Man Facing 26 Years for Lying Wins Hearing

LexBaird said: "The previous convictions are facts in the case for invoking the 3 strikes ..."

And "facts" are what are to be decided by juries and they are only relevant when they have some relation to the elements of the crime being tried. Your suggestion that prior convictions be used in determining guilt for an additional crime is equivalent to a suggestion that the other facts in the case might otherwise be insufficient for conviction. Why do you need such an advantage?

You are defining a crime which consists of three or more other crimes, perhaps all but one of which may have predated the criminal legislation creating such a crime. The fact that this crime would not be chargeable if actions predating the legislation were not considered convinces me that it is ex post facto.

You seem to agree with me that the Lautenberg Amendment is unConstitutional. Would it be acceptable though if a person isn't denied their right to keep and bear arms until conviction for an offense, no matter how minor. Would Lautenberg be alright for you if people who had overdue library books AND a prior misdemeanor conviction for domeestic violence, which predated Lautenberg, were then denied their RKBA?

LexBaird said: "It would be ex post facto if jaywalking was previously legal, and you were tried for a violation prior to the statute."

I believe I asked before but don't recall you responding to an important point. In some of the Lautenberg cases, people had accepted plea bargains convicting them of domestic violence. Part of the "bargain" was knowing what the sentence would be. As a gun owner, I wouldn't even plead guilty to jaywalking today because of the anti-gunners campaign to criminalize every aspect of keeping and bearing arms. What of those people who accepted plea bargains, never expecting that such a plea could change a five year sentence later into a life sentence. I think you might have said, "Tough luck" or some such thing.

Can you honestly state that such people would have made the same decision if they knew that three-strike laws would be passed? What makes these people undeserving of full and complete disclosure of their potential punishment? Is that not one of the protections afforded by the prohibition against ex post facto laws?

I don't understand why you keep bringing up the same false analogy. Please reread the first paragraph of #59.

The Lautenburg cases are a situation where additional penalties are being imposed on domestic violence cases that predate the law. Three Strikes cases are not; they can only be brought against people who hit #3 after the law was passed. If the D.A. was going through the files and popping every three time loser in the records, you might have a comparison, but all 3 strikes cases are dependent upon felony conviction after the law was passed.

If Lautenberg said that only domestic violence cases from now on could carry the penalty, it wouldn't be ex post facto. However, it would still have other problems.

And "facts" are what are to be decided by juries and they are only relevant when they have some relation to the elements of the crime being tried.

No, facts are what are presented to the juries, who then decide their relevance. Concealing facts from juries denies them full knowledge to perform their duties.

You are defining a crime which consists of three or more other crimes,

No, I am defining a crime that consists of being CONVICTED of 3 or more other felonies, not for the felonies themselves. The fact of the existence of the convictions is what is at question. They are not being retried to see if they committed the felonies in question, nor are there additional penalties being imposed for the previous convictions.

If a man was charged with selling stolen goods, and the case was supported by having previously convicted the same man of stealing the same goods, would you deny using the prior conviction as evidence?

LexBaird said: "I don't understand why you keep bringing up the same false analogy. "

Because it is not a false analogy.

Knowing that there is a three-strikes law would make a person less likely to accept a plea bargain to a violent felony. Many people who are facing three-strikes sentencing may have accepted plea bargains never realizing that this could result in a life sentence for a conviction later. They had a choice to accept the plea bargain or reject it and take their chances. They deserved to know what impact such a plea bargain would have on them.

Given your willingness to accept the present laws, I wonder just what value you see in protections against double jeopardy or ex post facto. Why not just do away with them.

If a prosecutor thinks he can get a conviction in a second trial, despite an acquittal, why not let them try? If the legislature sees fit to criminalize an act, why not allow prosecution of people who committed the act prior to the legislation?

LexBaird said: "No, facts are what are presented to the juries, who then decide their relevance."

You may want to look this up. Judges, I believe, are responsible for ensuring that juries do not hear prejudicial facts. Judges can exclude evidence which is not relevant. Judges can also dismiss cases when the facts, if believed, would not constitute proof of a crime. It takes more than just a willing jury to convict.

LexBaird also said: "If a man was charged with selling stolen goods, and the case was supported by having previously convicted the same man of stealing the same goods, would you deny using the prior conviction as evidence?"

It is my understanding that this kind of information is usually excluded for the good reason that it is not evidence that the defendant committed the specific crime charged. For example, there are so many cars stolen every year that it would not be reasonable to suggest that a defendant was guilty of stealing a particular car because he had stolen a car in the past.

Knowing that there is a three-strikes law would make a person less likely to accept a plea bargain to a violent felony

One would think so at first blush, but most criminals jump at the chance to plead to a lesser charge without thought to the viability of their future criminal career.

They had a choice to accept the plea bargain or reject it and take their chances. They deserved to know what impact such a plea bargain would have on them.

They still have the choice of what impact it will have on them. Simply cease to commit further felonies, and it will have none at all. I've managed to go through my whole life without committing a single one.

Given your willingness to accept the present laws, I wonder just what value you see in protections against double jeopardy or ex post facto. Why not just do away with them.

Strawman argument. As I have repeatedly and patiently pointed out, Three Strikes violates neither double jeopardy, nor ex post facto. Your continued insistence, without any counterargument, that 3S does so notwithstanding. Therefore the idea that I would support laws that do, in fact, violate the 5th A. holds no water.

LexBaird said: "Therefore the idea that I would support laws that do, in fact, violate the 5th A. holds no water."

I asked WHY you support the protections of prohibition against double jeopardy and ex post facto. I can't understand WHY. What is so special about those limitations that you support them but you see nothing wrong with convicting a person of recidivism using a crime committed prior to the recidivism statute as a basis for the charge. We disagree about whether the three-strikes law, as applied to convictions prior to three-strikes legislation, is an ex post facto law. Fine. Let's disagree.

Now I am asking WHY you think it is so unfair to try a person twice for the same crime. If just one of two juries finds a person guilty why is that not enough for a conviction? WHY NOT hold a person accountable for behavior that is criminal even though it wasn't criminal at the time of commission? If the legislature decides that an act is criminal, why does it matter that the act was committed prior to enactment?

And finally ... WHY NOT exclude felonies committed prior to the enactment of three-strikes laws from consideration? What creates the need to pass a law which even some of us believes violates ex post facto?

What is your opinion of trying someone under federal law for violating a person's civil rights by killing them after they have been found not guilty in a state court of murder? Is that not double jeopardy? Or is there some nuance I have missed in this case also?

Double Jeopardy is when a person is "subject for the same offence to be twice put in jeopardy of life or limb." IMO, the Federal "civil rights" retrying of cases for a particular offense that has already been acquitted is DJ, because it is merely a relabeling of the same circumstances. A case arising from facts made evident in the trial of an offense, however, may be used to support a trial for a different offense.

Why is DJ wrong? Because it opens citizens to abuse by a vindictive government. If there is no limit to the amount of times a person may be tried for an offense, the trials themselves may become a punishment, even if a conviction is never achieved.

Ex post facto is the making an action criminal retroactively. The trouble with this, of course, is that any action can be criminalized, including actions that were formerly mandatory, or laudatory (such as keeping weapons). Government by fallible men cannot be entrusted with this power. Three strikes does not make having a long criminal record a criminal act retroactively; it makes any subsequent adding to it a criminal act.

Why not exclude previous felonies? Because if you are going to accept previous convictions as evidence of recidivity on their face, it doesn't matter when they date from. Having previous convictions isn't the triggering action, getting a new one is. Since the purpose of the law is to jail career criminals, why wait for three more offenses before charging them?

LexBaird said: "Three strikes does not make having a long criminal record a criminal act retroactively; it makes any subsequent adding to it a criminal act."

At the time of passage of a three-strikes law, the legislature is creating multiple classes of people. Most cannot be charged with recidivism until the commission of three felonies. Some face greater jeopardy because they already have felony convictions.

What are the limits of such a classification power? Can people who have committed overdue library books face life in prison for commission of a traffic violation?

Can people who have ever purchased a gun be liable for greater penalties if they later double park?

What is so special about a felony conviction that a law can be passed which retroactively creates a class of people at greater jeopardy? Can a misdemeanor conviction do this? An infraction? An insult to an elected politician?

Is there no limit whatever on what can be done to felons, even retroactively?

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