Alexander Hamilton
kiwifarms.net
- Joined
- Jul 31, 2021
Standard Lawyer Disclaimer: I'm a lawyer, but I'm not your lawyer. Nothing I post is legal advice. Nothing I post creates an attorney-client relationship.
So I've seen speculation (and some actual legal information from other lawyers) scattered throughout various threads, and I thought it might be useful/interesting to have a thread for legal issues.
I'm a prosecutor. Not in Virginia. That's about all I'm going to say on that, and you'll just have to take my word for it unless the admins care so much about me claiming that they demand to verify me somehow. And then I'll talk to them. This is my perspective on the legal side of this whole mess. If that's not something that's interesting to you, don't bother reading further.
POSSIBLE CHARGES
So, it looks like we've got multiple counts of some sort of rape and probably multiple counts of some sort of abuse/exploitation of an elderly person, and one count (so far) of violating an EPO.
What do I mean by some sort of rape? Well, as you're probably aware, the law doesn't actually treat rape as a single monolithic crime. And often the law has special rape laws for when someone appears to consent but is legally unable to, such as in the case of minors. You'll often see this referred to as statutory rape. Again, I'm not in Virginia and state laws are gonna vary.
Abuse/exploitation of an elderly person. At a bare minimum, it looks like financial abuse. Chris apparently has control of Barb's accounts and is liberal with them. It could be other kinds of abuse too, depending on what they can prove has been going on.
Violation of the EPO. The EPO forbids crimes against the protected person (Barb). A lot of the analysis I've seen has focused on theft, in terms of the $750.00. I don't love that charge for a few reasons. One is that the required elements may not be present if Chris had control of the accounts. The bigger reason is that theft of that sort of amount is typically a misdemeanor. Financial abuse/exploitation of the elderly is typically a felony.
The rapes, of whatever kind, are all going to be felonies also. In most jurisdictions that I am aware of, violating an EPO for the first time is a misdemeanor.
BUT ALEXANDER, IF THEY DON'T GET DNA CHRIS IS JUST GOING TO GET AWAY WITH IT AGAIN, RIGHT?
Well, actually, no. I've seen a lot of variations on this commentary. Assuming they can be authenticated, the various confessions are actually far and away the best evidence if this went to trial even if they got DNA. Why? Well . . .
The defense has many lines of attack on DNA evidence, none of which require Chris to testify and expose himself to cross-examination. You can attack the DNA expert the State will call. Attach the machinery. Attack the method. Argue for (admittedly really flimsy and stupid) alternative explanations for why that DNA got there.
The confessions, though? Your only line of attack is really that they were lies. So you have to get evidence out about that (the lawyers arguments/statements aren't evidence) and establish some sort of a motive for the lie. This is only really possible if Chris testifies, and that opens him up to cross-examination. Chris will definitely not hold up well under even a gentle polite cross.
OK, BUT WASN'T THIS ENTRAPMENT?
I've seen this one a lot too, and the answer is also no. Entrapment is only a defense when the government does it to you. Random trolls convincing you to do it doesn't meet the legal standard. Also, part of entrapment as a defense is that it's not something you would have done on your own. And based on some of Chris' past statements, that might be a reach.
FINE, BUT CHRIS IS CRAZY. THEY'LL JUST GET HIM OFF WITH AN INSANITY DEFENSE.
Not exactly. You see, legal insanity actually has a specific meaning. Again, it's gonna maybe vary a bit in Virginia but essentially the standard is that you were so insane at the time of the crime that you couldn't appreciate what you were doing and that what you were doing was wrong.
It's perfectly possible to be screamingly clinically insane and yet legally sane. I've seen it. A lot. This can mean you're not competent to stand trial and assist in your own defense, but all that means is the action is halted while we send you to an institution for treatment and once you're stabilized we get you back and finish it up.
Also, not guilty by reason of insanity wouldn't really be getting him off because despite being found not guilty he would then be committed to a mental institution indefinitely until he was no longer criminally insane and a threat to society. That can and often does mean the rest of a person's natural life.
Now, I'm told there's a Virginia law that allows someone to use their autism as a mitigating factor to avoid a custodial sentence. But that isn't the same thing as getting out of it entirely. Just means you're more likely to get probation, which brings us nicely to . . .
OK ALEXANDER, YOU'VE CONVINCED ME. SO THIS MEANS THE START OF THE PRISON SAGA, RIGHT?
Not. Yet.
You see, a prosecutor's job isn't just to slam everyone into prison as fast as possible. As the U.S. Supreme Court put it, a prosecutor "is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done."
What this looks like to every prosecutor is a little different, but there's a lot of considerations that go into what 'justice' looks like on a given case. A big one here is the victim - I suspect that it will eventually come out this $750.00 is a drop in the bucket in terms of how much of Barb's money Chris has spent. There's also the fact that Chris does have mental issues, and remember Virginia prosecutors may have to contend with autism mitigation. And this was a very unique set of circumstances that allowed this to happen - Chris isn't a high risk to reoffend in this manner as long as he's supervised, treated, and not allowed around Barb. And Chris' criminal history is negligible, although certainly proves he doesn't deserve any kind of probation that allows him to avoid conviction - not that I would offer it on these sort of offenses anyway.
So if this were my case, the proposed plea deal probably looks a little like this: A plea of guilty to a single count of rape, a single count of financial abuse of the elderly, and one count violating a misdemeanour. In exchange, what many jurisdictions call a suspended sentence - this is a form of probation, but it counts as a conviction. The incentive isn't to avoid being convicted, it's to avoid prison. So Chris would now be a convicted felon, and a registered sex offender. Also, there would of course be conditions to the probation. Meeting with a probation officer, sex offender therapy, regular therapy, no contact with Barb, and restitution (making the victim whole - so every month he's gonna give us a set amount to put back in her pocket until all the money he took is paid back) would be some of the conditions.
The other thing you have to understand about a suspended sentence is as part of the deal you agree to a sentence within the range from the crimes you pled guilty to. If you violate your probation and it's proven (and the burden at such a hearing is lower than the beyond a reasonable doubt needed to prove you guilty, and there's no jury right at such a hearing) the court will impose that agreed upon amount of prison time. I'd be asking for an agreement to something at the upper end of the range.
And, let's be honest, we all know Chris would spectacularly fail probation and get revoked within the first six months. And then the prison saga would finally begin.
BUT IF THIS DOES GO TO TRIAL, THEY'LL ALL HAVE TO WATCH THE DOCUMENTARY AND KIWIFARMS WILL BE PUT INTO EVIDENCE AND GENO AND NULL WILL BE EXPERT WITNESSES, RIGHT?
I'm sorry to disappoint you, hypothetical reader, but no.
For one thing, there's a rule called the hearsay rule. We can't just introduce whatever statements made out of court we want into evidence and essentially this is a rule about fairness and reliability of evidence.
There's an exception for statements of a party opponent, which in this case would be Chris, which would allow for the videos Chris made, without extra commentary, to be introduced. But they still likely won't be because . . .
Evidence has to be relevant. And also more useful for proving something than it is harmful to your opponent (we call this prejudicial versus probative). In a case where the charges are Chris raping barb, and Chris abusing Barb financially, 99% of all of this nonsense is not only irrelevant and doesn't prove anything, but it is also insanely prejudicial to Chris.
But there is a chance Null, for example, might be called in. If they want to show the jury the messages where Chris admits to taking the money, they would need Null to help authenticate that piece of evidence. But it's easier just to subpoena the bank records and so forth and show that Chris did it that way. And that's the reality for most of the evidence. The admissions by text? Subpoena the text messages from Chris' cellphone company and show they were sent by Chris.
And remember, by the time we're going to trial there's been at least one, maybe more, interrogation/interview. And there's no way Chris doesn't spill his guts, especially when faced with the texts and the call and everything the police tell him they have - he'll do what criminals have always done, and attempt to explain his way out of it.
And in reality, those are the tapes that will be played at trial. Not the calls, or the texts. All of that may very well be reduced to a byline in the direct exam of the police detective where he or she explains how the case came to their attention.
TL;DR
If this is real as it seems to be, Chris is pretty fucked. It's unlikely to go to trial, nor will Chris go to prison right away. More likely a plea-bargain for heavy probation, leading to eventually spectacular failure and revocation to prison. If this does somehow go to trial, rules designed to ensure the fairness of the process will prevent the jury learning 99% of the story that is Chris.
EDIT - HAVING BEEN SHOWN THE RELEVANT LAWS, THERE IS ZERO CHANCE CHRIS' GENDER PLAYS A ROLE IN ANY CRIMINAL CHARGES AVAILABLE.
So I've seen speculation (and some actual legal information from other lawyers) scattered throughout various threads, and I thought it might be useful/interesting to have a thread for legal issues.
I'm a prosecutor. Not in Virginia. That's about all I'm going to say on that, and you'll just have to take my word for it unless the admins care so much about me claiming that they demand to verify me somehow. And then I'll talk to them. This is my perspective on the legal side of this whole mess. If that's not something that's interesting to you, don't bother reading further.
POSSIBLE CHARGES
So, it looks like we've got multiple counts of some sort of rape and probably multiple counts of some sort of abuse/exploitation of an elderly person, and one count (so far) of violating an EPO.
What do I mean by some sort of rape? Well, as you're probably aware, the law doesn't actually treat rape as a single monolithic crime. And often the law has special rape laws for when someone appears to consent but is legally unable to, such as in the case of minors. You'll often see this referred to as statutory rape. Again, I'm not in Virginia and state laws are gonna vary.
Abuse/exploitation of an elderly person. At a bare minimum, it looks like financial abuse. Chris apparently has control of Barb's accounts and is liberal with them. It could be other kinds of abuse too, depending on what they can prove has been going on.
Violation of the EPO. The EPO forbids crimes against the protected person (Barb). A lot of the analysis I've seen has focused on theft, in terms of the $750.00. I don't love that charge for a few reasons. One is that the required elements may not be present if Chris had control of the accounts. The bigger reason is that theft of that sort of amount is typically a misdemeanor. Financial abuse/exploitation of the elderly is typically a felony.
The rapes, of whatever kind, are all going to be felonies also. In most jurisdictions that I am aware of, violating an EPO for the first time is a misdemeanor.
BUT ALEXANDER, IF THEY DON'T GET DNA CHRIS IS JUST GOING TO GET AWAY WITH IT AGAIN, RIGHT?
Well, actually, no. I've seen a lot of variations on this commentary. Assuming they can be authenticated, the various confessions are actually far and away the best evidence if this went to trial even if they got DNA. Why? Well . . .
The defense has many lines of attack on DNA evidence, none of which require Chris to testify and expose himself to cross-examination. You can attack the DNA expert the State will call. Attach the machinery. Attack the method. Argue for (admittedly really flimsy and stupid) alternative explanations for why that DNA got there.
The confessions, though? Your only line of attack is really that they were lies. So you have to get evidence out about that (the lawyers arguments/statements aren't evidence) and establish some sort of a motive for the lie. This is only really possible if Chris testifies, and that opens him up to cross-examination. Chris will definitely not hold up well under even a gentle polite cross.
OK, BUT WASN'T THIS ENTRAPMENT?
I've seen this one a lot too, and the answer is also no. Entrapment is only a defense when the government does it to you. Random trolls convincing you to do it doesn't meet the legal standard. Also, part of entrapment as a defense is that it's not something you would have done on your own. And based on some of Chris' past statements, that might be a reach.
FINE, BUT CHRIS IS CRAZY. THEY'LL JUST GET HIM OFF WITH AN INSANITY DEFENSE.
Not exactly. You see, legal insanity actually has a specific meaning. Again, it's gonna maybe vary a bit in Virginia but essentially the standard is that you were so insane at the time of the crime that you couldn't appreciate what you were doing and that what you were doing was wrong.
It's perfectly possible to be screamingly clinically insane and yet legally sane. I've seen it. A lot. This can mean you're not competent to stand trial and assist in your own defense, but all that means is the action is halted while we send you to an institution for treatment and once you're stabilized we get you back and finish it up.
Also, not guilty by reason of insanity wouldn't really be getting him off because despite being found not guilty he would then be committed to a mental institution indefinitely until he was no longer criminally insane and a threat to society. That can and often does mean the rest of a person's natural life.
Now, I'm told there's a Virginia law that allows someone to use their autism as a mitigating factor to avoid a custodial sentence. But that isn't the same thing as getting out of it entirely. Just means you're more likely to get probation, which brings us nicely to . . .
OK ALEXANDER, YOU'VE CONVINCED ME. SO THIS MEANS THE START OF THE PRISON SAGA, RIGHT?
Not. Yet.
You see, a prosecutor's job isn't just to slam everyone into prison as fast as possible. As the U.S. Supreme Court put it, a prosecutor "is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done."
What this looks like to every prosecutor is a little different, but there's a lot of considerations that go into what 'justice' looks like on a given case. A big one here is the victim - I suspect that it will eventually come out this $750.00 is a drop in the bucket in terms of how much of Barb's money Chris has spent. There's also the fact that Chris does have mental issues, and remember Virginia prosecutors may have to contend with autism mitigation. And this was a very unique set of circumstances that allowed this to happen - Chris isn't a high risk to reoffend in this manner as long as he's supervised, treated, and not allowed around Barb. And Chris' criminal history is negligible, although certainly proves he doesn't deserve any kind of probation that allows him to avoid conviction - not that I would offer it on these sort of offenses anyway.
So if this were my case, the proposed plea deal probably looks a little like this: A plea of guilty to a single count of rape, a single count of financial abuse of the elderly, and one count violating a misdemeanour. In exchange, what many jurisdictions call a suspended sentence - this is a form of probation, but it counts as a conviction. The incentive isn't to avoid being convicted, it's to avoid prison. So Chris would now be a convicted felon, and a registered sex offender. Also, there would of course be conditions to the probation. Meeting with a probation officer, sex offender therapy, regular therapy, no contact with Barb, and restitution (making the victim whole - so every month he's gonna give us a set amount to put back in her pocket until all the money he took is paid back) would be some of the conditions.
The other thing you have to understand about a suspended sentence is as part of the deal you agree to a sentence within the range from the crimes you pled guilty to. If you violate your probation and it's proven (and the burden at such a hearing is lower than the beyond a reasonable doubt needed to prove you guilty, and there's no jury right at such a hearing) the court will impose that agreed upon amount of prison time. I'd be asking for an agreement to something at the upper end of the range.
And, let's be honest, we all know Chris would spectacularly fail probation and get revoked within the first six months. And then the prison saga would finally begin.
BUT IF THIS DOES GO TO TRIAL, THEY'LL ALL HAVE TO WATCH THE DOCUMENTARY AND KIWIFARMS WILL BE PUT INTO EVIDENCE AND GENO AND NULL WILL BE EXPERT WITNESSES, RIGHT?
I'm sorry to disappoint you, hypothetical reader, but no.
For one thing, there's a rule called the hearsay rule. We can't just introduce whatever statements made out of court we want into evidence and essentially this is a rule about fairness and reliability of evidence.
There's an exception for statements of a party opponent, which in this case would be Chris, which would allow for the videos Chris made, without extra commentary, to be introduced. But they still likely won't be because . . .
Evidence has to be relevant. And also more useful for proving something than it is harmful to your opponent (we call this prejudicial versus probative). In a case where the charges are Chris raping barb, and Chris abusing Barb financially, 99% of all of this nonsense is not only irrelevant and doesn't prove anything, but it is also insanely prejudicial to Chris.
But there is a chance Null, for example, might be called in. If they want to show the jury the messages where Chris admits to taking the money, they would need Null to help authenticate that piece of evidence. But it's easier just to subpoena the bank records and so forth and show that Chris did it that way. And that's the reality for most of the evidence. The admissions by text? Subpoena the text messages from Chris' cellphone company and show they were sent by Chris.
And remember, by the time we're going to trial there's been at least one, maybe more, interrogation/interview. And there's no way Chris doesn't spill his guts, especially when faced with the texts and the call and everything the police tell him they have - he'll do what criminals have always done, and attempt to explain his way out of it.
And in reality, those are the tapes that will be played at trial. Not the calls, or the texts. All of that may very well be reduced to a byline in the direct exam of the police detective where he or she explains how the case came to their attention.
TL;DR
If this is real as it seems to be, Chris is pretty fucked. It's unlikely to go to trial, nor will Chris go to prison right away. More likely a plea-bargain for heavy probation, leading to eventually spectacular failure and revocation to prison. If this does somehow go to trial, rules designed to ensure the fairness of the process will prevent the jury learning 99% of the story that is Chris.
EDIT - HAVING BEEN SHOWN THE RELEVANT LAWS, THERE IS ZERO CHANCE CHRIS' GENDER PLAYS A ROLE IN ANY CRIMINAL CHARGES AVAILABLE.
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