GENERAL: The Wright Law Offices in Las Vegas, Nevada

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CRIMINAL: Unloaded Toy Pellet Guns are Considered Deadly Weapons by the Nevada Supreme Court

If you rob a bank with an unloaded toy gun, you will be charged and likely convicted of burglary while in possession of a deadly weapon and robbery with use of a deadly weapon. The Nevada Supreme Court recently decided this very issue in the case of Berry v. State. This dumb defendant stuck a toy gun to a bank employee’s head while she walked to her car during closing time. He made her unlock the safe, which took ten minutes. During the wait, the dude felt her up and made lewd comments about her body being sexy, causing her to feel like he might rape her or something. Along with being charged with burglary with a deadly weapon and robbery with use of a deadly weapon, the freak was also charged with one count of open and gross lewdness. And well he should be. He was gross.

Anyway, he ran from the cops who waited for him to exit the bank, and they finally caught him in an apartment complex hiding behind a washing machine. The cops saw the stolen loot and toy gun. He was convicted of the three crimes and decided to appeal while rotting in prison. The Supreme Court took one look at this scumbag’s argument, and disagreed with him. Berry thought that he was being clever by using a toy gun. His limited intellect told him that maybe he wouldn’t get hard time if he used a toy instead of a real weapon. Surely a judge would think he wasn’t so bad since he could not have killed with an unloaded toy.

Well, the unloaded toy was still considered a deadly weapon, partly because it could potentially be adapted for such since it had a spring mechanism, trigger, and the potential to shoot a pellet or perhaps .22 bullet. Also, he intended for his victim to believe it was a deadly weapon in order to effectuate his crime. The victim, if she had been allowed to have a handgun on her while working at the bank, could have shot him in “apparent” self-defense because she would have reasonably believed her life was in danger.

The moral of this tale--don’t be stupid.

Copyright: August 21, 2009
By: Anthony M. Wright, J.D.
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CRIMINAL: Criminal Defendants Better Hope Witnesses Against Them Live to Testify at Trial

The Nevada Supreme Court has recently decided the case of Chavez v. State. Chavez was convicted for “digitally, vaginally, and anally penetrat[ing] [his daughter] during a five-year span”. The daughter is referred to as “D.C.” and died before Chavez’s trial and therefore could not testify at his trial. Instead of having her corpse miraculously testify, the prosecutor convinced the court that her prior testimony at the “preliminary hearing”, which had been videotaped, should be shown to the jury. Chavez’s attorney had cross-examined D.C. at the preliminary hearing, so the judge decided it was ok to let the prosecutor present the video to the jury. Chavez objected based on the Confrontation Clause in the Sixth Amendment of the United States Constitution which says that a defendant should be allowed to face his accusers. The judge said that Chavez did face, and cross-examine, his accuser at the preliminary hearing and did not have to again at trial. Chavez was then convicted and sentenced to four consecutive life sentences with a possibility of parole after 20 years.

Now, there was other evidence against this Chavez person—such as the vibrators and socks with D.C.’s saliva and Chavez’s semen on them and the testimony of D.C.’s siblings who claim to have witnessed strange behavior between D.C. and her loving daddy. My point is, I think Chavez was justly convicted—the jury probably got it right. Chavez and his attorneys thought something was wrong, however, because they appealed the conviction to the Nevada Supreme Court, focusing on the fact that Chavez could not again cross-examine his accuser at trial because he already did at the preliminary hearing. Chavez is grasping at straws probably because he does not enjoy the digital and anal penetration he is enduring in the big house.

The Supreme Court sided with the lower court and said that the video tape was admissible evidence and therefore Chavez’s conviction stands. But, is this really the most just, the most fair, decision our black-robed scholars could reach? They say it is. They said that Chavez had the right to confront his accuser once, at the preliminary hearing, and because she was unavailable (dead) at the time of trial, her testimony should get in and Chavez therefore would not have another crack at cross-examination. The Sixth Amendment of the US Constitution guarantees the right to face your accuser, but it does not say how many times a defendant has that right.

The Judges who wrote the decision looked at a former case known as “Crawford” to help them arrive at their rationale in this case and stated:

We have applied Crawford to cases before us, stating that the testimonial hearsay of an unavailable witness requires a prior opportunity to cross-examine the witness concerning the statement for it to be admissible. Flores v. State, 121 Nev. 706, 714, 120 P.3d 1170, 1175 (2005). Further, we have observed that “‘the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’” Pantano v. State, 122 Nev. 782, 790, 138 P.3d 477, 482 (2006) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). And we have explained that discovery is a component of an effective cross-examination. See Estes v. State, 122 Nev. 1123, 1140, 146 P.3d 1114, 1126 (2006).

Today, we further clarify our post-Crawford decisions by holding that a preliminary hearing can afford a defendant an opportunity for effective cross-examination. We will determine the adequacy of the opportunity on a case-by-case basis, taking into consideration such factors as the extent of discovery that was available to the defendant at the time of cross-examination and whether the magistrate judge allowed the defendant a thorough opportunity to cross-examine the witness. We first address the standard of review for such a claim and then address each of Chavez’s claims in turn.

In other words, the Court wants to keep its discretion and judge each situation on a case by case basis. Big surprise. Of course the court wants to retain discretion, that is how it retains its power over our lives. So, after “clarifying” its prior holdings, the Supreme Court then looked at this Chavez case using the factors and of course concluded that the factors meant, in this situation, the damning video testimony was allowed into evidence and Chavez will continue to rape or be raped in prison.

Ok, so let me ask the reader of my blog whether they think the Supreme Court of Nevada made a correct ruling. I’ll use the wonderful “Socratic Method” that we attorneys learned in law school by asking you a lot of leading questions so that you can consider this case from the view that I, and other lawyers, may view it. I’m not saying the jury was wrong in convicting this human offal, but I want to paint a picture of why the Supreme Court may be wrong in allowing preliminary hearing video tape testimony into evidence at trial.

Suppose you are the defendant and you are living with your ex-wife, with whom you have many arguments. You have children together and, when they are out of line, you punish them by spanking them or making them do pushups—as Chavez claims to have done. The mother then asks the kids one day as they are driving if they don’t like it when she and daddy fight. This too was in the evidence of the case. Suppose that one of the kids really hates your guts, maybe because you are the disciplinarian, and sets about to frame you for a crime to put you away. I’m not saying this happened in the Chavez case, but it could happen in some cases. Could a girl frame a father by planting evidence and then lying about sexual encounters that didn’t occur? Could a girl find her fathers porn magazines and get ideas? Could a girl get samples of her father’s semen and rub them on a vibrator and sock and then spit on the vibrator and sock? Could a girl then tell the police that she was raped when she was not?

Ok, I’m sure many of you paused at some of those questions and thought that there is no way a young girl could do that to her father. Think again. Young girls do do these things and it is not always clear cut who the real victim is. More often then not, the child is the victim, but in rare instances, the victim is the innocent parent figure. Now, let’s say the girl continues to tell her story and even testifies at a preliminary hearing. She holds up under all the questioning and maintains her story. Let’s assume she is a devil child and is lying. Again, I do not believe that is the case in Chavez, but I’m trying to make a point and hope you stay with me until I get it across. This deceptive girl even lies when her father’s lawyer asks her questions and she has to look over at her father. Maybe she didn’t get the toy she wanted. Maybe her father called her a “spoiled piggy little brat” and she is mad. Maybe her father hits her mother and this is the only way she can think to protect her mother. Who knows? There are two avenues that I want to next explore so that you can understand my problem with the Chavez decision.

First avenue, lets assume this evil girl lives and is able to testify at trial against her father, but has somehow seen the light and changes her testimony. Yes, she would get in trouble for perjury, but she is a kid and probably won’t get into too much trouble. Maybe she had a spiritual or religious conversion—maybe she realizes just how horrible her accusations are. Well, she can recant at trial and explain how she tried to frame her father. The trial is the last possible time she could do this. Guess what. Reasonable doubt! Papa goes free.

Second avenue, let’s assume that the girl continues to be evil and lies every chance she gets. You know what they say about liars—they can seldom remember all their lies and may get caught. So, she must testify under oath again, this time at trial. She continues to lie, however her answers to questions are now glaringly different from the answers she gave at the preliminary hearing. Papa’s attorney can see these discrepancies and bring them to the jury’s attention to raise reasonable doubt. The more times you can question a lying witness, the better your chances to expose them—it’s called impeachment. Did you know that prosecutors do this all the time? If they get to cross-examine a defendant at trial, they will try to find inconsistencies between current answers and prior answers so that jurors will believe that the defendant is a liar who ought to be locked up. If a prosecutor can bite at the apple more than once, don’t you think a defense attorney ought to too? After this Chavez ruling, a defense attorney loses that second bite at the apple with the potentially lying accuser if the accuser dies before trial but her prior testimony can still be shown to the jury.

Perhaps you hate child-rapists and want to disagree with me because you think defense attorneys should not get the second bite at the apple of truth, which we like to call cross-examination. Do you know that this Supreme Court ruling will not only apply to child rape cases, but to all criminal cases from now on? That means adult rape cases, domestic violence, murder cases, burglary cases, arson cases, etc. So, even if you believe a child would not lie about being raped, can’t you see that other witnesses who may have it in for a defendant could lie under oath during preliminary hearings in other scenarios, then die before they can recant at trial?

I hope this makes sense to you. Our scholars in black robes can have good intentions when they write their decisions. I’m sure they were upset about the child rape and did not want to see Chavez go free on a “technicality”, however, is the death of the key witness really a “technicality”? At least they are leaving room for doubt by stating that this must be decided on a case by case basis, which means that different judges with different biases will decide the same set of facts differently. This is what we call justice in America—or at least in Nevada.

Ok, I’ve complained about the Supreme Court decision. You may ask how I would decide differently under the same fact scenario. Well, that is a hard one because I don’t want to see Chavez go free either although I’d battle with the thought that maybe he was not guilty and he was only convicted because of video testimony from a preliminary hearing. I would also be troubled with how this ruling will affect future criminal cases. After this ruling, defense counsel may not wish to cross-examine star witnesses extensively at a preliminary hearings if there is a chance that the star-witness will be unavailable at trial. However, a good attorney would want to because of the impeachment tactic I mentioned earlier. This kind of ruling will confuse defense attorneys and detract from justice. I simply could not allow the video evidence in since it is a key witness and the defense attorney should be afforded the same rights that the prosecutor has, a second chance to cross-examine, impeach, and explore new defense theories.

And then, supposed the defendant had a bad attorney at the preliminary hearing and asked all the wrong questions during the cross-examination. Should a new defense attorney at trial have to deal with this video testimony of a dead witness when the old defense attorney was so rotten at his or her job?

On the other hand, and there always is an alternate argument, if the video evidence from a preliminary hearing is not allowed in, then the criminal defendant can knock off the key witness prior to trial, just like the mob used to do, and the prosecutor will have a much more difficult time convicting the s.o.b. I still must stand by my original sense of justice, though. If a star witness should be in that much fear for his or her life, then that witness can go into protective custody, arm themselves, or whatever until after the trial.

Copyright: August 20, 2009

By: Anthony M. Wright, J.D.

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CRIMINAL: Traffic Tickets in the Las Vegas Valley

The Las Vegas Valley has four jurisdictions within which to get a moving violation: Clark County (Justice Court Jurisdiction), Las Vegas (Las Vegas Municipal Court Jurisdiction), Henderson (Henderson Municipal Court Jurisdiction), and North Las Vegas (North Las Vegas Municipal Court Jurisdiction).

Thus, our little metropolis has four parts patrolled by police that belong to each jurisdiction. Las Vegas Metro cruises around Las Vegas and Clark County, however the cops in Henderson stick to Henderson and the cops in North Las Vegas stick to North Las Vegas.

When you get a citation, one of the first things to look for on the citation is which jurisdiction you are in. It is possible that the cop cited you outside of his jurisdiction. If so, do not argue with the "peace" officer because it could ruin your day, if not your life. Instead, smile warmly, thank him for protecting public safety, and take the ticket to an attorney who will argue the jurisdiction issue before a judge or district attorney who will likely dismiss the citation or greatly reduce the severity--say reducing it from speeding 25 mph over the limit to a parking ticket.

You should consider a few things when you receive a ticket. Yes, you are probably guilty. If you are guilty, you committed a crime. The crime is a misdemeanor, which is the least severe crime to be charged with. Even though a fine is usually the punishment, jail time and community service are also at the Judge's disposal, along with requiring traffic school, and points on your driving record--which can result increased insurance premiums.

If it makes you feel better, consider it not a punishment but a user tax. If you use your vehicle a certain way, expect to pay a tax for doing so. The jurisdictions raise revenue through these user taxes. We live in a state that has no personal income tax, so be grateful about that. However, do not ignore the court appearance date or you could be faced with a "bench warrant" for your arrest. This is not fun because you will likely go to jail if stopped again. In addition, an attorney will charge extra to quash the warrant.

Please note, the worst thing you can do is act upset with the police officer who stopped you. They may treat you very poorly, they may search your person (it's called a "Terry Pat Down Search") to look for a weapon or drugs...likewise they may search the passenger compartment of your car all in the name of officer safety. They may do these things on their own initiative, but if they ask to search, politely refuse to consent. If they have to ask, then they probably do not have the requisite reasonable suspicion or probable cause to do it without your consent. It is not wise to consent to a search because cops can literally tear your car apart as part of the search. And then there is the possibility that someone left contraband in your car that you were never aware of-try denying it is yours-I dare you. Cops, district attorneys, and judges have heard that argument a hundred billion times. The best thing to do is to not consent to a search no matter how innocent you believe you are.

Officers are sometimes known to violate Civil Rights and the law, but they have the guns and their buddies in blue to back them up, therefore it is in your interest to be on their best side. The best revenge for a traffic ticket is to hire a lawyer to represent your interest at the courthouse.

Usually lawyers can settle the ticket and you'll end up only having to pay a fine. If you are the type of person to get tickets all over the valley, you should note that some jurisdictions have much heftier fines than others do. I will not tell you which because I want you to be on your best behavior while driving at all times, but just know that a ticket in one part of town may be 5 times more expensive than in another part of town--even after the ticket has been reduced.

My public service message to you is to treat the ticket like a user tax, smile at the officer politely so that you can live to pay the fine. Most importantly, hire my firm to represent you for your traffic citation. By doing so, you will not have to appear in court-which could be an all day affair for you and I think you probably have better things to do. Call me and ask us what we charge, I firmly believe that when you know what you get from an attorney for the money you pay, you will deem it worthwhile to hire an attorney for your tickets.

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Attorney Anthony M. Wright is a traffic ticket attorney with The Wright Law Offices, PC located in Las Vegas, Nevada, near Green Valley Henderson. Attorney Wright represents clients in Clark County, NV in all jurisdictions in which a person gets a traffic citation. Attorney Wright represents clients from the Las Vegas Valley, across the United States, and all over the world. Call us at 702-809-6904 if you want affordable representation for your traffic ticket. 

CRIMINAL: 'I didn't know': What Young Thugs Should Know But Aren't Taught

"I didn't know." This is the excuse many criminals give when they did something that violated the law. The excuse is most often used when a misdemeanor occurred and the misdemeanant did not know what he did was wrong.

An example would be not coming to a complete stop at a stop sign, which is a crime in Las Vegas, Nevada . A person from California , where rolling stops are legal, might not know that they are illegal here. It does not matter, however, that the person did not know because ignorance of the law is no excuse.

Most often people feel that their lack of knowledge ought to be an excuse to pardon them from their behavior when the crime was what we in the legal profession call "malum prohibitum", which is Latin for "bad because its prohibited".

Malum prohibitum laws come about when our law makers have, in their infinite wisdom, decided that some actions or inactions should be unlawful because they harm or have the potential to harm society in someway. An action or inaction is deemed wrong for public order even it there is no discernable victim.

A rolling stop in Nevada could be dangerous, so it is prohibited and you are a criminal if you violate this law whether you knew better or not and whether an accident occurred or not. The problem is that there are so many laws created by so many law makers, that no one can really knows them all and many otherwise law-abiding citizens become criminals.

Most often, malum prohibitum crimes are also classified as "strict liability" crimes in which the criminal's intention does not matter. It does not matter that you knew that you were committing a crime, all that matters is that a crime was committed. You did not see the speed limit was 25 miles an hour when you were flying by at 75 miles an hour. Too bad, reckless driving-no defense.

Another common example of malum prohibit crimes would be statutory rape. States set age limit on who can have sex with whom. If an adult has sex with a 13 year old and the age of consent is 16, like in Nevada , then the adult is guilty of statutory rape even though the adult thought the minor was 18. A mistake of fact is not an excuse for a strict liability crime.

On the other hand, we have another category of crime which is called "malum in se." Malum in se means "evil in and of itself". These crimes are crimes that people should know are wrong because their conscience tells them so. Our lawmakers have codified these crimes, but even if they hadn't, we would still know the crime to be wrong based on our morality. Such crimes include murder, rape, mayhem, robbery, arson, and others. One problem is that many of our young are not taught morality-anywhere.

Malum in se crimes are generally not strict liability crimes because we want to make sure that the person who did the act had the intent of committing it. In the case of murder, a person is found dead and another person is charged with the murder. The charged person says that the death was accidental and that he did not intend for the person do die. Because murderers have done the ultimate human atrocity, we want to punish them severely; however, we want first to make sure they were in fact responsible.

Therefore, the prosecutor must prove beyond a reasonable doubt that in fact the death was the result of an intentional act and that the desired result was death. The prosecutor has the burden of proving the criminal elements of "mens rea," "actus reus", and a concurrence of actus reus and mens rea. (aka: mental intent, physical act, and the coming together of the mental intent and physical act.)

The above is the background for the lesson of this article, which is that our public schools do not teach our students to know the basics of the law of the land. As a result, young hoodlums go too far in carrying out their little crimes because they do not know the full ramifications of their actions.

Many criminal lawyers believe that there is one crime where the excuse of "I didn't know" really ought to be taken seriously, and that is the crime of felony murder. Unless you are a crime buff or have gone to law school, you probably do not have the first clue of what felony murder is. And yet, many young thugs who are just high on the idea of doing a minor, yet forbidden, crime end up guilty of felony murder which carries, in many jurisdictions, the same punishment as cold blooded, first degree murder.

You see, even though the word "murder" is in the name and murder is ordinarily characterized as a "malum in se" crime requiring mental intent, in the United States we treat felony murder like a strict liability crime.

The best way to describe felony murder is by way of example:

Three eighteen year old high school seniors on Spring break decide they want to have fun and do what they've seen in the movies. They decide to go hold up a convenience store with a gun one of them "borrowed" from his father. The kids figure if they get caught the worst time they would do is maybe five years, but the chances of them getting caught are slim if they keep quiet about the crime. They make a pact that it would be their little secret.

They enter the convenience store with masks. Three other people are in the store: the clerk, a customer in the isle, and a gambler at a slot machine. One of the boys whips out the gun and demands that the clerk give them all the money in the cash register.

The gambler immediately has a heart attack from fear of the hold up. The gambler dies.

The customer in the isle whips out her gun and shoots one of the gangsta boys. The hoodlum dies.

The boy holding the gun panics and fires, striking the clerk. The clerk dies.

The two remaining hoodlums flee but are later identified when the bullet from the clerk's body is identified as belonging to the gun owned by the boy's father.

Question: How many murders can the two boys be charged with? The answer is three. Even though the gun toting hoodlum actually only killed the clerk, both boys can be charged with three murders because three deaths occurred during the felony of armed robbery.

The gambler died of a heart attack that he would not have died of but for the robbery-felony murder.

The hoodlum died when the customer shot him and this would not have happened if the boys hadn't held up the store-felony murder.

The clerk was accidentally killed by the hoodlum who panicked, but it does not matter because the death occurred during the commission of a felony, thus felony murder. The boy who did not fire the gun is still guilty of felony murder just as if he was the one holding it.

The two surviving hoodlums could be locked up for the rest of their lives for an indiscretion they did at 18 years old due in part because of the negligence of our education system. Our educators failed to inform our youth that even a crime where no one was supposed to get hurt could end up being felony murder. Our prisons are crowded with some of these wrong-headed kids who might have otherwise been good citizens.

As a nation, we punish our criminals as a deterrent to prevent other would be criminals from committing the crimes. How can we expect to deter would-be criminals if we do not educate our young people? Some of what is taught in law school should definitely be taught in junior high and again in high school.

Conclusion

Do not commit a felony such as robbery or rape because if a death results, you are a murderer whether that was your intent or not. Felony murder is tried by the prosecutors like a malum prohibitum traffic citation, but punished severely just like malum in se murder. The excuse of "I didn't know" will not help you even if you are justified in believing it would because of the failure of our education system. Felony murder is an example of what happens when our government's justice system meets up with our government's education system-tragedy!

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FAMILY: Las Vegas Divorce in Two Months

Las Vegas is the town of quick marriages and quick divorces. Many States in the United States require a person to have resided in that State anywhere from six months to several years before a divorce court will exercise jurisdiction over a divorce.

Not so in Nevada. You need only have lived here for six weeks before you can file a Petition for Divorce. Once the petition is filed, the actual divorce date will depend on several factors including whether the spouse will cooperate, the court's calendar, and amount of property in dispute, and disputes over child custody. However, if both spouses can agree on everything, then a divorce decree could be filed within a couple of months.

However, there are a few caveats regarding the six-week residency rule. For instance, Nevada law requires that a person reside continually in the State for the six weeks. This means that one cannot go to Vegas, leave immediately for several weeks, then come back and claim to be a resident for purposes of jurisdiction.

Another caveat is that you must have the intent to remain indefinitely. This means you have to show that you intend to really make Nevada your home. One can do this by getting a Nevada's Driver's License, renting a place (I recommend month to month leases). and getting a job.

You must also provide a witness who will testify that you have lived in Vegas for six weeks.

I always recommend that a Nevada attorney handle a divorce. However, fast, easy divorces, such as the ones contemplated in this article, should not be expensive. An attorney should charge between $1600 and $2500. More would be expensive for the work involved.