It’s a Trap!

I jokingly posted on Facebook right after New Years the following:  “I wonder how many calls I’ll get in the next few days from potential clients saying ‘Those DUI checkpoints are entrapment!'”

This led to many questions. Let’s see if can address some here.itsatrap

Entrapment is when the police lure you into doing something you wouldn’t normally do, usually coercing or bribing you into committing a crime (usually with codefendants). It doesn’t happen that often.

If the police sit near a bar and then start following cars to pull them over when they show signs of intoxication, that’s not entrapment. The police officer did not coerce you to drink and drive.

If there is a sobriety check point, that is not entrapment. (It may be illegal for other reasons, such as the police did not get approval from a judge first, or they are not checking drivers in a random fashion but instead are targeting people). Once more, they didn’t coerce you into committing a crime; they just caught you at it when you didn’t expect them to.

If an undercover cop is posing as a prostitute and you engage her services and then she arrests you, that is not entrapment. You could have said no to her offer.

“Entrapment” requires the police getting you to do something you wouldn’t have done absent their involvement and encouragement. If you say no and the cop insists and insists and finally convinces you, then your case is stronger for entrapment.

Just putting a prostitute out there and having someone take advantage of it is no more entrapment than having a bank there. “They entrapped me into robbing the bank by having it just sitting there!”

Here’s an extreme example to show what entrapment is:

“Hey, would you do me a favor and go buy some drugs for me? Here’s $100, you can keep $50 of it.”

“No, I’m not going to do that.”

“Okay, here’s $200, you can keep $150 of it.”

“No!”

“Okay, here’s $500, you can keep $450 of it.”

“Ooh, I could really use that money. Okay, just this once.”

“Caught you! You’re under arrest!”

Most cases where entrapment is used as a defense aren’t as obvious as that example but you can see the basic point. There is no bright line test. It’s up to a defendant to convince a judge or jury that he wouldn’t have done the act absent the cop coercing him to do it.

No, Bill Clinton did not commit perjury

“You damned liberals complaining that Trump needs to be impeached! Why didn’t you want Bill Clinton impeached when he committed perjury — a felony!”

Look, I’m aware that conservatives have a reputation for ignoring facts when they get in the way of their world view — evolution and climate change aren’t real, trickle-down economics works, sexual orientation is a choice — but not only was Bill Clinton not convicted of perjury, he couldn’t be.4571618_orig

Yes, the House impeached him, because he lied about a consensual sexual affair he had with another adult. “Lying under oath is perjury!” they all scream. But no, it isn’t.

Perjury requires lying under oath about something relevant and material to a criminal investigation. If under oath you say your favorite color is blue when it’s really yellow, you’ve lied — but if your favorite color has nothing to do with a crime, then you haven’t committed perjury.

Adultery is not illegal. There was no “criminal investigation.” Republicans investigated both Clintons, over and over again, trying to find something — anything — they could get them on, and this was the only thing they could come up with. And impeachment doesn’t require anything more than enough politicians willing to impeach you.

Bill Clinton was never charged with perjury. No DA would file such frivolous charges, since clearly he hadn’t committed a crime. Is he a liar? Oh, absolutely. But he lied about something that really isn’t our business.

Meanwhile, Trump pretty much admits to Obstruction of Justice — an actual, real crime that has huge impact on our legal system — and Republicans yawn.  Since the GOP controlled the House under Clinton and Trump, and since they happily went after Clinton for his alleged non-crime, then surely they should be bringing impeachment charges against Trump for something much more severe right?

What? They’re not? Why, that would mean that they’re a bunch of lying hypocrites who are placing party above country!

(NOTE:  I know Bill Clinton is old news, but people keep bringing it up to distract from Trump. So feel free to bookmark this and send it to your Republican friends when they bring it up.

Not that it will matter. As we know, facts never convince them.)

The Presidential Line of Succession

I’ve seen this meme or ones like it recently, and it’s quite misleading.18557060_10156192841743327_8267740641808002296_n

Someone has taken the line of succession (Vice President, Speaker of the House, Senate President, Secretary of State, etc.) and somehow has forgotten that holes can be filled in the meantime.

If Trump is impeached (Sorry — when Trump is impeached), then Pence becomes President.  He then names a new Vice President (approved by the Senate). If he names John McCain, then McCain becomes Vice President. And then if Pence is impeached, McCain becomes President, not Paul Ryan.

That’s what happened with Nixon. His Vice President Spiro Agnew resigned because he was a bigger crook than Nixon, and Nixon named Gerald Ford. Then Nixon resigned and Ford became President, and he named Nelson Rockefeller as his Vice President. We didn’t even need the line of succession law.

The only way this line of succession is important is if everyone was impeached at the same time. The reason we even have such a law about the line of succession is for the unlikely situation where there may be a terrorist attack or something and suddenly a bunch of these people die at once. We then go down that line to see who is next.

 

Why Democrats should block Gorsuch

Last year, Obama nominated a highly-qualified person to the Supreme Court but the Republicans, using their “block everything” strategy that they’d held during all eight years of the Obama administration, refused to “advise and consent” as the Constitution requires and didn’t even hold a single hearing on the nominee — something completely unprecedented in American history.Courtroom-Gavel

Now they’re upset that Democrats are planning to do something similar to them.

Oh, you big babies. You can dish it out but you can’t take it.

“But this is different,” they say. “We didn’t think the President should appoint someone when there was an election near, because they people should decide this.”

Well, guess what? The people did decide. The people supported Hillary Clinton by a pretty big margin. The Electoral College may have decided differently, but that’s not what you said. The majority of the people didn’t want you or your President to pick the next Supreme Court Justice.

How’s this, then? The President shouldn’t appoint a Supreme Court Justice when he is being investigated for treason. Isn’t that much better reason to deny it? Oh, right — it’s very different when it’s your leader who is accused of crimes that could have him impeached and removed soon.

Typical Republican logic:  “Never hold us to the same standards by which we hold you!”

 

Can Obama sue Trump?

Trump is usually the one randomly suing everyone, but lately people have been asking if Obama can sue Trump for the lies he’s been telling about him.

The short answer is “No.”

The long answer is “Noooooooooooooooooo.”

Defamation includes libel (written) and slander (spoken). In order to win a case, you have to prove three things:

First, that the statement was false. This is usually the easiest thing to prove, but sometimes the thing being said is merely an opinion. trump-liar“Joe is a jerk” is not true or false. “Joe is a pedophile” is a lie.

But there’s even more to it than that — you have to show that the person who made the statement knew that it was false or said it with reckless disregard as to whether it was true. (If it actually was true, then we stop there. Truth is always a defense against libel and slander).

In this case, the argument would be that no matter how much Trump believes it to be true, it just isn’t. Just like his belief that Obama wasn’t born in America, or that millions of people voted illegally, or practically anything else that pops into his brain that he tweets out that have no correlation to reality. Trump has a reckless disregard for the truth, and that means that he can’t use as a defense that he reasonably thought it was true.

And to make it even more difficult, the standard for celebrities and politicians is even higher than it is for a private citizen. You have to show that not only was the statement false and that the person knew it was false, but that they said it with malicious intent — they wanted to harm the other person, and weren’t just repeating some rumor or something. (Since almost everything Trump says has malicious intent, this requirement may be meant.)

So if you can show that the statement was a lie, you still have a ways to go.

The second thing is to show that other people believed it. If someone calls you a martian, then that’s clearly a lie. But if no one believes them, then what’s the point? The lie has to be believed by others, and by lots of others. The fact that a bunch of idiots who watch Fox News believe a lie doesn’t mean much — those people believe anything.

Finally, you have to show that you were seriously harmed in some way and not just insulted. You need to show that because of the lie, you lost your job and people are throwing bricks at your house and spitting on you as you walk down the street. You have to prove damage.

So if someone says “Joe is gay” and it’s not true and the person who said it knows that it’s not true, you’ve met the first burden. If everyone believes it, then you’ve met the second burden. But if no one cares and you aren’t harmed in the slightest other than perhaps being upset or embarrassed or insulted, then you have no case.

I don’t think Obama was harmed in the slightest by the latest Trump lie. The people who hate Obama still do, and those of us who have a brain still don’t believe anything Trump says.

So let me clarify:  Can Obama sue trump? Sure, anyone can sue anyone. Does he have a chance of winning?  Nah.

 

 

Driving under the Influence of Marijuana and the state of the law

Here in Pennsylvania, medical marijuana is about to become legal, so clearly our legislature will have to address that with the DUI laws which currently prohibits any amount of marijuana to be in your blood when you drive, even if you smoked it weeks earlier. So far, they’ve done nothing. It may take a few appeals from defense attorneys like me before that happens.

Years ago, that law was challenged but the Pennsylvania Supreme Court held that since marijuana was illegal, and since driving is a privilege and not a right, that you could be charged even if the amount in your system was minimal.marijuana-laws

I’ve been waiting for a client to come in and tell me she smoked in Colorado or somewhere else where it’s legal and then got pulled over in Pennsylvania days later and charged with a DUI for marijuana. I could then argue that the first part of the argument for our DUI laws was invalid because the marijuana was legal at the time smoked.

Realistically, though, if you’re not under the influence of it days later, you probably wouldn’t get pulled over anyway since you’re not showing any signs of being under the influence. A cop can’t demand you take a blood test without some sort of reasonable suspicion that you’re under the influence, even if you look like a stoner.

Where it still comes into play, though, is in situations like this: Let’s say you have had a beer and the cop smells alcohol on your breath and then makes you take a blood test. The blood test shows that your Blood Alcohol Count is .07% which is legal and under the DUI limits but the test also shows a presence of marijuana that you smoked days earlier. Now he can charge you, and in Pennsylvania the presence of drugs carries a harsher penalty than just alcohol. Technically and scientifically, you were “under the influence” of neither but legally, you were for marijuana. And that’s where the problem lies.

Remember that even when marijuana becomes legal, it will still be illegal to drive under its influence. Hell, it’s illegal to drive under the influence of cough syrup if it affects your driving.

Even in Colorado, you can’t drive while under the influence. However, their law (as I understand it) says what the limits have to be in your system, just like the law does now with alcohol. A small amount isn’t enough.

I bring this all up because of a recent decision in Arizona that held that simply having marijuana in your system is insufficient for a DUI conviction absent a showing of some sort of driving impairment. In other words, even if the amount shows that you just smoked it, if there is no evidence that your driving was impaired, you can’t be charged.  (This is unlike the “per se” alcohol laws that say if you have more than .08% in your system you can be charged even if your driving was perfect.)

Ironically, I have mixed feelings on this, as I have previously argued in favor of lowering the Blood Alcohol levels from .08% to .05% as it is in most of the rest of the world (as long as the penalty is non-criminal and minor). I personally believe that there should be a level for marijuana as well, even though I don’t know what that level should be.

Should you talk to the police?

No.

That was easy!

Oh, fine. Let me go into a little more detail.

If you are the victim of a crime or need assistance in any way, absolutely talk to the police. But that’s not what this question is really asking. If there is any way that you might possibly be considered as a criminal, should you talk to the police? The answer is always no.shut-up

The main reason is that people just don’t know when they should or should not talk. So it’s better to just not talk in all situations.

Will it help you to talk to the police sometimes in these situations? Only if you have an air-tight alibi. (“I was in Europe all week, here’s my passport.”) The problem is that many people think what they say will help, and it doesn’t.

“If I explain to the cop why I hit the guy, he’ll certainly understand and not charge me” will not help you.

“Yes, I was there but I wasn’t involved with any of those guys” just gave the police half of what they need.

“I only had two beers, so surely the cop will understand that I’m not really drunk if I tell him that” isn’t in your best interest to say. (And don’t call him Shirley.)

It’s not your job to prove yourself innocent. It’s their job to prove you guilty. They need to prove that you were there, that you did something, and that the something you did was against the law. If you say, “Yes, I was there that night, but that didn’t happen” you’ve already made 50% of the case for them.

Remember: the police are trained to get confessions. That makes their job so much easier when that happens (and makes my job so much harder). Note that I said they are trained to get confessions. That’s not the same thing as saying they are trained to get the truth.

Look, I’m a trial lawyer. I’m trained to get confessions in a different way. I look at the statements made by officers and witnesses and look for errors, mistakes, misunderstandings, and lies. And I will use what you said against you at trial whenever I can. You’ll have to explain why you said what you did when you did. You think the District Attorney isn’t going to do the same thing to you, the defendant? Why give the DA the ammunition needed for that?

No, remain silent, as is your Constitutional right. Provide your name and address and identification if asked; don’t argue with the officer; don’t talk about your rights; remain polite and calm. Let the lawyer do the arguing for you later.

If nothing else, by not talking, I can work out a better deal for you if you have to plead to a crime. If you’ve already given the police everything they need, I have nothing to negotiate with on my side; nothing I can offer in exchange for a better deal.

The best legal advice I can give anyone is really quite simple:

Shut up!