Usually a successful defense will negate some element of the crime charged. Take Kobe Bryant, for instance. His defense team will try to show that his accuser actually consented to the encounter. If you have consent, then you can not have "without consent", and the crime has not been proved. But, with this newly recognized TDD defense, Kobe stands an excellent chance of prevailing. It might go something like this:
Kobe's attorney "Ladies and Gentlemen of the jury. The prosecution has shown that young, handsome and talented Mr. Bryant did in fact engage in unconsensual sexual conduct with that... woman. HOWEVER, they have shown no evidence whatsoever that he did not receive, just prior to the encounter, a Triple Dog Dare from team mate Luke Walton. What ever the culpability of Luke, also young and handsome and talented, we certainly can not blame Kobe for being unable to resist the Triple Dog Dare. As every Red Blooded American male knows, the Triple Dog Dare is, in fact, factually irresistible."
The Jury "No need to go on, Not guilty by reason of Triple Dog Dare."
Basketball fans everywhere "Did you see how Kobe kept his feet behind that three point line the entire time the jury was finding him not guilty?"
Ground Zero for the introduction of the TDD defense appears to involve Walmart, ladies thong underwear and a security camera. The charge was public indecency.
Lets assume, for purposes of our examination of this new defense, that two guys strolling through Walmart in ladies thong underwear is indecent (all you Panty Rights types pipe down now). Our defendants did stroll publicly in thongs, they were witnessed by concerned citizens and caught on video tape. This is a prosecutorial slam dunk! Yet...authorities say that they will not be prosecuted. Our perpetrators explain that they did it because the were Triple Dog Dared. Even in the face of all this incontrovertible evidence, prosecutors fear the TDD defense so much that they won't even try!
Not since the "Twinkie" defense has there been such a revolution in defense tactics and strategy. I don't know about you but this has me quite concerned for the criminal justice system. What jury could ever resist it? (Perhaps prosecutors can close their arguments by Triple Dog Daring the jury to find the defendant guilty. That is a Gordian knot of incomprehensible complexity.) And what does this portend for the future evolution of criminal defense?
Here are Girl Ipsa's predictions:
First the "Boys Will Be Boys" defense followed quickly by "The Girl Can't Help It".
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Let's talk a little bit about murder. Do you have any difficulty drawing the line between culpable conduct and tragic accident? There are shades of gray, to be sure, but this seems crystal clear to me.
Defendant was driving his truck and watching a movie as it played on a DVD screen on the dashboard. (At least this is what the prosecution contends and they seem to have it figured out) He crossed the line, smashed into an oncoming car (No one in the other car seems to have been watching a movie) and killed two human beings. Because he was distracted. By a movie.
To be fair and balanced(I am using this while I still can before Fox trademarks it and I have to get a new motto) I will mention that defendant says he was not watching a movie. The DVD player, the one on the dash there, was open but he wasn't watching a movie. Oh, yeah, he did wire it to bypass the safety so he could watch it while the truck ran but he wasn't watching it at this time. and when he told his X that he wasn't sure what had happened because he was watching a movie... that was just an unfortunate slip of the tongue since he was not watching a movie when this accident occurred. That's the end of my fair and balanced analysis because I am tired of this guy already.
At what point does distraction turn into a mens rea for murder? (For the non-legally inclined, mens rea is just a fancy lawyer word for state of mind) Is it really fair to call someone a murderer simply because they had a car accident? The answer is; It depends.
My torts prof was adamant that there are no accidents, only unintended consequences. The word accident is too nebulous for lawyers. We like it crisp and clean. Take murder. At common law murder is the unlawful killing of a human being with malice aforethought. There is no element mentioned in there that says anything about accidents. So, what we must be interested in is what this malice aforethought means in regard to accidents.
Obviously, if someone points a gun at you, screams "Die, mofo, die." and then fires point blank we can presume that he intended to kill you. That's murder. But what if someone points a gun at the sky and screams "Happy fourth of July!" and then fires? Is that murder if someone is hit by that bullet and ends up dead? How about driving a car on a street after drinking a 6 pack of Bud? While applying mascara? While text messaging your friends?
All of these behaviors create an appreciable and substantial risk of serious harm to others. The mere fact that you did not intend to kill anyone shouldn't change the outcome one bit. So long as you intended the act that created the risk. If you watch movies while you drive and someone ends up dead, you deserve to be punished just like the guy that shoots his gun into the air. We all know that bullets kill people and we also know that cars kill people. In this case, two people.
Defendant here is most likely going to be convicted. The victims here are clearly going to stay dead. What I would like to know is why do we need dash board DVD players in the first place? I understand that they come with safety features so that they should only play when the vehicle is in park but I also understand this is pretty easy to bypass. What I don't understand is why we need them at all. Even if they are installed in the back, they serve to distract the drivers of other cars. (Have you ever been driving down the freeway, minding your own business, only to see porn playing on a screen in an adjacent car? Explain that to the kids.) Is there going to be any responsibility taken by the industry that pushes this unnecessary and dangerous crap into our cars?
If you do the risk vs. utility analysis of this product, you'll find it is inherently dangerous (Just like that family fun game Lawn Darts). Cardozo's fabled "orbit of danger" has at it's very center a DVD player and countless glassy eyed viewers.**
**I apologize to the uninitiated for the pure law school stuff.
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Included in my legal ethics education is judicial ethics, as embodied in the Code of Judicial Conduct. It is only going to be tested on 4 to 8 % of the MPRE (that's 2 - 4 questions) so it doesn't represent that big a deal for my exam. But it does have me thinking and I'll bet you can guess about what. That's right. Justice Scalia.
You know the flap** surrounding duck hunting with our veep. Some people think that Scalia should recuse himself. It looks a little hinkey for one of the justices hearing a case in which Cheney is a named party to also be an old hunting buddy of Cheney's.
The point is only partially the judges ability to actually be objective. The other part, possibly the bigger part, is the appearance of objectivity. Or the appearance of bias.
Judges, and lawyers for that matter, need to maintain the confidence of the public as well as the integrity of the legal process. The appearance of impropriety, even in the absence of any actual wrongdoing, can create distrust for the system and contempt for the process itself.
Justice Scalia may well be capable of total objectivity in this case. Nevertheless, his purported relationship with Cheney creates an appearance of bias which will, in turn, cloud the ultimate decision in the case. Right? After all, the Vice President of the United States is a pretty impressive friend to have (if you can stand the "F" word). But then again, so is a United States Supreme Court Justice a pretty impressive buddy. These are heavy weight names to be able to drop. ("This weekend? I'll be blasting the crap out of ducks with Dick Cheney.") It is this perception which should concern us. But how do we know that Scalia and Cheney are buds? Where did this perception come from in the first place?
And why has Scalia refused to recuse? I didn't really know. I decided to find out.
"The Sierra Club makes this motion because... damage [to the integrity of the system] is being done right now. As of today, 8 of the 10 newspapers with the largest circulation in the United states, 14 of the largest 20, and 20 of the 30 largest have called on Justice Scalia to step aside... Of equal import, there is no counter balance or controversy: not a single newspaper has argued against recusal."
This is part of what the Sierra Club had to say in it's motion for recusal. Does this seem a bit familiar to Girl Ipsa readers? The FLA has gone to work for the Sierra Club. Since when are newspaper editors in charge of the SCOTUS (Figure it out, it's easy)? Do the general public, or newspaper editors for that matter, even understand the process of recusal? The rules? The recusal inquiry must be "made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances." Here, the newspaper reports of the FACTS are so wildly divergent that no one merely reading those can be said to be informed, let alone reasonably informed.
This entire controversy distressed me. I like the system. I worship the Justices. I was very unhappy with the idea that Justice Scalia, even though tending far more to the right than I generally do, was so willing to just ignore this appearance of impropriety and do whatever the hell he felt like. It just didn't seem right. Looks like I was guilty of gregariousness, huddling herd-like with the MOB, and casting aspersions thoughtlessly based on what a newspaper editor thought I needed to know. (slap me with a splintered gavel, I've been bad)
If there is damage being done to the system, it is being done by people like me, who should know better. There needs to be a balance in the commentary, and folks with more than a passing knowledge of how this stuff works need to speak up.
Justice Scalia does not believe that his impartiality can reasonably be questioned. Reasonably. REASONABLY. and he is right. It is unreasonable for people to gather their opinions from newspaper editorials, without a second thought. If Justice Scalia were to step down from this case he would be furthering this MOB culture of pre-digested opinions delivered right to your door step, email in-box, television or ears via radio waves. He would be blackmailed by popular opinion, no matter how incorrect or misinformed, into doing something which clearly should not be done.
"To expect judges to take account of political consequences - and to assess the high or low degree of them - is to ask judges to do precisely what they should not do."
This is a little part of what Justice Scalia had to say about this. You can read the rest for yourself. and you should.