# Question for Beryl\_Mooncalf **URL:** \ **Category:** The BBQ Pit\ **Created:** [September 17, 2003, 2:42pm UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140 "2003-09-17T14:42:55Z")\ **Posts on this page:** 20\ **Page:** 10
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [September 23, 2003, 6:23pm UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/181 "2003-09-23T18:23:07Z")
> [@](#): > > \*Originally posted by thinksnow \* > \*\*I understand, I think, double-jeopardy and what it is supposed to protect one from, but in this instance, it seems to me that if you charge someone with A, B, C, & D, and can only show A, B, & C, and there is a charge for that, you should be able to charge them with that. Is one of the intents of DJ to protect against the prosecution attempting to hammer someone with a more serious and involved charge, then coming back and charging them with a sure slam-dunk lesser charge, having failed to secure a conviction for the greater charge? > > Also, because I’m curious about the law itself, would it be possible, in the hypo, for the prosecution to first charge dopery, then, failing to convict on that, charge for mopery? \*\* Generally speaking, the parties to a case (the State and the defense are entitled to have the jury consider lesser included offenses. For example, if a defendant is charged with armed robbery, but the defendant and the State want the jury to consider the lesser included offense of robbery, generally speaking the court will allow it. The concepts of lesser included offenses are important not just for double jeopardy, but also jury instructions. In **Bricker’s** OP, for example. I think if either the State or the defendant, in the jury trial on the mopery charge, wanted the jury instructed as to the lesser included offense of dopery, the judge would give it. It would allow the jury to find that the defendant may have done dopery, but didn’t do the mopery. ---
**Author:** ![spinky](https://avatars.discourse-cdn.com/v4/letter/s/59ef9b/32.png) [@spinky](https://boards.straightdope.com/u/spinky)\ **Post date:** [September 23, 2003, 6:24pm UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/182 "2003-09-23T18:24:22Z")
> [@](#): > > \*Originally posted by Beryl\_Mooncalf \* > I see this as a swarming soccer team of 6 year olds, who “swarm” on the soccer ball, following it thoughtlessly around the field, kicking at anything within a few feet of the ball hoping to kick something other than each other. I dunno. Most of the kicks appear to be landing squarely on your balls. ---
**Author:** ![thinksnow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/thinksnow/32/2849_2.png) [@thinksnow](https://boards.straightdope.com/u/thinksnow)\ **Post date:** [September 23, 2003, 6:41pm UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/183 "2003-09-23T18:41:53Z")
Thank you, **ENugent** and **Hamlet** , for clearing that up. I understood the idea of LIOs, but now see how they are/might be tied in. And with that, I beg you good day. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 23, 2003, 6:43pm UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/184 "2003-09-23T18:43:28Z")
> [@](#): > > \*Originally posted by thinksnow \* > I understand, I think, double-jeopardy and what it is supposed to protect one from, but in this instance, it seems to me that if you charge someone with A, B, C, & D, and can only show A, B, & C, and there is a charge for that, you should be able to charge them with that. Is one of the intents of DJ to protect against the prosecution attempting to hammer someone with a more serious and involved charge, then coming back and charging them with a sure slam-dunk lesser charge, having failed to secure a conviction for the greater charge? There’s no rule against charging BOTH the greater and lesser-included offenses at the same time. If the jury finds the accused guilty on both charges, they are merged into one. So while a jury can find the accused guilty of both, there ends up being only one conviction. In other words, if you charge someone with a crime with elements A, B, C, and D, you may ALSO charge them, at the same trial, with the crime defined by elements A, B, and C. If the jury finds that you didn’t prove element D, they’ll acquit on the first charge and convict on the second. (An interesting side note: what happens if the jury convicts on the first charge and acquits on the second? That is, what if the jury’s verdict is legally inconsistent? The answer is, in general, that a legally inconsistent verdict cannot stand, although a _logically_ inconsistent verdict - one in which a theory of the case is simultaneously accepted and rejected - can be sustained. A logically inconsistent verdict can be the result of compromise in deliberation, a desire for leniency, or myriad other factors. A legally inconsistent verdict casts doubt upon the question of whther the jury found sufficient facts necessary to sustain a conviction.) > [@](#): > > Also, because I’m curious about the law itself, would it be possible, in the hypo, for the prosecution to first charge dopery, then, failing to convict on that, charge for mopery? No. An acquittal on a charge operates as an acquittal on each underlying element in the charge. They could charge both offenses in the same trial, but not in subsequent trials. Of course, Ashley Judd movies notwithstanding, an acquittal for mopery allegedly committed on Monday does not bar a prosecution for dopery alleged to have taken place on Tuesday. As the OP said, in this hypothetical we’re talking about ONE act. - Rick ---
**Author:** ![Waverly](https://avatars.discourse-cdn.com/v4/letter/w/57b2e6/32.png) [@Waverly](https://boards.straightdope.com/u/Waverly)\ **Post date:** [September 23, 2003, 7:31pm UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/185 "2003-09-23T19:31:32Z")
> [@](#): > > \*Originally posted by Beryl\_Mooncalf \* > \*\*Waverly > Last time I called you a liar, and you left. What else is there to say. \*\* > [@](#): > > \*Originally posted by Beryl\_Mooncalf \* > \*\*Waverly > Last time I called you a liar, and you left. What else is there to say. \*\* A person with more integrity might post a retraction, for starters. You apparently passed on supporting your accusation when called on it, since I’m sure you have noted that I did not ‘leave’, but rather posted a rebuttal to your baseless accusation. I’m not at all surprised that you have ignored it, and further refuse to answer the direct question above. You are simply a common poser without the skill to convincingly carry off the charade, so you use the same evasive tactics all such cretins employ when confronted. You obfuscate, parse phrases rather then address their meaning, ignore direct questions, and lapse into doublespeak. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 23, 2003, 8:04pm UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/186 "2003-09-23T20:04:17Z")
> [@](#): > > \*Originally posted by Waverly \* > You are simply a common poser without the skill to convincingly carry off the charade… \*\* Whatever else… he or she is NOT common. Loons like this come along only rarely. Thank the powers that be. - Rick ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [September 23, 2003, 8:28pm UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/187 "2003-09-23T20:28:37Z")
[The See-through Bus](http://abcnews.go.com/sections/us/DailyNews/voyeurbus001208.html). Didn’t see the resolution. There was also a notable case about riding the subway topless but a Google search turns up references on some “those wacky laws” type of pages but not the news stories or the case itself. Sadly, B.S. Moonpie scores a partial point in drawing a distinction between male and female with regard to nudity laws. [An appeals court](http://www.leatherquest.com/law/ny.htm) denied gender bias in a zoning case where a bare-chested woman was zoned out but a bare-chested man would not be. Moonpie only gets a partial point because s/he failed to discuss the basis for drawing a distinction between the sexes under constitutional theory, and of course Moonpie loses seval _million_ points for pretending like 14th Amendment jurisprudence has anything whatsoever to do with the idea that leaving out the word “he” has anything to do with anything in the particular discussion at hand. I wonder what animal will have the gun this time? ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [September 23, 2003, 8:41pm UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/188 "2003-09-23T20:41:38Z")
Damn, I missed all the fun. ---
**Author:** ![Super\_Gnat](https://avatars.discourse-cdn.com/v4/letter/s/e274bd/32.png) [@Super\_Gnat](https://boards.straightdope.com/u/Super_Gnat)\ **Post date:** [September 23, 2003, 8:45pm UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/189 "2003-09-23T20:45:34Z")
Just wait for **Beryl** ’s next post. Chances are you’ll get more fun than you can handle. (I like this thread, though. I learned about LIOs. Very edutaining.) ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [September 23, 2003, 8:49pm UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/190 "2003-09-23T20:49:01Z")
> [@](#): > > \*Originally posted by Beryl\_Mooncalf \* > \*\*(Supreme Court = issue of federal law… State court = hear case with “independent and adequate” state ground, where SC has no jurisdiction.- ) If toon town has its own little jurisdiction inside the jurisdiction of the supreme court, then there are courts with jurisdiction to hear matters in the same geographical area, although there may not ge jurisdiction to hear ALL the possible cases that can be hears in those jurisdictions, Supreme court needs federal question. No federal question, of hearin. \*\* There is such a sheer quantity of ignorant, factually incorrect statements in **Beryl** ’s posts that I guess this bit just passed under the radar (well, on preview, some of them have been addressed; I opened this reply box this morning and got sidetracked…). But the above contains errors that I literally cannot imagine any licensed American attorney making. To wit: 1. **Beryl** continues to confuse the issue of prosecution by separate soveriegns – a relevant issue for double jeopardy questions – with issues of a federal court’s jurisdiction to take appeals from state court prosecutions. The former relates to the applicability of double jeopardy to different prosecutions by separate soveriegns (e.g., independent state and federal prosecutions, such as bringing federal civil rights charges against the officers who beat Rodney King after their acquittal in state court). The latter deals with the power of a court to hear a particular appeal. Needless to say, a federal court hearing an appeal based on a state criminal court’s violation of the federal constitution is not the same as an entirely separate second prosecution and trial by the federal government. 2. **Beryl** is flatly wrong when she says the Supreme Court can only hear a case if it raises a federal question. In civil matters, the Supreme Court, along with the rest of the federal courts, can also have valid subject matter jurisdiction based on diversity of citizenship – i.e., when the plaintiff and defendant are from different states, even if the claim asserted is based on state law. Granted, that’s not terribly relevant in the context of criminal law, but given the absolutism of her statements it is unusual that she wouldn’t at least mention it. 3. **Beryl** seems oblivious to the fact that there _is_ a federal question in **Bricker** ’s hypothetical – the application of the double jeopardy clause of the U.S. Constitution raises a federal question which confers jurisdiction on the federal appellate court system to hear appeals from state criminal prosecutions. 4. **Beryl** completely misstates the doctrine of independent and adequate state grounds. The doctrine of I&ASG arises in cases where a law is challenged on both state law grounds and on federal constitutional law grounds. If the state appellate courts invalidate the law on state law grounds but dismiss the federal constitutional claim, the federal courts will abstain from hearing a further appeal on the federal constitutional claim, because to do so would be moot: the law is invalid on state grounds regardless of what the federal court thinks of the federal constitutional challenge. So say, for example, I challenge an Alabama law prohibiting stepping on cracks (passed to prevent breaking mother’s backs) on free expression grounds based on BOTH the Alabama constitution and the federal constitution. I sue in state court, and my case winds its way up to the Alabama high court, which says “our view of precedent on the first amendment of the U.S. Constitution does not prohibit this law, BUT it violates the Alabama constitution’s free expression guarantees.” If I want to get a federal appellate court to reverse the part of the holding dealing with the federal constitution, they won’t do it – the law has already been invalidated on an independent and adequate state law ground. At any rate, it does NOT mean what **Beryl** implies. State courts can, and frequently do, hear federal causes of action. For example, when Fox launched its silly suit against Al Franken, it filed in New York state court, alleging both state and federal causes of action. Fox could have filed that suit in either the state or federal court systems. While it is true that we are here dealing with criminal law matters, that does not change the fact that **Beryl** ’s invocation of “independent and adequate state grounds” is misplaced. ---
**Author:** ![Michael\_Ellis](https://avatars.discourse-cdn.com/v4/letter/m/977dab/32.png) [@Michael\_Ellis](https://boards.straightdope.com/u/Michael_Ellis)\ **Post date:** [September 23, 2003, 9:05pm UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/191 "2003-09-23T21:05:37Z")
I think dear **Beryl** is dredging up rubbish from the bottom of the barrel. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [September 23, 2003, 9:36pm UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/192 "2003-09-23T21:36:03Z")
> [@](#): > > \*Originally posted by Michael Ellis \* > \*\*I think dear **Beryl** is dredging up rubbish from the bottom of the barrel. \*\* I think dear **Beryl** is rubbish from the bottom of the barrel. (I don’t take kindly to people alleging that they are lawyers but refusing to produce their credentials.) ---
**Author:** ![El\_Cid\_Viscoso](https://avatars.discourse-cdn.com/v4/letter/e/41988e/32.png) [@El\_Cid\_Viscoso](https://boards.straightdope.com/u/El_Cid_Viscoso)\ **Post date:** [September 23, 2003, 9:38pm UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/193 "2003-09-23T21:38:13Z")
> [@](#): > > _By **M-O-O-N** , Laws yes…_ > emphasis mine typo typo , I guess I missed the jury instructions too, where exactally were they? Waitaminnit. Your posting just don’t gibe: typos abound, but you managed the cedilla? Seems a little pathological, if you ask me… Curious, curious. Just to clue you in, we’re all going for the _soccer ball_, as it were, because the [bender](http://boards.straightdope.com/sdmb/showthread.php?postid=4019352#post4019352) you’ve been on has pickled all but your primitive motor. Lawyerin’s tough, **Beryl**. You considered subliminable politickery? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 23, 2003, 9:45pm UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/194 "2003-09-23T21:45:11Z")
The lesson is – if you’re going to pretend to be a lawyer, don’t do it where there are real lawyers around. And definitely don’t do any posing on this board, which has an almost supranatural ability to sniff out bullshit. See, it’s not as simple as being able to cut and paste paragraphs from opinions on the web. You have to understand the issues and how they fit together. The OP wasn’t even a particularly tough question. ---
**Author:** ![Avalonian](https://avatars.discourse-cdn.com/v4/letter/a/ee7513/32.png) [@Avalonian](https://boards.straightdope.com/u/Avalonian)\ **Post date:** [September 23, 2003, 10:46pm UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/195 "2003-09-23T22:46:30Z")
I was _so_ hoping that **Dewey** would weigh in on this thread, and now that he has, I hope y’all can see why. More shovelfuls on **Beryl** ’s dungheap of misinformation, delivered in **Dewey** ’s concise style. I love it. As far as the “See-Through Bus” case goes, I’d like to make this observation, which has nothing to do with anything other than my own amuesment. From **Otto** ’s first link above: > [@](#): > > \*\* Hardy also took issue with the contention that the attention the women were generating as they drove down Sixth Avenue at 38th Street was causing congestion or a hazard. He acknowledged they attracted a crowd, but blamed the traffic backup on President Clinton, whose motorcade was in the area at the time.\*\* Clinton in the same area, at the same time, as a “Voyeur Bus” full of topless women? What are the odds? 😉 ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [September 24, 2003, 12:46am UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/196 "2003-09-24T00:46:10Z")
Aw, shucks, now I’m blushing… ---
**Author:** ![typo\_mna](https://avatars.discourse-cdn.com/v4/letter/t/eb8c5e/32.png) [@typo\_mna](https://boards.straightdope.com/u/typo_mna)\ **Post date:** [September 24, 2003, 6:03am UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/197 "2003-09-24T06:03:59Z")
**beryl** , Try this: go to McDonalds near you. or **Wendys’ it w** ill be very inforMATIve, especally their picture menu. Do you understand where I’m going with this? Now imaging you’re in Reno. Reno is in NEVADA, isn’t it? RENO IS NOT LOS VEGAS. Yes, they both have gambling, but so does **Atlantic City, and that isn’t in NEVADA either! Sigfrede and Roy often performin in LOS VEGAS with their white Bengal tigers. Why are the tigers white? Normaly** tigers are orange???.. when you can answer that, we can talk more where. no, i am not a laweyr 17 and I never said I was.But i work with a woman who wasn’t born on earth and LEGALLLY IS NOT HUMAN asked me to represent her on her world. can you say you have prcticed intergalactic law? Your meandering philanthropy for doesn’t make you a philanthroPISSEd ah haha. So i think I know in what Im talking about &&&&&&dont quite your day job 😕 😕 Tropic of capricorn 😕? Have you (sic) enciphered the mCDONald’s connection yet? Maybe this will help 1. The beetles had a hit song called In a yellow Submarine “Delve deep” (hint hint) into the lyrics you will understand. 2. What is the octopus’es garden in the shade?? Do you know. another hint: it’s a[palinodrome](http://www.rhinoplasty.com/) now if you still don’t know you need to read your legal books; more; try starting with the little blue ones and then working your wayt up. You don’t need a callender to figure this out. just try it! are you so afraid **not to prove I’m right? Nobody will take you** seriuosly if you[color=blue] don’t show _this imperical evidence_… LAS VEGOS IS IN CALIFORNIA!!! Take your “brain” pills!!! you don’t even know who we voted for last election - who can you tell yourself? Maybe… colonel??? ---
**Author:** ![Desmostylus](https://avatars.discourse-cdn.com/v4/letter/d/c57346/32.png) [@Desmostylus](https://boards.straightdope.com/u/Desmostylus)\ **Post date:** [September 24, 2003, 7:07am UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/198 "2003-09-24T07:07:58Z")
That was very good, **typo mna**. 😃 ---
**Author:** ![manx](https://avatars.discourse-cdn.com/v4/letter/m/65b543/32.png) [@manx](https://boards.straightdope.com/u/manx)\ **Post date:** [September 24, 2003, 7:20am UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/199 "2003-09-24T07:20:12Z")
I’m tempted to switch my degree to an LLB now. This is the best thing I’ve read on the SDMB all day! ---
**Author:** ![DarkJudicator](https://avatars.discourse-cdn.com/v4/letter/d/da6949/32.png) [@DarkJudicator](https://boards.straightdope.com/u/DarkJudicator)\ **Post date:** [September 24, 2003, 10:15am UTC](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140/200 "2003-09-24T10:15:30Z")
\By \M-O-O-N\, Laws yes…\ \Mr B\, this cracked me up… I’ve just finished re-reading \The Stand\. Although given his/her self-destructive in a credibility sense, I think \Beryl\ would suit the Trashcan Man more than Tom Cullen. I have nothing further to add, other than y’all have done a fine job of ripping apart \Beryl\'s multitude of strawmen, and I’m another one that’s learned a whole ton about Lesser Included Offenses here (although seeing as I live in Australia most of it probably doesn’t apply, at least not in the same fashion). [Previous page](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140.md?page=9) [Next page](https://boards.straightdope.com/t/question-for-beryl_mooncalf/202140.md?page=11)