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.
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.)
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.
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.
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 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.
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:
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.
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.
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.
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.
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.
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:
Clinton in the same area, at the same time, as a “Voyeur Bus” full of topless women? What are the odds?
Try this: go to McDonalds near you. or Wendys’ it will 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 apalinodrome 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???
<b>Mr B</b>, this cracked me up… I’ve just finished re-reading <i>The Stand</i>. Although given his/her self-destructive in a credibility sense, I think <b>Beryl</b> 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 <b>Beryl</b>'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).
