Well I guess Nassau County(NY)District Attorney Rice is getting her wish, more trials. There isn't a juror to be found in the District Courthouse. Hence, for the second day, we wait for jurors to show up so we can pick our jury. As I had no court today, (we are technically engaged, so we had already sent out our affidavits of engagement, so we worked on jury instructions)I had time to peruse the Law Journal and noticed a couple of interesting stories.
The first one is a pet peeve of mine. District Attorney's refusing to return cars as part of their never ending attempt to screw defendants not convicted of crimes. It seems more and more, District attorney's are trying to hold onto cars of defendants as "evidence." It is a bush league move but judges routinely throw up their hands and say "what do you want me to do, I have no jurisdiction." Well, according to the US Court of Appeals for the Second Circuit, now they do.
In Krimstock v. Kelly,05-6691, (2d Cir. 2006) the Second Circuit ruled that prosecutors cannot keep vehicles, pre-trial, without the permission of the court.
While the court seems to permit an ex-parte motion for same, it seems to me that the legislature should require a hearing and place the burden of proof on the prosecution as the public policy issues (the ability of accused people to posess their property while presumed innocent and the ability of accused individuals to maintain their jobs and thus pay their own attorneys) outweigh the governments need to hold the vehicle pending trial. After all, in most cases the vehicle is never placed into evidence. It is merely held for pictures. It is just another way for prosecutors to inconvienence defendants so that they cannot afford those pesky defense lawyers who stand in the way of the Government and its railroading of the people they accuse of a crime.
As for the second article, seems our favorite former judge Kenneth Gartner has another post-retirement decsion published. This time Ken, we don't agree with your holding, but we do like your reasoning.
In People v. Schulz, (Nassau District CNo. 6114dex No.6114-05) the defendant is charged with discharging a gun within close proximity to a crowd of people (whom he suggests was after him.)It appears that within the decision it is agreed that the blast was fired up into the air (ala The Three Amigos) and that no one was injured.paraplegicparapalegic from an earlier racially charged assault is charged with Reckless Endangerment 2d, a Class A Misdemeanor, which carries up to a year in the county jail.
The law on the issue of whether or not a gun fired at noone and shot up into the air, is reckless endangerment, is muddy at best. After all such a shot could be a warning shot, or a shot in celebration, calculated not to injure anyone.
Judge Gartner reasoned that he could not decide whether the shot was illegal because the charging Information does not contain sufficient indicia of how close the crowd was to the weapon when it was discharged. He therefore held that the issue had to be decided by a jury.
Uh no judge, the people draft these Charging Informations. It is their job to get them specific enough to charge an offense. A jury shouldn't be left to decide what is clearly a legal decision.
I guess District Attorney Rice's office "dodged a bullet" on this one... I crack myself up sometimes.
Maybe tomorrow we will get a jury panel.
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