Posted on 07/16/2015 6:01:23 PM PDT by Elderberry
Never changed mind.
Very high bail was always dumb but legal, and lower-able on appeal.
Too bad you can’t understand difference.
My only “seek local advice” came when some drunk, or fool, or someone trying to create a very libelous situation for FR (or two out of the three, or maybe all three) promoted the legality and wisdom of drawing a gun and blasting if one saw an armed robbery in progress.
Can the imagine the fun far-left lib lawyers would have suing FR and JR if such an act happened and some innocent was killed, and the shooter said,,... “Well, I read it was the smart and legal thing to do on Free Republic!”
Suggest one thinks before they shoot.... or posts.
Sorry, don't keep up with the geriatric group like the Hells Angels. In 30 years on the West Coast I have seen them only a few times, and hardly at all in the last 20 years. And I'm on the freeways daily.
We have far, far more violence daily from illegals and their gangs, and I don't recall the last time 9 of them were wasted by the cops. If they did that to the Nortenos or Surenos there would be a DoJ investigation.
The people in the biker clubs are aging baby boomer blue collar guys and the occasional professional out for a weekend ride. Altamont was in '71 folks. It's a tract home development now, with a wind farm above it.
-- This will never be a criminal matter, as it is not. Please see #12. --
-- @12 Seriously, Peterson could be criticized for excessive bail, but his act was certainly not unlawful. Even it he did it out of spite, or because he doesn't like motorcycles, or whatever, it's not "unlawful." --
I don't know if you consider "abuse of discretion" to be a "lawful" act or not, and rather than argue over the meaning of "lawful," here are a few principles that appear in Texas case law.
The standard you suggest, by way of example (setting of bail is allowed to be done on the basis of "he doesn't like motorcycles, or whatever") is the setting of arbitrary and capricious bail, without taking into consideration the elements set forth in Texas Code of Criminal Procedure for setting bail. In order for an amount of bail to be within the bounds of the court's discretion, courts must articulate an analysis in support of the amount of bail, with that analysis touching on the elements of Texas Code Crim. P. Art. 17.15. We don't know what analysis exists in Clendennen's record, if any.
If the record is void of the analysis directed by the statute, then Petersen abused his discretion.
It is also possible for a trial court to abuse its discretion within the statutory analytical framework. A couple examples. The first one illuminates the ramifications of setting a bail amount, as opposed to denying bail.
Appellant is presently incarcerated following his conviction by a jury for the offense of driving while intoxicated, third offense, for which the jury assessed punishment at imprisonment for four years and a $1,000 fine. ...Ex Parte Harris, 733 S.W.2d 712 (Tex. App. 1987)Prior to trial, appellant had been released on a $5,000 personal bond. Following his conviction and sentencing, the district court set bail pending appeal at $50,000, cash or surety bond. ...
Even if the State is correct in its assertion that the district court would have been justified in denying appellant bail on appeal on the ground that he is likely to commit another offense, a question this Court does not decide, the district court did not choose to so exercise its discretion. Rather, the district court elected to set bail, but in an amount calculated to be beyond appellant's means and to assure appellant's continued incarceration. The district court, by so doing, used bail as an instrument of oppression in violation of the constitution and statutes of this State. Tex. Const.Ann. art. I, Sec. 13 (1984); Tex. Code Cr.P.Ann. arts. 17.15 and 44.04, supra. The statutory authority to deny bail pending appeal in certain cases does not carry with it the authority to set excessive bail in such cases. Having decided to admit appellant to bail, the district court was obligated to set bail in a reasonable amount. Upon consideration of the factors previously discussed, this Court finds $10,000 to be a reasonable bail.
The next is an interesting example, in that the appellate court can't find probable cause! It does find abuse of discretion in setting $150,000 bail for conspiracy to commit capital murder.
This is an appeal by three appellants seeking relief from an order of the 147th District Court$ Travis County setting the bail of each at $150,000. Appellants are jointly under indictment for criminal conspiracy to commit capital murder, a first degree felony. V.T.C.A. Penal Code, Sec. 15.02. Due to their inability to furnish bail in the sum fixed by the court, each is now confined in the county jail of Travis County. ...Ex Parte Bufkin, 553 S.W.2d 116 (Tex. Crim. App. 1977)Although the indictment charges the appellants with the first degree felony of conspiracy to commit capital murder, we are unable, in the absence of evidence, to determine any of the circumstances under which the State expects to show the offense was committed. ...
... While bail should be sufficiently high to give reasonable assurance that the undertaking will be complied with, the power to require bail is not to be used so as to make it an instrument of oppression. See Art. 17.15(1), and (2), supra; Ex parte Kerr, Tex.Cr.App., 549 S.W.2d 6; Ex parte Clark, supra.
Taking into consideration all of the foregoing, we find the bail set by the trial court is excessive. It is ordered reduced, and bail is set for each appellant in the sum of $15,000.
Based on your posting history, my impression is that you are not remarking so much as what the law is, but on what the courts will do - that is, whether or not the courts will apply the law to the case at hand.
I am not predicting that the courts will follow the law, and have pointed out many instances where the courts openly defy the law while claiming to be upholding it. Pissing on the public's leg and telling us that it's raining.
None of the above remarks touch on the criminal offense of Official Oppression. As I am not in Paxton's head, it's difficult for me to gauge how his prosecutorial discretion will manifest. Sometimes prosecutors charge "to send a message" (see Angela Corey in the Zimmerman case), and sometimes they let serious crimes go uncharged as a political or friendly favor.
I will add to my previous remarks to USNBandit (IIRC), on the element of "knowing" in that offense, that the legal standard for "knowing" is a subjective one, that looks for good faith belief. The good faith belief (that he is following the law) can be inferred. If I was in Paxton's shoes and inclined to prosecute Petersen, I'd look to other cases where Petersen set bond, whether he followed the expected analytical framework, amounts of bond he set, etc., and contrast that with his treatment of the Twin Peaks and Don Carlos accused.
Finally, none of these legal actions by Broden on behalf of Clendennen are mutually exclusive. He doesn't have to choose between making an allegation that Petersen committed a crime, and filing a money damages claim based on Petersen (and others) depriving him of due process, setting excessive bail, and so forth.
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991)"The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Another way of stating the test is whether the act was arbitrary or unreasonable. The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-242 (Tex.1985), cert, denied 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986) (citations omitted).Thus, judicial rulings will be affirmed if the trial court follows the appropriate analysis and balancing factors, though the appellate court might disagree with the weight given to those individual factors. In short, a trial court judge is given a "limited right to be wrong," so long as the result is not reached in an arbitrary or capricious manner. See Rosenberg, Judicial Discretion, 38 Ohio Bar 819, 823 (1965).
I wonder if Petersen's setting of bail has even been the subject of an appeal. If it has, then he's going to have a difficult time showing that he had a good faith belief he could set bond outside of the prescribed framework. I'm not sure "good faith belief" is a moot point if Paxton doesn't prosecute, that is, if it's a moot point outside of being prosecuted criminally. The same element appears, I believe (possibly in slightly different form), in the tort of malicious prosecution and its cousin, false arrest.
Here are the problems you face:
There are courts to settle cases where laws, rights, parties etc are in conflict.
Every person who comes to court does so with the absolute belief they are right. So does the other side, whether it be the government/people or the other side in a civil litigation.
In virtually every case, each side can quote law that absolutely supports their side. Judges decide who is right, or at least which side will be honored in a specific case.
Every case loser always blames the judge or jury. They never give enough credence to the other side’s case. Now, here on FR and elsewhere, the excuse often is that The Guberment is conspiring against them.
In many ways, Conservatives are victims of this mental masturbation. Take a look at the Alex Jones website. It is a classic example of purposely creating false alarm so he can bring people back to his website, so he can charge advertisers for exposure. It’s all too rare that people depending on Jones look as his prior false doom and gloom predictions.
A current example; the fools who believe that military maneuvers in Texas are a cover for taking over Texas by the military. When it’s all over, who will stand up and say; “I was wrong.” It was all internet-inspired BS, and will happen again the next time too.
Finally, you seem to take offense when I point out what will happen, first because you don’t have the experience or training to fully understand the law, and secondly, because you want to believe your side and your side only.
The bottom line in these bail cases is very simple. If the JP thought these arrestees might be charged by a GJ with “murder by acting in consort,” he doesn’t have to prove to you was right. He doesn’t even have to be right. He just had to think he might be right. That’s the bottom line law.
If the bail was excessive, there was a legal remedy to have it reduced. That was exercised in some cases, but that does not in any way mean the original bail was excessive when it was imposed to the extent JP did anything unlawful.
Finally, as a matter “en practicum,” no JP / Judge is ever going to be charged with a CRIMINAL offense for setting a high bail, unless the STATE could prove that he did it for SPECIFIC PERSONAL GAIN. Judge puts $1,000,000 bail for a local offensive on a guy his daughter is dating who he does not like, judge has a problem.
If Judge says “’At time of arrest, LEOs did not know who fired shots or was in a conspiracy to fire those shots, and arrestees were believed to be members of organization defined by State as an Ongoing Criminal Enterprise, and that Enterprise may have organized that shooting, and arrestees were there at scene and time of crime” Judge has absolutely no criminal problem at all.
Murder by acting in consort is a wide ranging charge, and local LEOs have no responsibilities to cut everyone loose because so many of them were there.
As I said, this becomes federal civil rights class action matter. If you object to predictable outcomes, and to a full understanding of the law, and a full appreciation of the other side’s position in the matter, as opposed to standing on top of (internet) hill and screaming how right you are, so be it.
“50 years ago, we all pitied the Village Idiot.
20 years ago, TV put his sound bites on the air to create controversy and attract viewers.
Now, he has a keyboard, too much time, and is seen as a sage by the equally uninformed.”
-Rush Limbaugh
Produce one citation in support of the legal standard you claim applies, "he [the JP] just has to think he might be right."
Produce one citation in support of the contention that the criminal offense of Official Oppression requires personal gain. There have been prosecutions under this statute, you will be able to find precedents, at least most, and probably all of which contradict your assertion.
I also don't take offense at your posts, or even at your veiled insults. I simply find them misleading, of negative value, and find you entrenched. Those factors (and they are not the only ones) militate toward not wasting both of our time and effort in dialog.
I do agree that federal civil rights cases lie, and I concur with your prediction that they will be taken, so we aren't in 100% disagreement.
Please, this is America. People are innocent until proven guilty. (You remember Am Crim Law 101, don’t you?)
Please show us an adjudicated case where a Judge / JP was convicted of a crime of Official Oppression where the charge was setting too high a bail (without personal gain.)
You are very right I’m entrenched. When non-lawyers are on here, as they were recently, giving legal advice, in this or any case, that is exceptionally dangerous, that’s a problem.
A poster recently claimed he would be within his legal open carry rights to open fire and be exonerated of any crime if he saw what he thought was a felony occurring.
You are completely correct that I am entrenched in telling people to NOT follow that “legal” advice.
You probably know this, but condescension generally reflects worse on the flinger, than on the target. Keep it up, by all means.
-- Please show us an adjudicated case where a Judge / JP was convicted of a crime of Official Oppression where the charge was setting too high a bail (without personal gain.) --
You are the one who claims personal gain is required. It is incumbent on you to show authority for YOUR propositions.
Another of which is that a JP can set bail on a whim, such as "doesn't like bikers."
Another of which is that the legal standard for probable cause is "He just had to think he might be right." My contention is that individualized accusations have to present, too. But you never did answer my question on that point, poseur.
Indeed. Thanks for your informative well written posts.
Civil rights action is a loser when the government acts lawfully.
In other words, to take the position that a civil rights claim lies, one must take the position that some government action was unlawful.
I am not claiming that an unlawful government act is necessarily a crime.
This is idiocy.
Rule #14, which I have ignored at my peril: “Never Debate Law With Non-Lawyers!”
Please send me the eventual notice of the judge’s conviction of these heinous crimes you allege he has committed, or an apology when this is settled.
Heh. You even got THAT one wrong!
Wherever you practiced or practice law must have a high tolerance for sloppy work, showmanship over substance, etc. All I asked for was authority for your statements of legal principle. Too much to bear?
“Every person who comes to court does so with the absolute belief they are right”
And you practice law? That is a flat out B.S. statement there. Which leads me to believe a whole lot of your statements on this thread are pretty much B.S.
Which leads me to ONE of my problems with our Justice System. When the facts aren’t on your side then just baffle ‘em with Bull Shit.
I want to know this. I the entire history of the United States have 177..or more...people ever been arrested on exactly the same warrant and all been subjected to $1,000,000 bail? I think that would be what would be called a precedent. Which, as far as I know, makes this particular cased unprecedented.
It's the whole psychology of getting to court.
Any legal matter that eventually gets into court begins as a major negative event of come kind in the actor/litigant's life. Civil litigation, criminal charges, even SLAP or harassment litigation had some sort of negative beginning.
People go to lawyers to resolve a perceived problem or to answer litigation from someone else’s perceived problem. After the first blowup, most people are pretty reasonable.
But then it escalates. What was a settle-able matter becomes hardened positions after months and years of depositions, delays, BS (always from “the other side.”)
By the time they get to a court date, the original matter is often largely pushed into the background by the huge (often lawyer generated) personal animosity between the parties.
They stop looking at the facts. They refuse to look at the weaknesses in their own case. They even stand up in church and ask fellow parishioners in their church to pray for a favorable verdict or death for the other side!
You have no idea how strong this induced lunacy can become. I have seen simple civil cases escalate to the point that otherwise sane people very guardedly, ever so slightly, ask their lawyer if they know a ‘nonjudicial way’ to settle this and ‘get those bastards.’ In other words, do you know a hitman I can hire?
They don't just know they are right! They know, by God, they are right and want to destroy the other side, no matter what it takes.
I've seen people spend $400,000 to get a $500 verdict, and that is by no means unusual.
Can you imagine how much insanity and hate is running through their heads at that point.... especially if it was some "injustice' done to the wife (who never stops bitching and tells him he not a man if he does not "win" this), or some dirty, rotten cop who dared to accuse their perfect child of DWI after he blew a .2 and killed 4 people in a 2:15 AM (just after the bars close) traffic accident.
Murders in these cases are not uncommon.
And if you think part of this is some lawyers running up your fees, you are totally right!
If any party to a civil or criminal matter has enough sense to stop believing in the meritoriousness of their own case, and their case alone, they go to a mediator, or take the offered deal, but that happens all too rarely.
#2: By the nature of the charge, all the charging documents had to be the same. They were all charged with being participants in an ongoing criminal enterprise, all together, all cooperating in the conduct of one criminal enterprize.
Stop and think for a moment, all the docs had to be the same, if they all were accused of doing the same thing.
All Defs had the problem of possible “Murder in Consort” charges, too.
ALL THAT SAID:
The charging docs were very typical in matters such as this, and had to be.
The bond amounts were LEGAL at the time they were imposed.
The bound amounts were EXCEPTIONALLY STUPID and should be easily lowered on appeal. Why Defs have not moved to move entire matter to appeals level amazes me. Perhaps they are all depending on same incompetent Public Defender
Remember, a; legal and b; smart, and c; right are very often 3 different things, as they are in this case. .
Finally, this is going to be a big federal class action lawsuit. What JP did was LEGAL, but STUPID, and juries hate highbrow stupid. It will be big settlements, 'cause State of Texas never wants this to go to trial.
Oh I thought before I posted, and I do understand the difference.
And please do not take my advice could be dangerous, always remember find a lawyer in your own area.
Rule #979, see a attorney in your area
If everything the government did was legal, constitutional, etc., then there is no viable claim for deprivation of rights.
-- Why Defs have not moved to move entire matter to appeals level amazes me. --
I don't know exactly what you mean by "appeals level," but most of the accused did have excessive bail and lack of probable cause claims heard in a court that is superior to the JP's court. As for moving the entire matter to appeals level, Texas procedure has timelines and threshold conditions that must necessarily exist before an appeal is taken. Conditions precedent to appeal of a trial court decision don't yet exist.
-- If any party to a civil or criminal matter has enough sense to stop believing in the meritoriousness of their own case, and their case alone, they go to a mediator, or take the offered deal, but that happens all too rarely. --
Something on the order of 90-95% of civil claims are settled before trial. Most parties are well aware of the weaknesses in their case, and most know that the decisions at trial are arbitrary. I've had opponents who knew they had a losing hand on the law and merits go to trial, "rolling the dice." They have a non-trivial probability of getting a decision in their favor.
Damages will be awarded by a jury because, even though the setting of bail was legal at the time it was set, the issue that it has not now been moved along and other resources brought in to move things along, separate those who did possibly conspire in a felonious manner from those who obviously did not and get bail reduced for those who in all likelihood will have the felony charges dropped, will be a huge matter at EQUITY. Shortage of LEO / Court manpower was an excuse good for about 2 weeks at most.
Why haven’t they appointed a Special Master or AG sent a task force in? Who knows?
I think in many ways we agree here. Those who aren’t hell bent on their righteousness are the smart ones who settle/mediate. It’s often the “I KNOW I am 100% right” who will not settle. And even down deep, if they know they are not right, then their ego (or their lawyer with a big boat payment due) pumps them up to a 100% state.
If memory serves, JPs in Tx are not “Courts of Record,” so Defs get an automatic one-up to the next higher court.
What was legal at Day 1-3, (and in reality, out to about Day 8-10) is now very foolish and very abusive, (and highly actionable,) at Day 61. But such civil action for monetary damages will have to wait many weeks/months before recovery is even sought.
From a civil standpoint, the longer the inappropriate Defs remain in jail, the greater damages they will claim and justify.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.