Question for Beryl_Mooncalf

The BBQ Pit
61

A single issue is presented; which is within Amendment 5, of the Constitution, specifically, the Double Jeopardy Clause. Unless the State proves a sufficient and factual difference between statute 1 and statute 2, the constitutional grounds supporting a second prosecution for “same-elements” “same offense and without finding that each [statute] contains an element not included in the other” Prosecution is prohibited.

Proper remedial action; For non-custody defendant to file a HC is ludicrous. Writ of Mandate is appropriate and therefore applies, not Habeas Corpus Habeas Corpus. The “prisoners writ” is ludicrous here, unless, no, he is in jail now?

Facts:
Originally acquitted of a charge which contained each and every element of the subsequent indictment charges, defendant files Writ of Mandate to the appropriate appellate body, who issues ex-parte, relief in the form of a cease and desist order to the lower court…

The first indictment resulted in acquittal of defendant for is inclusive of the entire body of the second. There are no new facts or, elements or other justification that prevent successful application of 5th amendment protection.

Double Jeopardy. protects against 3 abuses: (1) a 2nd prosecution for the same offense after acquittal, (2) a 2nd prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.
See also *Benton v. Maryland, 395 U.S. 784 *(1969); Ashe v. Swenson, 397 U.S. 436 (1970) for collateral estoppel

Under Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or one is whether each provision requires proof of a fact which the other does not.
First statute requires proof not within second statute, however, second statute, by nature of the language, is sufficiently similar to the first so as to bar prosecution.

In applying Blockburgerto separately codified criminal statutes which may be violated in alternative ways, only the elements charged in the case at hand should be compared in determining whether the offenses under consideration are **separate or the same ** for purposes of double jeopardy.

Illinois v. Vitale, 447 US 410 (1980), the Court provided that a valid claim of double jeopardy would not necessarily be defeated by the fact that the two offenses are not the “same” under the Blockburger rules.

Ashe v. Swenson, 397 U.S. 436, 453-454 all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction "must be prosecuted in one proceeding. Note, One, not Two.

Petite v. United States, 361 U.S. 529 (1960). is squarely on point. Convicted in the Eastern District of Pennsylvania, and again in the District of Maryland on “substantive charges growing out of the same Baltimore agency proceedings.” USSC remanded case to Court of Appeals to vacate judgement
“the second trial violated the Government’s own policy against repetitious prosecutions for crimes growing out of a single transaction.”

Absent sufficient factual difference between statute 1 and statute 2, a second prosecution for “same-elements” “same offense” Blockburger, Supra or “each contains an element not included in the other” Dixon, Supra

In UNITED STATES v. DIXON 509 US 688
limits Blockburger’s “same-elements” test, again addressed and further defining the rule of “same-elements” with “two provisions” are not the “same offense” if each …if EACH contains an element not included in the other. Key word, EACH Key phrase “NOT IN THE OTHER.

Bricker, one of the non-paralegals, put this together for me, the non-attorney, by briefing your little hypo. I was busy with other non-legal obligations typically done by non-lawyers. I will add, for your benefit, her final remark;

“Did he purposely ignore the constitutional issues, or is he really this ignorant of the law? Her words, not mine, referring to your posted the “answers”.

I have no more time for you. Have fun attacking this. Oh, the US in the cites, above, that references the court from which the opinion came. Supreme Court?
There are many exceptionally intelligent people on this board who undoubtedly wonder, as I do, why I have even become involved with this. I promised I would stop when I fell victim to the same fantasy that some of the cyber-cowards herein have fallen to, we’ll drop it at that. We’ll know who they are, becasue they will have this urge to respond. Let them point themselves out. If any feel the urge to continue, I suggest you try e-mail. That way I’ll be sure to see it.

Jodi, get a grip. There are multiple jurisdictions involved, =or= Bicker did another mis-maxum. He is quoting a Supreme Court case, and I know of no jurisdiction that has access to the Supreme Court as the original court of redress. Has to be at least two jurisdictions involved, maybe more.

62

Wow.

Mish-mash, part deux.

My OP posits ONE jurisdiction, not two. If you believe that two jurisdictions must be involved before relying on Supreme Court precedent, you’re crazier than a shithouse rat.

On second thought, strike that - you’re already crazier than the referenced rodent.

The references to a “Writ of Mandate” are equally inapposite, although very familiar from my days of reading pro se petitions from jailhouse lawyers convinced they could write enough gibberish to free themselves, or at least get out of work detail for a day for court transport. The hypo I presented says that you’re on trial for the second time after an acquittal. An extraordinary writ doesn’t come into play until (a) you’re convicted; (b) you have exhausted the direct appeals process; © you have exhausted the PCR process in your jurisdiction.

However, in the category of “even a blind squirrel finds the occasional nut,” I notice you said:

That is an absolutely correct statement of the law. Had you merely offered it at the beginning of this thread, and noted that it applied to my hypothetical and showed that the second prosecution is barred, you would have answered the question correctly, completely, and left me embarrassed.

Offering it now, in the midst of semi- and non-relevant garbage, leaves me to believe that you merely cut and pasted it from somewhere else.

I’m not the only lawyer on these boards, Beryl. I was the one that chose to launch this attack on you, yes, but several of the posters in this thread are actual practicing lawyers. I’m confident in saying that none of them has endorsed your brand of bullshit as anywhere near accurate.

My original concern was that the lay public might read what you wrote, read your claim to expertise, and give undue weight to your words. My intent now is to follow any other legal advice you might attempt to offer with a link to this thread, so that the lay public may judge your mastery of the subject.

I would ask, with no particular hope of success, that you not offer answers in GQ when you don’t know the answer.

  • Rick
63

“Somewhere else” probably being State v. Winkler, 266 Neb. 155

64

Nice work.

65

It was probably one of his paralegals - the one he asked to prepare his reponse for him - that did the plagarizing, right? :rolleyes:

66

Bricker,

Ran your hypo past some of the lawyers that I share smoke breaks with (practicing workers-comp types). They immediately hit on the LIO aspect of the case and issued a unanimous opinion that the 2nd trial was unconstitutional.

67

Chumpsky? Is that you, pretending to be a lawyer this time?

68

Sure - I’m not remotely surprised. If they don’t do criminal law, they may not have Blockburger at the tips of their tongues; anyone who passed a bar exam in this country would likely see the LIO answer, however, even if they had to look up the supporting case law.

Another nail in a coffin that’s already pretty damn tight.

  • Rick
69

And that is precisely the level of knowledge that I possessed as a civil lawyer who has never practiced criminal law. But even I realized that Beryl’s posts were nonsense.

I can’t say for sure if he has a law degree or not. Unfortunately, there are bad or delusional lawyers out there. (I got a favorable appellate ruling yesterday upholding the dismissal of a lawyer’s *pro se[/i) complaint which semi-incomprehensibly alleged a massive anti-trust conspiracy against him.) I will say that I would be surprised if Beryl has any significant experience as a practicing attorney.

I like Bricker’s idea of linking to this thread in response to future incorrect posts in GQ. Please, if you don’t know the answer, don’t answer legal questions. People might rely on your answer. There are at least 10 lawyers active on this board. One of them will almost certainly be along soon to give good information. Assuming you avoid gratuitous lawyer-bashing in your post, that is.

(Especially, don’t debate criminal law with Bricker. That’s like stepping on Superman’s cape.)

70

The hell of it is, Beryl’s cut-and-paste answer did contain the gem of what I think is a fascinating subject for discourse: the applicability of collateral estoppel to discussions of double jeopardy.

Perhaps another thread, another time – here, it would just muddy the waters.

And, Random - thanks much for the compliment!

  • Rick
71

BERYL –

I’m troubled by this. As I read it, either on the one hand you are being sarcastic in referring to yourself as a “non-lawyer” and your assistant as a “non-paralegal,” in which case – you made your paralegal reserach a message board question? Do you customarily expect her to waste her time in this manner? 'Cause that’d piss me right off, were I a paralegal. Or, on the other hand, you are in fact a “non-lawyer” doing work “typically done by non-lawyers,” in which case you’re a big fat liar because you specifically claimed to be a lawyer.

Yes, a “U.S.” cite means the U.S. Supreme Court. If the cite was XXX S. Ct. XXX, it would also be the Supreme Court. And if the cite was XXX L. Ed. 2d XXX, it would also be the Supreme Court, because the U.S. Supreme Court’s decisions are reported in three reporters – the United States Reporter, the Supreme Court Reporter, and the Lawyers Edition (Second). If you were a lawyer, you would know this.

I don’t know that I’m exceptionally intelligent, but I certainly do wonder this. If you recall, I advised you to throw in the towel after your first post because you were embarrassing yourself, but, alas, you didn’t listen.

Wow, you really don’t know jack-shit about the law, do you?

The Supreme Court rarely – exceedingly rarely – looks at a case as the “original court of redress,” or what more commonly would be called the court of original jurisdiction. The vast majority of the cases it hears are appeals. Some of them are multi-jurisdictional, of course – for example, one state sues another – but many of them originate in a single jurisdiction – a single state, or even a single city or town.

So why does the Supreme Court, a federal court, end up hearing the appeals of such state cases, when the cases involve the application of local law, not federal law?

Because the appellants allege violation of their rights under the federal Constitution, which allows them to file an action with a federal court, which action may eventually end up at the U.S. Supreme Court, if the question is important enough or unsettled enough.

So let’s see how BRICKER’s hypothetical might end up in the U.S. Supreme Court. The person is acquitted of mopery but later indicted and convicted of dopery. This occurs in ONE JURISDICTION. The person then appeals his conviction to the highest court in the state on the grounds that he has been placed in double jeopardy in violation of his constitutional rights. He loses and the conviction stands. He then files a writ of habeas corpus with a federal court, alleging that his punishiment is illegal because his conviction was unconstitutional. The federal court rules against him, he appeals to the appellate circuit court, which rules against him, so he appeals to the U.S. Supreme Court. The existence of a claimed violation of federal constitutional law is the hook by which the case will eventually wend its way to the Supremes. This is NOT the same as asserting that the U.S. Supreme Court has original jurisdiction – it does not – and it does NOT automatically mean there is diversity jurisdiction (i.e., more than one jurisdiction was involved in the underlying case). In such cases, which are very very common, the Supreme Court’s jurisdictonal basis is not original jurisdiction, or diversity jurisdiction, but subject-matter jurisdiction, the subject matter being the Consitution of the United States.

This is Constitution Law 101 – first year law school stuff, so at this point I call bullshit on your claim that you are a lawyer. There are many, many laypeople on this Board who have no professional association with the legal field whatsoever, and yet have a far better grasp of the fundamentals than you do.

Do us all a favor and give it up, as your every post only further reveals you for the ignorant poser you are.

72

Hey, now, be nice to us paralegals. We do a lot of the shit work for you. (Besides, even I could tell that the second trial was dodgy constitutionally)

73

“Even you”? Do not diss the beloved paralegals, CAPTAIN A!

A lawyer who doesn’t understand the value of a good paralegal doesn’t deserve to have one. I think the paralegals in my office know more than I do about the subjects they specialize in. Sure, I can bullshit up an argument, but I would be lost without the services of a paralegal to put meat on the bones in the form of investigations, timelines, exhibits, dep summaries, etc. Paralegals are awesome, and indispensible. An attorney who sneers at paralegals is like a doctor who sneers at nurses – an ass, and a short-sighted ass at that.

And I know BRICKER wasn’t dissing paralegals either, he was rolling his eyes in disbelief that a person who is so obviously not a lawyer might have a “paralegal” to do his so-called work.

74

this poster is taking on Bricker and Jodi on matters of law???

oh, stop, please, you’re killing me!

75

Jodi:

Not even. I leaned all that in my 200-level Business Law course last year.

Non-lawyer, non-paralegal, non-degreed business student. And even I managed to get Rick’s original question right.

:sigh:

I learned

76

Thank you. I truly am awesome [obligatory job bitch](even if I have to remind myself of that sometimes when it’s 7:30 pm and I’m on Lexis frantically searching for caselaw for an attorney who’s gone home, but who needs the information “when he gets in in the morning”)[/obligatory job bitch]

77

Yes, ANDROS, but you are exceptionally intelligent as well as charming and deboniar and good looking in a James Bond sort of way.

[sub]That’ll be $20.[/sub]

78

Isn’t this the case in the several cases about whether a state can outlaw homosexual acts in the privacy of the home or in Roe v. Wade?

79

More or less. Those would be civil cases involving state action that is asserted to infringe on a person’s constitutional right to privacy, whereas an LIO case would be a criminal case involving state action that is asserted to place a person in double jeopardy. But same dealio, yes.

80

Brickermaybe your friend Random (as you co-signed for bricker with that 100% guaranty) Can you set me straight on this by explaining, each of you that is, this code citation provided by bricker.

(PCR, post conviction review) So, extraordinary writs, which would include, habeas corpus, prohibition, & mandamus (mandate in some jurisdictions, and I believe Article 78 in at least one other, are available "after a) you’re convicted; (b) you have exhausted the direct appeals process; © you have exhausted the PCR process in your jurisdiction.

Brickler, and Associate, Please, defend your quote.
If A person has to satisfy (a) you’re convicted (b) you have exhausted the direct appeals process © you have exhausted the PCR process in your jurisdiction. How is it that there are so many apparent conflicting views?

I need a little thing or two clarified. You seem to disagree with the federal court system, and the United States Codes citations. Could you please explain where the courts erred.

I looked at the items at the other end of these links, and, It don’t see that the above applied. I’ve got my pen and paper.

1---------------------------------------------------------
C1 No(a) No(b)and No©? Petitioner requests that a Writ of Mandamus issue to the Respondent Judge of “the District Court directing him to command the government to produce the material requested in the manner outlined” shouldn’t he have to wait until after conviction and appellate and appellate review had been completed to ask for this discovery? (citation at link)
2----------------------------------------------------------
C2 No(a) No(b)and No©? WHEREFORE, petitioner, Dr. Carl Bernofsky, respectfully prays that a writ of mandamus be issued by this court directed to respondent, the Honorable Ginger Berrigan Judge of the United States District Court for the Eastern District of Louisiana, directing her to vacate her order denying Petitioner’s motion for recusal and disqualify herself (citation at link)
3-----------------------------------------------------------
C3 plaintiffs motion is hereby GRANTED, with the mandate that: the United States Park Police shall, forthwith and with all possible haste, return to Concepcion Picciotto the two flags which its agents (Sgt. Gentile, Officer Bacon, et. al.) seized from her on or about June 13, 1990, by delivering them into her custody at Lafayeete Park, the site from which they were seized. (citation at link)
4------------------------------------------------
And would you explain this in view of your citation; 28 U.S.C.A. §1361. The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.
So this is wrong too Mandamus can compel a lower court to follow a higher courts order.

The Writ of Prohibition can prohibit a lower court from action by order of a higher court