Our Criminal Courts – The Role of Defense Counsel

Imagine yourself as a young adult, pulled from friends and family and called upon to defend your country in a foreign land. One day, while on guard duty with your platoon, you’re suddenly surrounded by a group of hostile, threatening people–a jeering, taunting mob, probably armed, and stirred to anger by faceless voices in the darkness calling on them to fire. A shot rings out–your platoon returns fire–and the next day, you’re hauled into court and charged with murder. Your case is set for trial, and the only jury around is made up of the very same mob that was threatening you the night before.

The Critical Role of Defense Counsel

Defense lawyers are called upon by our system of justice for a variety of tasks. They explain to their clients what is happening, and make sure that each defendant knows his rights, and is fully aware of what is happening. As defense counsel, the lawyer is charged with protecting those rights, and ensuring that the client receives the protections afforded to every citizen by our laws. The lawyer will take over dealing with the prosecution, call and examine any witnesses in court, and do everything the law allows to keep his client from harm–or, at the least, to minimize the damage. This means challenging the prosecution’s case, its conduct, and on occasion, the very laws that govern the case.

We often take these protections for granted, or scoff at them as mere “technicalities” that do little but allow criminals to escape justice. It is easy, and often tempting, to dismiss defense lawyers (and, for that matter, all lawyers) as professional hacks, whose only function is to confuse juries and confound courts. And sometimes, when defending people who are clearly guilty, it may seem that defense lawyers are a needless extravagance, who only get in the way of protecting people from the worst elements of society. But just as crimes come in a variety of shapes and sizes, criminals are often indistinguishable from the ordinary citizen, a fact that some of us only come to realize when we find ourselves seated at the defendant’s table, with fingers pointing at us. It is then that we realize just how critical a vigorous and independent defense bar is to a free society–allowing ordinary citizens to challenge the actions of their own government. Viewed in this light, the bedrock of American liberty is our right to use the rules we have all agreed to live by to defend ourselves in a public setting, where the actions of the same government that seeks to condemn us must prove that we have broken the law.

Defense lawyers don’t exist just to make everyone else’s life difficult. And their job is a critical, if often misunderstood safeguard against tyranny. Just imagine what would happen if the government could decide whom to jail–without the messiness of subjecting their actions to the test of law. The freedom of all of us would be in the hands of government bureaucrats–people, like all others, who have their likes, dislikes, biases, and petty grievances.

A Safeguard of Liberty

In large measure, the law exists to protect us from bullies. But without the means of challenging the actions of our own government, there would be little protection for the common citizen against a bully who happened to wear a policeman’s badge, or a prosecutor’s suit, or who happened to enjoy the friendship of someone for whom justice means doing right by his friends. And if you should ever find yourself on the wrong end of action taken by the government, you will find that the ability to resort to the law to defend yourself will be critical. Among the first casualties of Nazi Germany and Stalinist Russia was the independence of the courts and the legal profession. Once those bulwarks against tyranny fell, there was nothing to protect common people against the unbridled assertion of governmental power–no matter how misguided, petty, or malevolent it might prove to be. But it is the rare government that will attack its own citizens directly: instead, the attacks come against marginal groups, ones that nobody would rise to defend, and who seem to everyone to be a threat to the security of the state. Unfortunately, those threats never seemed to end; and so the knocks on doors of enemies of the state continued, as the government kept finding new enemies to fight, and new threats to fear.

The example cited at the beginning is from one of the most famous confrontations in American History–told from the side of the defendant, rather than the victim. It was the Boston Massacre, which arose at a time of growing tensions between the Colonies and Great Britain. The encounter between soldiers and the angry mob led to shots–nobody knows for sure who fired the first one, although some testimony indicated that it was a terrified British soldier–and in a country without a strong defense bar, the young soldiers would likely have been swiftly taken out and hung, if not by the Law, then by the mob itself.

Thanks to a courageous Boston attorney, the defendants received a fair trial and most were acquitted on grounds of self-defense, the sentiments of the mob notwithstanding. A couple were convicted of the lesser charge of manslaughter and released–the proper verdict when emotions and provocations don’t quite excuse a homicide, but make it less an outrage and more a fallible human reaction to extreme stress.

The defense lawyer was a prominent member of the state bar, who later served his country in a variety of ways–statesman, ambassador, signer of the Declaration of Independence, and the second president of the new United States.

It was John Adams…patriot and rebel, for the defense.

Rethinking Juvenile Justice Policies

Youth violence reached a peak more than 20 years ago. In response, legislatures passed laws at the time allowing more young offenders to be tried as adults.

However, violent crime arrest rates decreased for all age groups between 1994 and 2010, and more so for juveniles than for adults. The rates dropped an average of 54 percent for teenagers ages 15 to 17, compared to 38 percent for those between 18 and 39.

Although the arrest rates were higher in 2010 than in 1980 for those over 24, the rates for juveniles ages 15 to 17 has steadily decreased over time.

Recent brain and behavioral science research, furthermore, has revealed new insights on how brain development shapes adolescents’ behavior that has helped play a role in policy changes around the country.

According to the John D. & Catherine T. MacArthur Foundation’s Research Network on Adolescent Development and Juvenile Justice, teens’ brains do not fully develop until about age 25. Social science and behavioral sciences show, moreover, that teens focus on short-term gains rather than long-term consequences of their actions and more likely to engage in immature, emotional, risky, aggressive and impulsive behavior – including delinquent acts.

“It doesn’t mean adolescents can’t make rational decisions or appreciate the difference between right and wrong,” said Dr. David Fassler, a psychiatry professor at the University of Vermont College of Medicine, who testified before legislative committees on brain development. “But it does mean that, particularly when confronted with stressful or emotional circumstances, they are more likely to act impulsively, on instinct, without fully understanding or considering the consequences of their actions.”

Violence toward others usually peaks in adolescence, usually beginning around age 16, said Emory University psychiatrist Peter Ash. If a teenager has not committed a violent crime by age 19, they are unlikely to become violent later, and 66 percent to 75 percent of violent young people grow out of it, Ash explained.

In light of the research, Legislatures across the country are working on revising their juvenile justice policies – increasing the age at which teenagers can be tried as adults; protecting the confidentiality of juvenile records for future educational and employment opportunities; increasing due process protections for young offenders; and enacting laws to determine competency of juvenile offenders to stand trial.

At least 16 states now address competency specifically in statute. The new policies focus on providing more effective evaluations and interventions, including proper screening, assessment and treatment services for youth offenders. Some states provide special mental health courts to ensure intensive case management for these individuals as well.

Many states have passed comprehensive juvenile mental health reform laws, and programs which include families in the treatments of young offenders are now being used in at least 10 states.

States are also working to shorten the time juveniles are confined in detention centers, usually while waiting for a court appearance or disposition, and are working to address the safety challenges within these facilities.

In 2006, for example, Texas passed laws in response to reports of physical and sexual abuse by staff at juvenile detention facilities. The Legislature created the Independent Ombudsman’s office to investigate and review allegations of misconduct, required monitoring of detention facilities with cameras and on-site officials, and barred juveniles from serving time in detention facilities for committing misdemeanors. The state has since closed nine facilities; from 2008 to 2011, verified complaints of abuse have dropped 69.5 percent.

However, safety is still a major concern. The Independent Ombudsman, in fact, reported incidents of youth-on-youth violence in the state’s largest detention facility just last year. Executive Director Mike Griffiths stated that “there needs to be a foundation of safety and security to be effective. We are light years ahead of where we were in 2007, and the success of the community-based programs is encouraging, but safety needs to be a continued focus.”

Many states are also looking at policies that divert young offenders from correctional facilities and into community programs. According to the U.S. Office of Juvenile Justice and Delinquency Prevention, incarceration is more costly and ineffective at keeping delinquent juveniles from committing more serious crimes and re-entering the system. Researchers suggest investing in more cost-effective, and often more successful, community programs instead.

RECLAIM Ohio is one such program that has reduced juvenile commitments to detention facilities and cut down on the number of young people re-entering the justice system. On top of this, the cost of housing 10 young people in a Department of Youth Services’ facility is $571,940 a year, compared to $85,390 a year for RECLAIM Ohio programs.

Illinois lawmakers also created the program Redeploy Illinois in 2004, which encourages their counties to develop community programs for juveniles rather than confine them in state correctional facilities.

The program gives counties financial support to provide services in their home communities to delinquent youths who might otherwise be sent to the Illinois Department of Juvenile Justice. This program has been so successful, in fact, that it is expanding statewide and is becoming a model for other states.

“Getting kids out of the correctional centers and treated in the community is obviously the best practice,” says Georgia Representative Wendell Willard. “You have to close these large infrastructures and the overhead that goes with it, so you can redirect that money to treating youth in the community. When you go about such an exercise in your own communities, you will accomplish the goal of saving money.”

Texas lawmakers passed laws in 2009 that strengthened support and funding for local and county programs that monitored juveniles closer to their homes.

And it appears to be making a difference. The number of juveniles in Texas detention facilities dropped from nearly 5,000 in 2006 to around 1,200 in 2012.

Rulings by the U.S. Supreme Court have also reshaped juvenile justice policies. The court abolished the death penalty for juveniles in 2005 in Roper v. Simmons, citing MacArthur Research Network findings that adolescents can be less culpable than adults for their crimes. And in 2010 it ruled in Graham v. Florida to end life sentences without parole for crimes other than homicide committed by juveniles.

Last summer, in Miller v. Alabama, the court ruled that imposing mandatory life sentences without the possibility of parole for juveniles violates the Eighth Amendment of cruel and unusual punishment. Justice Anthony Kennedy wrote that juveniles have less culpability and thus, are “less deserving of the most severe punishments.”

The Court went on to state in its ruling that life without parole for juveniles is especially harsh because it removes all hope. It makes it so “that good behavior and character improvement are immaterial. When compared with the reality that juveniles are more likely to change than are adults, juveniles who have demonstrated substantial improvement should be given the opportunity for parole.”

“It’s time to bring the juvenile code back to current times and find methods that work by looking at best practices nationally,” Georgia’s Willard stated, who is currently working on revising his state’s juvenile justice code. “We need to incorporate key items, such as instruments to assess risks, and put interventions in place within communities for young people involved in the system.”

What’s Going on in the Justice System and Why Isn’t the Attorney General Doing His Job For Us All?

Our Attorney General is the one we look to when our laws are being broken openly by groups or individuals. We do have our state attorney generals and local law enforcement to fall back on when needed. All to often the local law enforcement agencies are reluctant to take on the big lawbreakers when politics are involved. We can force action if we must, by demonstrations and meetings, naming the offenders and the laws broken. When the actions needed are not forthcoming by local law enforcement, then we have the right to demand our congressional representatives, take action and investigate them. We can demand the indictment and prosecution of lawbreakers when it can be proved to the extent that charges be brought. I firmly believe we are being led down the garden path to our downfall as a nation. The laws being proposed by this President have severe constitutional implications for us all. I see progress towards the Cloward and Piven doctrine being implemented right here and now by this President. If you doubt that then you had better read up on this strategy. Look at the laws being broken by the SEIU union leaders. Peoples mailboxes are being broken into and ballots taken out, then they force people under threat of losing their jobs, to sign where they indicate. They force their way in to their homes and threaten people. Why are their no charges brought? What is going on?

This plan to have the terrorists tried in Manhattan civil court for their actions against us makes no sense unless you look at it for what it is. A major distraction for us to fight about instead of watching what is going on under our noses. The health care bill and subversive laws being passed against us. Cap and trade along with the global warming treaty will give away our sovereignty and economic rights. Ever hear of the world government being planned for us. The one world law courts where we ourselves could be tried for crimes against humanity for our pollution of the atmosphere. Sounds crazy does it not? Don’t believe it, because it has been proposed. Our only protection in the constitution is under the law. If we do not demand that our laws be enforced, no matter who is involved, then we will reap what they sow. We must demand justice for us all and that our laws be enforced or we must throw them out by national referendum. The attorney general, Eric Holder, must place people under arrest for mail tampering and threats against citizens and voting fraud. Our people must be protected against union tactics to expand the union rolls and its forced intimidation, making people vote under threat. We must be able to hold meetings and push law enforcement and politicians to act on OUR behalf. It may be that if we last that long, we can kick them all out of office in the next election.

That seems to be what moves them more than anything else. They all want to stay in office. Its a wonderful life if you can make yourself exempt from the laws they make for us. They exempt themselves from following the law. They have voted for themselves the finest medical coverage available at no cost to them. They have a retirement plan second to none for themselves at no cost. Why can we not make them live under the same coverage they give us? Why do we have to have public outrage to get things done? We may have to demand a special prosecutor for looking into the union outrages being carried out against citizens. I am not sure if we have a chargeable offense to bring against the President for high crimes and misdemeanors. He has insulted and demeaned our friends and placated our enemies. He has proposed giving away our sovereignty under the global warming farce. I believe he has the new world order in his sights for us all. His desire to have a world currency for us like the euro has been mentioned more than once. He is all set to give away the store, for us to have a socialist form of government. I believe he can see himself sitting at the head of this new world order. He has been trying his best with the people he has surrounded himself with, to advance his special brand of order. If we do not have the attorney general and all branches of the local and state law enforcement officials going forward and prosecuting lawbreakers, we will be heading for marshal law being imposed. When citizens take to the streets against these lawbreakers and demand action they may be molested by union goon squads..

If you think it cannot happen here, then you are very much mistaken. Their have been no investigations into ACORN, even after the exposure of the tapes about prostitution and illegal funding set up by them. Why has JOHN CONYERS blocked every attempt to cut funding and block prosecution of the Acorn organization? Who is receiving all the donated money to politicians from Acorn and SEIU and all the other unions? Why have the News organization like ABC, CBS, NBC, and CNN not covered the Acorn debacle, and instead of that, gone after those who found out about the corruption and filmed it? Kill the messenger and bury the message. That is usually the way they operate. All the major networks have given Obama a free pass with their softball coverage of him. Even now with revelations coming out about GM closing dealerships who are republican owned and don’t contribute to democratic organizations. Why are they not being sued and brought to court? They are being singled out and not being heard by law enforcement or the courts. What do we have to do to stop this blatant abuse of power by the Obama administration. The democratic party and its leaders seem to be drunk with power since taking control of the congress and senate. They seem to feel they can get away with anything they please now. It is extraordinary to me just how arrogant they become when once they achieve power. They believe they have a right to do as they please once elected.

This time though they are going full bore, trying to bring down our whole governmental structure and financial system. Then into a collapse that will give them the opportunity to form a communist state. Nobody ever starts out to have communism as a goal except communists. They appear to be all around this President already, from his appointing them to positions in his administration from the start. Some, like Van Jones left because their backgrounds became to visible to the public and became embarrassing to the President. Anita Dunn is another one who touted Mao Zedong as her favorite person to quote along with Mother Theresa. If we do not have law enforcement working for us from the attorney general all the way down to our local police departments then we really are in big trouble. How can General Motors close dealerships who have done nothing wrong and have great sales and financial records except favor one political party over the other. They open dealerships and favor those who donate to the ” right ” people and political party. Did you ever think you would see this in America today? That’s what happens when we let government bail them out and take control of them. Where will it all end? How arrogant will they get before we stop them.? They gave G M bailout money and are now telling people how to run things. It is hard to believe how fast they are taking over and destroying our economy.

We are heading for a meltdown of our whole way of life. Then they want to usher in their own socialist brand of government to replace the one we have now. If we cannot force our elected leaders to prosecute lawbreakers wherever they are found then it is time for a national referendum to put someone in charge OVER the attorney generals head with full powers to charge and prosecute lawbreakers anywhere they are found. Local agencies in state government need to know we are serious about prosecuting union members or anyone else caught breaking the law. Acorn and SEIU members have been caught on video beating up on citizens at meetings. Why have no charges been forthcoming or arrests made? Why do we allow people like John Conyers to block efforts to cut funding to Acorn with lame excuses? I would like to know just how much money for his campaign was received from Acorn? I would like to gain access to Acorns contribution list, showing how much, and who, received money from them. I bet it would be a real eye opener. Another break with our Constitutional rights is the proposed card check bill that takes away one of our most basic rights: A Private Vote. No one has the right to look over our shoulder while we vote for whatever purpose. It is the unions bill and was proposed and written just for them, so they could bully and threaten people to join their union. Look at the wording in the bill. What other purpose could their be for a bill like this.

You have to remember that these people have a definite goal in mind. Once they usher in a socialist style of government that are assured a job for life in a system that does not depend on them being elected. A socialist government is what democrats have been aiming at for many years now. Consider the way they are passing laws and regulations costing this country billions of dollars we do not have, and piling debts upon debts, to collapse our monetary system. And then have us declare bankruptcy when we cannot pay our debts to other countries. Everyone thinks it cannot happen here. Believe me it really can and will, if America does not fight back. Remember that we have the right and power to change whatever is going wrong. It is in our Declaration of Independence. It goes like this. This is directly from our Declaration of Independence.

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. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. – Such has been the patient sufferance of these colonies; and such is now the necessity which constrains them to alter their former systems of government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states.

We, as the people being governed, have the right to remove, replace, and do away with, those people, programs, or institutions, that we deem harmful to our system of government and our way of life. As it says, we are not to do anything rashly or hastily. We must place these issues on a national referendum to be voted on by the people of this country in an orderly manner. We have that right, to ask for a national referendum, to be placed their by voting in each state to do so. We cannot be denied that right, although the left will try and put any and every roadblock they can dream up to stop it, or block it, or crush it, and plant any obstacle in its way to derail it. They will call it unconstitutional and have teams of lawyers spouting reasons about why it cannot be done or should not be done. Unless we have the desire to save our country from the hands of those who want to destroy it, we will face the future as servants of a socialist dictator bent on the destruction of our Republic as it has been constituted from the beginning. If you do not believe what I say then check it out for yourself. It is all there on the internet. Just go to Google and ask the questions you have, and you will be amazed at the answers you get back. Truth is just waiting for your question.

Pirates, Piracy and the Law

I. Introduction

The study of the history of Piracy and Pirates can be studied from the viewpoint of many vocations; including, technological, sociopolitical, or criminological. However piracy and pirates can also be look at through a legal perspective. The relevance of study piracy from the prism is best illustrated by consider what piracy and pirates are. Piracy was a crime, a violation of the law. Pirates are a class of criminals whose primary crime was piracy.

As piracy is a crime their must be in existence specific laws on the subject. Like all criminal laws the laws regarding piracy serve to define what actions or combination of action or omissions would constitute piracy. Like all laws the laws relating to piracy have a source. The Source for laws includes custom, statue and treaties. The law also provides for finality. Laws sometimes have exceptions the exception to the general law om piracy is privateering. Finally the law of piracy provides procedures for the prosecutes pirates and for the alleged pirate to defend against those charges.

II. Law of Piracy and its sources.

Regarding the law defining piracy; Their are many laws on piracy however it is possible assemble a definition of piracy. An individual is guilty of piracy if he disposes and “carries away” or attempts to dispossess and carry away another’s vessel its cargo or passengers property on this said vessel; or be the commander or member of crew of a ship used as platform for the completed or attempted act of piracy. All the aforementioned conduct will unless the crew conducting the piratical act is acting under and according to a letter of marque or otherwise functioning as a state apparatus. Furthermore for one to be guilty of piracy the piratical act must take place in international waters which exists at least 3 miles from the coast of the mainland. The law banning piracy would not limit it self to people engaging in traditional acts of piracy; the law also classifies people knowingly helping or involving themselves with pirates as pirates themselves. The type of help or involvement classified as piracy include conspiring with the pirates, financing the pirates, procuring items to be used by pirates, holding stolen goods for them, advising them, directing from shore giving them equipment or helping them recruit etc.

The sources of these laws banning piracy varied. Like all law much of the laws banning piracy were customary law or international customary law. Customary law is created overtime based on a significant number of people or entities engaging in or not engaging an activity based on a belief of a legal duty or legal right. During the age of discovery and latter countries such as England began to use statues as a tool against piracy. These early statues such as the offenses at Sea act of 1535 and the Piracy act of 1698 stated that piracy was illegal and the procedure to be used in Piracy cases. However, in England, these statues did not completely overthrow the customary law regime. These statues such as the Piracy Acts of 1698, and 1717 usually did not generally define piracy and allowed the question of what activities constituted piracy to be answered by customary law. In terms defining what acts constituted piracy the early statues only described specific acts as piracy if those act would not be considered piracy under customary law. As such any description of acts constituting piracy was not a codification of preexisting customary law but an expansion on what activities where defined as piracy. The statues therefore served as a legal tool for governments to treat select maritime crimes with gravity and penalties of piracy. Examples of this practice are included in the 1698 and 1744 Piracy acts and piracy statue expanded customary definition of piracy to include the traitorous act of its citizens serving on an enemy privateer as piracy if English ships are targeted for attack. Also in 1698 the British government revised the law piracy to include Captains and Crew of Ships who voluntarily turn over their vessels to be used by pirates. The enlargement of numbers of acts statutorily classified as piracy continued into the 19th century. In 1824 the British Parliament would follow the United States Congress in expanding the legal definition of piracy to include the oceanic transportation of people to be used as slaves. Not with standing the British parliaments broadening of the definition of piracy, prior to 1997 British statue did not generally define what acts constitute piracy. In its 1997 Maritime security act wrote verbatim the United Nations convention the law of the sea. Latter treaty would ban piracy.

III. Privateering

Of course no discussion of piracy would be complete without discussing the legal form of piracy known as privateering. Privateering involved the state granting private merchant mariner’s licenses know as letters of marque legally entitling the licensed mariner to rob ships of an enemies and pirates. By operating under and within the scope of the letter marque an act which would nominally be classified as piracy would not be legally definable as piracy. A liscensed privateer was immune from a charge of piracy not only from the country who issued the license but from all other nations including the nation whose shipping was attacked by the privateer. Customary international law of the time demanded that other nations give a letter of marque full faith and credit and not consider its holder a pirate. Customary international law defined privateers as legal members of his countries service engaging in a legal military operation. As a member of his countries service he was immune from criminal charges for killing done in pursuit of privateering, and if captured had to be granted prisoner of war status. Not with standing its legal status, was very much like piracy. The privateers where motivated by profit. After paying the State a share of the prize they could keep the rest.

The institution of privateering gave all involved including the captains, the crew, and owners of privateering ships a huge legal and financial windfall. In exchange for these amenities privateers where bound to rules. To begin with, their status as a privateer was dependent of the holding of a letter of marque licensing acts which would otherwise be piracy. The letter of Marque while addressed to the present Captain is not held by the present captain as an individual. The rights granted by letter instead vested in the office of the captain of the ship that was intended to be used as the privateering vessel; the individual captain exercised those rights as an office holder. As such, if the ship changes commands the rights and restricts set in letter would remain held by the office of captain and exercised by the new captain. Only a state party authorized party could issue a letter of marque. The process as well the official with the right to grant such a license varied depending on the nation. In Great Britain the right to issue a letter marque was nominally vested in the lord high admiral the head of the British Admiralty who issued these licenses in the name of King. In most of the American and Caribbean Colonies the Lord Admiral usually deputized a local official, usually the Colonies Governor, as the Colonies Admiral or vice Admiral with the power to handle local maritime matters including the issuance of letters marque. . By allowing locals colonial governors the power to issue letters of marques the process was decentralized. When hostiles broke out between the various empires British colonial governors could rapidly commission large numbers of privateers to target the military and economic assets of its enemies. The privateers who the British Colonial governors licensed included notoriously brutal men such as Roche Braziliano and Henry Morgan; these men often targeted non combatants with especially cruel forms murder and torture as means to terrorize their victims into surrendering their wealth. However in spite of their cruelty these privateers where extremely effective they destroyed or stole much of Spain’s colonial wealth recaptured colonies and helped insure British dominance. The decentralized process involved in issuing letters marque allowed the British government to deny responsibility for the actions of the privateers while reaping rewards of her way ward privateers. If the British Government received foreign protests they could simply state it’s in ability micromanage its governors located thousands of miles away. If an individual privateer committed an atrocity the British government sometimes would completely deny responsible and say as far they know privateer is acting without a letter marque. In analyzing the process of the issuing of letters of Marque was extremely lax. Many of the people who where issued letters of Marque abused their privileges or degenerated into out right piracy. Virtually every major Caribbean Pirate began their career as captains or crew members on an
The Spanish had similar procedures in licensing pirates as the British. The Dutch out sourced the right to issue letters of marque to the Dutch West Indies Company, the premiere international trading company. However, the countries whose privateering licensing protocol where most unique was the United States. The licensing authority was more centralized then in other countries. The steps required to be granted a U.S. letter of marque where also far more rigorous then those of other countries.

In the United States the Constitution allows only the US Congress to issue letters of Marque. This means a would-be privateer would only receive a letter of marque if and when both house of congress vote for it and it passes and, like any other act of Congress, it was signed by the U.S. President. This highly rigorous process was likely indented to screen out undesirable elements attracted to privateering.

Once a privateer captain was granted the letter of marque he would be subject to the rules stated in the letter of marque. The contents of letter of marque state terms and parameters that its holders are legally obligated to follow. The letters of Marque would provide for vital aspects of the mission. It would state who the holder was entitled to target, the methods he could use and what date or event would cause the letter of marque to expire, as well as the percentage that monarch or State was entitled to. These terms where important because in some cases a violation could be seen an act of piracy. Of these terms perhaps the most is the term is who its holder could attack. The terms would state the nationality of the ships a privateer was lawfully able to attack, or if the letter was geared towards piratesw state that it applies to all pirates. This term was very important because privateering was considered an act of war. If a privateer went beyond his commission and attacked the ships of a country that was not at war with the privateer’s country that could force the privateer’s country into unwanted military and diplomatic entanglements. Consequently, governments took a hard line against such misbehavior, and charged its privateers who attacked nationalities not authorized by the letter of marque as outright pirates. To be in compliance with the law the holder of a letter of marque could not even attack the ships of a country at with the nation who the issue the letter of marque was war if that specific countries shipping was not mentioned in the letter of the marque. To remedy this problem privateers, including William Kidd, made it a practice to secure multiple letters of marques to cover any enemy of England whose ship they would be likely to have an opportunity to rob in their privateering expedition. Privateering licenses might also limit actions and tactics a privateer could use against an enemy. These limitations might limit the degree of force he could use as well as the targets and locations he could attack. In William Kidd’s ill fated privateering mission he was instructed to attempt take alive the pirates attempted to attach. These terms where not always abided by, the buccaneer pirates where notorious for attacking locations and using methods forbidden in the terms of the letters marques. The states that issued the letters of marque often turned a bind eye to such violations. The articles of the letter of marque sometimes provided for its own expiration. Letters of marque issued the Dutch and the French where only valid for 6 months. The English letters where valid until peace was signed.

A final demand on privateers is that they pay a share to the government or monarch who licenses them. For English kings this tended to be ten percent of the gross amount of prizes. For the English king the piracy awards where an important part of his income since he needed Parliamentary approval for the creation of taxes.

Privateteering was widely used from prior to the age of discovery until the post Napoleonic error. However in mid 19th countries began to take steps to end privateering. In 1856 the large European powers signed the Declaration of Paris which banned privateering. “Privateering is and remains abolished.” The Declaration Paris does not end the discussion about the legality of privateering. As a treaty the Declaration is automatically binding on nation who signed and ratified or latter acceded to it. Not all countries signed and ratified including the United States, Mexico, Spain and others. Further more many current countries where colonies at the time of ratification and thus where not a party to the treaty. While the treaty does not automatically bind these nations just by existence there is an alternative avenue that the Declaration of Paris which could ban privateering. The Declaration would be binding on all countries if it evolved international Customary. A treaty will evolve international customary law if it is norm creating, was universally acceded to or ratified by the nations of the world especially those nations who are most effected by the treaty. Finally the treaty must have been enforce for a sufficient amount of time. The rule is clearly norm creating, its states a clear rule that “privateering is abolished this as stand alone passage clear rule of conduct the privateering is abolished it furthers deals with general policy or norm and not a specific policy for achieving the general policy. The Declaration of Paris has been in force for 150 years, this amount time is clearly long enough for the entire international community to become aware of it. The final criteria requires that the treaty have wide spread ratification especially by States that the provisions are most relevant to. This criterion is probably the criteria that Declaration of Paris’s existence as customary law most falls short. While the Declaration of Paris had wide spread acceptance their where a number of countries which did not ratify including the US, Mexico, Spain and various non maritime state. Furthermore many countries which did not exist at the time it was ratified now exist and have not ratified it. In considering who is most affected by the ban on privateering it is countries with smaller navies who use privateering to supplement their navy. Many countries at the time of the treaty that refused to ratify where countries which where not considered naval powers at the time including US and Mexico. Countries which existed but had no maritime force also did not bother to ratify it. In addition many of the countries which exist now but did not exist contemporarily with the creation the Declaration of Paris have yet to ratify it. These countries are typically developing countries with very small navies. As such there is argument that Declaration of Paris does not fulfill the criteria of wide spread acceptance and therefore does has met perquisites necessary for a treaty provision to evolve into customary law. As such for countries that never ratified the Declaration of Paris there is an argument that they could be legally allowed to issue letters of Marque.

Iv. Piracy criminal procedure .

Piracy is defined by every nation as a crime. If an act is defined as a crime nations will have proceedings (a trial) to determine whether an individual apprehended for such an act is guilty as a mater of both fact and law guilty. The nature of the pirates right to trial and procedural due process rights varied from nation to nation. In some legal systems the pirates right to trial was a mere formality. However, in other nations such as Great Britan and U.S. the piracy trial gave the accused had substantial due process rights.

In England and its successor state of Britain had criminal procedures for piracy cases. While England, like every other Maritime state, took a hard line against piracy if a pirate actually was captured and turned over to civil authorities he would be provided with substantial due process rights. These rights included a trial by jury as well as the right to conduct a criminal defense. Before a pirate could even be tried he had to be indicted by a commission especially appointed for the purpose of investigating piracy. If a pirate was to be tried he would not be tried in a normal court but by the Admiralty which had a judicial branch with jurisdiction of all crimes committed by civilians on the high seas. This court was headed by the Lord Admiral of England. He was entitled to act as judge of all piracy cases though he usually delegated this function to his deputies who where regionally based. Depending on the time and place they went by various titles including Vice Admirals of the coast, “Admiral of Virginia” Judge of the vice Admiralty court etc. It had to be shown that the alleged pirate either committed an act of piracy or based on his conducted intended to commit piracy. The accused was also allowed the right to put forwarded a defense including the right to call witnesses. Some alleged English pirates where acquitted. If a party was acquitted he could not face double jeopardy. The English legal system was not flawless. Their were several examples of corruption at the admiralty courts. Also after 1698 England moved to a more inquisitorial trial model for piracy cases. this lessoned, but did not completely destroy safe guards of English law.

When the United States was formed in the 18th century it borrowed many aspects of the English legal system including the right to trial by jury, and various due process rights. The United States differed from some other countries as it did not assign Piracy cases to a functionally specialized tribunals or assign functionally specialized procedures but used the same Federal courts and procedures as used in any other federal crime. If a pirate was captured by American forced, before he could be brought to trial, he would need to be indicted by a federal grand jury. If indicted the court the case would be held in a Federal court presided over by a Federal Judge. The Federal Judge and Federal Courts have jurisiticition over all legal issues both civil and criminal which involve federal or are an area considered to be under federal jurisdiction (including maritime law). The prosecutor would likely be the U.S. Attorney a lawyer assigned to a regional jurisdiction charged with prosecuting all federal crimes that occur in their regional jurisdiction. Through out this procedure the accused would have due process rights including the right to a jury trial and the right against self incriminating. These rights where enshrined in the U.S. Constitution and thus could not be easily removed or ignored.

Great Britain and the U.S. where fairly unique in the degree of procedural due process it of offered captured pirates. If a pirate faced captured by Spanish or Portuguese authorities he likely would not live long enough to see a court. Such is because Spanish and Portuguese forces often gave Pirates vulnerable to capture no quarter. Governors also had limited summary execution powers in their role as the colonies military commander. If the capture pirate did live long enough to get to trial he might face a trial in front of the Audienca, the primary colonial court, or a military court. However he would not have the rights he would in an English court. For example a pirate could be tried in abstention before he is even apprehended. Furthermore these courts provided no right to a jury trial.

IV. The criminal procedure of piracy law.

If the society which captured the pirate recognized due process rights the prosecution would have prove its case. Here the prosecution would have to prove the accused is guilty of piracy. A strong prima facia case that is guilty of piracy is made if it shown that an individual is a member of a crew that either committed a piratical act or intends to commit a piratical act. If the accused is originally a privateer they would usually have to prove that he breached the terms of his letter of marque. The defense would try to refute the evidence presented to prove the prima facia case. In response to such a case, pirates had at their disposal a number of legal defenses. For example, an alleged pirate could be exonerated, if it is shown he performed his service for the pirate crew only based on duress. An alleged pirate would likewise be exonerated ig he could show a lack of sufficient intent. Of defenses included effective acceptance of the king’s pardon and benefit of clergy. Finally; perhaps the most unique pirate defense. For woman pirates, was pleading ones belly.

If an individual was served pirates only because he was under duress, even if acting deliberately, that individuals actions are considered involuntary. An individual is never liable for an involuntary acts. This defense is not theoretical pirates did sometimes press into service mariners from captured ships. There are two types of duress physical duress and legal duress. Physical duress is where someone is compelled by another to undertake activity out of fear that if does not he or someone else will face immediate physical harm or death in retaliation for not undertaking the desired activity. While an alleged Pirate would be freed if his actions where motivated by physical duress; the mere fact that a person could theoretically face physical violence if he did not engage in a criminal act, such as piracy, is not sufficient if his motive for the piratical act was something other then fear of physical retaliation. ‘Such would occur if an alleged pirated acted out of desire for the esteem of the other pirates or for a share of the treasure even there are other consequences for not acting. Similarly, if a persons motives change over the course from duress to another factor he is guilty of piracy for acts done after his motives change.

Besides physical duress there is also legal duress. Legal duress is where a person is motivated to act not out of fear of physical injury but out of fear of legal consequences of breaking the law. Admiralty law nominally holds that disobeying their captain’s orders is illegal. The law generally recognized that if a sailor broke the law in order to obey orders he would not be guilty. The legal jeopardy he would potentially face for not obeying the order made his breach of the law involuntary. While this rule might to apply to most mariners a pirate could not claim that legal duress as an excuse for following his captain’s orders to commit a crime. Such is because pirate has no legal to follow his captain orders. Such is because the captains authority is predicated on an illegal, and thus unrecognized agreement, that a group will combine under the captain’s leadership commit piracy. However, an alleged pirate could claim legal duress as a defense if piratical act occurred on what was initially a privateering mission. This circumstance would occur if sailor is on privateering but on this missions in ordered to commit piratical acts. As the mission had began as a legal mission the crew member would be nominally bound to his captain’s orders and thus would feel legally compelled to follow orders even if the orders are illegal. However, like physical duress legal, an alleged pirates feeling of legal duress would only be an adequate defense if fear of legal obligation is what actually compelled him to commit the illegal act.

For both physical duress and legal duress the duress must the motivating factor for the piratical act if that is to be a defense.

In determining whether duress was the true motive for, piracy courts realized they where ill equipped to read a person’s heart and mind. They therefore developed an objective test. In evaluating the claim of duress as the alleged pirates motive, the courts would look at whether he accepted the ill gotten prizes. The courts saw the receiving of a share of pirates prizes as distinctively reserved for members of the pirate crew. By accepting the share pirates share an individual was signifying his desire to be part of pirate crew or at least to reap the benefits of being a pirate. If individual was serving to advance himself as a pirate or receive Pirate treasures those would be his motive, and he could not be considered as working under duress.
To be guilty you must have mental intent. If your actions where based on a mistake in fact you would not have the required mental intend and not be guilty. For example the Henry Morgan was charged with piracy because he attacked Spanish assets after his letter of marque had expired based on peace with Spain. Morgan successfully defended his actions by claiming a mistake in fact. He could not be guilty of piracy because he did not know that his peace had been declared.

In their defense Pirates sometimes “pleaded the Kings pardon” and therefore claimed immunity from prosecution. If the alleged pirate had received the King’s pardon the pirate would be immune from prosecution for all crimes committed before receiving this amnesty. Periodically the English government would proclaim a conditional amnesty known as the known as the Kings “Pardon”. This was done on number including in 1698 (known at the time as the act of Grace) and later in 1718. To be eligible for the amnesty a pirate would have to surrender by the deadline set in the proclamation. He would also have to abide by any other conditions set the amnesty. The proclamations sometimes specifically exempted particularly heinous pirates. Another piracy defense which is now anachronistic is benefit of clergy. The benefit of clergy is a right that members of the clergy had to only be tried in church courts and the right to be immune from prosecution in secular courts. If a person plead benefit of clergy he essentially was asserting that the secular courts lacked personal jurisdiction over him and he should either freed or reassign him to the notoriously lenient church courts. On its face this would seem not to apply to pirates since few if any where clergy men. However, pirates could be freed under this doctrine because the test to determine whether one was a clergyman was simply to recite one bibical passage of the Judges choosing. If he recites the passage correctly then, for purpose of that one case, the accused is irrebuttably considered a clergy man and no evidence can be admitted to contradict the accused plea even if the judge had reason to believe the accused was not clergy. The ease of proving one was clergyman would seem to invite fraudulent pleas as means for an accused escape punishment; indeed it was this way by design. During the 16th, 17th and 18th centuries English law was extremely harsh. The English government and judiciary saw the will full manipulation of the benefit of clergy as a way of lessoning the harshness of the English legal and criminal justice systems without fundamentally changing them. This was by no means a full proof legal defense the judge had discretion on what bible verse would be recite and could simply choose a verse the less educated pirate would be unlikely to recite verbatim. This defense generally was not available for certain crimes such as murder and rape. Therefore, if the pirate killed someone he could face harsh justice for that. This defense did not last the entire age of piracy. The piracy act of 1717 made the Benefit of clergy inapplicable in piracy cases.

Finally one possible defense strategy used by pirates was “pleading ones belly.” This defense could only be used by female pirates who happened to pregnant at the time of conviction. Under English law a woman convicted of a capitol crime she would receive a temporary reprieve from capital punishment if she was pregnant and that pregnancy could be medically verified. This defense was used in a piracy case twice by female pirates, Ann Bonny and Mary Reed. In Ann Bonny’s case this temporary reprieve probably saved her life. It seems that as the months seeing this young single mother spending her days in the squalor of a colonial jail ultimately created, in her jailer’s, pity for her. As a result of this she apparently was released without formal authorization or otherwise was allowed to escape with no attempt made to apprehend her or even record her status as fugitive.

If these defenses did not work the convicted would face punishment until the mid 19th century the punishment was almost always death.

V. Conclusion.

Piracy like any other field had applicable laws. Some of these laws punished piracy others effectively legalized piracy. However they all attempted to bring order into something which fundamentally lacks order.

Fighting the DUI/DWI Tickets

Defeating a DUI ticket is one of the trickiest – if doable at all – challenges any driver can have. The positive result is never guaranteed and there is always a lot of psychological pressure during the process. DUI is a serious violation and is even considered to be a felony in many States. However being knowledgeable and prepared to fight a DUI always helps to improve your chances and minimize the potential loss.

Below discussed tips and tricks provide you with a general guidance and professional advices shared by many practicing DUI lawyers with real experience of defending DUI/DWI cases in the court.

DUI Preventive Measures

The measures in this group advise you how to avoid a DUI/DWI tickets from happening in the first place.

1. Prevent Rather Than Fight

This million dollar advice simply states “Don’t Drink and Drive”. Always consider avoiding drinking and driving if it’s possible. It is much easier to prevent an undesirable event than get yourself out of trouble when an incident has already happened.

So, the first DUI advice – to avoid DUI “Don’t Drink and Drive” in the first place. Consider using a designated driver, or take a cab or consider using the special “drunk” drivers support services which exist in many places. For example, some automobile associations provide free towing service for its members on official State Holidays, Super Bowl Day and some other “strategic” events.

2. Drinking but Still Driving

You said “Don’t drink and drive”? Well, easier said than done. We all know that there are numerous situations when you must drive after consuming some alcohol. And it is perfectly legal by the way in all States – illegal is only impaired driving with a blood alcohol content (BAC) over the legal limit (usually 0.08). But how much is too much?

Generally one alcoholic drink (glass of wine, one beer or one shot of whisky) safely metabolizes in the human body for about 30 min – 1 hour. The real number – your number – will depend on your gender, age, your metabolism rate, weight (amount of blood in your body), previous food intake, number of drinks you have had and the time elapsed after your last drink.

Note also, that contrary to popular belief, coffee, tea, a cold shower, fresh air or physical exercise cannot help you to get sober sooner. So, plan accordingly and leave enough time to sober out.

So, the second DUI advice – know your number if you drink before your drive. Best of all, to avoid any mistakes use a personal breathalyzer. There is a plethora of individual breathalyzers available in the market and ranging from $10 to several hundred dollars depending on functionality and accuracy they provide. Purchase the one you can afford and test your breath before you can start driving. This simple fix will save you from much of trouble related to DUI.

DUI Retaliation Measures

The measures in this group are meant to help you to fight possible DUI consequences when you already got stopped by a police officer.

3. When You Are Over the Limit

You were drinking and driving that night, then stopped by police and you were not sure if you got busted or not. What is next? Once you get stopped by law enforcement with suspicion of DUI two things would happen:

1. You will be requested a roadside sobriety exercise like spelling the alphabet starting from a specific letter forwards or counting backwards from some start number or moving exercises like finger-to-nose touching or walking straight line to test your balance etc.

If you passed the express test then everything may happily end right here. Congrats!

2. If you failed the roadside express test then you will be arrested and taken to jail. A full-scale intoxication analysis will be administered to you including your breath, blood or urine analysis.

You might ask what would be the best retaliation strategy for either scenario above. The main logic behind your strategy in both scenarios is basically the same – more you cooperate with traffic police the more evidence you can leave to him. Pull yourself together, stay reserved and don’t do any silly things to hurt your chances.

For the first scenario – if there is ANY chance that you can fail the roadside test then without any doubt you should politely refuse the test and ask to talk to your lawyer first. Note that roadside tests are not mandatory and there are no administrative consequences for refusing the roadside test. Most likely you will be detained and placed into the jail for 8 hours but you will manage to maintain your greatest asset – a presumption of innocence. It would be much more difficult to save your case in front of a jury if you failed the road side test for any reason. Another possible advantage for you here is winning time – negotiation with the police at the traffic stop, then driving to the police station, then doing paperwork there can take some time (sometimes hours) so you will get an additional chance and time to sober out if needed.

For the second scenario – the strategy is the same: if there is ANY chance that you can fail the breath-, blood- or urine- test then politely but firmly refuse the test until you can speak with your lawyer.

This will give you additional time to sober out and to postpone the test. However this case is generally more difficult to defend because of the so-called “Implied Consent Law” acting in many States. According to that law you give the law enforcement authorities your explicit consent for the BAC Tests at the time of issuing a driving license to you. This consent limits your chances for escape later. Nevertheless politely insist to speak with your lawyer and discuss your next step with him. This way you will significantly increase your chances to survive your DUI.

The optimal defense strategy your lawyer would design to defend you in the court heavily depends on specific details of your DUI/DWI case as well as on other important for law factors.

Note, for example, that there are not one but two categories of charges for drinking and driving.

First charge category is a well-known DUI (Driving Under Influence) which addresses driver’s erratic driving at the time of incident rather than anything else. DUI means that you are under the influence but not necessarily over the limit. This charge category is very subjective and basically relies on judgment of the police officer who was observing the scene and who conducts the roadside express test.

Second charge category, more commonly known as DWI (Driving While Intoxicated) focuses on charges for having BAC (Blood Alcohol Level) above the legal limit. It defines the critical BAC levels for different age groups, driver categories and conditions. For example critical BAC levels for underage drivers (younger than 21 years of age), commercial drivers and normal drivers are set to be 0.02, 0.04 and 0.08 respectively. Note, that 0.02 actually means absolutely no drinking, i.e. Zero Tolerance for drivers under 21.

Note that there is a distinct group of drivers who are tolerant (resistant) to the alcohol consumption and who can be well intoxicated without being impaired. According to the DWI law these particular drivers still can be found guilty in high BAC level (0.08 law) but not guilty in driving under the influence!

Conversely, a drinking newbie with low tolerance to alcohol may be impaired way below the 0.08 level and hence found not guilty for DWI but guilty for DUI. If you are guilty of either offense, or both offenses, the punishment is the same.

Note also, that DWI law doesn’t address driving under drug “intoxication” as for drugged drivers BAC is usually perfectly normal. To the same token DWI excludes all drivers who have a medical condition and who take legal, prescribed to them drugs which can make them drowsy, dizzy, disoriented or can impair their ability to drive safely in any other way.

It is easy to understand now that successful defense strategy for either charge category would be completely different and would drastically depend on many subtle details of your particular case.

To give you a basic understanding of what defense tactics an experienced traffic lawyer can apply in your particular case let’s list some of them in a random order:

1. Can the police officer prove that it was you who was driving the car?

In the case if you are not the only passenger in the car this is not that obvious.

2. Where the car keys were found at the time of the traffic stop – in your hands or in the car?

3. Was the Miranda Rights pamphlet read to you at the time of arrest?

4. Were the BAC measurement tools used for your intoxication report the officially approved ones and not the tools discontinued by the law in your State? If not – the intoxication report is not admissible to court and cannot be used against you.

5. Was the breathalyzer tool used to measure your BAC properly tested and calibrated as required by law (at least twice a months as required by many manufacturers)? If not – your case is dismissed.

6. Was the breath test administered correctly – must be 15 min of continues testing. If it was less than 15 min – the measurement data are considered to be unreliable and cannot be used to convict you.

7. Can your breath test be surely attributed to the exhaled air from your lungs and is not affected by your mouth alcohol which usually has much higher concentration?

8. If it was a blood test was the equipment properly cleaned to avoid contamination from previous driver tests. This would require a cross- examination of law enforcement officer.

9. If it was a urine test were there two urine samples taken? If it was one sample – your DUI case can be dismissed.

10. Have you had a drink without having any intent to drive and then were forced to drive by emergency?

11. Have you had a single drink right before the driving? Short timed drinks would unlikely affect your BAC number – so if it was high in the police station sometime two hours after your detention then was it really so high at the time of traffic stop?

Things Which Never Work

Theoretically many traffic violations can be “diplomatically” resolved at the time of the traffic stop if you manage to get mercy from the traffic authority that stopped you. This becomes legally possible as official law grants police officers an exclusive right to forgive a traffic violation if he decides so.

For example, you are a safe driver, or it is your first traffic violation, or you drive out of your state of residency or simply because there is something what makes the police officer sympathetic to you.

With DUI/DWI violations it is different – this type of traffic offences is specifically excluded from the list of forgivable traffic violations. Have no delusion – your DUI/DWI never can be forgiven by a police officer. More over – police officers are officially obliged by law to capture DUI/DWI violations bringing impaired drivers to justice regardless of their social status, rank, celebrity level, wealth or anything else. So never try to beg out your DUI/DWI violation – this would make your chances for further defense only harsher.

Conclusion

DUI/DWI is a serious violation of civil and traffic law and in many States is considered to be a felony. Leaving your DUI/DWI case as is, without any defense can be very costly for you. Driving license revocation, substantial financial fine, jail time, impounding of your car, loss of auto insurability especially if it is not your first DUI/DWI violation – this is a brief list of penalties which can be applied to you in this case.

Never try to handle your DUI/DWI case by yourself. Defending the DUI/DWI case in court is a complex and very delicate process which requires full-time support of a professional lawyer specializing on DUI/DWI cases. Hire a lawyer and enjoy your case happily dismissed – you will be glad you did it.