Brown & Little, P.L.C. » Entries tagged with "constitution"

A Fundamental Shift

A particular way of thinking dominates among people inside the justice system. The idea is that the state accomplishes the noble goals of the people, and wrongdoers deserve the punishments the legislature created for doing the things the legislature told them not to do independently of the state’s wrongdoing in catching and prosecuting them. The system’s objectives are good and pure and worthy even when its agents and their methods are questionable. That view is apparent in courts everywhere. When prosecutors erroneously ask for dismissals with prejudice instead of without prejudice, courts quietly correct the mistake because defendants shouldn’t benefit from such things. Most of them did it, after all, and the laws say they shouldn’t have. Even when a prosecutor willfully conceals evidence, courts are … Read entire article »

Filed under: Government Rants

Justice v. Efficiency

The criminal justice system is broken. Many judges are little more than prosecutors in robes. The courts fuss and fume when you need an extra week or two to make a decision. They push you into whatever plea comes your way. In Phoenix City Court, you usually spend the pretrial stages in front of a single judge. After you decide to fight it, though, they shuffle you elsewhere. The order says you’ll be going to trial in thirty days, but the court struggles to get you in front of a judge in sixty. You won’t know which judge you’ll get for fifty-nine. When everyone assumed you’d plead, they rushed you to a decision. After they realized you were going to fight, they stretched it out as long … Read entire article »

Filed under: Courts, DUI, Trial

Double Jeopardy Is Okay…If You Are a Native American

If you are Native American and commit a criminal offense on an Indian reservation, it can be a crime in both the Indian community and the federal system. As a result of the United States Supreme Court’s decisions on the matter, the Indian Civil Rights Act, and subsequent legislation, Indians can go to jail (technically, there are no prisons on Indian reservations) and federal prison for the same crime. They can also be fined twice for the same criminal act. The Supreme Court’s rationale is based on their interpretation of the source of Indian governments’ powers and how they interact with the U.S. Constitution. The Supreme Court was also understandably concerned that an Indian could quickly plead out in an Indian jurisdiction to avoid federal prosecution. This often leads … Read entire article »

Filed under: Indian Law, SCOTUS Cases

After the Collapse

Defense attorneys, at least the ones I know, regularly speculate about how much time we have before the criminal justice system finally collapses. The argument is never about whether it’s going to happen, but rather about when it’s going to happen. Spend enough time in court with open eyes, and you’ll wonder the same thing. The system is so broken and overflowing with cases that most of us think it can’t possibly last much longer. Always one to embrace a little doom and gloom, instead of talking about how we might prevent the imminent collapse, I’d rather talk a little about how I think things are likely to be after it happens. Here are my predictions: 1) The Bill of Rights as we know it will be just … Read entire article »

Filed under: Practice in General

End Drug Prohibition

To celebrate the 75th anniversary of the end of one stupid prohibition, I’d like to suggest we end another stupid prohibition. This one won’t even take a constitutional amendment, as the US Constitution miraculously evolved over the 20th century to allow it to happen with a mere act of Congress. Another act should do the trick. Rather than make my own case against the war on drugs, I’ll defer to someone else’s. There are plenty of smart people who have persuasively argued for legalizing all drugs, but this is definitely one of my favorite articles. Our failed war on drugs is one area where I have very little to add to what’s already been written. … Read entire article »

Filed under: Government Rants, US Constitution

Jury Trial Shenanigans

The US Constitution says you get an impartial jury “[i]n all criminal prosecutions.” The Arizona Constitution says you get an impartial jury “in criminal prosecutions.” A misdemeanor is a criminal prosecution, so you get a jury trial, right? If you agree, it probably means you haven’t had the good fortune of spending three years in law school. Those three years are essential if you want to learn the super-important lawyer skill of looking at something really clear and interpreting it to mean something different from what it obviously means. The most important lesson lawyers-to-be learn in law school is that constitutions, statutes, and rules don’t always mean what they say. Sometimes, they don’t even mean what they mean. Nowhere are those important law school lessons more impressively … Read entire article »

Filed under: Arizona Cases, SCOTUS Cases, US Constitution

Death Penalty

I often get questions from family and friends about cases in the media, especially death penalty cases. I don’t want to discuss the merits of whether or not we should have a death penalty; instead, I want to focus on process itself. People almost universally get upset over the cost and time of such cases. No doubt it is frustrating to hear about someone who committed a heinous crime and received expensive legal representation for free, and I certainly think that the system could be streamlined. I’ve heard numerous times that “we all know he (or she) is guilty, why can’t we just execute them immediately” or “why do we have to pay for their defense.” While the complete answer to the question would … Read entire article »

Filed under: Death Penalty

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