For "Old Guy" - Ridiculous Attorney Post

[robwbright]

In another thread I promised Old Guy that I'd post the next thread I found re: overzealous prosecutors - so here it is - my comments below the article:

http://www.local6.com/news/9296454/detail.html

6-Year-Old Fla. Girl Charged With Felony For Kicking Teacher's Aide

NAPLES, Fla. -- A 6-year-old special education student who kicked a Naples teacher's aide and spent several hous in juvenile jail is facing felony battery charges.

Her mother, however, wants to know why the case has gone so far.

Takovia Allen suffers from behavioral problems and attends a special class at Lely Elementary in Naples.

According to an arrest report, on May 2, a teacher was trying to line up students to go to music class. Takovia refused to go and kicked the teacher's aide in the ankle.

After a discussion among school officials and two law enforcement officials called to the school, the girl was arrested.

Takovia was taken to juvenile jail and held there for several hours before being released to her mother.

She is being charged with battery on a public education employee.

It's possible she will enter a program that includes counseling. If she completes the program successfully the charges could be dropped.

END QUOTE

My Comments:

These cases (and the case I posted where a 2 year old was cited by police for throwing a rock and hitting a car) are of concern to me (and attorneys in general) because of the recent shift that is occurring in the law.

Most crimes require 2 things for a conviction: the "mens rea" or intent to commit the crime; and the "actus reus" or the actual commission of the crime. Merely intending to commit a crime without committing it is not sufficient to be convicted of that crime (although given certain circumstances you could be charge with an attempt crime), and committing the act without the requisite intent is not sufficient to be convicted of the crime. For example, you can kill a person and not be convicted of a homicide crime - if your intent was self-defense - called justifiable homicide.

The problem with the recent change in the law is that for a very long time, children under the age of 7 were presumed incapable of having formed the intent to commit the crime. Further, children between age 7 and age 14 were presumed incapable of forming the intent to commit the crime - but the government could prove such capacity to form intent by establishing such fact beyond a reasonable doubt (i.e. approx 98%+ probability).

The problem with such cases is this: On the one hand, the law has historically considered children innocent and vulnerable, and has tried to protect them in a variety of ways - minimum ages of consent, for instance.

Of course, it is inconsistent to find a 6 year old capable of sufficient understanding to have the requisite intent to commit a felony, and then, on the other hand, to consider a 17 year old to young to have sufficient understanding to "intend" to consent to sexual activity - and then charge her 19 or 20 year old boyfriend with statutory rape - in which case he might serve 15 years in prison.

If the Courts and Legislatures continue to lower the ages at which a child can be found guilty of a felony, it is only a matter of time before the other protections of children will begin coming down.

Of course, if prosecutors continue to be idiots, they will likely find themselves out of a job on election day - and rightly so.

And again, do we really need to get police involved to get a 6 year old under control?

Things have certainly improved since they took corporal punishment out of schools, haven't they?

I remember walking down the hallway to the restroom when I was in 5th grade. Every student in Mrs. Shaw's 6th grade class was lined up in the hall and she was spanking ALL of them. I never found out why. . . I suspect that most of those kids also got a few licks from dad when they got home that night.

The kids in my school in the late 70s and early 80s respected their teachers (and especially the principal) and policemen were not needed - and virtually anyone would have thought it was insane to get the police involved in an elementary school problem. Not so today.

BTW, when I was in law school I represented an early teen student who was sent to juvenile detention in Maryland outside D.C. His charge was joyriding. He was put in a facility with 20 foot tall razor wire fence, and the "inmates" included 18-21 year old murderers and rapists. There were more drugs in that facility than on the street.

How is that situation going to assist that 13 year old in any way? How was juvenile detention going to assist the 6 year old in the article in any way?

 

[trakkerman]

Unfortuately, the way things are going, with law practices the way they are, people are afraid to do the "right thing" for fear of the backlash by created by the opposing parties. This brings law enforcement into the picture to be the referee. And as such, the authorities have to abide by the rulebook, however insane it might be.

Stories like this make me physically sick. People have to stop pointing fingers and start taking responsibility. I remember a couple instances in high school when I was physically repremanded. Instead of crying foul and calling the police, I realized I probably deserved it. I certainly wouldn't make a big deal about it, because if my parents found out, I would be in alot worse trouble.

People on both sides of a situation need to step back and evaluate the situation before taking action. Maybe a mandatory cooling off period?

 

[bsmith]

And again, do we really need to get police involved to get a 6 year old under control?

So I believe this is part of the degradation of our society and the root cause is the lack of “parenting”.
The public school teacher or aid is so afraid of lawsuits that they will not and do not discipline. Hence instead of disciplining a 6 year who has “special needs” they call the police in order to take any responsibility off there shoulders.
Most likely the “special needs” is our latest attempt to rationalize a failed parent/school system. The 6 year old probably suffers from not ADD, yet NPI&TMTVD(no parental involvement and too much TV disorder) disorder.
Catch 22, parents want the school system to feed, raise, and educate there child without hurting their feelings, making them cry, or disciplining them while the school system can’t control the child, can’t offer Barney via streaming video, all the while worrying about the parents suing the school district or losing their job if they actually have to discipline or take away any “rights” from the child. :whoa:

So until there are some limits on the lawsuits and responsibility at the parent level, we will see more and more police intervention at our schools! ;)

 

[Tony Eeds]

OK, I am posting the following as a response and I will add my comments following James .... Do not try and take this off on a political bent or I WILL nuke the entire thread. My disappointment is about a generation (mine) that failed to pass on a "respect" for America and a humility for our "position" in the overall scheme of things.

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Best of the Web Today - May 31, 2006
By JAMES TARANTO

Iraq and the Liberal Baby Boomers
In an essay on CBS News's Web site, the network's Dotty Lynch laments the lack of anti-Iraq sentiment among kids today:

As the war in Iraq rages on I keep asking myself: Where are the young people this time around? Where are the campuses? Where are the new Tom Haydens and Sam Browns and where are the Noam Chomskys, William Sloane Coffins and Daniel Berrigans?

For the past four months, I was at Harvard's Kennedy School of Government, surrounded by idealistic young people and their liberal professors. There was virtually no support for the war (except for the offspring of a few famous neo-cons) but neither was there serious organized activity to try to stop it.

Large groups of students traveled to New Orleans to help rebuild it and another group went to Washington to protest the genocide in Darfur. But why so quiet about Iraq?

Lynch, who says that as a lass during the Vietnam era she "was passionately against the war," then considers various theories to explain why Iraq is not another Vietnam. It's pretty trite stuff, but what's interesting is the underlying premise: that Vietnam is the norm--that in the usual course of things, as we put it a while back, "a war is supposed to become a quagmire, which provokes opposition and leads to American withdrawal."

America's defeat in Vietnam was a triumph for Americans of a certain ideological and generational profile. Arthur Sulzberger Jr., publisher of the New York Times, made this clear earlier this month in a commencement address at the State University of New York's New Paltz campus:

When I graduated from college in 1974, my fellow students and I had just ended the war in Vietnam and ousted President Nixon. OK, that's not quite true. Yes, the war did end and yes, Nixon did resign in disgrace--but maybe there were larger forces at play.

Either way, we entered the real world committed to making it a better, safer, cleaner, more equal place. We were determined not to repeat the mistakes of our predecessors. We had seen the horrors and futility of war and smelled the stench of corruption in government.

Our children, we vowed, would never know that.

So, well, sorry. It wasn't supposed to be this way.

This wonderfully encapsulates several elements of the liberal baby-boomer mindset. First, the self-congratulation: "My fellow students and I had just ended the war in Vietnam and ousted President Nixon." Even Sulzberger, however, is self-aware enough to present this with some irony: "OK, that's not quite true. . . . Maybe there were larger forces at play."

Then, the perversity of reveling in tragedy. To most Americans, the retreat from Vietnam and the resignation of Nixon were at best necessary evils; but to the liberal baby boomer they were, and at least to Sulzberger they remain, points of pride. The baleful consequences of Vietnam and Watergate--boat people, the Khmer Rouge's massacres, the presidency of Jimmy Carter, the impeachment of Bill Clinton--go unmentioned in Sulzberger's speech.

But Sulzberger also makes clear that his generation's celebration of Vietnam and Watergate was not solely, perhaps not even primarily, malicious in nature. It was motivated by a kind of misguided adolescent idealism: "We had seen the horrors and futility of war and smelled the stench of corruption in government," Sulzberger proclaims. "Our children, we vowed, would never know that."

As a newly minted college grad back in the 1970s, Sulzberger imagined that Vietnam and Watergate spelled the end of war and corruption. He still hasn't outgrown his disappointment that this turned out not to be the case. He knows his intentions were pure and is still wrestling with whether the world let him down or he let the world down.

In his new book, "White Guilt: How Blacks and Whites Together Destroyed the Promise of the Civil Rights Era" (available from the OpinionJournal bookstore), Shelby Steele reflects on the origins and endurance of this attitude:

One purpose of youthful rebellion is to put one's self at odds with adult authority not so much to defeat it as to be defeated by it. . . . But if the young win their rebellion against the old, their rite of passage to maturity is cut short and they are falsely inflated rather than humbled. Uninitiated, they devalue history rather than find direction in it, and feel entitled to break sharply and even recklessly from the past.

The sixties generation of youth is very likely the first generation in American history to have actually won its adolescent rebellion against its elders. One of the reasons for this, if not the primary reason, is that this generation came of age during the age of white guilt, which meant that its rebellion ran into an increasingly uncertain adult authority. . . . It doesn't matter, for example, that there was honor in America's acknowledgment of moral wrong in the area of race. An acknowledgment of wrong was an acknowledgment of wrong, and it brought a loss of moral authority--and thus, adult authority--despite the good it achieved.

In fact, the baby boomers were too young to be implicated one way or another in the civil rights struggle: The oldest of them turned 18 in 1964, the year Congress passed the Civil Rights Act. All of the credit for the triumph of civil rights, as well as the blame for what it had to overcome, belongs to earlier generations.

But the success of the civil rights movement might have fed the baby boomers' political delusions in another way. When Sulzberger was born in 1951, Jim Crow still prevailed. He was 2 when the U.S. Supreme Court decided Brown v. Board of Education and 12 when the Civil Rights Act became law. By the time he finished college at 22, American racism was history (though of course some of its aftereffects linger to this day).

The triumph of civil rights was the culmination of a struggle that began before the Civil War, but to a boy growing up in the 1960s and coming of age in the early 1970s, it must have seemed to have happened very suddenly. If this is so, then there was a certain logic to Sulzberger's triumphalism circa 1974: If America could so quickly abolish racism, why shouldn't it be able to vanquish war and corruption with equal ease--or, indeed, with greater ease, given how enlightened Sulzberger and his cohorts imagined themselves to be?

Baby-boomer liberalism, with its smug sense of moral superiority and its impatience with America's imperfections, is today the prevailing worldview among many of our elite institutions, not least the so-called mainstream media. This explains why Dotty Lynch is puzzled that Iraq hasn't become another Vietnam.

The answer to her question is that Iraq isn't Vietnam because "Vietnam" was the product of a peculiar set of conditions at an unusual moment in history--a moment that has long since passed.

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My position ....

My generation (I was born in 1951) is completely and totally full of ****, or ourselves, depending on which knife you use to spread “it” with.

My children are confused. Why are they confused? I would submit it is because we "believed" we rewrote the rules ... yea right. We tossed all the rules aside and now my daughter doesn't know it is alright to knock my grandson into next month if he acts like an ASS.

James says it far better than I.

If you are a child of a child of the '60's, do you feel lost?