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IT DOESN’T HAVE TO MAKE SENSE ... IT’S JUST THE LAW The state must adopt the citizen’s violence through an informal or formal ceremony. ©iSTOCKPHOTO - MAICA Ceremonies [ BY K.L. JAMISON, ESQ. ] The state has a monopoly on violence. This is a concept dating from the concept of the “King’s Peace” established a thousand years ago. However, a generous state shares this monopoly with its citizens under certain circumstances. The state must adopt the citizen’s violence through an informal or formal ceremony. The most informal is the police officer’s report. If the officer stresses evidence favorable to the citizen then ceremonies held at higher levels will be constrained in the harm that they can do. 1 Even if the officer does not arrest the citizen, the matter will be sent to the prosecutor for charges. The county prosecutor (in some states called a district attorney and in the federal system the U.S. Attorney) has absolute power to decline to prosecute. Presented with a good reason not to prosecute he will maintain his conviction record by not filing charges. A “good reason” is an obvious defense or a difficult prosecution. These informal ceremonies seldom end the matter, except in the most obvious cases (and often not then). The prosecutor will often share responsibility by sending the matter to one of the formal ceremonies. The formal ceremonies include the Coroner’s Jury, Grand Jury and Preliminary Hearing. The coroner is usually an elected county official in charge of investigating suspicious deaths. He (or she) is a “conservator of the peace” in his county, and traditionally considered to be a law enforcement officer. There are no extraordinary requirements for the position. The coroner is empowered to empanel a jury for a community verdict on the cause of death. He may summon witnesses, and employ a medical examiner to testify as to the cause of death. The jury may return a verdict of self-defense, accident or felony. The prosecutor may accept this verdict as the community’s verdict adopting the citizen’s violence. However, he is not required to do so. Once charged, bail will be set. Reasonable bail is a constitutional right, used to guarantee appearance at court, and cannot be used simply to keep a defendant in jail. In practice it is used to keep persons believed to be violent in jail. Without coming before a judge, a defendant can be released only by paying the bond, or arrangement with a bonding company. For long-term residents the bonding company may dispense with the need for a surety. They are a business; everything is negotiable. Shortly after arrest the client must be taken before a judge for arraignment. This is a formality in which the charges are read to the defendant on the theory that the guest of honor will then know what the party is about. Conversations with persons who have been arraigned indicate that it goes straight over their heads, lost in legal jargon. A copy of the charges (the paper the judge reads from) should be requested. If an attorney is present for the defendant, he will waive reading of the charges and be handed a copy. Bail will be addressed perfunctorily. Having an attorney in advance will be an advantage in addressing this question. The defendant may be released on recognizance (ROR) or on “Ten percent 60 USCONCEALEDCARRY.COM n CONCEALED CARRY MAGAZINE n MAY/JUNE 2011
...IT’S JUST THE LAW equivalent.” ROR means released on a handshake promise to appear. “Ten percent equivalent” means that if the citizen posts ten percent of the amount of the bond, he gets out. If he appears at trial, he gets the ten percent bond back. As this is the amount bondsmen charge, they hate this program. If bond remains too high following arraignment, it can be addressed in more detail at a bond hearing set for that purpose. Before forcing a citizen to spend vast sums for a trial, and perhaps months in jail awaiting trial, the government must first prove it has a good reason. There are two ways to bind a defendant over for a trial; preliminary hearing and grand jury hearing. Both must be before a “neutral magistrate.” Arraignment will be followed within a month by a preliminary hearing. Such hearings may be set earlier for incarcerated defendants. The purpose of the preliminary, known as the “prelim” by denizens of the system, is to protect the citizen by determining if there is any evidence supporting the charges brought by the police and prosecutor. Specifically, the judge at the hearing must determine if there is some reason to believe a crime was committed and some reason to believe the guest of honor committed it. While a theoretical safeguard, very few defendants win preliminary hearings. The preliminary hearing is an opportunity for the defense to learn something about the prosecution case. Defendants may be asked to waive preliminary hearing. If they do not, the case will be presented to a Grand Jury, the defendant re-arrested and forced to post another bail bond. Some prosecutor’s offices avoid preliminary hearings through indictments before the Grand Jury. Grand Juries are secret proceedings where only the prosecutor produces evidence. The defendant has no right to introduce evidence, and may not even know that he is a subject of interest. While very few defendants win preliminary hearings, virtually no defendant wins a Grand Jury hearing. The saying is that a Grand Jury will indict a ham sandwich. There was an instance of a Texas Ranger who killed an assailant in the city street, while the Grand Jury watched from the second floor of the Courthouse. With this first hand information, they returned a “No True Bill” (no crime) before his wounds were treated. 2 This is not something the average citizen can expect. In the old “LA Law” series a lawyer killed an assailant, voluntarily appeared before the Grand Jury and was exonerated. This series was fiction. There is a name for persons appearing before a Grand Jury in the naïve belief that they only need to tell the truth, they are called “inmates.” The Grand Jurors will be indoctrinated by the prosecutor. There is no beating this system. It is ironic that Grand Juries are The defendant has no right to introduce evidence, and may not even know that he is a subject of interest. constitutionally guaranteed, in the federal system, but preliminary hearings are more to the defense benefit. If a defendant wins a preliminary hearing, or the prosecutor does not press the grand jury to return an indictment, this usually, but does not always, end the matter. Double jeopardy does not apply unless a trial jury is selected. A prosecutor may therefore take a case lost at preliminary hearing or which a grand jury has returned a “No True Bill,” and re-submit the matter to the grand jury as often as desired. It is wise not to spark that desire. After shooting four muggers in a New York subway, Bernard Goetz won his first trip to the grand jury; he then, however, made the politically incorrect suggestion that guns be distributed to civilians. His lawyer, on “Face the Nation” stated that Mr. Goetz felt no remorse about the shootings. A neighbor alleged that he had made racist statements. Any one of these statements would have aroused criticism of the prosecution; together they inspired a full-scale effort to send Mr. Goetz to prison. 3 A new grand jury was given an improper definition of selfdefense, and indicted Mr. Goetz for everything the prosecution requested. On 11 October, 1981 a man entered a tavern and attacked two patrons with a hatchet; he was promptly shot and killed. The following day the Kansas City Star described the assailant as the “victim,” and the man who defended himself as the “gunman,” a la Billy the Kid. This terminology stands law and common sense on its head. Unfortunately, this terminology has been common in the media. Following a defensive gun use the media will give the “gunman” an “opportunity to tell his side of the story.” One homicide detective referred to them as “vultures.” They thrive on sensationalism, which is never good for the defense. It may be useful to tell the truth, but simply telling the truth rarely helps, it is how the truth is told that makes it useful. Lawyers are authorities on how to tell the truth. A suspect has the absolute right to an attorney at any step in the criminal justice system under the sixth (and fourteenth) amendment to the U.S. Constitution. No matter how innocent the citizen might be, no matter how knowledgeable, an attorney is required. For a layman to search for justice in the thickets of the law is akin to going on safari without equipment, with no idea of what the game looks like and no guide where game might be found. H Kevin L. Jamison is an attorney in the Kansas City Missouri area concentrating in the area of weapons and self-defense. Please send questions to Kevin L. Jamison 2614 NE 56 th Ter Gladstone Missouri 64119-2311 KLJamisonLaw@ earthlink.net. Individual answers are not usually possible but may be addressed in future columns. This information is for legal information purposes and does not constitute legal advice. For specific questions you should consult a qualified attorney. 1. The conundrum of calling the police and at the same time remaining silent is discussed in Alan Korwin’s After You Shoot, Bloomfield Press Scottsdale, AZ 2011. An evaluation of this work is forthcoming. 2. Jenkins & Frost I’M FRANK HAMER, State House Press, Austin Texas 1993 at 72. 3. Fletcher A CRIME OF SELF DEFENSE, The Free Press, N.Y. 1988 at 5. MAY/JUNE 2011 n CONCEALED CARRY MAGAZINE n USCONCEALEDCARRY.COM 61
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REVIEW! SIG SAUER P229 vol.8, ISSUE
Page 3 and 4:
tIM’S THOUGHTS ACROSS THE EDITOR
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COLUMNS 13 CCM PROFILE Nick Antrill
Page 7 and 8:
TRUE STORIES CARRY A GUN... IT MAY
Page 9 and 10: I am a lefty, so finding a good hol
Page 11 and 12: THIS IS USCCA I hope he does, but I
Page 13 and 14: CCM PROFILE Nick Antrillo “Owning
Page 15 and 16: PROFILE No, and if I run my life ri
Page 17 and 18: SHARPEN YOUR SKILLS work, what’s
Page 19 and 20: Amid the unimaginable horror of des
Page 21 and 22: Selecting a gun for Sarah is a chal
Page 23 and 24: BETTER LET HER PACK be the best to
Page 25 and 26: left: In the past 20 or so years, t
Page 27 and 28: The 15-round magazine from the full
Page 29 and 30: Learning how to shoot around cover
Page 31 and 32: The Balance of Speed & Precision Ta
Page 33 and 34: THE WARRIOR EXPERT This pistol is p
Page 35 and 36: above: Guns America’s web site, a
Page 37 and 38: BUYING GUNS ONLINE Ways to protect
Page 39 and 40: Many are unwilling to pull the trig
Page 41 and 42: LOWER LEVELS OF FORCE Even perfect
Page 43 and 44: PHOTOS BY OLEG VOLK • A-HUMAN-RIG
Page 45 and 46: Caution should be taken should the
Page 47 and 48: above: Firing from behind cover is
Page 49 and 50: DRILLS FOR HANDGUN SELECTION above:
Page 51 and 52: column, Andy will give you free shi
Page 53 and 54: The Switchback uses three different
Page 55 and 56: There are worse things than being s
Page 57 and 58: The Sayoc Tactical Group regularly
Page 59: ARMED SENIOR CITIZEN a habit that b
Page 63 and 64: Mark Walters and Tim Schmidt Uncove
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