NationStates Jolt Archive

Here's a little different slant on justice. The bad guy didn't get off and neither did the prosecutor. Even someone as untrained in law as I am ( I don't even watch CourtTV) knows that one cannot be forced to testify against themselves. Fifth amendment stuff, right?

Well, a Cuyahoga county prosecutor screwed it up. Judge Nancy Margaret Russo set things straight. WTOL-TV (http://www.wtol.com/Global/story.asp?S=6528800) reports that "Russo declared a mistrial May Second after assistant prosecutor Lawrence Floyd breached courtroom regulations and pointed out in his closing arguments that Newcomb refused to testify in his own defense."

What part of this is justice delivered? That the prosecutor was fined $26,000 to cover the cost of a new trial. So whether he screwed up accidentally or on purpose, the effect is the same. Taxpayers don't have to foot the bill for a lawyer's grandstanding.

Wow, unanimous agreement that this is the right thing to do. I'm surprised.

I'm not exactly in touch with this case here, but sounds like a good idea. No unneccesary taxes for the people.

Here's a little different slant on justice. The bad guy didn't get off and neither did the prosecutor. Even someone as untrained in law as I am ( I don't even watch CourtTV) knows that one cannot be forced to testify against themselves. Fifth amendment stuff, right?

Well, a Cuyahoga county prosecutor screwed it up. Judge Nancy Margaret Russo set things straight. WTOL-TV (http://www.wtol.com/Global/story.asp?S=6528800) reports that "Russo declared a mistrial May Second after assistant prosecutor Lawrence Floyd breached courtroom regulations and pointed out in his closing arguments that Newcomb refused to testify in his own defense."

What part of this is justice delivered? That the prosecutor was fined $26,000 to cover the cost of a new trial. So whether he screwed up accidentally or on purpose, the effect is the same. Taxpayers don't have to foot the bill for a lawyer's grandstanding.

Good,r ight move. Although since this is state not federal technically it's 14th amendment.

But, meh.

Good,r ight move. Although since this is state not federal technically it's 14th amendment.

But, meh.
That's what I get for not watching "Law and Order".

Taxpayers don't have to foot the bill for a lawyer's grandstanding.

Dont get too excited. The article said that the prosecutor's "OFFICE" was fined. Not the prosecutor personally. And, who funds the budget for the prosecutor's office? The taxpayers.

Too bad.

Well done.

Good,r ight move. Although since this is state not federal technically it's 14th amendment.

But, meh.

It's both.
It's the 5th applied by the 14th.

It's both.
It's the 5th applied by the 14th.

no. It's the 14th. they are seperate amendments. The 14th doesn't "apply" any other amendments, it is its own amendment.

However it mirrors the 5th in this regard, but it doesn't apply anything, it is its own seperate amendment.

no. It's the 14th. they are seperate amendments. The 14th doesn't "apply" any other amendments, it is its own amendment.

However it mirrors the 5th in this regard, but it doesn't apply anything, it is its own seperate amendment.

I'm afraid you're wrong. The 14th acts as an "enabling" act (through it's "equal rights clause") for the rights granted under the federal constitution to be applied to the states. Prior to the 14th, the states regularly violated the rights granted under the bill of rights, particularly in the case of minorities.

In this case, the 14th is enabling application of the rights under the 5th, protection against self-incrimination.

Dont get too excited. The article said that the prosecutor's "OFFICE" was fined. Not the prosecutor personally. And, who funds the budget for the prosecutor's office? The taxpayers.

Too bad.
Close enough. The Prosecutor is going to have to figure out how to make due with $26,000 less than he had before. Maybe that means no raises, maybe just bring-your-own-toilet-paper. Still he has to cover a shortfall in his budget.

Close enough. The Prosecutor is going to have to figure out how to make due with $26,000 less than he had before. Maybe that means no raises, maybe just bring-your-own-toilet-paper. Still he has to cover a shortfall in his budget.

or maybe it means less staffing or less hours spent per case ... great idea :rolleyes:

In the end the tax payers are going to pay either directly or through lack of services provided

or maybe it means less staffing or less hours spent per case ... great idea :rolleyes:

In the end the tax payers are going to pay either directly or through lack of services provided

I don't know...Do PAs bill hours to a case? I would have thought they were all salaried and billable hours wouldn't mean much.

I don't know...Do PAs bill hours to a case? I would have thought they were all salaried and billable hours wouldn't mean much.

Not sure to be honest, would be interesting to find out. Either way I am not nearly as happy that the office got the charge as I would be with the individual responsible, I have a feeling in one way or another the tax payers will pay, I just hope its not because some over worked prosecutor does not have the time to take on case properly and lets someone dangerous go free

Not sure to be honest, would be interesting to find out. Either way I am not nearly as happy that the office got the charge as I would be with the individual responsible, I have a feeling in one way or another the tax payers will pay, I just hope its not because some over worked prosecutor does not have the time to take on case properly and lets someone dangerous go free
I agree. It would have been much more satisfying to see the offending prosecutor get fined. Especially for what seems to be a mistake that any law student would avoid.

I'm afraid you're wrong. The 14th acts as an "enabling" act (through it's "equal rights clause", there is no equal rights clause in the 14th amendment...you MIGHT be perhaps refering to the privlidges or immunities clause, however I think you're talking about the equal protection clause) for the rights granted under the federal constitution to be applied to the states. Prior to the 14th, the states regularly violated the rights granted under the bill of rights, particularly in the case of minorities.

In this case, the 14th is enabling application of the rights under the 5th, protection against self-incrimination.

No, it does not. What you're saying is a somewhat gross oversimplification.

The 14th amendment is not pure enabling legislation, which is to say that it does not simply take the 5th amendment (or other amendments in the bill of rights) and apply them to the states. In fact the equal protection clause (not equal rights clause) doesn't function in that regard, at all. Te equal protection clause states "nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws."

As you can see, the equal protection clause is purely intrastate, not interstate. Indeed, if all people were granted equal protection of state law beyond the jurisdiction of the states, then different states would not be allowed to have different laws, period, as say...murder in one state gets you life, and another death. The equal protection clause states that those within the jurisdiction of any state are afforded equal protection of the laws of that state.

The section that bares relevance on to what you're saying is, rather, the liberty clause, (edit: some lawyers/scholars refer to this as the "due process" clause. Either one is acceptable, I prefer "liberty" clause, but due process clause is also used) which states no state shall deprive any citizen of life, liberty, or property without due process of law. In this instance, the 14th states that no state can deprive one of "liberty" but does a poor job at defining what that liberty is. Over generations of scotus interpretation, the term liberty has become defined roughly, and not necessarily exclusively, as that which the bill of rights offers. Which is to say, those liberties protected, at state level, by the 14th, ARE THE SAME LIBERTIES protected at the federal level by the bill of rights.

That does NOT mean the 14th amendment is enabling legislation. Rather it is its own, entirely seperate source of legal rights, however those rights mirror the rights granted, at the federal level, by other amendments. the 14th amendment mimics the bill of rights, however it does not simply transfer them to the state level. It does not. States are not bound by the 1st, 4th, 5th, 6th amendments. Period. They are not. No transferenece, no enabling, they just do not apply.

States, however, ARE bound by the 14th amendment, and the 14th amendment binds those states IN THE SAME WAY as the 1st, 4th, 5th, 6th amendments bind the federal government. Which is not the same thing at all as saying the 14th amendment makes the 5th amendment apply to the states. It just doesn't.

No, it does not. What you're saying is a somewhat gross oversimplification.

The 14th amendment is not pure enabling legislation, which is to say that it does not simply take the 5th amendment (or other amendments in the bill of rights) and apply them to the states. In fact the equal protection clause (not equal rights clause) doesn't function in that regard, at all. Te equal protection clause states "nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws."

As you can see, the equal protection clause is purely intrastate, not interstate. Indeed, if all people were granted equal protection of state law beyond the jurisdiction of the states, then different states would not be allowed to have different laws, period, as say...murder in one state gets you life, and another death. The equal protection clause states that those within the jurisdiction of any state are afforded equal protection of the laws of that state.

The section that bares relevance on to what you're saying is, rather, the liberty clause, (edit: some lawyers/scholars refer to this as the "due process" clause. Either one is acceptable, I prefer "liberty" clause, but due process clause is also used) which states no state shall deprive any citizen of life, liberty, or property without due process of law. In this instance, the 14th states that no state can deprive one of "liberty" but does a poor job at defining what that liberty is. Over generations of scotus interpretation, the term liberty has become defined roughly, and not necessarily exclusively, as that which the bill of rights offers. Which is to say, those liberties protected, at state level, by the 14th, ARE THE SAME LIBERTIES protected at the federal level by the bill of rights.

That does NOT mean the 14th amendment is enabling legislation. Rather it is its own, entirely seperate source of legal rights, however those rights mirror the rights granted, at the federal level, by other amendments. the 14th amendment mimics the bill of rights, however it does not simply transfer them to the state level. It does not. States are not bound by the 1st, 4th, 5th, 6th amendments. Period. They are not. No transferenece, no enabling, they just do not apply.

States, however, ARE bound by the 14th amendment, and the 14th amendment binds those states IN THE SAME WAY as the 1st, 4th, 5th, 6th amendments bind the federal government. Which is not the same thing at all as saying the 14th amendment makes the 5th amendment apply to the states. It just doesn't.

Yet the Federal Supreme Court, and it's continuing process of "Incorporation", would appear to entirely disagree with you.

Yet the Federal Supreme Court, and it's continuing process of "Incorporation", would appear to entirely disagree with you.

um...no, it wouldn't.

In fact, incorporation is EXACTLY what i described. Which is to say that rights, effective on the federal government, have been INCORPORATED, IE made part of, the 14th amendment.

Which means that those rights given are given by the 14th amendment, rights that have been INCORPORATED into it.

It is its own source of rights. The rights that it is a source of have been incorporated, taken from, other rights, and built into itself. It is NOT enabling legislation, it does NOT merely APPLY the 5th amendment to the states. There is a fundamental and extraordinarily important distinction between enabling legislation, and incorporated legislation. Enabling legislation makes other legislation take effect, it does not do anything in and of itself, other than to empower other legislation.

Incorporated legislation takes in legal concepts from OTHER legislation, and self empowers it. You first say that the 14th amendment is enabling legislation and THEN go on to admit it is, in fact, incorporated legislation, which is what I"ve been saying the entire time. Enabling legislation and incoroporating legislation are fundamentally different in method (although in some cases similar in effect).

Trust me on this, I am a lawyer after all, went to lawschool, passed the bar and everything. I'm well aware of the supreme court's (and as an aside, the proper name is Supreme Court of the United States not Federal Supreme Court) precident. Incorporation is RADICALLY different than enabling legislation

um...no, it wouldn't.

In fact, incorporation is EXACTLY what i described. Which is to say that rights, effective on the federal government, have been INCORPORATED, IE made part of, the 14th amendment.

Which means that those rights given are given by the 14th amendment, rights that have been INCORPORATED into it.

It is its own source of rights. The rights that it is a source of have been incorporated, taken from, other rights, and built into itself. It is NOT enabling legislation, it does NOT merely APPLY the 5th amendment to the states. There is a fundamental and extraordinarily important distinction between enabling legislation, and incorporated legislation. Enabling legislation makes other legislation take effect, it does not do anything in and of itself, other than to empower other legislation.

Incorporated legislation takes in legal concepts from OTHER legislation, and self empowers it. You first say that the 14th amendment is enabling legislation and THEN go on to admit it is, in fact, incorporated legislation, which is what I"ve been saying the entire time. Enabling legislation and incoroporating legislation are fundamentally different in method (although in some cases similar in effect).

Trust me on this, I am a lawyer after all, went to lawschool, passed the bar and everything. I'm well aware of the supreme court's (and as an aside, the proper name is Supreme Court of the United States not Federal Supreme Court) precident. Incorporation is RADICALLY different than enabling legislation

You'd think a lawyer that was correcting someone on the proper name for the USSC would spell important legal words like law school, incorporating and precedent properly.

You'd think a lawyer that was correcting someone on the proper name for the USSC would spell important legal words like law school, incorporating and precedent properly.


ahh, but herein lies the difference, when one discusses such things as legal concepts, legal distinctions are highly important (IE "federal supreme court" and "supreme court of the united states" mean very different things, as do "equal rights clause" and "equal protection clause"). When discussing legal concepts, proper legal terms are important.

We weren't discussing spelling or grammar, and as such, since I was not correcting his spelling, in a conversation about spelling, my own spelling errors are somewhat irrelevant.

We WERE discussing law, and legal theory, and when you discuss law and legal theory, propert terminology is in the utmost importance, as with law, the slightest change can result in wildly different meanings, and as such it's crucial that such terms be used properly, lest ones entire meaning be lost.

On the other hand, whether, in my haste, I spell "incorporating" wrong does not change the function of my argument. Saying "federal court" or "equal rights" clause, however, does.

I correct LEGAL terms in a LEGAL discussion because legal terms are very, VERY precise, and it is important that the correct ones be used.

/derail

And now to bring it back on topic, I would have much rathered this come out of the lawyer's own pocket