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Active Military Witnesses/Complainants in Criminal Cases:

BlackFive carries a report of an alleged anti-military hate crime (vandalism). I can't speak to the facts, having seen just this one account; but I am curious about one legal question: When a complainant in a criminal case — or some other kind of witness, in a criminal or civil case — is about to become unavailable because he is being recalled to active duty, how does the legal system treat the matter?

I know that there are some protections offered to active duty military in some situations; I expect these protections must have their limits, for instance because in some situations the Speedy Trial Clause may preclude delay in a criminal case. But I don't know much about the details, and I'd love to hear what our lawyer readers have to say.

So if you know, please post your comments. Also, please keep the comments limited to those that speak about how the legal system treats this question. If you have general thoughts about this incident, or thoughts about how the legal system should treat this question, please post them here. I'd like this thread to just be a repository for answers to this legal question (and perhaps disagreements with those answers), since I take it that some readers will find such a discussion of the actual state of the law to be especially interesting or even useful.

Note, incidentally, that I label this incident an alleged hate crime because, if the facts are as alleged, it is a hate crime, and because that's a clear quick way of describing the matter. I am not urging any specially heightened penalties for such crimes, nor to my knowledge is the complainant.

Related Posts (on one page):

  1. Comments Prompted by the Post Immediately Below This One,
  2. Active Military Witnesses/Complainants in Criminal Cases:
Stephen Aslett (mail):
Prof. Volokh,

I'm not a lawyer, but a 3L. My understanding is that prosecutors try to schedule a deposition or preliminary hearing before the soldier is recalled to active duty in order to preserve the soldier's testimony against a Confrontation Clause challenge in case the soldier can't return for trial. Merely being on active duty overseas isn't enough to make a solder "unavailable" for Confrontation Clause purposes, so prosecutors still have to make a good faith effort to get the soldier to appear for trial. Only if those good faith efforts fail (because of the exigencies of war, military obstinance, classified status of the deployment etc.), can the soldier's prior testimony be introduced.

Here's a short list of supporting cases (sorry for lack of pincites):

Hamilton v. Morgan, 474 F.3d 854 (6th Cir. 2007)
United States v. McCaney, 177 Fed.App'x. 704 (9th Cir. 2006)
Proctor v. State, 79 S.W.3d 370 (Ark. 2002)
State v. Ratzlaff, 552 P.2d 461 (Ariz. Ct. App. 1976)

Rules for subpoenaing military witnesses are complex and vary depending on the court seeking jurisdiction, the branch of the military involved, where the serviceman is stationed, and whether the case is civil or criminal. The army's regulations are at 32 CFR § 516.8-.14. The navy's regulations are at 32 CFR § 720-.22. Interestingly, I don't think there are any regulations specifically governing the air force. The JAG Manual (section 0616) just summarizes these regulations.

Anyway, if there are any JAGs who read this site, they're the ones who should know best.
12.31.2007 4:56am
Public_Defender (mail):
Stephen Aslett is right. The prosecutor would likely take a videotaped deposition (subject to cross examination) to be played to the jury under Federal Rule of Criminal Procedure 15(a)(1):


A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice. If the court orders the deposition to be taken, it may also require the deponent to produce at the deposition any designated material that is not privileged, including any book, paper, document, record, recording, or data.


I suspect that almost every state has a similar rule. This could create a due process problem for the defense if something a prosecution witness said at trial requires additional information from the deposed and deployed witness.

As to speedy trial, I think that right exists only on paper. Courts are extraordinarily forgiving of law enforcement delays. Plus, to win a federal speedy trial claim, you have to show prejudice, which is really hard in most cases.
12.31.2007 7:11am
MR (mail) (www):
I don't know about criminal complainants and confrontation clause, but for other witnesses a simple deposition (no motion needed in most civil courts if the suit is already pending) is enough - no need to even videotape. If the witness is unavailable, then the transcript can be read (or video shown).

This procedure is no different than that used for any witness who lives in another state.

See FRE 804:
(a) "Unavailability as a witness" includes situations in which the declarant--

(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

(b) Hearsay exceptions.

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
12.31.2007 7:55am
bellisaurius (mail):
Why can't he just take leave when a date for trial is placed? I'd imagine his CO, or the army in general might be interested in seeing this sort of thing discouraged, perhaps even to the point of TADíng (or whatever the army term is for temporary detachment) him somewhere back home for the week.
12.31.2007 8:10am
Sarah (mail) (www):
US v. McDonald
http://www.armfor.uscourts.gov/opinions/2001Term/00-0544.htm

It was a UCMJ case where the witness got deployed to Desert Storm (it looks like) the day he was supposed to testify; the judge had him testify over the phone.
12.31.2007 9:35am
Skyler (mail) (www):
Bellisaurius,

Taking leave is always an option, but the commander would have to approve it.

If I were his commander and in Iraq, I would not for one second consider giving this sergeant leave in these circumstances.

The difficulty of moving about in Iraq and getting to the US is not like hopping in a car and driving to the airport. Everywhere you go, you have to go with 15 of your best friends with heavy machine guns. Then you have to wait for planes and what not. It's about a week process, or was, just to get from Iraq to the US. Then the trial, then the return of a week. I could not justify losing a critical NCO over such a petty incident.

The monetary damages were already offered to have been settled. Now he just wants some revenge. I don't think he'll get it. The prosecutor is busy and a lawyer as defendant is bound to make it all more bother than its worth.

Sometimes life just sucks and justice is not forthcoming. That's the world, as sucky as it is.
12.31.2007 10:12am
HBowmanMD:
Skyler, the monetary damages were NOT offered to be settled, the sleezebag asshole lawyer simply offered to cover the Marine's deductable. This does not indemnify the Marine against any future damages he may incur vis-a-vis increased insurance premiums, damage to his future ability to get insurance at all due to this claim, etc.
12.31.2007 10:32am
Darrin Ziliak:

The monetary damages were already offered to have been settled. Now he just wants some revenge. I don't think he'll get it. The prosecutor is busy and a lawyer as defendant is bound to make it all more bother than its worth.


Offered yes, but deliberately causing $2400 in damage and then offering him $100 and telling the victim to get the rest of the money from his (the victim's) car insurance is a joke of an offer.

That said, under the circumstances you describe I agree with you about not granting leave over this.
12.31.2007 10:39am
Dr. Weevil (mail) (www):
It's also unfair to say that the soldier wants "revenge". He could get revenge by keying the lawyer's mother's car, or beating up the lawyer's brother. What he wants is retribution, and justice, but 'revenge' is a word best reserved for actions that are either illegal, or directed at those not directly responsible (mothers, brothers), or both.
12.31.2007 10:45am
nateinky:
It likely will depend on the statute of limitations in that state. If the SOL won't expire before the soldier is scheduled to return, the charges will be dismissed without prejudice and charges refiled upon his return since, as I recall, pre-indictment delay isn't counted for speedy trial purposes.
12.31.2007 10:56am
Donald (mail):
While a depo is technically possible, in practice, it's unlikely to happen unless it's a serious felony case. Where I practice, I suspect a low-level felony likely would be dismissed, with the intent of re-filing once the witness was back in the US (assuming no SOL problems).

Misdemeanors probably get dismissed for want of prosecution, with no real likelihood of re-filing. I've had at least one client's case (driving under suspended license) dismissed because the arresting officer had been called up to active duty.
12.31.2007 11:15am
The Chief (mail):
Three quick (real world) points (based on the premise this is a serious felony and the servicemember's testimony was important to either the people or the defense),

1st, Fed and state rules of evidence still apply, and given the state of technology today, it is possible that even if the deploying servicemember is actually shipping out of the physical jurisdiction of the court, the deploying servicemember may not truly be "unavailable."

2nd, I'm not sure there is too much on point, but I would believe that (as noted previously) telephonic appearance, or video teleconference appearance is entirely possible (You would not believe the technology available in the Green Zone and in Qatar and the command structure - unlike certain political structures stateside - will typically make the servicemember available for such testimony.)

3rd, It is always possible to seek an injuntion, demanding the deploying soldier be placed on "legal hold" so they can be made available for appearance and testimony.

The Chief
12.31.2007 11:42am
The Chief (mail):
Yes I know - injunction vice injuntion... my bad.

The Chief
12.31.2007 11:44am
Eric Coulson (www):
Any civil action of course will be tolled IAW the requirements of the Uniformed Service Members Relief Act.
12.31.2007 12:00pm
hattio1:
A few points,
Eric Coulson is correct that in a civil action if the plaintiff or defendant is a servicemember called up it can be tolled. We had one at a firm that was 8 or 9 years old because first the plaintiff then the defendent got called up.

Secondly, as to just calling them over videoconference or telephonic appearance, at least in my jurisdiction both sides have to approve, and unless both sides want the person testifying, one side will almost always object.

Third, as to dismissing without prejudice and re-filing, at least in my jurisdiction the statutory speedy trial right continues to run unless the Defendent requests the dismissal or causes it by a motion to dismiss.

Fourth, the previous commenter who said the Federal right to a speedy trial has largely been made a theoretical right is correct. I think there was a case saying a nearly 2 year delay caused by the prosecution did not violate that right. Interestingly, those who demand a textualist reading of the Constitution don't seem to get incensed by those types of cases.

Finally, in my area judges are routinely granting long continuances of months and months to the prosecution when officers are deployed...even when the defendent is sitting in jail.
12.31.2007 12:21pm
Skyler (mail) (www):
The victim's insurance should handle this. He calls his insurance company, they call the jerk's insurance company, and they settle the matter. This is how the world works. It's not right, but the fact that scratching a car can amount to a felony is just the law not keeping pace with inflation. I hardly think anyone in the legislature really intended such a result.

And there aren't too many Marine sergeants hanging out in prissy Green Zone offices. Where he's going is likely pretty austere.
12.31.2007 12:32pm
Mankind:
This probably belongs on the other thread, but, nevertheless,

Skyler:


He calls his insurance company, they call the jerk's insurance company, and they settle the matter.


This probably won't work. It's doubtful that the jerk's insurer is known or that the jerk is going to volunteer it. Regardless, what sort of insurance would cover the jerk? He wasn't driving and this, by all accounts, was an intentional act.
12.31.2007 1:33pm
Bill Sommerfeld (www):
A criminal prosecution is not necessarily the most efficient way to make the jerk pay.

The jerk is reportedly a lawyer. Why should he be permitted to retain his law license after engaging in conduct like this?
12.31.2007 1:47pm
scrumptiousjones (mail):
(Also posted at other thread.)

I am rather taken aback at the willingness of bloggers to post stuff like this without doing any sort of fact checking first.

Does Blackfive even know if this story is true? Does Volokh? As someone pointed out here, this e-mail is a publicity tactic by McNulty or his friends, and all we know about the circumstances is what McNulty's publicity e-mail says.

Yet here is a reputable site like Volokh linking to a post that contains - or whose comments contain - this man's name, personal contact information, including his home address and phone number, and threats of harrassment and physical violence. Some of the trackback links are even worse, if possible.

All without knowing what really happened.

Blackfive (and the others) could have accomplished the supposed goal of the letter, to elicit advice for "peaceful and rational" responses, without giving the man's name, but he chose not to.

I'm surprised to see this kind of irresponsibility here.
12.31.2007 1:50pm
MR (mail) (www):
"the deploying servicemember may not truly be 'unavailable.'"

I'm not sure how this is true. "Unavailable" has a very specific definition in the rules of evidence - outside the ability to serve process. Most courts have rules that are specific about who can and cannot be served with process, and it has nothing to do with technology - someone living in Incline Village, Nevada (on the border) is unavailable in court in San Francisco, regardless of how easily they can be located, served, or available for teleconference.

They are, of course, available for phone deposition, or in person depo in Nevada, but under the FRE they are unavailable.
12.31.2007 1:53pm
FbL (mail) (www):
scrumptiousjones,

Blackfive himself has copies of the police report. I know him personally, and he is a HIGHLY-respected milblogger with unbelievable connections in the military and political world. If he believes it happened, I trust his judgment without reservation (he has a lot to lose if he runs something without checking it out first and it turns out to be fraudulent in some manner).
12.31.2007 2:16pm
Skyler (mail) (www):
If the jerk doesn't have any insurance that would cover this, then the insurance company would sue him personally. It's a pretty cut and dried case.
12.31.2007 2:23pm
scrumptiousjones (mail):
FbL -

Yet he posted someone else's e-mail with no elaboration on the "facts" and needlessly disclosing someone's identity.

Sorry, I'm not buying this as any sort of responsible post.
12.31.2007 2:32pm
scrumptiousjones (mail):
PS to FbL -

Not to mention that, despite his disclaimer that he was (wink) not encouraging harrassment or threats, he nevertheless leaves up comments doing just that, along with the man's business and home addresses and phone numbers.
12.31.2007 2:34pm
HBowmanMD:

scrumptiousjones (mail):
PS to FbL -

Not to mention that, despite his disclaimer that he was (wink) not encouraging harrassment or threats, he nevertheless leaves up comments doing just that, along with the man's business and home addresses and phone numbers.



Blackfive stated that he wasn't advocating anything unlawful. Sending a despicable individual an email, calling his office phone number and leaving a message, or otherwise expressing disdain for his actions is not unlawful
12.31.2007 2:45pm
arbitraryaardvark (mail) (www):
I'm unclear what definition of hate crime is being used here.
Anyway, the asshat in question seems to be a deeply troubled person. He already has a string of disciplinary complaints against him. Sometimes the way to deal with people like that is to seek them out and listen to them, and then the interaction can change.
I'm not sure this is within the purview of the guy's errors and omissions insurance. It's an error, but not of that type.
One of the reasons we have a civil system is to take disputes like this out of the state of nature. It's for the perp's protection, not just the victim's. Here, victim is a trained professional killer, who has lots of buddies who seem quite eager to get involved. The guy should -want- to resolve his dispute within the context of the legal system.
I'm slowly learning to apply this idea to my own disputes. When I have a dispute with somebody, I try to resolve it with correspondence. If that doesn't work, I may sue them. But even if I lose my suit on some technicality, that doesn't mean the dispute has been resolved, it just means I have to revert to state-of-nature tactics to resolve it.
Generally this involves attacks on reputation capital, since I am limited by ethics and general cowardice from anything more physical.
12.31.2007 3:44pm
Paul A'Barge (mail):
"nor to my knowledge is the complainant"

The complainant asked that the criminal be charged with a felony, in line with the dollar value of the damage caused by the lawyer mutt with a key in his hand.

The legal authorities are doing their best to avoid charging the lawyer mutt with a felony.

I'd like someone to explain to me how the legal authorities get away with this. If the complainant has legal grounds for the classification, the lawyer mutt should be charged with a felony.

To all the legal effluvia who don't like sentencing guidelines, here's an example why your opinion sucks.
12.31.2007 3:45pm
Brett:
<blockquote>I'd like someone to explain to me how the legal authorities get away with this.</blockquote>

Two words: prosecutorial discretion.
12.31.2007 4:35pm
J. F. Thomas (mail):
Blackfive stated that he wasn't advocating anything unlawful. Sending a despicable individual an email, calling his office phone number and leaving a message, or otherwise expressing disdain for his actions is not unlawful

You really might want to check the statutes on harassing and threatening telecommunications before you make such a statement. Especially when you are dealing with a lawyer who has demonstrated he is willing to use the power of the courts to his own advantage.
12.31.2007 4:53pm
Eli Rabett (www):
Why are law professors such a misery you ask? Well never mind.

As someone pointed out to me many years ago the marginal cost of adding a student to a law class is zero, or as close to it as nevermind. The cost for medical/dental/etc schools is a large multiple of the yearly tuition because of labs, supplies and more.

What does the future hold for law schools, well if there are no jobs, think physics after 1970, enrollments of US students going straight down
12.31.2007 4:54pm
scrumptiousjones (mail):
HBowmanMD:

He said he did not want anyone to harass or threaten him. Yet that's exactly what's being advocated in the comments at his site.

And harassment actually can be illegal.
12.31.2007 9:38pm
SBurf:
S Jones

Of course people are angry, and responding as such. Blackfive even told his commenters NOT to harass the guy. Saying how much they dislike him is hardly harassment, and yes, he knows that's illegal. But calling someone up and wanting their story or e-mailing them or what have you is not.
1.1.2008 12:19am
scrumptiousjones (mail):
SBurf:
S Jones

Of course people are angry, and responding as such. Blackfive even told his commenters NOT to harass the guy. Saying how much they dislike him is hardly harassment, and yes, he knows that's illegal. But calling someone up and wanting their story or e-mailing them or what have you is not.




First of all, they've been told to be angry, based on an incomplete, one-sided post. Second, do you think those commenters at that and the other sites called him up because they "wanted his story"? Give me a break.
1.1.2008 1:49am
scrumptiousjones (mail):
PS to SBurf -

And yes, calling someone up or e-mailing them or whatever can constitute harassment. And even if it doesn't fall under the legal definition of harassment, the guy had to take down his website and disconnect his phone. You tell me how honorable this business is.
1.1.2008 1:53am
Richard Aubrey (mail):
Jeez, scrumptious, considering how intelligent lawyers are always telling us they are, you'd think Grodner or whatever his name is would have seen this coming and decided it was worth it for his highly-principled moral stand. And went ahead anyway.
Guts. That's what I call it. And dedication.
1.1.2008 10:10am
Peter Wimsey:
Public_Defender writes:
As to speedy trial, I think that right exists only on paper. Courts are extraordinarily forgiving of law enforcement delays. Plus, to win a federal speedy trial claim, you have to show prejudice, which is really hard in most cases.

I don't know about the federal system, but this is a very real right in my state and I know of 2 cases in the past 10 years where convictions have been overturned on appeal on speedy trial grounds. That's perhaps not statistically significant compared to the 16,000 or so appeals taken in this time period - on the other hand, I can also recall only two Batson reversals in that time period.
1.1.2008 10:55am
lpdbw:
Brett wrote:

I'd like someone to explain to me how the legal authorities get away with this.


Two words: prosecutorial discretion.


And since the prosecutors are themselves lawyers, add two more words: Professional courtesy...
1.1.2008 1:07pm
glangston (mail):
Update on the hearing from a reader of Blackfive.

: Black Five

I am writing to produce an update of the results of Sgt McNulty's case against Jay R Grodner. I was present in support of Mike and thought you may be interested in an update for this story.

Sgt McNulty was called forward by the State's Attorney in order to discuss the case. I am not sure what transpired behind the closed doors, however, I overheard the State's Attorney expressing her intent to prosecute this guy to the fullest extent. It seems as if BlackFive is the sole catalyst to this story getting out and I am sure Sgt McNulty has probably heard the effect of yours and other blogs from the results of today's proceedings to include several Marines and civilians who showed up in his support.

Jay R Grodner was called before court and in his absence, the Judge issued a warrant for his arrest effective immediately. Sgt McNulty was departing the court when Grodner rolled in to the courtroom more pathetic than anyone I had ever seen. The Judge had questioned him on his tardiness and he explained that traffic had been busy and he 'made a wrong turn'. The Judge chastised him for his tardiness, pathetic excuses, and that he was lucky the warrant had not been executed prior to his arrival.

It seems the blogosphere has put the ball in Sgt McNulty's court. Furthermore, it is also apparent that the State's Attorney's Office has decided to take this matter on a much more serious level. A new and very aggressive State's Attorney seems to have a genuine interest in pursuing this case to the extent that it warrants.

A lot of good people deserve our thanks today. Thousands responded with emails and phone calls and some even went to support Mike at the hearing. Thank you. I've said it before and I'll say it again - Blackfive and military blogs have the best readers on the planet - we really are a true community.

And, long time regular TB, sends this link to a Free Republic reader who also attended the hearing and provides a report.

Now, if you'll excuse me, I'm going to ring in the New Year. Twelve years ago, Mrs. Blackfive (before the "Mrs.") and I had our first date, and our first kiss was at midnight. We have a tradition to maintain.
1.1.2008 2:01pm
glangston (mail):
Update on Jay Grodner's past ..
Troubles with Ethics
1.1.2008 2:29pm
carmachu2@msn.com (mail):
"If the jerk doesn't have any insurance that would cover this, then the insurance company would sue him personally. It's a pretty cut and dried case."

Skyler: That would be true if its a CIVIL matter. $2400 in damages to a car makes it not a misaminor to a felony. The trial in this case is a CRIMINAL matter, not CIVIL.

Try and keep up.
1.1.2008 3:05pm
scrumptiousjones (mail):

Richard Aubrey (mail):
Jeez, scrumptious, considering how intelligent lawyers are always telling us they are, you'd think Grodner or whatever his name is would have seen this coming and decided it was worth it for his highly-principled moral stand. And went ahead anyway.
Guts. That's what I call it. And dedication.


Right, you should see it coming that some blogger is going to put your name (and contact info) on the Internet along with an inflammatory story, introduced by the idea that you were lucky not to have the crap beaten out of you. It's your fault that every nutball on the Internet then proceeds to harass you.

Thanks for the demonstration of wingnut logic.
1.1.2008 4:46pm
Richard Aubrey (mail):
scrump.

Yeah. Grodwhosits should have, by right, expected to get away with it.
Now, granted, there may have been some difficulty predicting how what goes around comes around. But to expect that nothing would come around is insane.
Grodshit would, being an intelligent lawyer (sorry to be redundant) surely know he would pay a high price for his courage in speaking truth to the man. It is not his fault that he didn't know the exact profile of the punishment he certainly knew was coming to him. But he knew something would happen.

Your view is that he shouldn't be bothered by the lesser sorts. Nice to see lib special interests at work.
1.1.2008 4:50pm
scrumptiousjones (mail):
scrump.

Yeah. Grodwhosits should have, by right, expected to get away with it.
Now, granted, there may have been some difficulty predicting how what goes around comes around. But to expect that nothing would come around is insane.
Grodshit would, being an intelligent lawyer (sorry to be redundant) surely know he would pay a high price for his courage in speaking truth to the man. It is not his fault that he didn't know the exact profile of the punishment he certainly knew was coming to him. But he knew something would happen.

Your view is that he shouldn't be bothered by the lesser sorts. Nice to see lib special interests at work.




Blackfive was the one who insisted that this could all be addressed by legal means, in a safe, reasonable, and above board manner, was he not? And if that were the case, no one would "get away" with anything, would they?

Yet he chose to identify this individual by name. Why? What was served by doing that, if he was merely seeking advice on legal recourse?

The fact is he wrote an inflammatory, one-side piece. He introduced it by suggesting it would make people's "blood boil" and that the individual was lucky not to have the crap beaten out of him. Why did he do that?

Why does he allow others to post this man's home contact information, picture, personal background, and threats of professional and personal harassment and physical violence? And why does he allow links to sites with even worse threats?

You can say what you want, but defending the post as responsible is just plain dishonest.
1.1.2008 5:09pm
TomB:
scrump, why does this man have a expectation of privacy when he commits a crime? Is there some requirement I'm not aware of that Blackfive must not use his name until the case is finished?
1.1.2008 5:23pm
scrumptiousjones (mail):
Correction, he said the Marine should be commended for not kicking the living crap out of the guy..."seriously." Not beat the crap out of him.
1.1.2008 5:24pm
scrumptiousjones (mail):

TomB:
scrump, why does this man have a expectation of privacy when he commits a crime? Is there some requirement I'm not aware of that Blackfive must not use his name until the case is finished?



You mean aside from the assumption of innocence until proven guilty?

I didn't say it was a matter of legal expectations. I said it was a matter of responsible blogging. Possibly you see the distinction, possibly you don't.
1.1.2008 5:26pm
scrumptiousjones (mail):
Correction, presumption of innocence, not assumption.
1.1.2008 5:27pm
scrumptiousjones (mail):
PS to Richard Aubrey:

By the way, this incident did not happen "on the eve of deployment" as Blackfive suggested. It happened a month ago, and Mr. McNulty is going to California before going to Iraq.

And why the use of the provocative and inflammatory "anti-military lawyer"? All we know - from the second-hand story actually - is that the man made a comment about people with DOD plates thinking they could do what they want (what, park on blocked streets? no one said ...), and that he made "anti-military" remarks (what..."I hate the military" or "You're an obnoxious grunt?" ... we don't know, it's all from the Marine's point of view).

Like I said, you are welcome to your opinions, just don't tell me this is an even-handed, responsible post.
1.1.2008 5:36pm
scrumptiousjones (mail):
Okay, I see the police report said the man made "anti-war" remarks... but what were they? Was it part of an argument? Was it "I did this because I'm anti-war" or "you don't get to park where you want because you're going to war"? It's only the Marine's description in the police report.
1.1.2008 5:40pm
scrumptiousjones (mail):
Now, if you'll excuse me, I'm going to ring in the New Year. Twelve years ago, Mrs. Blackfive (before the "Mrs.") and I had our first date, and our first kiss was at midnight. We have a tradition to maintain.




And inciting mob hysteria for the day? Mission accomplished !
1.1.2008 5:55pm
TomB:


You mean aside from the assumption of innocence until proven guilty?



This may have skipped your notice, but blogging isn't a court of law, and the presumption of innocence refers to the courts, not public opinion.




I didn't say it was a matter of legal expectations.


Actually, you just (wrongly) did.



I said it was a matter of responsible blogging. Possibly you see the distinction, possibly you don't.


You didn't answer my question. When does this code of "responsible blogging" allow Blackfive to post the man's name? The man already admitted to doing the damage to the car.
1.1.2008 6:10pm
scrumptiousjones (mail):
TomB:

I made myself perfectly clear.

I'm willing to let the reader decide which one of us is being disingenuous here.

Good luck in the new year.
1.1.2008 6:22pm
TomB:


I made myself perfectly clear.

I'm willing to let the reader decide which one of us is being disingenuous here.


Where!?

You did no such thing. Unless you consider conflating legal presumption of innocence with blogging to be "perfectly clear", you never even approached the subject of when a blogger is "allowed" to mention the name of a man involved in a story, especially when he has already admitted guilt!

For some strange reason you think this man deserves protection no other human being has, and I want to know why.
1.1.2008 6:38pm
Richard Aubrey (mail):
I think the qualities that make Grodner such an attractive character are:
He's an attorney. That makes him special.
He figured he could screw over whomever he wanted.
He was using the attorney's privileges--de facto--to cover himself for screwing a Marine who is not only not an attorney, but may be a patriot and redneck, too.
And, worst of all, sob, he isn't getting away with it.

Years ago, the late Mike Royko referred to an incident in a bar where a guy groped a woman. Her boyfriend objected, whereupon the groper informed Boyfriend that he, the groper, was a lawyer and if BF did anything at all, he would be sued. BF froze.

Royko's point is that attorneys can either use their special position to screw over other people, and be despised. Or not and not.

Clearly, that issue is not subject to general agreement among attorneys even today.

Scrumptious clearly has a position on this, except he would rather not be despised, too. That ain't gonna happen.

BTW. Are other suspects named in other crime reporting? The difference here is that B5 is suggesting considerably less be done wrt Gradner than would be occurring to normal people.
1.1.2008 7:04pm
GMUSL '07 Alum (mail):
Eugene -- it's only somewhat related, but you might want to look at the Servicemembers' Civil Relief Act
1.1.2008 8:39pm
Fraidy (mail):

I'm willing to let the reader decide which one of us is being disingenuous here.


TomB gets my vote. Scrumt is a troll and not a very good one.
1.2.2008 11:30am
DaveR:
If the alleged perp did this, he's a scumbag and deserves to get sued. That said, I object to this being labeled as a "hate crime." There is no such thing as a "hate crime." There are only crimes, crimes committed for a variety of motivations, including hating the victim. The day we start delving into the exact motivations of criminals and trying to prove them one way or another in order to inflict different punishments on them, well, that way lies madness.

IMO, we need to strike "hate crime" from our vocabulary and get on with the task of enforcing the law against the ordinary, generic "crime" that is plaguing our nation.

In this case, there is just an alleged perp who keyed a victim's car. If he did it, he should be prosecuted to the fullest extent of the law. And in the court of public opinion, I will exercise my right to label the perp a scumbag who shows contempt for America's men and women in uniform.
1.2.2008 4:17pm
bobby b (mail):

"Right, you should see it coming that some blogger is going to put your name (and contact info) on the Internet along with an inflammatory story, introduced by the idea that you were lucky not to have the crap beaten out of you. It's your fault that every nutball on the Internet then proceeds to harass you. "


If you intentionally do significant damage to someone else's property, motivated by the fact that the owner is a member of our military, then I think you may be on shaky ground complaining that you couldn't have predicted that you would have to suffer a public outing and so such a consequence is unfair to you.

Clean hands, scrumpy. Look it up.
1.2.2008 5:22pm
Public_Defender (mail):

Years ago, the late Mike Royko referred to an incident in a bar where a guy groped a woman. Her boyfriend objected, whereupon the groper informed Boyfriend that he, the groper, was a lawyer and if BF did anything at all, he would be sued. BF froze.

Royko's point is that attorneys can either use their special position to screw over other people, and be despised. Or not and not.


Royko didn't understand the attorney disciplinary process. Maybe it was different in his time in Chicago, but in my state today, lawyers are held to a higher standard than the general public, and rightfully so. You can lose your license to practice law for a lot less than it takes to get convicted of something, and with a much lower burden of proof.

If the facts as alleged turn out to be true (remember, sometimes cops and witnesses lie, too), this lawyer deserves professional discipline. Someone who keys a car to settle a dispute is not the kind of person who should be practicing law.

And to EV, sorry for posting this here, but the other thread has somehow degenerated into a discussion of the Geneva Conventions.
1.3.2008 5:00am
jukeboxgrad (mail):
"somehow degenerated into a discussion of the Geneva Conventions"

I'd rather think of it as a discussion of blackfive's integrity. If you look at it that way, it might just be off-topic, and not off-off-topic!
1.3.2008 7:33am
Richard Aubrey (mail):
Public. You must be an attorney. You think the rest of us don't know bleep.
How much money would said BF be out by the time the process actually worked?

Lawyers are SUPPOSED to be held to a higher standard. But between being able to bill themselves--free legal work, iow--and professional courtesy, getting something done against a lawyer is an uphill and expensive battle and the lawyers know it.

I asked several attorneys if, as officers of the court, they would pro-actively take steps against other attorneys who were screwing the pooch. The answers ranged from "I could never work here." to "We'd be putting each other on trial all day."
1.3.2008 7:36am
Richard Aubrey (mail):
juke.

Your original excuse for disbelieving that there was anything wrong with a lawyer screwing over a Marine and expecting to get away with it had to do with a question of morality and war on B5. That B5 hosted the discussion and came to a conclusion you figured would discredit his reporting on the Gradshit case was pretty neat, wasn't it?
Now, it turns out that B5 was right, the laws of war discussion notwithstanding.
1.3.2008 9:53am
jukeboxgrad (mail):
richard: "Your original excuse for disbelieving that there was anything wrong with a lawyer screwing over a Marine"

It would really be good if you stopped making things up. Up until now, I have not stated an opinion about Grodner. I said that someone who advocates criminality shouldn't be considered "highly-respected."

"That B5 hosted the discussion and came to a conclusion you figured would discredit his reporting on the Gradshit case"

The fact that he posted an article promoting criminality discredits all his reporting, not just his reporting on the Grodner case.

"it turns out that B5 was right"

Whether he was right to promote vigilantism is a matter of opinion.
1.3.2008 4:37pm
Public_Defender (mail):

Public. You must be an attorney. You think the rest of us don't know bleep.
How much money would said BF be out by the time the process actually worked?

Lawyers are SUPPOSED to be held to a higher standard. But between being able to bill themselves--free legal work, iow--and professional courtesy, getting something done against a lawyer is an uphill and expensive battle and the lawyers know it.

I asked several attorneys if, as officers of the court, they would pro-actively take steps against other attorneys who were screwing the pooch. The answers ranged from "I could never work here." to "We'd be putting each other on trial all day."


In my state, I see a steady stream of lawyers disciplined for neglect, drug use, criminal behavior, and sometimes even behavior that's merely obnoxious (mostly insulting judges in court or court papers). And it costs a person nothing to file a disciplinary complaint.

If the officer and serviceman are right about what happened, this is exactly the kind of thing that gets lawyers disciplined in my state. The attorney would only be allowed back into practice when he 1) showed true remorse (which is harder to fake than most people think), 2) made complete restitution, 3) served out any criminal penalty, and 4) proved that he has successfully dealt with whatever problem was behind his bizarre behavior. Even then, he would probably be under probation for awhile.

I know some would like more discipline for filing what they consider "frivolous" lawsuits, but I think wide leeway is needed. Many conservative and libertarian arguments sound frivolous to many liberal judges. Many defenses that businesses and insurance companies put into answers to lawsuits are as, ahem, creative, as many of the lawsuits. Too many people (left and right, plaintiff and defense, prosecution and defense) equate "frivolous" with "I think should lose."

Sometimes, disciplinary authorities nail an attorney in one case, but let other cases drop because they have punished the attorney enough. One of my clients filed a valid complaint against his former lawyer for neglect. It was turned down, but soon after, the lawyer permanently and irrevocably resigned his law license in a way that made it clear on the record that he was doing so under disciplinary pressure.

Asking "several" attorneys and reading a decades-old Royko column may give you a glimpse into the system, but find out who issues disciplinary decisions in your state. They almost certainly have a website. Then read the opinions. You will probably find a lot more attorneys being disciplined than you think.

Again, sorry EV for perpetuating the drift of the comments in this post.
1.3.2008 7:33pm
scrumptiousjones (mail):
jukeboxgrad:

As you pointed out earlier, the B5 site seems to have a history of posting/encouraging thinly veiled threats and intimidation tactics.

For instance, from contributor Uncle Jimbo's Scott Beauchamp post:



Well just take a look at this little pissant’s [Scott Beauchamp's] previous literary efforts, and I’ll be honest I would pay good money to knock that freakin’ smirk off his face.

***

Now you need to get busy watching your back, ‘cuz if you think you were disliked and unloved before…...Heh.




And some of the comments:



"BTW -- anyone wants his e-mail, I have it -- send me an e-mail at ------ "

"Let's hope your 'buddies' throw you a blanket party tonight."

"What a douchebag. Even his picture makes me want to knock his teeth in."


http://www.blackfive.net/main/2007/07/private-beaucha.html
1.3.2008 9:31pm
scrumptiousjones (mail):

Fraidy (mail):


I'm willing to let the reader decide which one of us is being disingenuous here.


TomB gets my vote.



Mine too.
1.3.2008 9:37pm
jukeboxgrad (mail):
scrump: "the B5 site seems to have a history of posting/encouraging thinly veiled threats and intimidation tactics"

Righty bloggers love death threats. A bunch of lovely examples here.
1.3.2008 11:02pm
Public_Defender (mail):
I agree that the site can responsibly publish the guy's name and the allegations. But once the name was attached to the post, the site had a responsibility to keep threats of violence out of the comments.

If the facts as alleged turn out to be true, the guy deserves to be condemned. But the people threatening violence are just petty thugs, and any blogger that allows violent threats on his site is complicit.
1.4.2008 5:55am
Former IL Prosecutor (mail):
I was a prosecutor in Illinois for years before leaving for private practice.

First of all, forget all the federal stuff, especially the Federal rules of evidence. Don't apply in Illinoi state criminal court.

Here's the prosecution's problem: they need a witness to put the defendant at the scene, put the key (or the object) in the defendant's hand, establish the car was not damaged before the defendant was present, and establish the date ,time, etc. all the other facts of the crime. From the stories I've read about the case, only the victim can testify to these facts.

From the looks of it, no victim in court to testify, no case. Unless the prosecution can prove up these facts with other eyewitnesses or corraborated circumstantial evidence, the case is dead on arrival.

The defendant has an absolute right to confront the witnesses against him. No rule of evidence can change that, especially after the Crawford case. So there won't be any depositions, video teleconferencing, telephone testimony, etc. to substitute for his presence in court, The victim needs to be in court, in person, standing tall and testifying.

If I were the defendant, I'd file a speedy trial demand (in Illinois, a speedy trial demand must be filed and in writing) to bring it to trial no later than 160 days after the demand was made as required by law, wait the 160 days, and show up for the dismissal with prejudice.

Even if the prosecution dismisses before trial, the stature of limitations is still running, for a misdemeanor that's 18 months for a felony its 3 years. There is a good argument to made if a defendant files a demand for trial, and the prosecution dismisses then refiles after the demand is made, that can be a violation of the defendant's due process rights and the new case would get bounced out of court. I've been bitten by that before.

Moral of the story is, based on what has been reported, if there are no other witnesses to the crime or other circumstantial evidence, the defendant will probably walk and there's nothing the Cook Co. SAO can do about it. Hey, it sucks and I'm not saying it's right so don't complain to me or call me a**hole whatever, that's the way the game is played. You don't like it, pay attention to the kncuckleheads you vote for, y'know?
1.4.2008 12:14pm
Citizens for Legal Responsibility (mail) (www):
A copy of the Police report relative to this discussion can be viewed at:

http://www.clr.org/Grodner-Jay.html
1.4.2008 5:04pm
scrumptiousjones (mail):

jukeboxgrad (mail):
Righty bloggers love death threats. A bunch of lovely examples here.


I guess that's not so surprising given some of their more famous spokespeople. Ann Coulter comes to mind:

LINDA VESTER (host): You say you'd rather not talk to liberals at all?

COULTER: I think a baseball bat is the most effective way these days.


"John Murtha: The reason soldiers invented 'fragging'."

"I think the government should be spying on all Arabs, engaging in torture as a televised spectator sport, dropping daisy cutters wantonly throughout the Middle East and sending liberals to Guantanamo."

"We need to execute people like John Walker in order to physically intimidate liberals, by making them realize that they can be killed, too. Otherwise, they will turn out to be outright traitors."


"Would that it were so! ... That the American military were targeting journalists."

" My only regret with Timothy McVeigh is he did not go to the New York Times building.

*****

Of course I regret it. I should have added 'after everyone had left the building except the editors and the reporters.' "

"We need somebody to put rat poisoning in Justice Stevens's creme brulee. That's just a joke, for you in the media."


o rightwingnews.com; June 26, 2003
1.4.2008 6:18pm