Hey, just because you don’t understand the big picture, that doesn’t mean you’re being lied to.
And just because someone is getting you to do the *actual *right thing rather than what you’re convinced is the right thing is rubbing you the wrong way, that doesn’t mean you’re being manipulated.
No, it’s not. Would you care to explain how your understanding of merger compels this conclusion?
No, not necessarily. In my jurisdiction aggravated sexual assault can occur either when serious bodily injury occurs, or if a deadly weapon is used or exhibited regardless of whether any injury is inflicted, or during the course of a kidnapping, or a number of other circumstances. A sexual assault that causes no permanent injury and a sexual assault that causes permanent injury could both be prosecuted as aggravated sexual assault. In a case where no permanent physical injury occured, it’s perfectly acceptable to point it out.
Manipulated, probably not. Outright lied to, yes.
Transactions With Persons Other Than Clients
Rule 4.1 Truthfulness In Statements To Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
See, Bricker, it’s just not flying. It doesn’t cut it. Over and over I hear lawyers talk about how ethical and upstanding they are. Then I deal with them and the walk doesn’t match the talk. Over and over I hear lawyers talk about how noble they are for defending the poor, then I watch PDs do embarrassingly half-assed jobs defending their clients.
And now, the ever-popular-with-attorneys contention that someone who didn’t go to law school couldn’t possibly know anything about the law comes out. Sorry, buddy, but it’s my job to know sentencing guidelines. Part of my job is to make sentencing recommendations, and I am expected to make recommendations that are legal. Perhaps the laws are different in your state, but here a judge could absolutely run a rape consecutive to an aggravated battery.
Indiana code I.C. 35-50-1-2, if you’re interested.
HSHP, you are a piece of work. Somehow, you know for a fact that every single time a lawyer has lied to me over the last 11 years, he wasn’t really lying, I just couldn’t understand the big picture.
I also love the way that you know for a fact every single time a lawyer has tried to manipulate me, he was trying to do the right thing, and I was trying to do the wrong thing. It’s amazing how intelligent you are, and how perceptive that you know everything I’ve tried to do for the last 11 years, and what every single lawyer I’ve dealt with over the last 11 years has been attempting to do.
Do you seriously believe that everything any lawyer does is absolutely pure and true and “the right thing?” You are one naive asshole.
Did it escape you that the story in the OP was about a rape in Australia? :smack:
The question is not “Could a rape sentence run consecutive to an aggravated battery?” The question is: “Would both convictions happen in the first place?”
I’ll certainly admit I’m no expert on Indiana law… but as a general principle, when acts that violate several different statutory provisions and could be punished separately arise out of the same course of criminal conduct, and do not have independent purposes or effects, they merge for conviction and sentencing purposes. (Of course, they are absolutely relevant for mitigating or aggravating factors – that is, for how harsh the sentence should be).
Are you saying that’s not the case under Indiana law?
How does that apply here? Well, if the trial court determines that the injuries were inflicted during the rape, were a part of committing the rape, and had no other purpose, then they cannot generally be charged as a separate offense. If the court determines that they had an independent purpose, then they may.
Is that not how it works in Indiana?
Correcting myself: they can absolutely be charged as a separate offense. They would merge for conviction and sentencing purposes.
More or less. Rape here is a Class B Felony. Rape Resulting in Serious Bodily Injury is a Class A Felony. So if you injure someone in a rape, and are charged with a Class A Felony, they can’t also convict you of a battery for the same action that caused the rape charge to be upgraded to a Class A Felony.
So, if for example, in the course of restraining a victim during a rape, her arm is broken, that would cause the rape to be charged as an A Felony. But in the situation that you were discussing (perhaps I should have specified I was talking about that, and not the OP), the slicing of the face and breasts would not, IMHO, be considered part of the rape itself, but a separate aggravated battery charge, because they really didn’t further the rape or have anything to do with it. Of course, that would be something that would be hotly contested by both sides. Obviously the prosecutor is going to charge it in whatever way they think they can get the most time, which would normally be an A Felony (1 A Felony can carry more jail time than 2 consecutive B Felonies!) But if there was some injury that they could tie to the rape, making it an A Felony, and charge the slicing off the breasts as a separate B Felony, they would do that.
ETA: In Indiana, if two offenses happen during the same episode of criminal conduct, the court can still issue consecutive sentences, with the exception that the total of the consecutive sentences can’t exceed the advisory sentence for a class of felony one level higher than the most serious felony he is being sentenced for. If that makes sense.
In reading Indiana’s case law, a quick glance suggests that the Hooiser system works the same way:
Also footnote 8 from that opinion:
What am I misunderstanding from the above?
OK, this is the key element.
Yes – I agree with you. If the injury occurred as a separate course of conduct, and was charged separately, then there are multiple convictions, and they don’t merge for sentencing purposes.
It did not. I was responding to a hypothetical posed by Bricker of a woman who was not only raped, but also had her breasts cut off and her face sliced up.
But that’s not really relevant to the original point I was making. I asked FoieGrasIsEvil what the lawyer should have done, if the range for the crime is (for example) 8-25 years, and there was no permanent physical injury to the victim. Certainly you agree that (assuming there is no separate battery-type charge) the presence of permanent physical injuries that occurred as part of the rape would be an aggravating factor, right?
So is the defense attorney wrong for pointing out that aggravating factor doesn’t exist, when he’s making an argument at a sentencing hearing?
I think the problem is that your experience doesn’t seem to match other people’s, including my own. The PD’s I have run into (and worked with) tend to be among the most ethical and upstanding lawyers. The majority of them seem to have a genuine passion for and belief in their work, and have very often sacrificed significantly higher earnings opportunities to take that job.
You must, from your work, know the caseloads that PDs face, and the underfunding that is endemic to that system. From what I have seen, it makes it impossible that the client gets the best possible defense. What I have seen them get, is the best possible defense in the situation.
The point, however, is to question the ethics of the lawyer mentioned in the OP.
To put it simply: was the lawyer pitted in the OP actually engaged in unethical behaviour by stressing the fact that the victim was not physically harmed?
My take: it seems likely that the best answer is “no”, on the assumption that the criminal justice system in Australia works similarly to that of Canada - because in that case, one would have to as a matter of course discuss all of the aggrivating and mitigating factors in a sentencing hearing - and the presence or absence of physical harm clearly qualifies.
First of all, in my first post in this thread I said I didn’t really have a problem with the defense attorney’s argument in the OP.
Second, I think your wording here may highlight the problem people are having. You said the defense attorney is pointing out that an aggravating factor does not exist. But there is a difference between pointing out that an aggravating factor does not exist, and stating that same fact as a mitigating factor. I think it sounds to most people like the attorney is using the lack of physical harm as a mitigating factor, rather than merely pointing out the lack of an aggravator. It might be a subtle difference, but one that could lead to different emotional responses.
I am willing to entertain the idea that the public defenders in my county are not representative. The way this county handles public defenders is unconscionable, IMHO. The way it works is, private practice attorneys contract with one or more of our courts. They get (last I checked) $2,000 a month to take all the cases the court assigns to them. That’s it. (It gets a little more complicated for big cases, rape, murder, etc, which are contracted on an individual basis.) But for violations of probation, which is mostly what I deal with, they get $2,000 a month. Lots of attorneys contract with more than one court, maybe even 3 or 4, so they get $6k or $8k. Keep in mind that these attorneys also have their own private practices with paying clients.
So where is their incentive to help their public defender clients? They are going to get their $2,000 regardless of how many hours they spend on PD cases, and every hour they spend on a PD case is an hour they can’t bill a paying client for. If they show up five minutes before a trial and meet their client for the first time, they get paid exactly the same as if they spend 10 hours with him before hand. So why should they bother? I talked to a county commissioner about this system one time, and he didn’t seem too worried about it. (He has PD contracts with various courts from time to time himself.)
An adjacent county to mine has a public defender’s office, where the attorneys are full-time employees on salary. So they probably do a better job, I would guess. The point is, I’ve gotten lectures about the nobleness of defending the poor from PDs in my county, who, IMHO, do a horrible job.
Extremely valid point. It’s not a mitigating factor. It’s the lack of an aggravating factor.
I’m not saying that at all. I’m pointing out that, given what I know of lawyers in general and you in particular, it’s much more likely that your view is narrow and uncomprehending. I’m trusting complete strangers over you because of what I know about you.
I don’t know where you’re getting this from. I haven’t claimed to know everything, or even anything in particular.
All I’m saying is that your attempts to argue from authority, as though 11 years doing… whatever it is you do… permit you to make blanket statements about all attorneys, when your lack of familiarity with the profession doesn’t even give you any apparent basis to make a coherent observation about the actions of people you’ve observed for those 11 years.
In a nutshell, you don’t know what you’re talking about. Being in the same room with Peyton Manning doesn’t make you an NFL player.
No, I believe that what is coming out of your mouth in the context of this thread is uninformed, prejudiced, without any foundation, and totally out of touch with reality.
I’m not defending lawyers, I’m pointing out that YOU have no basis whatsoever to be making the kind of claims you’re making.
What a crock. I am saying that lawyers lie to me all the time. I don’t have to go to law school to know when I’m being lied to. That’s like saying if I’m not Peyton Manning, I’m unqualified to determine whether his last pass was complete or incomplete. I don’t have to know a god damn thing about the legal profession to know that the asshole in front of me is lying to me.
Of course they’re too slippery to come right out and lie, they always disguise it with “I recall that you said X” or “I don’t recall you saying Y.” So when I call them on it they can always say that that’s what they recall. But when that exact same thing happens over and over again for years you have to conclude that they are either lying or they have the worst memory ever, which doesn’t seem likely since they remember anything beneficial to them in minute detail- it’s only the detrimental stuff they “can’t recall.”