Okay, I'm Prepared To Admit It....

[Lord Jim]

Here's an actual "known fact":

Mr. Reagan never did anything sufficiently egregious as to cause a Congress controlled by the other party to begin anything even remotely approaching an Impeachment inquiry.

[loCAtek]

The process in a bit more current legalese, again no usage of the term 'felon';

The Process in a felony Case
Posted by Bob | Posted in California Court Records | Posted on 21-08-2010
(0) Comments

The Process in a felony Case

Initial Arraignment

The arraignment is the first court hearing in a felony case. An arraignment follows the constitutional principles of speedy trial rights and the ability to hear the charges being held against the defendant. Both in-custody and out-of-custody defendants must be arraigned without undue delay, no more than two calendar days after arrest, excluding Sundays and holidays.
There are two arraignments in a felony case. This first arraignment will call for the defendant to make a plea of “guilty,” “not guilty,” or “nolo contendere.” If the defendant is in custody, the court will determine whether the defendant will be allowed to post bail. If the defendant pleads not guilty, the judge will set a date for a preliminary hearing.
Preliminary Hearing
A preliminary hearing is to determine whether the defendant will be bound over to the higher court. A preliminary hearing must be set within 10 court days after the date the defendant is arraigned or enters a plea, whichever occurs later. This time requirement applies whether or not the defendant is in custody or out of custody. However, the magistrate may deem there is good cause for a continuance, or the time may be waived by both the prosecutor and the defendant, therefore extending the preliminary hearing past the ten-day period. However, hearing must be held within 60 days even if good cause for continuance is shown unless there is a time waiver.
The district attorney must put on enough evidence to establish that there is probable cause to believe that a felony has been committed and that the defendant should be bound over for trial in the higher court. In making this determination, the judge uses the “probable cause” legal standard, deciding whether the government has produced enough evidence to convince a reasonable jury that the defendant committed the crime or crimes charged. In reaching this probable cause decision, the judge listens to arguments by both the district attorney and the defense attorney.
The prosecutor may call witnesses to testify, and can introduce physical evidence in an effort to convince the judge that the case should go to trial. The defense usually cross-examines the government’s witnesses and calls into question any other evidence presented against the defendant, seeking to convince the judge that the prosecutor’s case is not strong enough, so that the case against the defendant must be dismissed before trial. However, the standards for evidence necessary to show probable cause are very low at this hearing, thus most defendants are bound over for trial.
Before the California court system developed one superior court to handle both misdemeanors and felonies, there used to be a municipal court where the felony would first go for the initial arraignment. There are still two arraignments, despite the fact that there is only one superior court to hear the case.
Second Arraignment
Where the defendant is bound over for felony trial, there is a second arraignment. This allows the defendant to once again make a plea of “guilty,” “not guilty,” or “nolo contendere.” This second arraignment gives the opportunity for the case to settle at this point, after negotiation between the district attorney and the defense attorney. This stage is often the point where the district attorney will offer a “plea bargain” to induce the defendant to plead guilty or nolo contendere.
Pre-Trial Conference
The judge, district attorney, and defense attorney meet for a pre-trial conference in order to settle the case. Pre-trial motions are heard, such as further discovery, suppression motions, motions to dismiss, and other miscellaneous motions dependent on the circumstances of the case. At this time the court will be informed by the parties whether or not there is a settlement or disposition in the case. If this happens, then the case is resolved. Otherwise a date is set for trial.
Trial
A trial may be conducted as a “bench trial” where the judge alone will hear and decide the outcome in the case, or a jury trial, where a person’s guilt or innocence is decided by a jury of 12. It is a constitutional right to be judged by a jury of one’s peers, although the actual ethnic and gender make-up of the panel may not really be the same as the defendant. A jury is made up of people in a certain geographic area relative to the courthouse. The courthouse where the case is heard is in the same geographic area where the crime was committed.
Depending on the complexity of the case, the length of the trial will vary. The basic structure of the trial is as follows:
§ Jury Selection: this process can take several days. Both the prosecutor and defense attorney are given the opportunity to “voir dire” the prospective jurors to determine their fitness for trial. Either side may move to exclude a juror for cause, such as bias, or exclude them based on a limited number of “peremptory” challenges.
§ Opening Statement: Where both the prosecutor and defense attorney are allowed to give their “version” of the case to the jury.
§ Direct Examination: Where both sides are allowed to call witnesses for their case.
§ Cross-Examination: Where the side that didn’t call that witness are allowed to question the witness. The major difference between cross and direct examination is that in cross-examination, the lawyer is allowed to ask “leading” questions.
§ Closing Argument: Where both the prosecutor and the defense attorney are allowed to “sum up” their respective cases, highlighting the evidence that favors their case. The closing argument will often conclude with the lawyer asking the jury to find for their case.
§ Jury Instructions: The judge will advise the jury how to interpret the evidence in the case, based on preset jury instructions, normally prepared “CALJIC” instructions.
§ Jury Deliberations: Where the jury is first allowed to discuss the case among themselves, deciding the facts of the case within the framework of the jury instructions.
Sentencing
Most felonies are punished under a determinate sentencing scheme. Determinate sentencing provides three possible terms of imprisonment: a low, middle, and high term to be served in the state prison. Often it is assumed that the middle term is the appropriate sentence unless the court makes findings on the record that justify the higher or lower term. Making a finding on the record means that it is stated in open court. Where a crime is classified as a felony, but the statute does not provide a specific sentencing range, then the crime can be punishable by imprisonment in the state prison for 16 months, 2 years or 3 years plus any enhancements.
The California Rules of Court (CRC 4.421) lists the following aggravating circumstances which may be used to enhance the sentence:
(a) Facts relating to the crime, whether or not charged or chargeable as enhancements, including the fact that:
(1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.
(2) The defendant was armed with or used a weapon at the time of the commission of the crime.
(3) The victim was particularly vulnerable.
(4) The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission.
(5) The defendant induced a minor to commit or assist in the commission of the crime.
(6) The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process.
(7) The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed.
(8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism.
(9) The crime involved an attempted or actual taking or damage of great monetary value.
(10) The crime involved a large quantity of contraband.
(11) The defendant took advantage of a position of trust or confidence to commit the offense.
(b) Facts relating to the defendant, including the fact that:
(1) The defendant has engaged in violent conduct which indicates a serious danger to society.
(2) The defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness.
(3) The defendant has served a prior prison term.
(4) The defendant was on probation or parole when the crime was committed.
(5) The defendant’s prior performance on probation or parole was unsatisfactory.

In addition to these factors that aggravate punishment in a criminal case, criminal defense lawyers must be mindful of the factors that alleviate or mitigate punishment in a criminal case. These factors in mitigation are found in California Rules of Court Rule 4.423, and include:
(a) Facts relating to the crime, including the fact that:
(1) The defendant was a passive participant or played a minor role in the crime.
(2) The victim was an initiator of, willing participant in, or aggressor or provoker of the incident.
(3) The crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur.
(4) The defendant participated in the crime under circumstances of coercion or duress, or the criminal conduct was partially excusable for some other reason not amounting to a defense.
(5) The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.
(6) The defendant exercised caution to avoid harm to persons or damage to property, or the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim.
(7) The defendant believed that he or she had a claim or right to the property taken, or for other reasons mistakenly believed that the conduct was legal.
(8) The defendant was motivated by a desire to provide necessities for his or her family or self.
(9) The defendant suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime; and the victim of the crime, who inflicted the abuse, was the defendant’s spouse, intimate cohabitant, or parent of the defendant’s child; and the facts concerning the abuse do not amount to a defense.
(b) Facts relating to the defendant, including the fact that:
(1) The defendant has no prior record, or an insignificant record of criminal conduct, considering the recent nature and frequency of prior crimes.
(2) The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime.
(3) The defendant voluntarily acknowledged wrongdoing prior to arrest or at an early stage of the criminal process.
(4) The defendant is ineligible for probation and but for that ineligibility would have been granted probation.
(5) The defendant made restitution to the victim.
(6) The defendant’s prior performance on probation or parole was satisfactory.

Perhaps AndrewD could provide some court documents where 'felon' was used in prosecution?

[dgs49]

My god...

Looking over this thread for the first time in a couple days, I'm amazed that Andrew has spent so much time proving his (secondary) point about what it means to be a "felon." It is brilliant, comprehensive,and almost irrebuttable. I can't believe a couple people are still arguing about it.

But the fact remains that his main point - that Ronaldus Maximum was a "felon," is totally unsupported and based on his opinion that RR knew about the Iran-Contra shenanigans and either (a) authorized it, (b) allowed it to happen, or (c) helped to cover it up. Nothing but opinion. There is no evidentiary support whatsoever for this opinion, and in fact, there exists considerable evidence (testimony) and logic to refute it.

AJD must be even less busy at work than I am. And that's saying something.

[Lord Jim]

Andrew refers to Ronald Reagan as a "felon" because he he detests Ronald Reagan. He loathes and despises him. As Ross Perot used to say, "it really is just that simple."

In my opinion, (see how easy that is?) the reason Andrew has such obsessive visceral loathing for Mr. Reagan is because of his great success and triumphs. The very idea of a successful Conservative President, is deeply offensive to Andrew. (He probably detests Reagan even more than he detests GWB; because at least Bush had the decency not to be successful.)

The fact that Reagan and his Presidency are widely respected and highly regarded by both the majority of historians, (including some prominent liberal ones, like Michael Bechloss) and the vast majority of the public, drives Andrew up a tree. He's trying to do anything he can to diminish the former President's reputation; no matter how weak or thin the charge.

[Andrew D]

I really don't have any interest in am afraid of discussing this minor, insignificant, historical footnote known as "Iran Contra" which is only of interest to a tiny handful of obsessive die hard Reagan haters the central fact of the Reagan presidency, but I will point out that John Poindexter testified under oath that knowledge of the transfer of funds to the Nicaraguan Freedom Fighters went no higher than him and that Reagan was never told about it.

I know that you will say you believe Poindexter was lying about it, (actually you'll probably say that his lying about it is a known fact that everyone agrees with, since that's generally the sort of verbiage you employ when expressing a personal opinion)

But the fact remains that his main point - that Ronaldus Maximum was a "felon," is totally unsupported and based on his opinion that RR knew about the Iran-Contra shenanigans and either (a) authorized it, (b) allowed it to happen, or (c) helped to cover it up. Nothing but opinion. There is no evidentiary support whatsoever for this opinion, and in fact, there exists considerable evidence (testimony) and logic to refute it.

That's what Lord Jim and dgs49 say.

But here's what the Independent Counsel -- a lifelong Republican; just imagine if the investigation had been conducted by a Democratic equivalent of Kenneth Torquemada Starr -- says:

Reagan was aware of and even encouraged some aspects of external funding for the contras, such as solicitation of aid from third countries and contributions from private benefactors.

(IR:TFR at p. 446.)

So believe whom you want. Believe a couple of Reaganolaters, or believe the Republican Independent Counsel who actually investigated the matter.

[Andrew D]

This bit is simply silliness:

The very idea of a successful Conservative President, is deeply offensive to Andrew. (He probably detests Reagan even more than he detests GWB; because at least Bush had the decency not to be successful.)

I do not detest Theodore Roosevelt. I do not detest William Taft. I do not detest Dwight Eisenhower.

And as I have pointed out repeatedly, in my judgment, the President who committed the gravest crimes while in office was Andrew Jackson -- a Democrat.

Respecting several conservative Presidents does not reflect any anti-conservative agenda. Considering a Democrat to have been the most criminal President in U.S. history does not reflect any anti-conservative agenda.

Siding with conservatives on Second-Amendment issues does not reflect any anti-conservative agenda. Siding with conservatives on Commerce-Power issues does not reflect any anti-conservative agenda.

If you want to see purely partisan agenda in action, look to those who insist, contrary to the evidence, that Reagan did not know anything about the Iran-Contra affair. Look to those who insist, contrary to the evidence, that Reagan "won the Cold War". Look to those who reach their conclusions without examining the evidence, rather than to those who examine the evidence first and then base their conclusions on it.

[dgs49]

"...Reagan was aware of and even encouraged some aspects of external funding for the contras, such as solicitation of aid from third countries and contributions from private benefactors..."

And where, exactly does Iran Contra fit in here? External. Third countries. Private donations. This was all publicly known and obvious. Quite a far cry from encouraging his underlings to break the law.

[oldr_n_wsr]

If I cheat on my wife and she (or anyone else save my mistress) never finds out, am I still an adulterer?

[Andrew D]

I have no idea who "Bob" is, nor do I much care.

The simple facts remain uncontroverted by anything of any substance. A felon is person who has committed a felony, regardless of whether he or she has been convicted of committing that felony. A convicted felon is a person who has committed a felony and been convicted of it. An unconvicted felon is a person who has committed a felony but not been convicted of it.

All of loCAtek's off-the-point ravings do not change the meanings of words.

Unless she can produce a reliable source stating that a person who has committed a felony but not been convicted of that felony is not an unconvicted felon -- nothing more remains to be said on the subject.

[Joe Guy]

From Wikipedia

"A person convicted in a court of law of a felony crime is known as a felon."

How would you answer this question, Andrew?

If a convicted felon has his felony expunged, is he still felon?

I expect that you would consider a person who was once a felon to always be a felon even if that person is no longer considered a felon by law.

[Gob]

What did Regan's astrologer (Kitty something?) tell hm to do about Iran Jim?

[Gob]

If I cheat on my wife and she (or anyone else save my mistress) never finds out, am I still an adulterer?

No, the correct term for that is "lucky bugger".

[Gob]

Here's an actual "known fact":

Mr. Reagan never did anything sufficiently egregious as to cause a Congress controlled by the other party to begin anything even remotely approaching an Impeachment inquiry.

Here's a known fact; Regan got away with it.

(3 Post nutbag!)

[Andrew D]

In the selective-quotation-designed-to-be-misleading department:

Lord Jim wrote, in pertinent part:

On the other hand, if one is not convicted of a felony, whether or not one is a "felon" is a subjective judgment, based on that individuals reading of the law and facts....

Not a legal determination....

To which I responded, in pertinent part:

Whether one is a felon is always a subjective judgment.

Jurors subjectively decide whether the prosecution has proved beyond a reasonable doubt that the accused is guilty of a felony.

It's a factual determination which has legal consequences.

That is different from a true legal determination. A true legal determination takes the alleged facts as given and renders a legal conclusion.

A person is accused of having done X, Y, and Z. The person is charged with having violated statutes A, B, and C by having done X, Y, and Z.

The factual decision is whether the person actually did X, Y, and Z. The legal decision is whether, by doing X, Y, and Z, the person violated statutes A, B, and C.

To which Lord Jim replied, duplicitously omitting most of what I had written:

Whether one is a felon is always a subjective judgment.

Well, at least Andrew you've finally admitted (sort of) that an opinion you hold is subjective; normally in just about every instance, you insist that your opinions are all objective facts....universally accepted truths....This is a refreshing change; one hopes it might become a trend...

What I actually wrote, of course, is that whenever anyone, or any group of people, including a jury, decides that someone has committed a felony, that decision is an exercise in subjective judgment. Jurors assess the credibility of witnesses. That is unavoidably a subjective judgment. I evaluate the credibility and weight of the various pieces of evidence adduced in Walsh's Final Report and in other places. That is unavoidably a subjective judgment. Etc.

Even eyewitness testimony involves subjective judgments. Eyewitness identifications are notoriously unreliable. Even if a witness sees someone do something, the witness cannot tell whether the person is insane (which means that there is no felony).

The difference between my subjective judgments about Reagan and Lord Jim's is that mine are based on evidence and reasoning. I start there and work my way to a conclusion. Lord Jim starts with his conclusion and is impervious to evidence and reasoning.

[Andrew D]

From Wikipedia

"A person convicted in a court of law of a felony crime is known as a felon."

True enough. More precisely, such a person is "known as" a convicted felon. And if that person actually committed the felony, then that person actually is a convicted felon: That person is "a person who has committed a felony" and has been convicted of it. If, however, that person did not actually commit the felony, then despite being "known as" a convicted felon, he or she is not one: He or she is not "a person who has committed a felony" but an innocent person wrongly convicted of a felony.

How would you answer this question, Andrew?

If a convicted felon has his felony expunged, is he still felon?

Did that person actually commit the felony? If he did, then he is and will always be "a person who has committed a felony". If he did not, then he never was "a person who has committed a felony".

I expect that you would consider a person who was once a felon to always be a felon even if that person is no longer considered a felon by law.

In that case (assuming that that is the result of expunction), the law no longer considers that person a convicted felon. And in general, that is all the law cares about: Is someone a convicted felon or not? (Only in very rare cases do issues involving unconvicted felons arise.*)

For example, take the federal statute prohibiting convicted felons from possessing firearms. That statute says, among many, many other things:

Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

Suppose (1) that I was convicted in 2008 of a felony under State law, (2) that I possessed a firearm in 2009 and am therefore charged with a violation of the federal statute, (3) that my State-law conviction was expunged in 2010, (4) that the expunction was "ab initio" -- legalese for "as far as the State is concerned, I never committed any felony at all," and (5) that the expunction occurred before I was brought to trial on the federal charge.

Can I be convicted under the federal statute? Yes.

As of the moment when I possessed the firearm, I was what the law calls a convicted felon -- I had been convicted of a felony. The fact that the State later decided that I wasn't actually a felon after all is irrelevant. (See, e.g., U.S. v. Lee, 72 F.3d 55 (7th Cir. 1995).) The same rule applies to convictions reversed on appeal. If I am convicted of a felony, I possess a firearm while that conviction is on appeal, and the conviction is reversed on appeal, I am still guilty of being a so-called convicted felon in possession of a firearm, because at the time when I possessed the firearm, I was someone who had been convicted of a felony, and the fact that I am not actually a felon doesn't matter.

The point is that other than in proceedings whose purpose is to determine the validity of a conviction (appeal, habeas corpus, and other forms of collateral attack), the law does not care whether someone is actually a felon. The law cares about whether someone has been convicted of a felony. An innocent person who is wrongly convicted of a felony is subject to the statutes prohibiting people who have been convicted of felonies from possessing firearms. A person who has actually committed a felony but has not been convicted is not.

The essential difference is between law and reality. In the law, a person who has been convicted of a felony is a "convicted felon," even if that person did not actually commit the felony. But in reality, a felon is "a person who has committed a felony," regardless of whether he or she has been convicted or even accused of committing that felony.

-------------------------

* Look at the five cases I cited previously. In the first case, the issue was the validity of a grant immunity given in exchange for someone's testimony, which consisted of "volumes of inside information on an extensive series of major burglaries," and the court referred to the perpetrators of those burglaries, without identifying them, as "unconvicted felons". That is a perfect example: Burglaries are felonies, so the people who had actually committed those burglaries but had not (at least, not yet) been convicted of them were unconvicted felons.

In the second case, the court referred in the abstract to "some status of an indicted but unconvicted felon." (The court was observing that the prosecution had not made such a claim about the defendant, so it had no reason discuss the issue any further.)

In the third case, the court observed that a previous case had held that a person indicted for a felony but adjudicated insane before trial so never convicted of the felony did not have to exhaust his state remedies before bringing a federal civil rights action challenging his incarceration in a state hospital for the criminally insane.

The fourth case addressed the issue to which the court in the third case referred.

In the fifth case, the issue was whether, and if so, under what circumstances, the testimony of someone who admitted being an accomplice -- "a self-confessed though unconvicted felon" -- is admissible against the defendant who is charged with being the principal in the commission of a felony.

None of those cases addresses expunction or reversal on appeal or the like.

-------------------------

Edited to make a portion of the connect-the-dots exercise -- in particular, the paragraph which includes the citation to U.S. v. Lee -- even more pellucid than it already was. As of the time of this editing, no one has taken issue with this posting, unless one counts loCAtek's erroneous, unsubstantiated, and barely coherent ramblings about "literal(literary)" definitions vs. legal definitions. (When did "literal" and "literary" become synonymous? When we moved loCAloco-land.) No substantive change, only clarification, is intended.

[Sean]

Here's a thought...

To those who say a person must be convicted to be considered a felon...

...ever heard of a 'wanted felon'?

Go ahead and google it. The various law enforcement agencies don't seem to mind describing somebody as a felon before they are tried or even caught!

[dgs49]

Sean, news reports never refer to someone who is not convicted as a "felon" because they do not want to bring on a defamation suit. While it may be patently obvious that the person has commited the felony (e.g., OJSimpson), they can't put themselves in a position of having to prove in court that what they said was true.

But the fact remains that one who commits a felony (regardless of the acts of the court system) is a felon. Andrew has explained this far better than I would have time time, patience or resources to attempt.

[loCAtek]

Sean; AKA 'fugitive' in other words, they are still in the act of committing a crime by evading the law.

Should they submit to, or be brought to arrest, the nature of their crime can be investigated as to whether it is a felony, non-felony or one of the many grades in between.




Granted DGS49, but his (AndrewD's) definition is the literal(literary) one, and not the legal one. Should he choose to argue his prosecution of Reagan in court, he would have to use legal jargon, and not antiquated definitions.

[Andrew D]

Granted DGS49, but his (AndrewD's) definition is the literal(literary) one, and not the legal one.

I have repeatedly quoted the definition of "felon" from Black's LAW Dictionary:

Person who commits or has committed a felony.

That is the legal definition of a felon. It is also the general definition of a felon. It is the definition of a felon everywhere except in loCAtek's mind.

[Sean]

dgs
I agree about the news agencies... but I was talking about law enforcement agencies...

Locatek
FFS Yes they can also be called a fugitive... what is your point exactly?

Did you google as I suggested?