BULLIES

When I was in grade school I was fat, unathletic, studious, and a smart-mouth. All I needed to be the perfect nerd was a pair of glasses and a pocket protector. We all know what happens to unathletic, smart-mouthed nerds. They get bullied. I got bullied. I was completely aware of the conventional wisdom that bullies are cowards, but I didn’t see how it made any difference. Whether the bully was brave or cowardly, the fact that he was bullying me was a pretty good sign that he could beat me up. In the wild even the most courageous predators will go after the weak because they are easy targets. The same can be said for bullies.

A number of things happened to end the bullying. I stopped shooting my mouth off; I went out for football; and I got bigger and stronger. I don’t know how things are now, but back in the 1960’s high school football was a wonderful game. You didn’t have to be athletic to play the line. You just had to be big and strong. Although fat, unathletic smart-mouth nerds make prime targets for bullies; big, strong, taciturn football linemen do not.

Having had so much firsthand experience with bullies, I can readily recognize a bully when I see one. Barack Obama is a bully. That fact became evident early in his first term when we were about to go over the fiscal cliff. The Republicans came to him seeking a budget compromise, and he told them "It's my way or the highway." He was in a win/win situation. If the Republicans caved in, he would win. If we went over the fiscal cliff the press would blame the Republicans and he would win. He won and our credit rating took a hit. I won’t catalog all the examples of his bullying tactics, but I will mention one of the latest. He said the Washington Redskins ought to change their name. They refused, and he had their trademark rescinded.

 

On the domestic front Obama is a formidable bully. But remember the conventional wisdom? Bullies are supposed to be cowards. Obama lives up to the conventional wisdom in foreign affairs. Although he bullies Israel because he sees them as dependent on the U.S., he knuckles under to other bullies like Vladimir Putin. As ISIS grew into a formidable threat he bullied al-Maliki into resigning as prime minister of Iraq by withholding aid to the Iraqis. Now that ISIS has matured into a serious threat, he can’t seem to decide upon a strategy for dealing with them.

What we need in the White House now is a courageous leader, not a bully. I sincerely hope that we can survive relatively unscathed for the next two years, and I will welcome the next president whoever he or she may be. If we are lucky (or wise) our next president will be courageous enough to confront and defeat our foreign enemies.

"COMMON LAW GRAND JURIES" REVISITED

In my last blog I made light of the activities of a "common law grand jury" which had "indicted" our State Attorney, Jeff Siegmeister. I tried to demonstrate how misguided the "common law grand jurors" were in their actions by demonstrating (1) there is no such thing as a common law grand jury, and (2) even if there were such a thing as a common law grand jury, it was abolished when our legislature enacted statutes governing the operation of grand juries in this state.

I further offered the opinion that Siegmeister wouldn't bother to prosecute the "common law grand jury" because I thought it to be such a laughable organization. As it turns out the activities of the “common law grand jury” were far more wide-ranging and comprehensive than I realized when I wrote my first blog on the subject. I’m not sure how many public officials have been “indicted” for “treason” by the “common law grand jury,” but it seems that the “grand jury” has indicted quite a few officers throughout the state including, if I am correctly informed, the entire Dixie County school board. The school board’s act of “treason” was to adopt a curriculum of which the “grand jury” disapproved. I was also informed that the “grand jury” came into the courtroom in Dixie County and blocked the doors, refusing to let anyone else in the courtroom while they engaged in their foolishness.

It appears that I was mistaken when I assessed their actions as quaint, amusing, and mildly irritating. There appears to be good grounds to believe that the “common law grand jury” is becoming downright disruptive of governmental functions. There are laws against such activity, and the “foreman” of the “common law grand jury” has been arrested on felony charges. I am given to understand that the charges involve the use of simulated court process.

At first I was somewhat confused by this charge because the law only made use of simulated process a misdemeanor and then only if the process was used to try to fraudulently separate people from their money. The operative language of that statute is as follows:

Fla.Stat. 817.38 Simulated process.—

(1) CIRCULATION PROHIBITED.—It is unlawful for any person, firm, or corporation to send or deliver *** any letter, paper, document, notice of intent to bring suit, or other notice *** which simulates *** court process, *** with intent to lead the recipient or sendee to believe that the same is genuine, for the purpose of obtaining any money or thing of value, or that a state agency is the sending party.
***
(5) PENALTIES.—Any person, firm or corporation violating this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

It seemed to me that this particular statute was not applicable to the situation for two reasons: (1) Because there was no intent to defraud anyone. (2) Because the “indictments” generated by the “common law grand jury” were so idiotic and so obviously NOT legal process that only someone whose IQ was smaller than his hat size would think they had any legal significance.

What I failed to take into account was the law prohibiting the obstruction of justice through use of simulated process, which is a felony. The operative language of that statute is as follows:

Fla.Stat. 843.0855 Criminal actions under color of law or through use of simulated legal process.

***
(2) Any person who deliberately impersonates or falsely acts as a public officer or tribunal, *** including, but not limited to, marshals, judges, prosecutors, sheriffs, deputies, court personnel, or any law enforcement authority in connection with or relating to any legal process affecting persons and property, or otherwise takes any action under color of law against persons or property, commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
***
(4) Any person who falsely under color of law attempts in any way to influence, intimidate, or hinder a public officer or law enforcement officer in the discharge of his or her official duties by means of, but not limited to, threats of or actual physical abuse or harassment, or through the use of simulated legal process, commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
***

The statute defines “legal process” as follows:

[A] document or order issued by a court or filed or recorded with an official court of this state or the United States or with any official governmental entity of this state or the United States for the purpose of exercising jurisdiction or representing a claim against a person or property, or for the purpose of directing a person to appear before a court or tribunal, or to perform or refrain from performing a specified act. “Legal process” includes, but is not limited to, a summons, lien, complaint, warrant, injunction, writ, notice, pleading, subpoena, or order. [Fla.Stat. 843.0855(1)(a)]

 

The first theory of the prosecution seems to be that when the “common law grand jurors” convened and proceeded to hand out indictments, they

deliberately impersonate[d] or falsely act[ed] as a public officer or tribunal. [Fla.Stat. 843.0855(2)].

 

The tribunal, of course, being the “common law grand jury.”

The second theory of prosecution appears to be that the “common law grand jury”

falsely under color of law attempt[ed] to influence, intimidate, or hinder a public officer or law enforcement officer in the discharge of his or her official duties by means of, but not limited to, threats of or actual physical abuse or harassment, or through the use of simulated legal process. [Fla.Stat. 843.0855(4)].

Indicting public officials on bogus charges of “treason” and sending them letters trying to influence the officers in their exercise of their official duties certainly seems to fit the statute. So far only the “foreman” of the “common law grand jury” has been arrested, but it appears that any member of the “grand jury” is vulnerable to arrest.

 

State Attorney Siegmeister has properly recused himself from the case and called on the Governor to appoint an outside prosecutor to handle the case. It will be interesting to see whether the outside prosecutor opts to prosecute the "common law grand jurors" under the racketeering statute. So far the only charges leveled have been third degree felonies calling for a maximum five year prison sentence.

Obstruction of Justice, however, is one of the crimes that can constitute a racketeering predicate incident. [Fla.Stat. 895.02(1)(a)43]. A "common law grand jury" may very well constitute a racketeering enterprise. [Fla.Stat. 893.02(3)]. And each of the "indictments" issued by the "common law grand jury," when taken together, just might constitute a prohibited pattern of racketeering activity. [Fla.Stat. 893.02(4)].

When people associated with an enterprise engage in a pattern of racketeering activity, they have committed a first degree felony punishable by 30 years.

GRAND JURIES: COMMON SENSE AND COMMON LAW

I was interviewed by the Lake City Reporter the other day about “common law grand juries.” It seems that a “common law grand jury” has “indicted” our duly elected State Attorney, Jeff Siegmeister, on a charge of treason, and the Reporter wanted my opinion on what the “common law grand jury” had done. Trying to be as diplomatic as I possibly could, I used a precise legal term. I said it was “a bunch of baloney.”

In the first place, what they “charged” Siegmeister with is neither treasonous nor criminal, and it could conceivably render the “common law grand jurors” themselves subject to prosecution under Florida Statute § 836.09, which says

If any person shall state, deliver, or transmit by any means whatever, to the manager, editor, publisher or reporter of any newspaper or periodical for publication therein any false and libelous statement concerning any person, then and there known by such person to be false or libelous, and thereby secure the publication of the same he or she shall be guilty of a misdemeanor ….

I doubt that Siegmeister takes them seriously enough to prosecute them, but that does appear to be an option which is open to him.

In the second place, there is not now nor has there ever been a legally recognized “common law grand jury.” We derive our law from two sources: statutory law and common law. We can distinguish common law from statute law by its origin—common law comes from judges, statute law comes from legislatures (and historically from kings).   As I will demonstrate, grand juries were not created by common law but by statute law. We’re going to have to look at a little history for me to make myself clear.

The earliest record we have of anything like our modern grand jury goes back to the rule of the Anglo Saxon King Ethelred the Unready. In 997 Ethelred enacted his Wantage Code, which provided:

Let twelve elder freemen, and the foreman with them, retire and swear upon the holy book which is given into their hands that they will not accuse any innocent person, nor screen any criminal.

Thus the grand jury was born as an accusatory body which preferred criminal charges against those suspected of wrongdoing. It has retained this function down to the Twenty-first Century. Modern grand jurors take an oath very similar to the one sworn by Etheldred’s jurors. For example, Florida’s Grand Jurors swear they

… shall not make a presentment against a person because of envy, hatred, or malice, and … shall not fail to make a presentment against a person because of love, fear, or reward.

Florida Statute § 905.10.

Our next evidence of comes from 1166, during the rule of the Norman King Henry II. Under his rule the Assize of Clarendon was enacted. The Assize provided for an accusatory body of twelve men to prefer criminal charges against wrongdoers.

A watershed moment in the development of the grand jury came in 1681, when King Charles II sought to punish the Earl of Shaftsbury, a political enemy. Charles insisted that the London grand jury indict Shaftsbury for treason, and he further insisted that they hold their meetings in public so that he could see how each individual member of the grand jury voted. The grand jury met in secret and refused to indict Shaftsbury. Ever afterward grand juries have met in secret.

The London grand jury’s defiance of King Charles gave the institution a reputation as a protector of the innocent. Only a few years before the American Revolution, the English jurist William Blackstone described the grand jury in glowing tones, writing that

[S]o tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty four of his equals and neighbors. [12 grand jurors and 12 petit jurors].

Commentaries on the Laws of England, Volume 4, *301.

Our Founding Fathers agreed with Blackstone, providing in Article Seven of the Bill of Rights that

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.  

Initially, this only applied to the Federal government, but almost all states have enacted statutory provisions creating local grand juries. Depending on the jurisdiction, a grand jury can consist of as few as 18 but no more than 24 grand jurors. In Florida the prescribed number of grand jurors is 21, with 15 constituting a quorum. Harking back to the days of Etheldred, it requires a vote of at least twelve grand jurors to bring criminal charges against anyone.

Grand juries, therefore, are and always have been creatures of statute. Whether it’s the Assize of Clarendon or the Bill of Rights, either a king or a legislative body has passed a law enabling the formation of grand juries. As I previously said, common law does not look to statutes, but to previous decisions of judges. In the strictest sense, then, there can be no “common law grand jury” because no grand jury was ever created by a judge’s decision.

As a matter of fact, the common law would not apply in the United States if it had not been enacted into law by local statutes. (Louisiana, for instance, is not a common law jurisdiction. Their legal system is based on the Napoleonic Code).  Florida Statue § 2.01 makes the common law applicable in Florida by saying

The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.

If our legislature had never passed any sort of law concerning grand juries, then quite possibly the Assize of Clarendon’s grand jury would be the law of Florida. But it’s not because it is inconsistent with Florida’s statutory law creating grand juries. At the risk of being redundant: when the Florida legislature enacted its laws relating to grand juries, it voided any previously existing English law on the subject, either statutory or common.

Conclusion: 1. There cannot be a “common law grand jury” because there never was a common law grand jury. English grand juries prior to July 4, 1776, were created by statute. 2. Even if there were such a thing as a common law grand jury, the Florida legislature voided it when they enacted laws governing grand juries. 3. Any group which is purporting to act as a “common law grand jury” is engaging in a legal nullity.

FLYSPECKING THE DECLARATION OF INDEPENDENCE

 

A recent article entitled “An Extra Period in The Declaration of Independence Might Change Our Understanding of Government” says that we may have been interpreting the Declaration of Independence all wrong for the past 200+ years. The suggestion that we must reinterpret the Declaration comes from Danielle Allen, an eagle-eyed professor at the Institute for Advanced Study. According to Allen, the misplacement of a single period requires us to completely reinterpret the Founding Fathers’ conception of the role of government. As it has come down to us, the disputed language reads:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ....

According to Allen, this language should actually read:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ....

Do you see the discrepancy? You have to look close. It’s the period after “Happiness,” which Allen says shouldn’t be there. Some early copies of the Declaration don’t have the period, and some do. The original may or may not have the period. The original Declaration is so old, frail, and faded that trying to verify whether the period is there might destroy the document.

Allen contends that removing the period after “Happiness” makes "securing governments" a part of the same sentence as "pursuing happiness." She says omitting the period shifts the emphasis of the language from personal rights to government responsibilities. Instead of the people having a right to see to their own happiness, the government should be tasked with the job of making them happy. Under the revised interpretation, it seems our Founding Fathers were actually proto-postmodernists who thought big government should look after little people.

The first problem that I see with the interpretation is that the whole idea of the American Revolution was to get big government out of the people’s business.

The second problem I see with the interpretation is that whether there’s a period after “Happiness” or not, it doesn’t make any difference. Just as pronunciation and spelling of words change over time, so does punctuation. I’ve recently been reading a lot of old court documents from the early 1800’s, and I noticed a difference in punctuation from modern usage. They used to use dashes in the place of periods. The usage was not uniform; sometimes they’d use dashes and sometimes they’d use period. We don't use dashes like that any more, but how we use them now doesn't change what the Founding Fathers meant when they used them back in 1776.  What I’m saying is that whether there’s a period after Happiness” or not, the sentence ends with “Happiness,” putting the pursuit of happiness in a separate sentence from securing governments. My interpretation is reinforced by the fact that the first word after the dash, “That,” is capitalized. From what I have seen of old manuscripts, even in olden times when they over-used capitalization, they only capitalized nouns and the first word of sentences.  "That" isn't a noun, so it wouldn't have been capitalized unless it was the first word of a sentence.

In summary: 1. Don't run the risk of destroying the Declaration of Independence looking for a period. 2. Whether there’s a period there or not, it doesn’t change the meaning of the document. 3. The Founding Fathers intended to end the sentence with the word “Happiness.” 4. The Founding Fathers were trying to throw off governmental micromanagement, not endorse it.

Allen is engaging in the lawyer’s favorite pastime, “flyspecking.” Flyspecking is a process whereby lawyers try to wring out hidden meaning not readily apparent from a cursory reading of a document.

MORE THOUGHTS ON POLICE SHOOTINGS

When I first started working with the Public Defender’s Office back in the early 70’s, I once heard an old-time sheriff lamenting that law enforcement had been ruined by that Miranda decision. I immediately thought “What a fossil!” It seems that our elders are forever lamenting how things were back in the day when they had to walk to school uphill barefooted in the snow. When I heard the sheriff's lament, I immediately made a vow that I would never act like him. I am afraid that I am about to break that vow, because I am going to talk about how things used to be. I will qualify my remarks (and try to avoid sounding like a fossil) by stating emphatically that the good old days weren’t all that good, and that law enforcement is light years ahead of what it was when I was a young whippersnapper. But I also think that looking to the past can help us learn lessons that are applicable to the present day.

Neil Kirkman, one of the first [if not the first] directors of the Florida Highway Patrol, is supposed to have had a hiring policy for troopers which required recruits to be over six feet tall and not encumbered by excess body fat. I don’t know if Kirkman truly had such a policy, but I do know that when I was a boy, FHP troopers were all tall and athletic. When I first started working as an assistant public defender, there was a trooper in our circuit who supposedly was ordered to lose weight or be fired. The trouble was, he wasn’t fat. He lifted weights, and he had massive muscles. He saved his job without having to lose weight by getting his doctor to write a letter to Tallahassee certifying that he was not fat, he was just extremely muscular.

It seems that back in the 50’s, 60’s, and early 70’s almost all law enforcement officers were big men who carried barbaric weapons such as nightsticks and slapjacks. Arrestees usually cooperated. Those who didn’t were subdued without being shot, Tasered, or peppersprayed. A big, muscular officer who is obviously armed with a non-lethal impact weapon commands compliance.

In the mid-70’s officers began to shrink as hiring practices were made less discriminatory.  I’m in favor of non-discrimination, but I think sometimes you can have too much of a good thing, as when you hire a 5’2” 120 pound applicant because you don’t want to discriminate. I never did a scientific study of police shootings during my career, but I recall a number which I felt could have been avoided if the officer involved had been a little larger and more muscular. I do vividly recall one shooting in which the officer, a small man, said he had no choice but to fire his weapon at his physically much larger assailant. I tended to agree that if he hadn’t fired, he would have gotten a severe beating at the least and may very well have suffered death or great bodily harm. I also thought that the situation might well have been avoided and the arrestee might still be alive if the officer had only been a bigger, more muscular man.

It is improper for arrestees to factor in the size and fitness of an officer when deciding whether to violently resist, but they do. I recall a rather small officer telling me about an arrest he made in a murder case. He said that the suspect’s brothers, all big men, became so belligerent that he feared they were going to attack him. Just in the nick of time, a huge officer (who coincidentally had a reputation for being able to handle himself in a scuffle) arrived on the scene. The brothers immediately lost all their fight when he got out of his patrol car and told them that they’d better settle down.

The pictures I have seen from Ferguson suggest that Michael Brown was huge (6’+, 250+ lbs.), while Darren Wilson was rather small. I haven’t seen any vital statistics on Wilson, but from the photos I estimate his size to be around 5’9”, 160 lbs. Let’s perform a thought experiment. What might have happened if Michael Brown had been confronted by an officer with the proportions of one of Neil Kirkman’s FHP troopers? What if the officer had been armed with a slapjack? Might Brown still be alive if he had confronted a more physically formidable officer?