Search This Blog

Monday, February 29, 2016

He speaks!!!!!


For the first time in 10 years Clarence Thomas asked a question from the bench!


This may not be big news for most people, but for a SCOTUS( Supreme Court of the United States) Law junky like me, this is big news.  Clarence Thomas has stated that the oral arguements generally do not matter in a case and that all of the case is left to the briefs. This is a valid point.  When a case reaches the SCOTUS both parties submit briefs on the matter(which can be hundreds of pages) on the question before the court.  They then argue the case in front of the court giving both sides 30 minutes.  Today, however, he broke his silence and asked a few questions in a gun case.

www.speedingticketkc.com

https://twitter.com/speedingticketk 

https://www.facebook.com/SpeedingticketKansascity 

https://plus.google.com/+Speedingticketkc/
All information provided by this site, including summaries and articles on legal topics, is general in nature and provided for informational purposes only. This information is not intended as legal advice, and should not be taken as such. Legal advice involves an attorney’s application of legal knowledge and judgment to specific facts and circumstances presented by a client. Before providing specific advice, a lawyer may need to conduct legal research and/or obtain additional facts. Nonlawyers should therefore not draw conclusions about what may be legally required, permissible, or advisable based solely upon consultation of general sources of legal information, including this and other law firm websites, without first seeking appropriate legal advice.

Friday, February 26, 2016

Republican Primary: Your guide to a Brokered Convention or Floor Fight!!!

Speedingticketkc.com takes no political position or endorses any candidate. Be sure to follow my blog or circle me on google+


What happens if none of the candidates receive a majority of the delegates and super delegates by convention?

There is a distinct possibility that none of the GOP candidates make it to convention with majority of the delegates if the remaining candidates stay in. This is not good for a party because it leaves candidates fighting each other versus the other party. This is one of the reasons why people will switch parties to vote in a primary to keep the fight going.
According to the associated press, Trump is leading with 82 delegates, Cruz has 17, Rubio has 16, Kasich has 6, and Carson has 4.  1237 are needed and 2,340 are left.  Trump has a clear lead but is 1237 is a long ways to go.  So what happens if he does not make it before convention.  To understand what happens one needs to understand the process.

The Process

Candidates run in each primary and caucus.  The people in the states are not actually voting for a candidate but are voting for a delegate to represent them at convention. So if you vote for Kasich, you are actually voting for a delegate who will vote for Kasich.  This is called a pledged delegate.  Most states award their delegates proportionally. but some are winner take all.    After all states and territories have their primary or caucus a meeting of the delegates occurs at a state convention or simple meeting.  After this the delegates go to the convention and vote.  The first vote at convention a pledged delegate is required to, though there are ways around this, to vote for the candidate they are pledged to. Also, even if a candidate has left the race, his delegates are still pledged and that candidate cannot allocate their delegates to another candidate.

Super Delegates

In the GOP process each state has 3 delegates that are unpledged.  These are party chairmen and high party officials.  They may choose who they support at any time up to convention.  The general point of super delegates is to swing for a nominee in the instance there are problems with a nominee in order to help the party.  Candidates court the votes of these delegates to add to their total. 

Delegate Poaching

After the primary or caucus has occurred a convention or meeting occurs to select delegates and pledge them to a candidate.  Candidates can try to poach delegates at these conventions by trying to change delegates minds or gathering delegates from candidates that have dropped out.  All of these delegates are supposed to be pledged, but Ron Paul demonstrated in the past few elections his ability to poach pledged delegates and raise his vote count.  

Candidate tactical options.

 If it appears that there is no clear path to 1283 then the candidates can employ several tactics.  
1. Super delegates-   A candidate can court the vote of unpledged and pledged super delegates.  Inform them that they need to swing votes to them to gain a majority so the party can unify and stop infighting.
2. Poach delegates-  A candidate will do the same thing they will with super delegates but contact pledged delegates and inform them they need to certify their pledge elsewhere.  Pick up any delegates that were randomly left pledged to undecided.
3. Get endorsements from former candidates- A candidate can contact former candidates and try to get their public endorsement and get that candidate to try to urge his delegates to switch.
4. Promise cabinet positions or VP spot- A candidate can ask another candidate who is still running to drop and ask their supporters to switch by pledging them a high cabinet position or even a spot as vice president on the ticket.
5. Broker ahead of convention-   A candidate will meet with all candidates and party leaders and get all to drop but one and figure out what everyone gets out of it.
6. Shape public opinion- A candidate must get out, spend money, and convince the public that he or she is the best nominee.


Brokered Convention and Floor Fight

So no candidate has the majority and no one has organized a process to make it a clean convention.  It is now time for the candidates to fight for every vote they can. Once the first ballot is cast the delegates are released and their can be several votes after this.  The 1952 Democratic convention went 103 ballots before deciding a candidate. So after the first vote the slate is clean and ANYONE can try to get delegates.  So if party leaders and delegates look at the current candidates and do not like any of them they can begin a movement to "draft" a person, sometimes against their will.(This is where the Sherman phrase, "I will not seek nor accept my party's nomination" comes from.)  This means a person who was not even running for president can start snagging up delegates.  So a candidate has to organize surrogates to go down to the floor whip votes and fight off other surrogates. This process becomes very ugly and with modern media capturing everything on camera, this can be a black eye on a party. The longer this process goes the more unorganized a party appears and the less likely their candidate is to win.  The last person nominated at a brokered convention to win was Franklin Roosevelt in 1924. 


History of floor fights.

 Below here I am going to paste in a history of floor fights from wikipedia.  I think it has an excellent synopsis of the history of brokered conventions.
https://en.wikipedia.org/wiki/Brokered_convention
Before the era of presidential primary elections, political party conventions were routinely brokered. The Democratic Party required two-thirds of delegates to choose a candidate, starting with the first Democratic National Convention in 1832, and then at every convention from 1844 until 1936. This made it far more likely to have a brokered convention, particularly when two strong factions existed. The most infamous example was at the 1924 Democratic National Convention (the Klanbake), where the divisions between Wets and Drys on Prohibition (and other issues) led to 102 ballots of deadlock between frontrunners Alfred E. Smith and William G. McAdoo before dark horse John W. Davis was chosen as a compromise candidate on the 103rd ballot. Adlai Stevenson (of the 1952 Democratic Party) and Thomas E. Dewey (of the 1948 Republican Party) were the most recent "brokered convention" presidential nominees, of their respective parties. The last winning U.S. presidential nominee produced by a brokered convention was Franklin D. Roosevelt, in 1932.

Conventions close to being brokered[edit]

Since 1952, there have been many years when brokered conventions were projected but did not come to pass:
  • The Democratic Party's 1968 convention might have been brokered if Robert F. Kennedy had not been assassinated. He had won most of the primaries, but not enough delegates were then selected by primaries to determine the presidential nominee. President Lyndon B. Johnson, who had decided against running for a second term, still controlled most of the party machinery and used it in support of Vice President Hubert Humphrey, who did not contest the primaries. If Kennedy had lived, the convention likely would have been divided between him and Humphrey's supporters.
  • In 1976, the Republican primaries gave President Gerald Ford a slight lead in both popular vote and delegates before the Republican National Convention, but he did not have enough delegates to secure the nomination. A brokered convention was predicted but Ford managed to receive the necessary support on the first ballot to edge Ronald Reagan. That is the last time a Republican presidential convention opened without the nominee having already been decided in the primaries.[5]
  • In 1980, Senator Ted Kennedy, challenging incumbent President Jimmy Carter for the Democratic nomination, fell short in the primaries, but he was still angling for delegates to switch over to him when he arrived at the Democratic convention in August. However, Carter won handily on the first ballot, and Kennedy finally dropped out of the running a few hours later.
  • In 1984, as a result of the Democratic primaries, former Vice President Walter Mondale was the clear frontrunner but remained 40 delegates short of clinching the nomination. His nomination had to be formalized at the convention, being the last time that any presidential convention opened without the nominee having already been decided in the primaries. However, a convention fight was unlikely, as rival Gary Hart was lobbying for the Vice Presidential slot on the ticket and was resigned to the likely possibility that Mondale would receive the nomination. Mondale indeed received the overwhelming support of superdelegates on the first ballot to become the Democratic presidential candidate.[6]
  • In 1988, a brokered convention was predicted for the Democrats. There was initially no clear frontrunner since Gary Hart had withdrawn. Also, Michael DukakisAl Gore, and Jesse Jackson each won multiple primaries on Super Tuesday.[7] Dukakis was named the frontrunner by the media, as he drew support from all sections of the nation while other candidates' support was largely limited to their native regions, and he maintained the momentum and secured the nomination in the next round of primaries.

www.speedingticketkc.com

https://twitter.com/speedingticketk 

https://www.facebook.com/SpeedingticketKansascity 

https://plus.google.com/+Speedingticketkc/
All information provided by this site, including summaries and articles on legal topics, is general in nature and provided for informational purposes only. This information is not intended as legal advice, and should not be taken as such. Legal advice involves an attorney’s application of legal knowledge and judgment to specific facts and circumstances presented by a client. Before providing specific advice, a lawyer may need to conduct legal research and/or obtain additional facts. Nonlawyers should therefore not draw conclusions about what may be legally required, permissible, or advisable based solely upon consultation of general sources of legal information, including this and other law firm websites, without first seeking appropriate legal advice.

Thursday, February 25, 2016

Can the police contact my employer?


Can the police contact my employer?

Asked about 10 hours ago - Bristol, PA
Practice area: Criminal Defense
I was caught shoplifting. The police were called. The value of the items was around $30. The store said they would pursue it civilly so I was not arrested. I did not have my ID on.me and the cops ran my name but found nothing. They said they would contact my boss.
ATTORNEY ANSWERS (1)
  1. Answered The general answer is yes. Police enjoy sovereign immunity which means they are immune from prosecution except under certain circumstances. The only action you really can pursue is a civil action if contacting your employer is to harass or punish you and not for investigative purposes. Here it would appear they have an investigative purpose, figuring out who you are. The question you must ask yourself is whether you want to give them the information you need so they will not contact your employer, or letting them do their best to contact your employer. Hopefully they said that to intimidate and scare you. 
www.speedingticketkc.com

https://twitter.com/speedingticketk 

https://www.facebook.com/SpeedingticketKansascity 

https://plus.google.com/+Speedingticketkc/
All information provided by this site, including summaries and articles on legal topics, is general in nature and provided for informational purposes only. This information is not intended as legal advice, and should not be taken as such. Legal advice involves an attorney’s application of legal knowledge and judgment to specific facts and circumstances presented by a client. Before providing specific advice, a lawyer may need to conduct legal research and/or obtain additional facts. Nonlawyers should therefore not draw conclusions about what may be legally required, permissible, or advisable based solely upon consultation of general sources of legal information, including this and other law firm websites, without first seeking appropriate legal advice.

Wednesday, February 24, 2016

Can a non violent felon own a gun in Missouri?

Q: Can a nonviolent felon in Missouri own or possess a pistol or other firearm that is NOT black powder?

The offense was for persistant offender DWI back in 2008. I successfully completed the 3 years of probation given and not had negative contact with law enforcement since.
Answered 
  • Criminal Law Lawyer
  • Kansas City, MO
  • Licenced in Missouri
A: The current answer is no. This is actually an interesting question because the Missouri Supreme court is going to decide the answer to your question very soon. The Missouri supreme court in August of 2015 ruled in the case of State of Missouri vs. McCoy, that it was constitutional for the Missouri legislature to keep firearms out of felons hands. However the court is taking up a case out of St. Louis on a similar question asking the same right. We shall see what the court says. Below is the statute and punishment for possession. 571.070. 1. A person commits the crime of unlawful possession of a firearm if such person knowingly has any firearm in his or her possession and:

(1) Such person has been convicted of a felony under the laws of this state, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony; or

(2) Such person is a fugitive from justice, is habitually in an intoxicated or drugged condition, or is currently adjudged mentally incompetent.

2. Unlawful possession of a firearm is a class C felony.

3. The provisions of subdivision (1) of subsection 1 of this section shall not apply to the possession of an antique firearm.

www.speedingticketkc.com

https://twitter.com/speedingticketk 

https://www.facebook.com/SpeedingticketKansascity 

https://plus.google.com/+Speedingticketkc/
All information provided by this site, including summaries and articles on legal topics, is general in nature and provided for informational purposes only. This information is not intended as legal advice, and should not be taken as such. Legal advice involves an attorney’s application of legal knowledge and judgment to specific facts and circumstances presented by a client. Before providing specific advice, a lawyer may need to conduct legal research and/or obtain additional facts. Nonlawyers should therefore not draw conclusions about what may be legally required, permissible, or advisable based solely upon consultation of general sources of legal information, including this and other law firm websites, without first seeking appropriate legal advice.

Sunday, February 21, 2016

How long due the police have to charge me? Statue of Limitations

Q: In the state of Missouri how long do they have to charge you?

Answered 
  • Criminal Law Lawyer
  • Kansas City, MO
  • Licenced in Missouri
A: This question all depends on the crime that was allegedly committed. Missouri Revised statute has a long list of crimes and the statute of limitations on filing. I will post the entire statute below but will summarize in the following sentences. Homicide and higher end sex crimes have no statute of limitations and can be charged whenever. The rest is the following directly from the statute: 

(1) For any felony, three years, except as provided in subdivision (4) of this subsection; 

(2) For any misdemeanor, one year; 

(3) For any infraction, six months; 

After this I have included the rest of the statute because there are a several different exceptions 

556.036. 1. A prosecution for murder, rape in the first degree, forcible rape, attempted rape in the first degree, attempted forcible rape, sodomy in the first degree, forcible sodomy, attempted sodomy in the first degree, attempted forcible sodomy, or any class A felony may be commenced at any time. 

2. Except as otherwise provided in this section, prosecutions for other offenses must be commenced within the following periods of limitation: 

(1) For any felony, three years, except as provided in subdivision (4) of this subsection; 

(2) For any misdemeanor, one year; 

(3) For any infraction, six months; 

(4) For any violation of section 569.040, when classified as a class B felony, or any violation of section 569.050 or 569.055, five years. 

3. If the period prescribed in subsection 2 of this section has expired, a prosecution may nevertheless be commenced for: 

(1) Any offense a material element of which is either fraud or a breach of fiduciary obligation within one year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself or herself not a party to the offense, but in no case shall this provision extend the period of limitation by more than three years. As used in this subdivision, the term "person who has a legal duty to represent an aggrieved party" shall mean the attorney general or the prosecuting or circuit attorney having jurisdiction pursuant to section 407.553, for purposes of offenses committed pursuant to sections 407.511 to 407.556; and

(2) Any offense based upon misconduct in office by a public officer or employee at any time when the defendant is in public office or employment or within two years thereafter, but in no case shall this provision extend the period of limitation by more than three years; and 

(3) Any offense based upon an intentional and willful fraudulent claim of child support arrearage to a public servant in the performance of his or her duties within one year after discovery of the offense, but in no case shall this provision extend the period of limitation by more than three years. 

4. An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated. Time starts to run on the day after the offense is committed. 

5. A prosecution is commenced for a misdemeanor or infraction when the information is filed and for a felony when the complaint or indictment is filed. 

6. The period of limitation does not run: 

(1) During any time when the accused is absent from the state, but in no case shall this provision extend the period of limitation otherwise applicable by more than three years; or 

(2) During any time when the accused is concealing himself from justice either within or without this state; or 

(3) During any time when a prosecution against the accused for the offense is pending in this state; or 

(4) During any time when the accused is found to lack mental fitness to proceed pursuant to section 552.020. 
All information provided by this site, including summaries and articles on legal topics, is general in nature and provided for informational purposes only. This information is not intended as legal advice, and should not be taken as such. Legal advice involves an attorney’s application of legal knowledge and judgment to specific facts and circumstances presented by a client. Before providing specific advice, a lawyer may need to conduct legal research and/or obtain additional facts. Nonlawyers should therefore not draw conclusions about what may be legally required, permissible, or advisable based solely upon consultation of general sources of legal information, including this and other law firm websites, without first seeking appropriate legal advice.

Friday, February 19, 2016

When Robbery Becomes Murder

Q: victim gets shot and robbed and the defended takes it to trial and the victim gets killed during trial does it get drop

The robbery is on camera but the vicitim did not Pick the defended in a photo line up


Answered 
  • Criminal Law Lawyer
  • Kansas City, MO
  • Licenced in Missouri
A: This is all left up to the prosecutor if they have enough evidence or if the judge feels their is not enough evidence on motion to dismiss. But there is a bigger problem here, this case could get amended from robbery and assault with a deadly weapon to murder in the second degree. Under Missouri statute Section 565.021.2, murder in the second is: "A person commits the crime of murder in the second degree if he:

(1) Knowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person; or

(2) Commits or attempts to commit any felony, and, in the perpetration or the attempted perpetration of such felony or in the flight from the perpetration or attempted perpetration of such felony, another person is killed as a result of the perpetration or attempted perpetration of such felony or immediate flight from the perpetration of such felony or attempted perpetration of such felony.

2. Murder in the second degree is a class A felony, and the punishment for second degree murder shall be in addition to the punishment for commission of a related felony or attempted felony, other than murder or manslaughter."

If I was the defendant I would be seriously worried.

www.speedingticketkc.com 

https://twitter.com/speedingticketk 

https://www.facebook.com/SpeedingticketKansascity 

https://plus.google.com/+Speedingticketkc/
All information provided by this site, including summaries and articles on legal topics, is general in nature and provided for informational purposes only. This information is not intended as legal advice, and should not be taken as such. Legal advice involves an attorney’s application of legal knowledge and judgment to specific facts and circumstances presented by a client. Before providing specific advice, a lawyer may need to conduct legal research and/or obtain additional facts. Nonlawyers should therefore not draw conclusions about what may be legally required, permissible, or advisable based solely upon consultation of general sources of legal information, including this and other law firm websites, without first seeking appropriate legal advice.

Tuesday, February 16, 2016

Drunk or Sober? Sobriety test and junk science




Field sobriety tests are made from junk science and strange old beliefs.

As an attorney I am required to take Continuing legal education courses to maintain my bar licenses.  Many of them are boring but I cam across an extremely interesting one.  It was called, FSTs: The Science & cross demo.  This can be scene at westlaw or the National Association of Criminal Defense Lawyers (NACDL) website   The speakers where Ron Lloyd and Steve Oberman (bios).  
They discussed how to cross examine a police officer in relation to how the field sobriety tests. The main points I came out with were the following:

Field Sobriety Tests are unreliable due to the following:
         1. Poor training
         2. Constantly changing how the sobriety test is to be conducted
         3. Not retraining officers on proper procedures
         4. not performing scientific tests on sober people related to these tests
         5. not accounting for all factors such as weight, gender, age, etc.

Most officers do not appear to be able to conduct the test to the current manual available.  This is due to the fact that they are not retrained properly.  The tests are constantly changed as new studies are released, but many of these studies appear to be questionable and based on qualitative studies.  Finally, the presenters mentioned most officers are about 50 lbs, one must ask themselves, can that officer stand on one leg for 30 seconds???

I believe most police officers are hard working and doing there best, but there are some serious flaws in a field sobriety test. So in short, don't blow, don't subject yourself to a test, and ask for your lawyer immediately.

For further reading check out this article. Article on field tests put out by Texas attorney Tylden Shaeffer at http://www.sanantoniodwiandduilaw.com/


And remember to follow me at any of the following addresses for further information.  Like and share this article!!!!

Thanks, 

Richard Christopher Simons
Attorney-at-Law
Licensed in Missouri & Oklahoma
www.speedingticketkc.com   Twitter      Facebook      Google+   Linkedin

All information provided by this site, including summaries and articles on legal topics, is general in nature and provided for informational purposes only. This information is not intended as legal advice, and should not be taken as such. Legal advice involves an attorney’s application of legal knowledge and judgment to specific facts and circumstances presented by a client. Before providing specific advice, a lawyer may need to conduct legal research and/or obtain additional facts. Nonlawyers should therefore not draw conclusions about what may be legally required, permissible, or advisable based solely upon consultation of general sources of legal information, including this and other law firm websites, without first seeking appropriate legal advice.


Saturday, February 13, 2016

Antonin Scalia Dead at age 79




Conservative justice Antonin Scalia has died today at the age of 79.


He was a conservative Justice that was appointed by Reagan.  He was known for his originalist interpretation of the constitution and funny comments from the bench.  I enjoyed hearing him in oral arguments and his opinions.  I did not always agree with him, but will miss his jokes and candor. I will write more about him on Monday.

The following is from his Wikipedia page.
Antonin Gregory Scalia (Listeni/skəˈlə/; March 11, 1936 – February 13, 2016[1][2][3]) was anAssociate Justice of the Supreme Court of the United States, who served for 29 years, from 1986 until his death. As the longest-serving justice on the Court, Scalia became the Senior Associate Justice. Appointed to the Court by President Ronald Reagan in 1986, Scalia was described as the intellectual anchor for the originalist and textualist position in the Court's conservative wing.[4]
Scalia was born in Trenton, New Jersey, and attended public grade school and Catholic high school in New York City, where his family had moved. He attended Georgetown University as an undergraduate and obtained his LL.B degree from Harvard Law School. After spending six years in a Cleveland law firm, he became a law school professor at the University of Virginia. In the early 1970s, he served in the Nixon and Ford administrations, first at minor administrative agencies, and then as an assistant attorney general. He spent most of the Carter years teaching at the University of Chicago, where he became one of the first faculty advisers of the fledgling Federalist Society. In 1982, he was appointed as a judge of the United States Court of Appeals for the District of Columbia Circuit by President Ronald Reagan.
In 1986, Scalia was appointed by Reagan to the Supreme Court to fill the associate justice seat vacated when Justice William Rehnquist was elevated to Chief Justice. Whereas Rehnquist's confirmation was contentious, Scalia was asked few difficult questions by the Senate Judiciary Committee, and faced no opposition. Scalia was unanimously confirmed by the Senate, becoming the first Italian-American justice.[5]
Scalia served on the Court for nearly thirty years, during which time he established a solidly conservative voting record and ideology, advocating textualism in statutory interpretation andoriginalism in constitutional interpretation. He was a strong defender of the powers of the executive branch, believing presidential power should be paramount in many areas. He opposed affirmative action and other policies that treated minorities as groups. He filed separate opinions in a large number of cases and often castigated the Court's majority in his minority opinions using scathing language.

www.speedingticketkc.com 

https://twitter.com/speedingticketk 

https://www.facebook.com/SpeedingticketKansascity

https://plus.google.com/+Speedingticketkc/

All information provided by this site, including summaries and articles on legal topics, is general in nature and provided for informational purposes only. This information is not intended as legal advice, and should not be taken as such. Legal advice involves an attorney’s application of legal knowledge and judgment to specific facts and circumstances presented by a client. Before providing specific advice, a lawyer may need to conduct legal research and/or obtain additional facts. Nonlawyers should therefore not draw conclusions about what may be legally required, permissible, or advisable based solely upon consultation of general sources of legal information, including this and other law firm websites, without first seeking appropriate legal advice.