The good ol' boy network must not be strong in your area.
The good ol' boy network must not be strong in your area.
Nice to hear that they do things right somewhere. But I believe MB's posts. Sad that it happens and it shouldn't.
Well that's very true. But in that case, it's still most certaintly Attempted murder, because the defendant didn't KNOW that the first bullet was mortal.
Don't get me wrong. If *I* was on the jury, and if I really believed that Ersland, in his own little mind, actually was still in a fearful state - that he somehow believed subjectively, even if wholly unreasonable, that the guy on the the ground was a threat to kill or harm him or his co-workers, then I'd vote not guilty of both murder and attempted murder. But that vote would not be correct under the law; but rather a form of nulllification; the law says it has to be a *reasonable* apprehension of fear, in addition to actual subjective fear. No way that it's reasonable that a guy who (a) doesn't even HAVE ANY visible weapon, and (b) is on the ground motionless, is a threat. Really, either (a) or (b) - either one would be enough to remove the reasonableness, but with both - he's very very potentially-liable for attempted murder, for the last 5 shots.
If there was a lesser-included in the instruction for me, such as "assualt deadly weapon", and if I believed he really had a true high state of actual subjective (but unreasonable) fear, then I'd vote for the lesser-included as guilty, but not attempted murder, even though attempted murder is probably the 'correct' outcome.
BUT, then again, attempted murder requires MORE THAN just unreasonbleness of action, in terms of intent - it requires a specific intent to kill!! So the DA has a high burden on that specific intent if they cannot prove that Ersland was NOT just so nutty (enough) that he didn't think he was really going to cause death by pumping 5 more rounds in. I think the vast majority of jurors would vote guilty of attempted murder (correctly so), even if the expert that says the 1st round was mortal is completely unrebutted. But as for me personally, I'd do a little nullifcation and let him walk on any serious charge, just because I'd view him as doing something which *I* think he has a natural right to do, given the facts and circumstances here - if he's actually very fearful that the guy has a hidden weapon and is about to get up at any moment. Not legally correct - just tellin ya what I'd probably do. Now if I believed that Ersland was NOT actually still quite fearful that the 2nd guy was gonna up and get him, then I'd vote for (a) guilty murder if I believed the first shot was not fatal, or (b) guilty attempted murder if I believed the first shot was fatal. You can't just let people go around executing kids in retribution for a robbery when they're not in fear of life and limb. If he didn't take the stand himself to explain and express that subjective fear, he'd be going a way for a long time if I'm the sole juror.
The first shot was CLEARLY justifiable self-defense to my mind. I think we all agree on that, as would everyone in the state except the kid's mom.
YMMV.
Nick,
You and I have known each other a long time and I can't think of a lawyer I'd trust more than you.
While you have waaaaaay more experience than I do in this area and I complete confidence in your ethics, I'm not confident that human nature changes from large to small populations.
Lawyers tend to come from the same schools, tend to affiliate together much like any other profession i.e. doctors, teachers, cops etc.
I'm confident that some ex-parte communications have gone on in some judge's living room in Payne County over a bottle of Crown Royal.
The world (and the profession) is too small to believe otherwise.
My point is not that any one profession is unethical; simply that when a cop dons a uniform, a priest dons his vestments, or a judge dons his robe, they don't trade in their human nature. They will talk shop. It seems inevitable to me.
Sometimes this talk will violate ethical rules, sometimes it won't.
To suggest that the ethical guidelines don't get bent regularly is to deny reality. The question is simply where the line is.
For instance, I will occasionally drive too fast when going to an OSU football game. I try not to make it a habit, but I will confess that I do.
On the occasions that OHP's finest stops me, I always offer that I have a gun on and inevitably they ask if I have a permit or a badge. Chances are I do not get a ticket.
Is this unethical of me? You bet. I'm not above the rules and if I get a ticket, you can be confident I'll pay it.
On the other hand, will I shake a drug dealer down for money? No freakin' chance in hell.
Both are ethical issues. The question is simply where we draw the line.
Now, back to your profession:
If two lawyers enjoy a good laugh over a drink and one mentions some crazy story that his client told him, is this unethical? Probably since the information is likely privileged.
Do lawyers do it all the time? Hell yes. Even in Payne County I'll bet.......
Is this the same ethical violation as giving the prosecution privileged information in order to secure a conviction? No way.
The question is all about where you draw the line, whether you live in a big or small town and to say otherwise is a little fanciful.
Michael Brown
Any one read this mornings OKC paper? More is coming out about the judge telling her personal trainer if he plead out in her court she wouldn't send him to jail.
Last night on the news she was yada yada yada about everyone in her courtroom would get a fair trial.
Some how something sticks about this entire deal.
Last night on the news she was yada yada yada about everyone in her courtroom would get a fair trial.
Some how something sticks about this entire deal.
Too much gum flappin' in this case!
No doubt, Mike, your words have iron in them. But from some of the stories that I hear (that will never get reported in the press) from my lawyer buddies in Oklahoma City and Tulsa about the stuff that goes on there, I can tell you that it just doesn't happen on the same scale in Payne, Noble, Kay, Logan or Garfield counties. I cannot imagine Judge Boyd, Judge Woodward, Judge Kistler, Judge Allen or Judge Corley tolerating those kind of activities.
I've known Judges who, once elevated to the bench, practically become hermits in an effort to dispel any notion that their decisions might be influenced by their social activities.
Sorry for the thread hijack. This morning's article in the Daily Oklahoman sheds more light on the reasons that Prater moved to have Judge Bass-LeSure removed. From the sound of things, and assuming some truth in the article, the judge may be in some hot water with the judicial ethics commission.
I've known Judges who, once elevated to the bench, practically become hermits in an effort to dispel any notion that their decisions might be influenced by their social activities.
Sorry for the thread hijack. This morning's article in the Daily Oklahoman sheds more light on the reasons that Prater moved to have Judge Bass-LeSure removed. From the sound of things, and assuming some truth in the article, the judge may be in some hot water with the judicial ethics commission.
i have not verified this myself, but i was at the OKC cths this morning and one of the judges mentioned that bass-lesure's docket had been cleared for the rest of this week. if true, then it appears the pot of water she's in is indeed boiling.
although, as an attorney, i'm somewhat wet behind the ears, in my experience, it's the smaller counties where you tend to see the most variance from the established norms. not saying ethics are completely ignored, but the judges seem to walk in the gray areas more than their big city counter parts. saw this very thing a month or so back in kingfisher. lame duck judge completely acted out of character in what should have been a slam dunk for the DA. granted i've probably been to about 25 of oklahoma's counties.
Nick,
You and I have known each other a long time and I can't think of a lawyer I'd trust more than you.
While you have waaaaaay more experience than I do in this area and I complete confidence in your ethics, I'm not confident that human nature changes from large to small populations.
Lawyers tend to come from the same schools, tend to affiliate together much like any other profession i.e. doctors, teachers, cops etc.
I'm confident that some ex-parte communications have gone on in some judge's living room in Payne County over a bottle of Crown Royal.
The world (and the profession) is too small to believe otherwise.
My point is not that any one profession is unethical; simply that when a cop dons a uniform, a priest dons his vestments, or a judge dons his robe, they don't trade in their human nature. They will talk shop. It seems inevitable to me.
Sometimes this talk will violate ethical rules, sometimes it won't.
To suggest that the ethical guidelines don't get bent regularly is to deny reality. The question is simply where the line is.
For instance, I will occasionally drive too fast when going to an OSU football game. I try not to make it a habit, but I will confess that I do.
On the occasions that OHP's finest stops me, I always offer that I have a gun on and inevitably they ask if I have a permit or a badge. Chances are I do not get a ticket.
Is this unethical of me? You bet. I'm not above the rules and if I get a ticket, you can be confident I'll pay it.
On the other hand, will I shake a drug dealer down for money? No freakin' chance in hell.
Both are ethical issues. The question is simply where we draw the line.
Now, back to your profession:
If two lawyers enjoy a good laugh over a drink and one mentions some crazy story that his client told him, is this unethical? Probably since the information is likely privileged.
Do lawyers do it all the time? Hell yes. Even in Payne County I'll bet.......
Is this the same ethical violation as giving the prosecution privileged information in order to secure a conviction? No way.
The question is all about where you draw the line, whether you live in a big or small town and to say otherwise is a little fanciful.
Michael Brown
Totally agree.
She's kinda cute...
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