to be a convicted felon. He gets arrested for weapons under a disability and posts bond. While waiting for the indictment, he gets a new gun and hangs out. One day, the police try to serve him with a warrant for the new indictment that results, and he takes off running, ditching his gun before they catch up with him to serve him the warrant.

So, he now has two charges of weapons under a disability. Bad news, eh?

Well, it turns out that his 2006 case resulted in diversion, which he screwed up. When that happened, his earlier plea resulted in the judge finding him guilty, sentencing him to prison, signing the entry, filing the entry, and sending him on his way. However, in that specific entry, the judge said he was found guilty but did not say, in the entry, that he was found guilty because he entered a plea of Guilty. because of that, under the rulings from the Ohio Supreme Court, the entry is void. Thus, there is no final appealable order. Thus, his case is not over, such that he does not have any prior conviction and is not yet a felon.

So, you say, what about being under indictment? The first charge is no good for that reason. And, he wins on the second one because he ditched the gun before they served the warrant, such that he "had no knowledge" because knowledge of being under indictment requires service.

So, if the old case is not yet done, isn't he still technically under indictment for that case? No. For two reasons. First, because he thought he went to prison (which he did) as a result of a sentence (technically wrong, it turns out) and was released, he thought the case was over. so, he thought he was not under indictment. Thus, the "mens rea" element fails.

Well, so he walks. Now, can't we just fix the old entry so this guy cannot do this again?

Nope. Since he served a "de facto" sentence and was released, he was "punished." The punishment bars a new sentence for Double Jeopardy reasons. So, apparently there is nothing that can be done. Punished, but no conviction. (Reminds me of a Stripes line...)

Well, what about the drugs they found in his house? Well, it was his girlfriend's house, and his prints are not on the drugs, and his DNA is not on the drugs, so the drugs could have been hers. No good there either.

What about the drugs he sold in a school zone to a confidential informant? Well, the first problem there is that he did not know he was in a school zone because you have to include the property from the torn-down school, which is an empty field. (That part makes some sense.) Plus, the cops jumbled up the evidence so badly that this evidence is inadmissible.

Well, what about the other time he sold a wee bit of drugs to an undercover?

Yep -- got him there. That's up to 1 year, instead of 17 1/2, But, the law specifically presumes no prison time.

Plus, good luck getting that entry done right.

With respect to the school zone deal, is there an express mens rea with respect to knowledge of the school zone? I know that Circuit Courts of Appeal have upheld (where the specific statute was silent on the mens rea) convictions of similar violations notwithstanding knowledge of where the school zone is. The mens rea for selling drugs is enough. This has been analogized to SCOTUS's upholding a conviction for assaulting a federal officer where the defendant did not know that the guy he assaulted was a federal officer.

Other than that, thanks for making me happy that I didn't go into criminal law. Nice to get a little reminder now and then.

[barmar]

Yeah, the law is whacked, but I think there's reasonable justification. The state has enormous powers at their disposal, both during investigation and punishment, compared to most individuals. Thus, to balance things out, they have to be extra careful to dot all the i's and cross all the t's.

Yeah, we hate it when obviously guilty people get off on technicalities. It's the price we pay for a fairer balance of power between the government and the people. The government is like Spiderman: with great power comes great responsibility.

[kenberg]

fred, on Jul 21 2009, 04:59 PM, said:

Here is further proof the law is whacked:

Link to bridge hand

Fred Gitelman
Bridge Base Inc.
www.bridgebase.com

Definitely the more convincing case.

[kenrexford]

Lobowolf, on Jul 21 2009, 05:08 PM, said:

kenrexford, on Jul 21 2009, 04:53 PM, said:

Just to share why my head exploded today.  Warning -- yours may too.

There is a charge called "Weapons Under Disability."  The gist is that a felon cannot possess a firearm, lest he serve 1-5 years for that offense.

To be guilty, you have to be in possession of the weapon while either a convicted felon or under indictment with a pending case.

So, my guy is what appears to be a convicted felon.  He gets arrested for weapons under a disability and posts bond.  While waiting for the indictment, he gets a new gun and hangs out.  One day, the police try to serve him with a warrant for the new indictment that results, and he takes off running, ditching his gun before they catch up with him to serve him the warrant.

So, he now has two charges of weapons under a disability.  Bad news, eh?

Well, it turns out that his 2006 case resulted in diversion, which he screwed up.  When that happened, his earlier plea resulted in the judge finding him guilty, sentencing him to prison, signing the entry, filing the entry, and sending him on his way.  However, in that specific entry, the judge said he was found guilty but did not say, in the entry, that he was found guilty because he entered a plea of Guilty.  because of that, under the rulings from the Ohio Supreme Court, the entry is void.  Thus, there is no final appealable order.  Thus, his case is not over, such that he does not have any prior conviction and is not yet a felon.

So, you say, what about being under indictment?  The first charge is no good for that reason.  And, he wins on the second one because he ditched the gun before they served the warrant, such that he "had no knowledge" because knowledge of being under indictment requires service.

So, if the old case is not yet done, isn't he still technically under indictment for that case?  No.  For two reasons.  First, because he thought he went to prison (which he did) as a result of a sentence (technically wrong, it turns out) and was released, he thought the case was over.  so, he thought he was not under indictment.  Thus, the "mens rea" element fails.

Well, so he walks.  Now, can't we just fix the old entry so this guy cannot do this again?

Nope.  Since he served a "de facto" sentence and was released, he was "punished."  The punishment bars a new sentence for Double Jeopardy reasons.  So, apparently there is nothing that can be done.  Punished, but no conviction.  (Reminds me of a Stripes line...)

Well, what about the drugs they found in his house?  Well, it was his girlfriend's house, and his prints are not on the drugs, and his DNA is not on the drugs, so the drugs could have been hers.  No good there either.

What about the drugs he sold in a school zone to a confidential informant?  Well, the first problem there is that he did not know he was in a school zone because you have to include the property from the torn-down school, which is an empty field.  (That part makes some sense.)  Plus, the cops jumbled up the evidence so badly that this evidence is inadmissible.

Well, what about the other time he sold a wee bit of drugs to an undercover?

Yep -- got him there.  That's up to 1 year, instead of 17 1/2,  But, the law specifically presumes no prison time.

Plus, good luck getting that entry done right.

With respect to the school zone deal, is there an express mens rea with respect to knowledge of the school zone? I know that Circuit Courts of Appeal have upheld (where the specific statute was silent on the mens rea) convictions of similar violations notwithstanding knowledge of where the school zone is. The mens rea for selling drugs is enough. This has been analogized to SCOTUS's upholding a conviction for assaulting a federal officer where the defendant did not know that the guy he assaulted was a federal officer.

Other than that, thanks for making me happy that I didn't go into criminal law. Nice to get a little reminder now and then.

Mens rea is recklessness in Ohio, as to presence in a school zone.

[kenberg]

Is it possible for a non-lawyer to respond in a serious manner to KenR's post? Maybe, but it's tough. For example, I don't know what a (in law) diversion is. I am happy in my ignorance. But somehow an armed thug selling drugs to kids belongs in jail or preferably in the ground. I'm not a lawyer, I'm not a cop, I'm not a drug dealer so I don't know ***** about this. Those who do know something about it need to address the issue.

[Lobowolf]

kenberg, on Jul 21 2009, 05:33 PM, said:

Is it possible for a non-lawyer to respond in a serious manner to KenR's post? Maybe, but it's tough. For example, I don't know what a (in law) diversion is. I am happy in my ignorance. But somehow an armed thug selling drugs to kids belongs in jail or preferably in the ground. I'm not a lawyer, I'm not a cop, I'm not a drug dealer so I don't know ***** about this. Those who do know something about it need to address the issue.

Diversion is sort of an alternative deal for minor or first offenses where offenders, rather than serving criminal setences, do other things like enter treatment programs, perform community service, attend classes, etc., monitored by the court. If they successfully complete the program, they're cool. But if they fail a drug test, don't do their community service, don't attend classes, etc., then they're back to the more standard, punitive type of deal.

The programs are designed to relieve overburdened systems and try to prevent "saveable" defendants from serving jail/prison sentences that may lead to their becoming hardened career criminals.

Ken's rather lengthy fact pattern didn't say anything about his selling drugs to kids (though I imagine most drug dealers don't check I.D.).

[kenberg]

I saw the part about selling drugs in a school zone. But I guess it was a torn down school? I truly get a bit nauseous trying to think through the distinction but I suppose I would acknowledge that there is one.


Some offenders are misguided, some are predatory. Ideally we help the former and do what is necessary to protect ourselves from the latter. No doubt it is not a trivial matter to tell which is which but as a first cut I would say that when a guy picks up a gun he moves into the second category if he is not already there.

My knowledge here is meager. I know that. But it is hard not to conclude that there is immense cynicism at work with virtually all of the players. Some years back I read Gorky Park. The movie is enjoyable fluff but the book, when it shifts from Russia to the US, takes a very hard look at our justice system. My very limited experience suggests that the author had it about right.A pity.

[kenrexford]

Lobowolf, on Jul 21 2009, 05:46 PM, said:

kenberg, on Jul 21 2009, 05:33 PM, said:

Is it possible for a non-lawyer to respond in a serious manner to KenR's post? Maybe, but it's tough. For example, I don't know what a (in law) diversion is. I am happy in my ignorance. But somehow an armed thug selling drugs to kids belongs in jail or preferably in the ground. I'm not a lawyer, I'm not a cop, I'm not a drug dealer so I don't know ***** about this. Those who do know something about it need to address the issue.

Diversion is sort of an alternative deal for minor or first offenses where offenders, rather than serving criminal setences, do other things like enter treatment programs, perform community service, attend classes, etc., monitored by the court. If they successfully complete the program, they're cool. But if they fail a drug test, don't do their community service, don't attend classes, etc., then they're back to the more standard, punitive type of deal.

The programs are designed to relieve overburdened systems and try to prevent "saveable" defendants from serving jail/prison sentences that may lead to their becoming hardened career criminals.

Ken's rather lengthy fact pattern didn't say anything about his selling drugs to kids (though I imagine most drug dealers don't check I.D.).

As to the school zone issue. The law in Ohio increases the penalties by one degree if you sell drugs within 1000 feet of a school. That's a fairly long distance downtown.

So, if you for example have a 30-year-old friend show up at your house to buy $10 worth of weed from you, the penalties go up as if you had sold enough drugs to make you a middle man if 995 feet away, three blocks down and across a river, as the bird flies, the closest edge of property belonging to the school board can in theory be reached.

This is not selling drugs to a 10-year-old on the school playground. It almost never is. It is a matter of a private house being within the county engineer's definition of 1000 feet to the next closest school board property line.

[mike777]

fair enough assume penalty if 1010 feet costs taxpayers.....5000 bucks(you do not work cheap).....within 995 ok increase drug punishment by one.

If you hate this......make selling 10 bucks of weed minus 1000 penalty so now minus 999 punishment level in other words nothing. Otherwise stop going to friends house and selling weed.

[jonottawa]

Sounds like justice was almost served in this guy's case. WTP? Y'all need to run a tighter ship there in Ohio. I hope the judge was fired, the cops were put on a diet/ exercise program, and the other cops were fired. This guy doesn't belong in an overcrowded prison.

Sounds like racial profiling. Wasted taxpayer money. Incompetent law enforcement. The LAW is whack alright.

[Hanoi5]

This is the kind of thing I really didn't have to read. The problem with the internet:

What has been seen cannot be unseen.
What has been learned cannot be unlearned.

[kenberg]

jonottawa, on Jul 21 2009, 10:12 PM, said:

Sounds like racial profiling.  Wasted taxpayer money.  Incompetent law enforcement.  The LAW is whack alright.

I guess there is no solid reason that you should believe me but to the extent I visualized at all while reading Ken's post I visualized white. I grew up in the Twin Cities and whatever troubles I had with other young males they were white. In Public Enemies there is a scene with the FBI, Nelson, and Dillinger and Billie. The movie suggests Chi, but I have the well-researched book and it was in St. Paul, a few blocks from where I grew up. A friend of a friend lost is father, a shotgun blast into the house, everyone white. Ken's client, to my mind, is a gun carrying drug dealer. White or black, I don't really care.

[luke warm]

kenberg, on Jul 22 2009, 07:12 AM, said:

Ken's client, to my mind, is a gun carrying drug dealer. White or black, I don't really care.

nobody should care

[helene_t]

fred, on Jul 21 2009, 10:59 PM, said:

Here is further proof the law is whacked:

Link to bridge hand

It is only off by two tricks, isn't it?