The NSA and Civil Liberties - What's the deal pickle?

Let the Debate begin.

Should the government be able to track and know who we've called, when we've called, and how long we talked?  

Should the government know what websites we visit, who we email,  and what we email about?

Some say "YES, Absolutely".  It is critical to our safety.  Others say "No Way".  The government should not be spying on everyone in the Country and this doesn't help anyway.  

We don't know all the details yet, and probably never will.    We'll never know exactly what data is collected, how it's used, who has access, how is access tracked, etc., etc.

Therefore, since we're never going to get all the facts, I think the issue comes down to who has the "burden of proof".   By that I mean:

"The burden of proof (Latin: onus probandi) is the obligation resting on a party in a trial to produce the evidence that will shift the conclusion away from the default position to one's own position."


If the Government has the "burden", as they do in criminal cases, then the default position is that this "data collection" or "spying" should not be occuring unless it is absolutely vital and necessary for our protection.  If the public, or at least the people who care about civil liberties, have the burden, then the default position is that its NOT OK, unless it's unnecessary or the government is somehow abusing the collected information.

Initially, our Republic was founded and established to distrust government.  That's why we have the Bill of Rights, the division of power between the Federal and State governments (at least we once did), and the checks and balances inherit in the three branches.

However, as the "nanny" state has emerged and grown, Americans have become more accustomed to government oversight, regulation, and control.  Recent polls on this subject indicate that most Americans don't care if the government collects this data.  Even Republicans are sharply divided over this issue.

Rand Paul believes the Government is overreaching, while John McCain and John Boehner believe the Government is well within its bounds by gathering this information.

What do you think?

A letter from Jefferson - Stay out of my relationship with God

Somethings can't be said better.  For that reason, I'm going to post a letter from Jefferson to a Mrs. Smith. The subject deals with some who criticize Jefferson based upon his religious beliefs. Some of the old phrases are awkward, but bear with it.

I have received, dear Madam, your very friendly letter of July 21st, and assure you that I feel with deep sensibility its kind expressions towards myself, and the more as from a person than whom no others could be more in sympathy with my own affections. I often call to mind the occasions of knowing your worth, which the societies of Washington furnished; and none more than those derived from your much valued visit to Monticello. I recognize the same motives of goodness in the solicitude you express on the rumor supposed to proceed from a letter of mine to Charles Thomson, on the subject of the Christian religion. It is true that, in writing to the translator of the Bible and Testament, that subject was mentioned; but equally so that no adherence to any particular mode of Christianity was there expressed, nor any change of opinions suggested. A change from what? the priests indeed have heretofore thought proper to ascribe to me religious, or rather anti-religious sentiments, of their own fabric, but such as soothed their resentments against the act of Virginia for establishing religious freedom. They wished him to be thought atheist, deist, or devil, who could advocate freedom from their religious dictations. But I have ever thought religion a concern purely between our God and our consciences, for which we were accountable to him, and not to the priests. I never told my own religion, nor scrutinized that of another. I never attempted to make a convert, nor wished to change another's creed. I have ever judged of the religion of others by their lives, and by this test, my dear Madam, I have been satisfied yours must be an excellent one, to have produced a life of such exemplary virtue and correctness. For it is in our lives, and not from our words, that our religion must be read. By the same test the world must judge me. But this does not satisfy the priesthood. They must have a positive, a declared assent to all their interested absurdities. My opinion is that there would never have been an infidel, if there had never been a priest. The artificial structures they have built on the purest of all moral systems, for the purpose of deriving from it pence and power, revolts those who think for themselves, and who read in that system only what is really there. These, therefore, they brand with such nick-names as their enmity chooses gratuitously to impute. I have left the world, in silence, to judge of causes from their effects; and I am consoled in this course, my dear friend, when I perceive the candor with which I am judged by your justice and discernment; and that, notwithstanding the slanders of the saints, my fellow citizens have thought me worthy of trusts. The imputations of irreligion having spent their force; they think an imputation of change might now be turned to account as a holster for their duperies. I shall leave them, as heretofore, to grope on in the dark.

Our family at Monticello is all in good health; Ellen speaking of you with affection, and Mrs. Randolph always regretting the accident which so far deprived her of the happiness of your former visit.

She still cherishes the hope of some future renewal of that kindness; in which we all join her, as in the assurances of affectionate attachment and respect.

I couldn't come close to saying things as well as Jefferson, so I won't try.

Enough about taxes - let's talk Death

You always hear the old saying "Nothing is certain but death and taxes".  Well, I'm all talked out on taxes, whether we should raise 'em, cut 'em, reform, revamp, reverse, flatten, or whatever.  Let's get on to something less depressing - death.

Death is all over the news.  Newtown school shootings, Boston Bombings, Fertilizer plants exploding, killer viruses, etc, etc.  Five minutes of a news program and everyone is afraid to leave the bathroom.  Very scary stuff, but what are the facts?  For that, I turn to the CDC (2010 data):

• Number of deaths: 2,468,435
• Death rate: 799.5 deaths per 100,000 population
• Life expectancy: 78.7 years
• Infant Mortality rate: 6.15 deaths per 1,000 live births

OK, well, I guess the good news is that 78.7 isn't all that bad.  But when we die, what kills us?  Terrorists, people with guns, or wild pit bulls?  Actually good old pneumonia kills more folks than any of the horrific things you hear about on TV.  In fact, more people kill themselves than are killed by other people. FACTS (again from the CDC):

Number of deaths for leading causes of death:

• Heart disease: 597,689
• Cancer: 574,743
• Chronic lower respiratory diseases: 138,080
• Stroke (cerebrovascular diseases): 129,476
• Accidents (unintentional injuries): 120,859
• Alzheimer's disease: 83,494
• Diabetes: 69,071
• Nephritis, nephrotic syndrome, and nephrosis: 50,476
• Influenza and Pneumonia: 50,097
• Intentional self-harm (suicide): 38,364

So why all the news coverage about murder and mayhem?  Money.  News organizations today aren't concerned with informing you about relevant information for your life.  They want to make money, and they do that by selling ADs.  To sell ADs, they need you to watch.  No corporation is going to pay money to put an advertisement on a network or show that no one watches.   How do they get you to watch?  They scare you.  What's the best way to scare you - DEATH.

By the way, the official number of homicides for 2010 - 16,259.  More than twice as many people die at their own hand as die as the result of someone else's harmful intent.  So, if after watching the news you start to get worried that someone is about to kill you - statistically speaking, you better keep an eye on the person staring back at you in the mirror.

   

Term Limits - the cure for what ails us?

Despite whatever your political leanings actually are, almost everyone agrees that our government, especially at the federal level, is broke.   The Senate hasn't passed a budget in years, the Executive now portends the power to kill citizens at will without Due Process, and the Judiciary, well... no comment.

So is there a magical answer?  Many, and I for one, think there is - term limits. Our system is dysfunctional because many "came to do good - but stayed to do well".  Americans, regardless of political party affiliation or  age broadly support term limits for the U.S. House and Senate. Unfortunately most politicians don't support term limits.  As Thomas Sowell put it in his recent column:

"Those who oppose term limits express fears of having government run by amateurs, rather than by people with long experience in politics. But this country was created by people who were not career politicians, but who put aside their own private careers to serve in office during a critical time."

I submit to you that when more than 70% of a population as diverse as ours supports term limits, it's time for it to happen.

It can happen here too

   Don't believe the nonsense you hear about taxes?   The thing you need to understand is that the government taxes us whenever it spends money.  Even though our tax rates are not the highest they have ever been, we are running the the largest deficits we have ever run.   If we don't get it under control, we will end up like Cypress.

   Without debate:

"The move to tax bank deposits is a first in the euro-zone crisis, and analysts fretted that the tax's wide scope and its sudden nature—banks are shut and Cyprus plans to deduct the levy before they reopen—could shake the currency bloc's wobbly confidence. On Monday, Cyprus put off parliamentary debate on the proposal until Tuesday, two days behind the original schedule, and said banks will remained closed until Thursday."

Cypress got into this mess because they failed to understand that Math isn't optional.  Sooner or later the US will be faced with a similar choice unless our government learns the same.

Another terrible loss for Army

     I wish that I had something good to say about the Army/Navy game on Saturday, but alas, I do not.  Army lost the game because they could not accomplish the most fundamental thing a football team must do - hold the ball.  At the end of the game, I was not cheering for my Army team to "block", or "run" or "hit 'em harder".  My only cheer was "hold the ball" - because I knew that if we could  simply hold the ball, we would beat Navy.

     It was NOT meant to be.  Army could NOT accomplish the most fundamental of things.  AND, I simply don't understand why.  These kids are NOT idiots.  They understand they must hold the ball.  They know that is step 1.  They know it doesn't matter how spectacular the run was, or how great the catch was, if you FUMBLE the ball.   For heaven's sake it is the most fundamental of fundamentals - how can we possible  screw it up so BADLY.  It's like going on to the battlefield, but forgetting your ammunition.  It's incomprehensible.

     Army is now behind 8 games in the series.  You can get the results here .    Army has lost 11 straight games.  ELEVEN.  

     Please, ARMY team, I can handle losing to Navy next year, or even the next 11 years, but please, please, no more fumbles.  Why? I can handle getting beat - I don't like it, but I can handle it.  What is unbearable, is when we beat ourselves. 

Theft by Shoplifting - What to do?

What is Theft by Shoplifting?

If you or someone you know has been charged with Theft by Shoplifting, then you need to know some basics.  Please be aware that these are just the basics.   The official code section is O.C.G.A. § 16-8-14.

Georgia Definition of Theft by Shoplifting

A person commits the offense of theft by shoplifting when he alone or in concert with another person, with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, does any of the following:

(1)   Conceals or takes possession of the goods or merchandise of any store or retail establishment;

(2)   Alters the price tag or other price marking on goods or merchandise of any store or retail establishment;

(3)   Transfers the goods or merchandise of any store or retail establishment from one container to another;

(4)   Interchanges the label or price tag from one item of merchandise with a label or price tag for another item of merchandise; or

(5)   Wrongfully causes the amount paid to be less than the merchant's stated price for the merchandise.

Most convictions are obtained based upon (1) above.  It is important to realize that a person does not have to actually take the merchandise out of the store in order to be charged.

Punishment for Theft by Shoplifting

If the property allegedly stolen is less than $300 in value, then the offense is a simple misdemeanor and the max punishment is one year of confinement and a $1000 fine.  If the property value is $300 or more, the offense is a felony and the possible sentence is a maximum of 10 years.

Finally, a fourth shoplifting offense is automatically treated as a felony regardless of the property value.

Possible Defenses to Theft by Shoplifting

This is not meant to be an exhaustive list of all possible defenses.  Every situation is unique and must be considered based upon the facts associated with the specific case.  Having said that, here are some things to consider.

1. Not me – you got the wrong guy (or gal).
2. I was going to pay.  (Read the cases below)
3. The property does not cost $300. (for felony cases)
4. Mistake – I didn’t realize I didn’t pay for that.

Interesting Cases concerning Theft by Shoplifting

Racquemore v. State, 204 Ga. App. 88, 418 S.E.2d 448 (1992) - The state proved the element of intent to appropriate the merchandise for defendant's own use, where defendant was seen stuffing two packages of meat into the waist of defendant's trousers and pulling defendant's shirt down over them, but returned the meat to the display case after the store security guard and store manager started watching defendant's actions and following defendant.

Taylor v. State, 270 Ga. App. 637, 607 S.E.2d 163 (2004) - Because a co-manager of a grocery store saw defendant, who was pushing a shopping cart, take a package of ham hocks and some tomatoes and place them in defendant's purse, and when defendant approached the checkout counter, the co-manager confronted defendant and defendant retreated into the store and discarded the two items on a display, the evidence was sufficient to support a shoplifting conviction; the question of whether defendant's placement of the goods in the purse showed an intent to commit theft by shoplifting was one for the jury and the conviction was affirmed.

Simmons v. State, 278 Ga. App. 372, 629 S.E.2d 86 (2006) - Defendant's act of concealing liquor bottles in the defendant's pants, with no intent to pay for them, despite the fact that the defendant put the bottles back on the shelf before leaving the store, was sufficient to support a conviction.

What should I do?

Pick up the phone and call.  My office number is 678-383-1690.  I will discuss your case with you and help you determine what the next step is.

Removal from Georgia Sex Offender Registry

Overview

            In most cases, the most severe criminal sanction involves incarceration.  However, in cases involving sex offenses, a lifelong requirement to register as a sex offender is a disastrous consequence preventing individuals from obtaining employment and pursuing other endeavors.   Many defendants find the lifelong registration requirement devastating.

            There is good news.  Recently, the legislature enacted O.C.G.A. § 42-1-9, a means by which certain Sex Offenders may seek removal from the Sex Offender Registry.  It is not easy and it is not available to every offender.  The first step is to determine eligibility.

Specifics

Everyone on the registry wants to be removed.  What does it take?  To be eligible, the offender must fall in one of the four categories:

1.)      Disabled Persons:  The Offender must have completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12; and

·        be confined to a hospice facility, skilled nursing home, residential care facility for the elderly, or nursing home; or

·        be totally and permanently disabled as such term is defined in Code Section 49-4-80; or

·        be otherwise seriously physically incapacitated due to illness or injury;

2.)      Romeo & Juliet:  The Offender was sentenced for a crime that became punishable as a misdemeanor on or after July 1, 2006, and meets the criteria set forth in subparagraphs (c)(1)(A) through (c)(1)(F) of Code Section 17-10-6.2;

3.)      Non-sexual Offense:  The Offender was required to register solely because he or she was convicted of kidnapping or false imprisonment involving a minor and such offense did not involve a sexual offense against such minor or an attempt to commit a sexual offense against such minor. For purposes of this paragraph, the term "sexual offense" means any offense listed in division (a)(10)(B)(i) or (a)(10)(B)(iv) through (a)(10)(B)(xix) of Code Section 42-1-12; or

4.)      Everyone Else:  The Offender has completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12 and meets the criteria set forth in subparagraphs (c)(1)(A) through (c)(1)(F) of Code Section 17-10-6.2. and

·        either ten years have elapsed since the end of the sentence or

·        the Offender is considered a Level I risk by the Sex Offender Review Board.

The disqualifiers mentioned in O.C.G.A. § 17-10-6.2 are:

(A)   The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16;

(B)   The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;

(C)   The court has not found evidence of a relevant similar transaction;

(D)   The victim did not suffer any intentional physical harm during the commission of the offense;

(E)    The offense did not involve the transportation of the victim; and

(F)    The victim was not physically restrained during the commission of the offense.

Next Steps

            If you meet the eligibility requirements, then you may file a Petition for Removal from the Sex Offender Registry.  Additional requirements exist regarding venue, proper service of the petition, proper requirements for requesting a hearing, and necessary requests for relief.   Therefore, the assistance of legal counsel is critical.  Should your Petition fail for some reason, you must wait two years to file another Petition.

If you need help, call me at 678-383-1690 or visit my website at http://www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Georgia First Offender Act

The First Offender Act is an alternative sentencing mechanism that allows someone to accept responsibility for a mistake, pay his or debt to society, and avoid the label “Convicted Felon”.

Sentencing under the First Offender Act is discretionary and only available once. O.C.G.A. § 42-8-60 states:

(a) Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant:

(1) Defer further proceeding and place the defendant on probation as provided by law; or

(2) Sentence the defendant to a term of confinement as provided by law.

Pursuant to O.C.G.A. § 42-8-62, “[u]pon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement, the defendant shall be discharged without court adjudication of guilt. Except for the registration requirements under the state sexual offender registry and except as otherwise provided in Code Section 42-8- 63.1, the discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties; and the defendant shall not be considered to have a criminal conviction.”

The First Offender Act is a “double-edged” sword. Under O.C.G.A. § 42-8-60, “[u]pon violation by the defendant of the terms of probation, upon a conviction for another crime during the period of probation, or upon the court determining that the defendant is or was not eligible for sentencing under this article, the court may enter an adjudication of guilt and proceed as otherwise provided by law.”

What happens if I violate the terms of probation

Upon a revocation of a defendant previously sentenced under the First Offender Act, the Court which sentenced the defendant may resentence him/her to the maximum sentence penalty allowable under the law.

What Crimes are not available for First Offender Treatment

First Offender Sentencing is not available to defendants in the following classes of cases:

(1) A serious violent felony as defined in Code Section 17-10- 6.1;

(2) A sexual offense as defined in Code Section 17-10-6.2;

(3) Sexual exploitation of a minor as defined in Code Section 16-12-100;

(4) Electronically furnishing obscene material to a minor as defined in Code Section 16-12-100.1; or

(5) Computer pornography and child exploitation, as defined in Code Section 16-12-100.2.

Interesting First Offender Cases

Wilson v. State, 259 Ga. App. 627, 578 S.E.2d 260 (2003) - Under O.C.G.A. § 42-8-60(a), a trial court may place a first offender defendant on probation or sentence the defendant to a term of confinement as provided by law and nothing in the statute mandates a probationary period for first offenders; on the contrary, a trial court exercises its discretion in determining whether to grant probation to a first offender. Therefore, defendant, who was sentenced as recommended by the plea agreement, properly had defendant's motion to correct sentence denied.

State v. Stulb, 296 Ga. App. 510, 675 S.E.2d 253 (2009). After a defendant was convicted for statutory rape, the trial court lacked jurisdiction to resentence the defendant as a first offender or to rescind the conviction or confinement portion of the sentence. First offender treatment was only permitted before a defendant had been adjudicated guilty and sentenced.

Crawford v. State, 166 Ga. App. 272, 304 S.E.2d 443 (1983). The trial court does not err in imposing a greater sentence on defendant than the original first offender sentence, in revoking defendant's earlier probation, where the first offender sentence of probation plainly stated, "If such probation is revoked or cancelled, the court may adjudge the defendant guilty of the above offense and impose any sentence permitted by law for the ... offense."

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Aggravated Assault in Georgia

What about Aggravated Assault?

If you or someone you know has been charged with Aggravated Assault, then you need to know some basics. Please be aware that these are just the basics.

Georgia Definition of Aggravated Assault

A person commits the offense of aggravated assault when he or she assaults:

(1) With intent to murder, to rape, or to rob;

(2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; or

(3) A person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons.

Punishment for Aggravated Assault

Generally, the punishment is a max of 20 years. However, depending on the status of the victim, there can be certain mandatory minimums and higher maximums.

Possible Defenses to Aggravated Assault

This is not meant to be an exhaustive list of all possible defenses. Every situation is unique and must be considered based upon the facts associated with the specific case. Having said that, here are some things to consider.

1. Not me – you got the wrong guy (or gal).
2. Self-Defense – I was afraid for my safety or someone else’s safety.
3. No deadly weapon – I had a cell phone not a gun;
4. Victim didn’t know – The victim was unconscious, asleep, or otherwise incapacitated. (Patterson v. State, 192 Ga. App. 449, 385 S.E.2d 311).

Interesting Cases concerning Aggravated Assault

Robertson v. State, 245 Ga. App. 649, 538 S.E.2d 755 (2000). - When a defendant intentionally shoots several times into a group of people intending to harm only one of them, a jury would be authorized to find defendant guilty of aggravated assault against each person in the group.

Miller v. State, 292 Ga. App. 641, 666 S.E.2d 35 (2008). In an aggravated assault case, since no witness saw a weapon or "sharp instrument" as alleged in the indictment, evidence that as a result of the defendant's attack, the victim suffered a clean cut from the forehead to the lip was sufficient to allow the jury to infer that the wound was caused by a sharp instrument. Evidence as to wounds inflicted was sufficient for a jury to infer a weapon's character.

Haugland v. State, 253 Ga. App. 423, 560 S.E.2d 50 (2002). Jury could find that a defendant's hands and feet, depending upon their use, wounds inflicted, and other surrounding circumstances, were deadly weapons or objects likely to result in serious bodily injury when used offensively against a person for purposes of aggravated assault under O.C.G.A. § 16-5-21(a)(2).

What should I do?

Pick up the phone and call. My office number is 678-383-1690. I will discuss your case with you and help you determine what the next step is.

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.