Attorneys and Barristers of the Lounge

[Atticus Finch]

And just as a matter of interest. if intoxication is sufficient to counter mens rea, then what does a prosecutor do over there? Our courts have become less than sympathetic to such defences over here, especially in the circumstances you describe.

Voluntary intoxication is an odd animal in our jurisprudence. It can be an incomplete defense to a small number of crimes that require a specific intent. An example of such a crime is felony breaking and entering. For a B&E to be a felony, the defendant must intend to commit another felony (i.e., a rape, arson, assault or whatever), or a larceny, within the building which is the subject of his breaking…and that intent must exist at the time of the breaking. If the defendant successfully raises a VI defense, felony intent is defeated and he is guilty of only a misdemeanor B&E.

Procedurally, in order to get a VI instruction, the defendant must make a preliminary showing that he was extremely intoxicated at the time of the crime…so much so that there is reasonable doubt as to his ability to formulate the requisite intent. He bears no burden beyond this point and he can rely on the State’s evidence to make that showing.

AF

 

[anon`]

If the defendant successfully raises a VI defense, felony intent is defeated and he is guilty of only a misdemeanor B&E.

Slightly disconnected from the practice of per se, but this would require that the defendant actually survive the trespass in the first place...

 

[Ephraim Tutt]

Voluntary intoxication is an odd animal in our jurisprudence. It can be an incomplete defense to a small number of crimes that require a specific intent. An example of such a crime is felony breaking and entering. For a B&E to be a felony, the defendant must intend to commit another felony (i.e., a rape, arson, assault or whatever), or a larceny, within the building which is the subject of his breaking…and that intent must exist at the time of the breaking. If the defendant successfully raises a VI defense, felony intent is defeated and he is guilty of only a misdemeanor B&E.

Procedurally, in order to get a VI instruction, the defendant must make a preliminary showing that he was extremely intoxicated at the time of the crime…so much so that there is reasonable doubt as to his ability to formulate the requisite intent. He bears no burden beyond this point and he can rely on the State’s evidence to make that showing.

AF

Many thanks Brother Finch. Our systems are not too dissimilar.

Now...please continue your tale. Can I offer you a stogie?

 

[Atticus Finch]

Now...please continue your tale. Can I offer you a stogie?

Well, yes Sir....thank you, you may. Would you happen to have a Macanudo Hampton Court in your stash?

Now where was I? Oh yes. We were trying the case of the drunk habitual felon...


I’ve called my third witness. Two officers have testified that the building was entered through a two-foot hole in the rear wall. The exterior siding had been forcefully pulled away from the building, and the interior drywall had been punched into the building’s floor. They’ve also testified about the defendant’s degree of intoxication. One of the officers, a twenty-year veteran, has testified that he’s never seen a person as drunk as the defendant…at least not one who survived the experience. A junior officer has testified that the defendant couldn’t walk, couldn’t talk and when he was placed into the officer's patrol car, the defendant urinated “a bucketful” into the car’s back seat.

Now, the bar’s owner is on the stand. She’s testified about finding the defendant behind the bar and how frightened she was. She’s also testified at great length about the bar’s alcohol inventory system. She can’t be absolutely sure, but she doesn’t believe that there was much beer missing from the cooler, and she knows that no wine was missing. The bar only sells beer and wine…no hard liquor.

I begin to feel my case slipping away. The evidence is pointing to the defendant being grossly intoxicated before the breaking. If he was, he probably lacked the requisite intent needed to support his two felony charges. Of course, no felony convictions also means no habitual felon convictions. The defendant could walk free with two misdemeanors.

But, if he was that intoxicated before the breaking, how did he have the capacity to do all that was necessary to gain entry? When he was found, he was so hammered that he couldn’t have broken into a wet paper bag, much less a plywood wall. Heck, he couldn’t even stand up by himself. And he clearly had faculties enough to go after the cash register once he was inside.

I pause my examination for a moment to gather my thoughts and the courtroom goes quiet. My witness, being nervous and trying to fill the pregnant silence, begins to yammer from the stand. Just as I ask her to please be quiet, she mumbles, “…and he drank my darned Pine Sol, too.”

Me: “Do what?” “I’m sorry, Ms. XXX, tell me that again.”

Mr. Ayers: “Objection.”

The Court ignores the objection.

Witness: “Oh, yeah. I keep a little mason jar filled with Pine Sol under the bar. I dissolve peppermint candies in it and then pour it into the toilets at closing time, you know, so they’ll smell better the next day. Well, I had used it the night before he broke in, but there was still a little bit left in the jar. He musta drank what was left ‘cause when we cleaned up after the police were gone, I noticed my Pine Sol jar was empty. Musta thought it was peppermint schnapps!

Mr. Ayers: “OBJECTION!”

Of course, Jim’s objections were well founded---and the Court sustained them---but the cat had been let out of the bag. It was just one of those rare trial moments where, in an unplanned instant, all of the pieces of the puzzle fall together revealing the whole picture for everyone to see. If it were a movie, it would be the place where the soft, low violins begin to play while the camera pans around the faces of the characters. I look at the jury and all of them are staring at the defendant, some of them smiling that crooked little smile jurors use to express understanding. The judge is fixated on the ceiling, smiling the same crooked smile. I look at the defendant. His head is hung low and he’s staring into his lap. His lawyer is flipping through the pages of a legal pad, trying not to make eye contact with the jury.

It is my first Perry Mason moment but it has absolutely nothing to do with me. Officers had interviewed the Bar’s owner several times before they charged the defendant. She had never mentioned the Pine Sol. I had interviewed her before the trial. She didn’t tell me about the Pine Sol, either. None of us had ever asked her the right question…it was just as simple as that.

I asked for a recess, so that I could locate and subpoena a toxicologist. Thankfully, the Court granted my motion....

AF

 

[Edward]

Here you go, my new to me 1930s Mossant picked up off Ebay from Marc Chevalier. I love this hat! Fits perfectly. Wearing it with my Eastman A-2 and one of my favorite books-totally staged of course! I do like to wear the hat in the house, however, even though my wife makes fun of me for doing so.

My mother always said wearing a hat in the house sends you bald.... no idea where that one came from!

 

[Edward]

Well good. [salespitch]Better than the main competition (I've worked there also)[/salespitch]

Let me know if you ever feel like providing feedback!

If you're looking for somebody to do market research on, hit me a PM!

Edward, you've written us a novel! Welcome to the Lidded Lawyers Room.

Thanks.... verbal diahoerea, me dad calls it. I like to think it's the lawyer in me: after all, one of the reasons we have so many complicated ways of saying this is that way back when, we were paid by the word, so the 'ancestral voices' a lawyer hears are usually urging anything but brevity! lol

Poor academics (I'm also a part-time one). I've had the same complaint about academia here in Australia and regularly point out that academic journals are generally read by other academics - so their influence is reduced to a few others like them. Teaching, on the other hand, can change the world!
I love to teach. I also regularly write and have my own column, but I'd hate to be writing only to others like me. What a waste.

Tell me about it. The irony is that the less likely anyone is to actually read the stuff you publish, the more it counts for in terms of the research assessment stuff. :rage:

As for gravitating to vintage - I had a strange connection with the past long before I became a lawyer. I think I'd have found my way to vintage regardless of my profession. Thankfully, my profession allows me to indulge my interest. Wearing fedoras and pocket watches isn't too out of place here. Besides, we need to reintroduce some eccentricity into the ranks of this profession. We've tended to chase out all of law's "characters" so that we're just left with the pathologically boring and sensible crowd.

Oh, absolutely. My undergrads in particular know me for "the funny clothes". lol Much of academia has become rather staid in that respect, though the worst are those who lecture in denim. We do have a fairly relaxed dress code in the office, and folks wanting to wear jeans when not out and about is just fine with me, but it seems sloppy when teaching. Then the reason I fell into the habit of 'dressing up' to teach back in the day was as much to do with creating an image of myself as an authority figure as much as anything, being, back then, the same age as most of my students. (Ten years on, I look at them and think 'why are you all so damn young!!!) The one experience I was most horrified by was once seeing a couple of staff members from another department showing up for graduation, sitting on the platform in their jeans - fortunately, they were planted at the back!

Now Edward....about those photos....???

What photos? Where? I have an alibi for that night, I was with this lady....

Many people get law degrees with big money in their eyes and find out later they hate it, some just didn't practice the right thing, some just hate it in general. There are enough attorneys in my house, I'd rather shoot guns. I'm a recovering lobbyist, yes my name is Warbird and I am a lobbyist. I need a sponsor. I guess if I were to ever practice law, I would have to consider patents with an aerospace degree and as a former pilot, that besides government relations which may or may not be practicing law, would be my natural fit.

I dunno, there are a few lawyers I'd happily shoot!

You take women to excess, Doublegun??!! I wanna be you!

You can take a woman to excess, but you can't make her drink!

Oh, Harp, I'm also an aging Irish(-American) bachelor. My mother despairs of getting grandchildren, but I assure her that the forties are the prime for an Irishman. Have to give the wild geese of the soul time to return to the green fields of home after all.

I'm a pure Irish-Irish bachelor, and my mother is probably as bad. Little brother produced the grandchildren, so I figured I'm off the hook, but, hell's bells, as soon as I got cats she started with this "grandkittens" rubbish - exactly the same as she did when little brother got the cat, prior to the kids. She'd better not be thinking I'll follow the same path - absence of relationship on the horizon aside, I've been very clear I would genuinely rather die than have kids of my own.

I didn't hit law school until my thirties; however, I was-and still am-what
my mom called "an Irish Bachelor."

Apparently, Irishmen make the worst bachelors...lol

I don't know, I seem to be remarkably good at staying one!

Mr Darrow is one of my legal heroes. In fact, I began a regular feature in my column on legal heroes and Clarence Darrrow was the first one. The Monkey Trial still tickles me.

So, my fellow members of the Bar - who are your legal heroes?

Oh, interesting.... I think I have more villains than heroes! I'm very partial to Eady J's libel judgements, though. The one that sticks in my head most, probably, niether hero nor villain but unfortunate, was the prosecution lawyer in the Lady Chatterly's Lover obscenity trail back at the turn of the sixties, when Penguin published the work in its complete and unexpurgated form for the first time, a move widely considered to be a deliberate test of the new legislation. displaying how utterly out of touch he was, this man turned to the jury and said "Is this the sort of book you would want your wife or servants to read?" lol

Resolution 6: Kill all the lawyers!

I could name you a few with whom to commence! lol

 

[Spats McGee]

This isn't really a Perry Mason moment, but it was my first hearing. No real skill was required on my part, but it was fun nonetheless. The names have been changed to protect the . . . , well, I hesitate to call them "innocent," but I'll change the names anyway.

Several years ago, I was a civil rights lawyer. A civil rights defense lawyer. Most of my cases involved defending police officers from lawsuits for excessive force, illegal arrest, illegal search & seizure, etc. These are usually brought under federal law, so they go to federal court. Many of these cases involved Plaintiffs representing themselves, often from prison.

One such case involved an inmate who was suing a detective for excessive force. I was just a few years out of law school and I'd never actually made a courtroom appearance, except for my swearing-in. We'd done some standard discovery in that case, and one question we'd asked was: "Please list all of your witnesses and their relationship, if any, to any party to this action." The Plaintiff had responded with something like, "Bobby Lee, who is no kin to me." I remember this because it rhymed. Then we got a notice that the judge had scheduled an evidentiary hearing.

So we show up at the hearing, and the Plaintiff has two witnesses that he has subpoenaed. The Plaintiff testifies, then declines to call the first witness, even though she's been brought over from the county jail. The judge, puzzled, asks this Plaintiff why he doesn't want to call his own witness, even though she's available & under subpoena. His answer: Well, she's mad & doesn't want to testify, so I don't want to make her.

So the judge asks him to move on to the next witness. The Plaintiff declines to call the second witness, Bobby Lee. Now the judge is annoyed because this Plaintiff has just wasted his morning. The judge turns to the Plaintiff and the exchange goes something like this:

Judge: Mr. XXX, this is your chance. These are your witnesses. Why don't you want to call Mr. Lee?
Plaintiff: Because I haven't had a chance to tell him what happened.

(At that point, I think I'm home free. Plaintiff had his chance, declined to put on any witnesses besides himself.)

Judge (to me): Mr. Defenselawyer, would you like to call Mr. Lee as a witness?
Me: No, sir. Thank you.
Judge: *Sigh* Out of an abundance of caution, this Court will call Mr. Lee as its witness.

Oh, great. Mr. Lee takes the stand, states his name and goes through the formalities. The judge then begins questioning Mr. Lee, whose testimony brings out the following points:
1) He is the Plaintiff's cousin. (Wait! I thought he was "no kin" to the Plaintiff.)
2) He did not see my client arrest the Plaintiff.
3) He did not see my client strike the Plaintiff.
4) He has never seen my client cursing at the Plaintiff or anyone else.
5) He was nowhere near the scene of arrest on the date in question.

The judge then gave the Plaintiff the opportunity to ask questions. He didn't. As for me, well, Mr. Lee had just said almost everything I could have wished to hear. What exactly was I going to ask him? I certainly didn't want to discredit that testimony. I didn't ask any further questions.

 

[tortswon]

Spats, they're not all that easy, are they? Best, Sam

 

[Spats McGee]

No, Sam, they're not. But the defenses available to the officers are stout enough that seeing the inside of a courtroom on one was pretty rare. Most of those cases ended on MSJ.

 

[Atticus Finch]

As for me, well, Mr. Lee had just said almost everything I could have wished to hear. What exactly was I going to ask him? I certainly didn't want to discredit that testimony. I didn't ask any further questions.

My compliments, brother Spats. Clearly you attended a law school with an excellent trial advocacy program. I cannot tell you how many times I have seen attorneys lose perfectly willable cases because they just couldn't resist asking that......last......wrong.......question. :eusa_doh:

AF

 

[Spats McGee]

I can imagine. In law school, we were cautioned about that very problem while doing mock trial work. There comes a point where the best tactical solution is just to say, "Thank you," and sit down.

 

[C-dot]

Are there any criminal lawyers here? When I'm finished my Paralegal studies, I want to work under a criminal lawyer. There is a great demand for paralegals lately, though mostly in family law.

 

[tortswon]

One question may be too many

I can imagine. In law school, we were cautioned about that very problem while doing mock trial work. There comes a point where the best tactical solution is just to say, "Thank you," and sit down.

Taking that point one step farther Brother Spats, when I have a witness in front of me who is completely hostile and I believe the jury can see the witness' prejudice against my client, I have often used the tactic of saying, "I have no questions of this witness." I cannot tell you how many times the look of disappointment on the witness' face was better than anything I could have gotten from the witness and I use that disappointed look in my closing argument to defuse the witness' credibility.

You have to pick your spots to do this but I believe it is better to get a hostile witness off the stand than to allow him to keep shooting at my client's case. As my old trial advocacy professor said, "There is nothing in the rules of civil procedure that compels you to cross examine every witness." Best, Sam

 

[Spats McGee]

Are there any criminal lawyers here? When I'm finished my Paralegal studies, I want to work under a criminal lawyer. There is a great demand for paralegals lately, though mostly in family law.

Yes. Although I have applied for a deputy prosecuting attorney position, a big part of my current practice is criminal defense.

@ tortswon -- Good points & ones I'll keep in mind in the future.

 

[Ephraim Tutt]

Well...the Bar Association has being doing a roaring trade in my absence. Where to begin?

Oh that's easy....ladies first...

 

[Ephraim Tutt]

Are there any criminal lawyers here? When I'm finished my Paralegal studies, I want to work under a criminal lawyer. There is a great demand for paralegals lately, though mostly in family law.

Lovely to see you C-dot. I do have a thing for redheads, but don't let that scare you away. Make yourself at home - there's a few brothers of the criminal bar hanging around who could steer you aright.

Why does criminal law attract you? (I can understand the aversion to family law!)

 

[Ephraim Tutt]

Well, yes Sir....thank you, you may. Would you happen to have a Macanudo Hampton Court in your stash? AF

Actually Brother Atticus, I dunno! It's a lucky dip - take your pick.

 

[Ephraim Tutt]

Well, yes Sir....thank you, you may. Would you happen to have a Macanudo Hampton Court in your stash?

Now where was I? Oh yes. We were trying the case of the drunk habitual felon...


I’ve called my third witness. Two officers have testified that the building was entered through a two-foot hole in the rear wall. The exterior siding had been forcefully pulled away from the building, and the interior drywall had been punched into the building’s floor. They’ve also testified about the defendant’s degree of intoxication. One of the officers, a twenty-year veteran, has testified that he’s never seen a person as drunk as the defendant…at least not one who survived the experience. A junior officer has testified that the defendant couldn’t walk, couldn’t talk and when he was placed into the officer's patrol car, the defendant urinated “a bucketful” into the car’s back seat.

Now, the bar’s owner is on the stand. She’s testified about finding the defendant behind the bar and how frightened she was. She’s also testified at great length about the bar’s alcohol inventory system. She can’t be absolutely sure, but she doesn’t believe that there was much beer missing from the cooler, and she knows that no wine was missing. The bar only sells beer and wine…no hard liquor.

I begin to feel my case slipping away. The evidence is pointing to the defendant being grossly intoxicated before the breaking. If he was, he probably lacked the requisite intent needed to support his two felony charges. Of course, no felony convictions also means no habitual felon convictions. The defendant could walk free with two misdemeanors.

But, if he was that intoxicated before the breaking, how did he have the capacity to do all that was necessary to gain entry? When he was found, he was so hammered that he couldn’t have broken into a wet paper bag, much less a plywood wall. Heck, he couldn’t even stand up by himself. And he clearly had faculties enough to go after the cash register once he was inside.

I pause my examination for a moment to gather my thoughts and the courtroom goes quiet. My witness, being nervous and trying to fill the pregnant silence, begins to yammer from the stand. Just as I ask her to please be quiet, she mumbles, “…and he drank my darned Pine Sol, too.”

Me: “Do what?” “I’m sorry, Ms. XXX, tell me that again.”

Mr. Ayers: “Objection.”

The Court ignores the objection.

Witness: “Oh, yeah. I keep a little mason jar filled with Pine Sol under the bar. I dissolve peppermint candies in it and then pour it into the toilets at closing time, you know, so they’ll smell better the next day. Well, I had used it the night before he broke in, but there was still a little bit left in the jar. He musta drank what was left ‘cause when we cleaned up after the police were gone, I noticed my Pine Sol jar was empty. Musta thought it was peppermint schnapps!

Mr. Ayers: “OBJECTION!”

Of course, Jim’s objections were well founded---and the Court sustained them---but the cat had been let out of the bag. It was just one of those rare trial moments where, in an unplanned instant, all of the pieces of the puzzle fall together revealing the whole picture for everyone to see. If it were a movie, it would be the place where the soft, low violins begin to play while the camera pans around the faces of the characters. I look at the jury and all of them are staring at the defendant, some of them smiling that crooked little smile jurors use to express understanding. The judge is fixated on the ceiling, smiling the same crooked smile. I look at the defendant. His head is hung low and he’s staring into his lap. His lawyer is flipping through the pages of a legal pad, trying not to make eye contact with the jury.

It is my first Perry Mason moment but it has absolutely nothing to do with me. Officers had interviewed the Bar’s owner several times before they charged the defendant. She had never mentioned the Pine Sol. I had interviewed her before the trial. She didn’t tell me about the Pine Sol, either. None of us had ever asked her the right question…it was just as simple as that.

I asked for a recess, so that I could locate and subpoena a toxicologist. Thankfully, the Court granted my motion....

AF

What a great story - worthy of Ephraim Tutt! Clearly it was all the brilliant strategy of the prosecutor, albeit subconscious.

And yep - most of those uncontrolled statements have the opposite result. Good to see one for the good guys!

Have another stogy.

 

[Ephraim Tutt]

If you're looking for somebody to do market research on, hit me a PM!



Thanks.... verbal diahoerea, me dad calls it. I like to think it's the lawyer in me: after all, one of the reasons we have so many complicated ways of saying this is that way back when, we were paid by the word, so the 'ancestral voices' a lawyer hears are usually urging anything but brevity! lol



Tell me about it. The irony is that the less likely anyone is to actually read the stuff you publish, the more it counts for in terms of the research assessment stuff. :rage:



Oh, absolutely. My undergrads in particular know me for "the funny clothes". lol Much of academia has become rather staid in that respect, though the worst are those who lecture in denim. We do have a fairly relaxed dress code in the office, and folks wanting to wear jeans when not out and about is just fine with me, but it seems sloppy when teaching. Then the reason I fell into the habit of 'dressing up' to teach back in the day was as much to do with creating an image of myself as an authority figure as much as anything, being, back then, the same age as most of my students. (Ten years on, I look at them and think 'why are you all so damn young!!!) The one experience I was most horrified by was once seeing a couple of staff members from another department showing up for graduation, sitting on the platform in their jeans - fortunately, they were planted at the back!



What photos? Where? I have an alibi for that night, I was with this lady....



I dunno, there are a few lawyers I'd happily shoot!



You can take a woman to excess, but you can't make her drink!




I'm a pure Irish-Irish bachelor, and my mother is probably as bad. Little brother produced the grandchildren, so I figured I'm off the hook, but, hell's bells, as soon as I got cats she started with this "grandkittens" rubbish - exactly the same as she did when little brother got the cat, prior to the kids. She'd better not be thinking I'll follow the same path - absence of relationship on the horizon aside, I've been very clear I would genuinely rather die than have kids of my own.




I don't know, I seem to be remarkably good at staying one!




Oh, interesting.... I think I have more villains than heroes! I'm very partial to Eady J's libel judgements, though. The one that sticks in my head most, probably, niether hero nor villain but unfortunate, was the prosecution lawyer in the Lady Chatterly's Lover obscenity trail back at the turn of the sixties, when Penguin published the work in its complete and unexpurgated form for the first time, a move widely considered to be a deliberate test of the new legislation. displaying how utterly out of touch he was, this man turned to the jury and said "Is this the sort of book you would want your wife or servants to read?" lol



I could name you a few with whom to commence! lol

Edward, welcome back! And you've taken the time to mingle and respond. I think I must owe you a drink.

I can relate to creating an image. It's what I do best!

The English obsession with obscenity over that period culminated in the Oz Trial with John Mortimer as counsel for the defence of the group of Aussie larikins and Geoffrey Robertson, still in law school, assisting. Robertson's book on the trial is still worth a read.

 

[Ephraim Tutt]

I can imagine. In law school, we were cautioned about that very problem while doing mock trial work. There comes a point where the best tactical solution is just to say, "Thank you," and sit down.

Brother Spats...good to see you've attached "Foundation Member, Observation Bar Association" to your signature! Be proud!

Mock trials - I remember them well. We call them 'moot court' here. I loved them. I remember my first one at law school (an appeal with full bench). While waiting outside the courtroom, the two students before me had come out in tears. Hell! What did they get up to in there?!

I realised that day that I actually enjoyed the stouch, the argument, the cut and thrust, the contest. It felt like a tennis match with the arguments and questions being the tennis ball zipping back and forth over the net. The judges were being as mean as they could and I was returning fire. Man, I did get an adrenalin rush. Still do when I find myself in legal arguments. Sometimes I think I enjoy it too much and have to restrain myself.

And I scored well in that first moot too!