Attorney and Author Dan Conaway and Mike Brooks Radio show "Arrested" Podcast Artwork Image
Attorney and Author Dan Conaway and Mike Brooks Radio show "Arrested"
November 24, 2018 "Arrested" show with Dan Conaway and Mike Brooks
November 24, 2018 Dan Conaway Mike Brooks
Attorney and Author Dan Conaway and Mike Brooks Radio show "Arrested"

November 24, 2018 "Arrested" show with Dan Conaway and Mike Brooks

November 24, 2018

Dan Conaway Mike Brooks

Dan Conaway and Mike Brooks discuss due process and the current fight going on between Trump, CNN and Jim Acosta.  They continue the discussion from last week.  

Dan Conaway and Mike Brooks discuss due process and the current fight going on between Trump, CNN and Jim Acosta.  They continue the discussion from last week.  

Episode Transcript

Speaker 1:0:01Welcome to arrested the only vive and local show that takes you into the belly of our criminal justice system, cohosted by Mike Brooks and Atlanta criminal defense attorney Dan conaway of Conway and strickler pc. Good morning everyone. Welcome to arrested with your co host, Mike Brook

Speaker 2:0:17and defense attorney Dan conaway. We hope everyone had a great thanksgiving. I hope you didn't eat too much and, uh, we're glad you're here with us this Saturday morning. Well, we've got a lot of great things to cover this morning, Dan, and um, you know, last week we talked about the lawsuit against, uh, against a. well, it was against president trump and the White House and uh, it was against Sarah Huckabee, sanders, the chief of staff, the director of the secret service, the officer who, uh, who actually took Jim Acosta's hard pass, but it was a, it was Jim Acosta and CNN versus the, uh, the White House and some of the staff there. Well, we talked about that at length last week and now this week we find out that I'm the president and the White House are looking at possibly after a 14 day period that was issued, apparently a temporary restraining order. And so the White House is seen is temporary.

Speaker 2:1:24Fourteen days there, there was a district court judge, Judge Kelly who made the ruling and we talked about the first, you know, they said it was a violation of the first and Fifth Amendment, but he wasn't dealing with the first amendment. He went ahead and was dealing with the fifth amendment with due process. He said that basically that Jim Acosta hadn't been notified of why, of, of his actions and there was a number of other things, but now the White House has come out with a set of new rules, uh, for basically decorum that they said were unwritten rules before. But now they are spelling it out. We'll, we'll talk about them in a minute. But this whole thing of due process, you call to Dan because they apparently weren't. He didn't notify him before they took its art past. But now with the new rules, which we'll talk about, is this going to hold any weight?

Speaker 3:2:21Uh, good question. I think the answer is yes, because what the court did was the court really followed a, the law based upon the Supreme Court decision from 1977 where they basically said that there's a three prong issue or three parts, three steps that the government has to take here. One is they have to provide written notice to the individual if they're going to revoke their heart past two, in this case, being Jim Acosta to Jim Acosta, then has a chance to rebut or to respond to that complaint and to that allegation of misconduct. Three, uh, the, the, uh, secret service will then issue a through the White House will then issue their decision as to whether or not he's allowed to keep his heart pass or whether it will be revoked. And within that also is the issue of what the White House has done is they're preparing guidelines with respect to decorum at the press conference. And that does deal directly with the first amendment issue. Where again, it seems to me if there's a first amendment issue here is the fact that if Mr Acosta is hogging the microphone right and asking question after question after question, then he's really blocking other people, other members of the press from exercising their rights and therefore it's not fair to them. So hopefully this will all be resolved fairly. Hopefully it will all be resolved amicably and who knows, perhaps, maybe just maybe Jim Acosta and Donald Trump might get along. We'll see.

Speaker 2:3:56But then again, I'm saying, well, maybe not because you know, this is basically before his hard past what was pulled it, it kind of been building up to this and the volcano like a volcano ready to erupt. Really it? Or is it really? Wow. Yeah. Really was. There was no love lost between president trump and Jim Acosta and uh, and Sarah Huckabee Sanders because on a regular basis it's more Sarah Huckabee, sanders dealing with Jim Acosta than it is the president. But, uh, you know, and, and this was a little bit different too because in that everybody thinks that the press briefing room at the White House when it looks like it looks like it's pretty big, but I've been there and it's not big at all, but where the incident took place, everybody was kinda spread out in the East Room whenever holiness this press conference with the president and uh, and we saw the confrontation took place between Jim Acosta, the president, and we saw the White House intern trying to take that microphone away.

Speaker 3:4:59And I think with respect to those kinds of things might, that, uh, that will stop. It certainly needs to stop. And I thought, um, uh, there was a nice statement put out by the White House and basically it said, look, we want everyone to be able to ask questions. Uh, president trump has made himself available for questions. Uh, and Sarah Huckabee, sanders is doing our best to do her job. Um, and to some extent Jim Acosta push things for sure. Now at the same time he's a reporter who's job is to push things. But there's a, there's a line between pushing things and just general bad decorum and then hogging the microphone. Exactly. And so if they set some rules that balance that hopefully this will work out and then if not, we'll see. Because the court did not say was the trump administration cannot ultimately revoke his press pass. They can. They just have to enforce and followed due process.

Speaker 2:5:59Exactly. So now there are new rules set in place. So they, they, they just, they just came out this past week. So let's take, let's take a look at these rules. Rule number one, a journalist called upon to ask a question, we'll ask a single question and then will yield the floor to other journalists. Rule number two, at the discretion of the president or other White House official or another way as visual taking questions, a follow up question or questions may be permitted and where a followup has been allowed and asked the questioner will then yield the floor.

Speaker 3:6:44Can you get two questions? Potentially one plus a followup. And that seemed perfectly good. That's two questions. And uh, that should be enough. And then you have to move on and, and there's, what about 100, 150 members of the press. They're representing a wide variety of organizations

Speaker 2:7:00depending on the day. Yeah. Yeah.

Speaker 3:7:02So you know, that way it allows more people to get questions asked and especially for the smaller newspapers, the smaller outlets, the regional papers that don't have, you know, the media length of a CNN has or Fox News or MSNBC or CBS. Maybe it'll give some of those smaller papers with less of a media footprint or smaller networks and opportunity to really engage with the president and with Sarah Huckabee Sanders and have the opportunity to ask more questions. And I think that diversity of questions from a diversity of sources is better for both the press and also for the American people

Speaker 2:7:45possibly. Okay. Rule number three, we've talked about yielding yielding to Florida. So rule number three says, yielding the floor includes when applicable, physical. Surrendering the microphone to White House staff for use by the next questioner.

Speaker 3:8:06You got to give up the microphone, Jim got to hand it over here. This is where, this is where if Jim Acosta ends up losing his heart pass, I would argue it's, it's this, it's this area here because he does really like to push with one question after another and then you know, the microphone thing, so we'll see how he does, but he is going to have to stop some of the grandstanding or as he would call it, the aggressive questioning. Uh, but he's gonna have to turn that down.

Speaker 2:8:33Here's my suggestion. Here's my breakfast suggestion. Have a White House staffer or one of the White House military social aids and his or her uniform. Come down there and have them hold the mic for the questioner. There you go. They got one question. Go ahead and try to snatch that microphone from a United States Marine and air force officer, a US army officer, naval officer and see what happens. And that's just my suggestion.

Speaker 3:9:04I, I, you know, I think that's perfectly fine because the purpose of the microphone is to ask the question and you obviously don't have to be holding onto it. In fact, it might be kind of Nice, right? Because that way you don't have to hold onto it. You don't. You can ask your question, right? Maybe you've got notes that you need to look at while you're asking the question. That way you don't have to fumble with your notes and hold the microphone. There you go. So it could work out well for everybody. I'll, I'll save them money

Speaker 2:9:25cost. I don't know about that, but I'm going to go ahead and send them a see if I can send them an email. Rule number four, failure to abide by any of these rules. One, two, three may result in suspension or revocation of the journalist hard pass.

Speaker 3:9:47There it is. And that way see that we're part of the, a, part of the purpose of due process, Mike, is to put the person on notice if there's some sort of action being taken against an individual. The idea is to give that person notice. It's actually kind of the first things in due process. Uh, like when you're arrested, you have to know what you're being arrested for or when you're being charged with a crime, you have to be indicted or formally accused. So that you know, what's, what's going on, you know, what you're accused of specifically. Um, so in this particular case, it's similar to that from the point of view that, you know, they're uh, they're giving him notice that they're giving Jim Acosta noticed and other reporters that if they behave counter to that rule, then they're hard pass could be in jeopardy.

Speaker 2:10:29Yeah. But the question is how much, how much, uh, the teeth do these really carry when it comes, when it comes to due process,

Speaker 3:10:41they have a lot of teeth because the, the, the rest of it is very straightforward. And that is, is that um, if they decide the bottom line here is that it's the White House that's allowed to set the rules through the secret service with respect to these issues. And so, um, if you are behaving in such a way that really does cause problems for the White House and he can begins to obstruct, to make difficult the ability for other members of the press to be heard. I think on that ground they've got a pretty decent argument that these roles are legitimate. They're not there just to harass Jim Acosta and that. They're good. All right,

Speaker 2:11:19well we will see what happens with this. You're listening to arrested with Mike Brooks and criminal defense attorney Dan conaway on the new talk one. Oh, six slash seven. This is arrested with Mike Brooks and Atlanta criminal defense attorney. Damn conaway. You're listening to arrested with Mike Brooks and defense attorney Dan conaway. And don't forget if you haven't picked up the book, arrested by Dan conaway. You are missing out bits. It's a, it's a great book. Talking at a, talking about the criminal justice system and it says arrested battling America's criminal justice system. It's a great read whether you have been arrested before or not, but it just talks about the criminal justice system as a whole and what happens to you should you do get arrested? But, uh, it's, it's, it's a fantastic book. You can pick it up on Amazon and any other place you can be combined

Speaker 3:12:17barnes and noble and also on our website, [inaudible] dot com.

Speaker 2:12:22Fantastic. All right, well, speaking of arrested, you know, there's, there's many times everyday, unfortunately many people, no matter, no matter your social economic class, no matter what you do for a living, there may be a time that you are arrested by law enforcement, whether it's local, state, or federal, and if you're a plumber and attorney, no matter, no matter what your profession is, where you hold a license, that license could be in jeopardy. So if someone gets arrested, Dan, what, what happens to them and is their license, how does that whole work with, with professional licenses after you arrested?

Speaker 3:13:08Well, my kids understand because I'm one of the terrifying things about this for our clients and we handle professional licensing issues, um, along with a criminal defense work, right? Because so often they do intertwine with one another. So you're a person, let's say you're a nurse or a stockbroker or an accountant or a doctor or a lawyer or whomever, and you're charged with some type of crime, right? Well, one of the things that happens is you'll oftentimes received notice from the professional licensing board and they'll say, no, you have to address these issues and you may find that your professional license, the thing that's your living, your ability to make living, uh, and allows you to earn money is actually being jeopardized and threatened with revocation or suspension by the arrest. So it's pretty terrible thing to go through because here you are, you've just been arrested and charged with a crime, right? So you've got plenty to work, worry about their. Absolutely. So you're already stressed out and then all of a sudden, boom, a, you get a notice from the Georgia licensing board. Uh, let's say for instance, you're a nurse, then you will get a notice from the Georgia Licensing Bird for nurses, uh, that they need to take a look at your license and whether or not it's going to be suspended or not.

Speaker 2:14:30Now, how did the boards find out you were arrested, whether it be for a Dui, a theft or anything else? How did they find out and then send you the notice that you were arrested due to law enforcement or fire them? How's it work?

Speaker 3:14:45Um, my understanding is law enforcement doesn't generally do that. Um, it's usually either several ways. One way is through some type of a regulatory issue where they have to renew their license. And so when you have certain types of licenses, you may have to renew that license every so often. And so therefore, if your rest coincides with renewal period or review period for your license while then you've got to provide that information to. There's also self reporting issues and self reporting requirements often times, uh, so that if you don't report the issue and they find out about it later, that can be much worse than if a, then then if you reported it finally, sometimes there is a certain amount of, uh, how should we say whistle blowing or vengeance is what I would say as a criminal defense lawyer where I suppose it's a domestic case and the two sides really don't like each other very much.

Speaker 3:15:43Then the alleged victim may or it's bended. The victim's family may contact the licensing board anonymously, so there's all different ways licensing board you can come out and I can find out about it and then you get this notice. It's interesting about it I think is that uh, we were talking about due process and the Acosta Whitehouse case. Well it's the same thing here and the steps are similar in that first of all, the first thing you can do to help yourself is one, obviously call a lawyer because you're going to want legal representation not only on the arrest, but also dealing with professional license to check the website for the regulating agency for the state of Georgia that handles your particular license. The rules will be listed there as far as what conduct could trigger a suspension of your professional license. So it's usually spelled out there in the website.

Speaker 3:16:36Just in general terms, does it change with the different kind of license you may hold? Yes. It can be different for different types of licenses. It can also, the results and the issues can differ for different types of crimes. Obviously as a general rule, the more serious the crime, the more chance there is that your professional license is going to be at stake, but, and this is where we can go back to the Jim Acosta Whitehouse case, whole due process, it's the same thing you have written notice. You have to get written notice that you licensed, that they're looking at spending your license or considering it. Then you have the right to respond in writing. Uh, that response I would strongly recommend you hire a lawyer to do. Don't try to respond to writing yourself. There's several reasons for that, but the simplest one is that there are ways to respond to those letters that you get from the professional licensing board and their ways not to respond right.

Speaker 3:17:36And your lawyer is going to have a better understanding of that three. You usually have the right to a hearing so that if you want to dispute it, you can finally, under certain circumstances, you can choose to hand in your license and then get it back later. If you want to pursue that. And that's something you'd have to talk with your lawyer. And then finally, uh, you're entitled to a written, a written result are written, they're written conclusion reached by the administrative law judge handling the case and the board handling the case as to whether or not your license is going to be suspended. And then all of this interacts with a lot of practical things like what are you going to do with the fact that you're now you've been arrested, right? And now you're trying to, now you're trying to defend against that, but you're facing the potential suspension or last year for professional license, which means to make a living.

Speaker 2:18:29Exactly. It's going to be my question. Does the crime that you're charged with that you allegedly committed, um, you know, does that count on whether or not they are, will automatically, depending on what your job is, automatically suspend your license right then and there.

Speaker 3:18:47And it's interesting because this is one of the, this is one of the weird issues here because when you're arrested and charged with a crime, you have the presumption of innocence. Sure. And you're presumed guilty until proven guilty by a judge or jury beyond a reasonable doubt. So you have a lot of protection there with the presumption of innocence as a person accused of a crime, but the licensing issue is not handled by the criminal court. It's handled by a totally different set of laws called the administrative law.

Speaker 2:19:19So is that where you go before, let's say administrative law judge, that kind of thing? You go in front of the board. Administrative Law. Yeah,

Speaker 3:19:25governance is all that. And just said this makes sense. Um, because clients always asked me what is administrative law? What does that mean? Good question. Well, this is what I always say. Do you remember when you were like in the seventh grade and you were sitting in class trying to pay attention and all of a sudden your social studies teacher taught you about the three branches of government? Yes. Okay. So they are the executive, the legislative and the judicial. Right. Okay. So you got three branches of government. Well, if you think about it this way, the criminal law is governed by the judicial branch, meaning they are the ones that follow it out. They're the ones that deal with it. So criminal courts, criminal judges deal with things like, are you going to go to jail or not sure, are you going to be prosecuted or that uh, you can be fined or go on probation, all these kinds of things. That's all under the judicial process. Now the second area administrative law is under the executive branch. Really? Yeah. Why? Because it deals with executive bureaucracy.

Speaker 2:20:30Is it more towards like a, uh, like a civil case?

Speaker 3:20:33Yeah. It's kind of like a civil case is the simplest one I can give you is, let's suppose you're arrested for Dui, right? Well, there you get a 10 day notice. The tells you that essentially have 10 days to respond to keep your license. And if you don't, your license can be suspended. Well, those rules, excuse me, those rules are promulgated or I've been created, uh, by the administrative law that governs the Georgia Department of driver services and public safety. So that's not, again, it's when you go and you have right to get a hearing, you have a right to respond, you have a right to go to the hearing. You go with your lawyer. And uh, you go to the hearing, but all that, none of that is in a criminal court. It's an administrative law court somewhere around town and it's governed by administrative law, not in any way by criminal law.

Speaker 2:21:21That has to do with your license. That's your driver's license. Interesting. So here we go. I think that would be criminal. Then it gets nuts.

Speaker 3:21:27No. So here you got your ministry here, you've got an administrative law judge and a bureaucracy meaning through bureaucracy that handles your professional licensed stockbroker, nurse, doctor, whatever. They're in charge of it. So therefore it's governed by the executive branch or administrative law. And therefore you need a lawyer that actually understands that law and that due process. So your license.

Speaker 2:21:48So a license is a license, whether it be a license as a plumber for our nurse, a doctor or your driver's lane,

Speaker 3:21:53it doesn't matter. It's all. And it's what we use to make money. So it's important.

Speaker 2:21:56I had no, I had no idea. It was like, well thank God, knock on wood. Never had a, a, a dui or, or reckless or anything like that where my license was in danger, but uh, but I, I had, I had no idea and that's, that's a great explanation of what administrative law was because to be honest, you know, you talked about, oh, administrative law judge might go in front of Administrative Law Judge for, uh, for certain things. But I had no idea. And I doubt if our listeners did as well. You're seeing two arrested with yours truly. Mike Brooks and criminal defense attorney Dan conaway. Lots of. We're coming up on the new talk. What? Six? Seven. This is arrested with Mike Brooks and Atlanta criminal defense attorney Dan Conaway, yours into arrested with Mike Brookson, criminal defense attorney Dan conaway on the new talk one. Oh, six seven. And if you have not read Dan's book arrested, you're doing yourself an injustice. Go out there and grab a copy of arrested battling America's criminal justice system by Dan conaway. I think you, it's a. You will find it as a great read. Alright Dan, the education secretary, Betsy Devos, she just proposed a title nine rule that provides or it's supposed to provide a much more clarity for schools, uh, support for survivors and due process rights for all dealing with sexual harassment under title nine. And this just came out, kind of break it down for us and tell us what's involved and what are some of the key provisions.

Speaker 3:23:45Okay. My, so this just came out, new title nine proposal will soar, fairness to sexual misconduct cases. That's the general. There's several articles on this

Speaker 2:23:55and this also has to do basically with due process, right?

Speaker 3:23:59Does it, has it really centers on Du Press? Sure. And presumption of innocence and the rights of the accused and also the interest of the accuser. So way I see this is um, and I'm going to quote one particular article. I looked at the chronicle of Higher Ed and the chronicle of higher education, which I thought really laid things out well. Yeah. Um, so when you're talking about title nine, you're talking about the issue of sexual misconduct. The problem that we saw as criminal defense lawyers that handle these types of cases on behalf of college students and also represent, we also represent victims of crimes as well. So we also represent the victims in these cases. What we saw was the due process system, uh, and uh, and an investigatory system, if you will, that was simply completely out of whack. It became clear to me that the Obama administration had really put their thumb on the scale towards the accuser really, and had really wiped out any sort of due process protections along with the presumption of innocence for the accused.

Speaker 3:25:11Um, and it really was problematic. You had a situation where the school would appoint someone and they were essentially investigator, prosecutor, judge, and executioner, all wrapped in one person, which is not the way our criminal justice system is supposed to work at all. Um, and so it's one of the reasons why we have separation of powers, meaning why we have prosecutors have certain powers and judges have certain powers and the police have certain powers. The defendant and the defense attorney have certain powers is to keep everything separate. So that no one has too much power, so I think that these changes, uh, proposed and that will probably be enacted by Betsy Devos and the Department of Education are going to help change things around.

Speaker 2:26:02Now this includes, uh, if, if I'm not, if I'm correct me if I'm wrong, but the proposal is on improving the school's response to sexual harassment and sexual assault as well. Yes. And what's one of the things that. There are several things that are really good about that

Speaker 3:26:21and I'll kind of go through them both for the accused and the accuser, right? Um, because I liked these changes because they seem to help both sides. Um, let's start with the accuser. I'm one of the things that the Obama administration roles did in my opinion that's now been corrected, is that the accuser basically had two choices, either one, submit to the entire title nine process and investigation the way that it was set up or to essentially be quiet, not say anything. And so it didn't provide any middle ground. Right. And many of these cases we found over the years involved alcohol, meaning cotton being in college, students drinking, Gee, there's a surprise, right? So college students drinking college students having fun, college students ending up having sex or having some type of sexual encounter with one another that didn't go well, and so one of the things that the new rules have done is allow for things like mediation and other types of alternative dispute resolution where the accuser can come forward and explain his or her position and say, look, I've been victimized.

Speaker 3:27:31I was treated wrongly. This was unwelcome conduct, whatever the situation is, and there's still a presumption of innocence. There's still a presumption of innocence, but this way the accuser has the opportunity to be heard and it gives the accuser whether it's he or she, an opportunity to choose between different between different forums if you will, including mediation. And I think that's really important because if it's unwanted contact for contact for instance, or conduct that the accuser is saying, well then that's an issue that can probably be dealt with on campus. On the other hand, if the accusation is something like rape, well then you need to call the police, right? Exactly, and and the person may not feel comfortable coming forward, but if they can talk to a counselor, if there's mediation there that can help the accuser. So I think good changes for the accuser.

Speaker 3:28:22Now the other changes help the accused, the first and the biggest one is that they have right to a public cross examination of the accuser. Now what does that mean? They get to cross examine the accuser, meaning not they but their legal representative and now they can be represented by a lawyer and the lawyer or advisor has the right to cross examine them and this is absolutely essential and core to our a pr, not only our due process rights, but the very essence of what we understand to be right or wrong and our entire criminal justice system. Because a cross examination has been called the greatest engine for discerning the truth ever devised by man and that is really at the heart of cross examination. It's in a public place. The accuser has to take a stand and testify and then he or she is under Cra, has put under cross examination by someone trained in the art and the science was doing that and out of that comes to truth and I've seen this many times in cases where I've asked a question and all of a sudden the truth comes out and it's amazing.

Speaker 3:29:33It just. It comes out because a courtroom, but I would say it's a courtroom as a great a polygraph machine basically. Yeah. It's set up. Before they had electricity, they did have a polygraph machine or a lie detector test and that was called the courtroom. That's why the judge is sitting up on high. That's why your cross examined. That's why you're in the doc in the witness stand, right. That's why the jury is right next to you staring at you. Right? They can see you sweat. They can see fumbling with your hands.

Speaker 2:30:00Right. I liked, I liked it. I liked the analogy with the. With the polygraph.

Speaker 3:30:04Yeah. It's all the same stuff that you mentioned. The polygraph, right? It was just 12 citizens looking at you, so it's really works very well and cross examinations at the heart of that. And so if you're going to accuse someone of something which is incredibly serious, right? Sure, absolutely. Then you have to be willing to be cross examined if you choose to go to the title nine group. So I think that's incredibly important and that is now part of the process. It also

Speaker 2:30:32some of the key provisions that occludes it's uh, you know, the proposed rule highlights the importance of supportive measures as well. This designed to preserve or restore a student's access to the school's educational program or activity, uh, with or without a formal complaint. And, and some of these measures, which I think is good because it does, it supports both sides when it comes down to it, uh, depending what the accusation is, is, uh, the supportive measures include academic course adjustments, counseling, um, the no contact orders if that's a necessary dorm room reassignments, [inaudible] because everybody's, it could happen in that setting as well. Leaves the leaves of absence should a victim or the accused need that as well. And a class schedule changes because, you know, come right down to a Dan, the, the college campus is a very, very closed environment even though you might have a big campus,

Speaker 3:31:34it's true. And, and this way, again, these are, these are, uh, steps that can help the situation short of going through the trauma of a full hearing. Right? And in a situation where you're dealing with young people, you're dealing caused college students, um, many times, they're under the age of 21, which means they're not supposed to be drinking anyway. But as I recall from college, there was lots of drinking under the age of 21 when we were there. So it is what it is, but, but they're still, you know, they're still young people who are away from home and, and, uh, they need to have a variety of options available to them. And I think these, these, um, I think that these new title nine proposed regulations really balanced the issue between one fairness for the accused and due process rights and presumption of innocence, right into treating the accuser with respect and with decency and giving the school different tools to use it.

Speaker 2:32:33Let me ask you, you know, some, some people go to school and you're in, you're 16 or 17 if you're, if, if you're, if you're a smart kid and you go to college since they can are considered not an adult until you're 18, if they'll say 16 or 17, 17 year old. Are there parents involved in this, uh, this process as well?

Speaker 3:32:54Yes. The parents are definitely involved as well. My experience has been in representing a accusers and the accused in these cases is that the parents are usually involved. Um, one last thing I'll say with respect to this system, the colleges have the option of using higher standard of proof than preponderance to the evidence they could use clear and convincing evidence or beyond a reasonable doubt. I don't know how many times that's going to happen, right? Because the school is probably going to be nervous about upping the, uh, upping the standard, but we'll leave that up to the schools. My personal decision is because it's not an a criminal court, you could certainly go with preponderance or clear and convincing. I would be most comfortable and I'm most comfortable with clear and convincing is legal standards.

Speaker 2:33:35That sounds good too, and we will keep an eye, uh, on, on this are these new proposals and uh, and see how well they work as opposed to what you were talking about, the rules under the Obama Administration. You're almost to arrested with Mike Brooks and criminal defense attorney. Dan caught away much more coming up on the chalk one. Oh, six seven. This is arrested with Mike Brooks and Atlanta criminal defense attorney. Damn conaway, thanks everybody for joining us on arrested and spending your Saturday morning with us. Hope you had a great, great Thanksgiving holiday. Uh, but Mike Brooks here along with criminal defense attorney Dan kind of way now. We were talking about the title nine and, uh, the proposals and the new proposed includes survivors and victims. Well, this past November six during the midterm elections amendment number four to the constitution dealt with crime victims rights and many of you may know it better as Marcy's law and it passed what had 80 percent of 80 percent, 80 percent.

Speaker 2:34:47So when you went up, when you went into the voting booth and you were taking a look at this, and I know I talked about it on my show, the Mike Brooks show, um, a noon to three everyday on the new talk, one at six slash seven. We talked about this and I even had a crime victim on which we'll get to, but it says, um, what would the amendment do? It says, Georgia law already provides for notification of crime victims on hearings and other proceedings in their cases, but advocates hope by making this part of the state constitution their protections will have more weight and we'll talk about whether they do or not. Now, the proposal would also give the victim the right to demand a court hearing if he or she feels proper notice has not been given about developments in the case. This proposed amendment notice, Marcy's law mirrors, legislation passed and several other states and being pushed in others.

Speaker 2:35:42So, you know, dad, having been a law enforcement officer myself, detective retired for so many years, you know, I always felt that the law enforcement officer and the prosecutor were always there as the victim's advocate as well, and defense attorneys saying same kind of thing. Everybody's part of the criminal justice. He always wants to look out for the victims and, and make sure that the accused also has his or her own day in court. Overall, what do you think about this? Because there's been criticism as well. We already have low in the books. Why do we need to change the constitution? I mean, I mean, my, uh, uh, my cousin Hackman and I talk about that, talked about that and argued about that on my show. I think anything that they can help the crime victims is a good thing.

Speaker 3:36:34Well, I'm 80 percent of the voters agreed with Mike on this one. Um, I've voted against this amendment for the point of view of being in a defense attorney. How dare you, and a civil libertarian in that 20 percent, uh, and uh, the victims rights issue is interesting because, um, there's two things about it. First of all, are all of you for, for, for, for the amendment for a minute. Um, the issue I think that crime victims face and I think it's a real issue, uh, I've seen it, is that they don't get noticed that they don't get the notice that they're supposed to get under the law with respect to one court hearings were being held and uh, with respect to a bond hearing or sentencing hearing or something like that, right? Courtrooms or public places. You can't borrow people from entering your courtroom in the state of Georgia.

Speaker 3:37:22So you have and the federal courtrooms the same. So you have every right to walk into a courtroom and watch what's going on. And so therefore, notifying the victims or the victim's family of this situation under the law makes perfect sense. So no issue with that. I'm making many of the constitution, however, it seems to me takes it too far. So because I guess my first mark. Okay. All right. It actually doesn't have a whole lot to do with a particular issue of victim's rights. It has to do with a broader concept of which I'm very protective of. There's a concept in the constitutional law, negative rights versus positive rights. Now what the heck is that? What's the difference between a negative right in a positive, right? Okay, it's this simple. All of our constitutional rights. Let's just take the bill of rights. Just take that.

Speaker 3:38:12The bill of rights has everything to do, but all of our constitutional rights also have everything to do with keeping the government out of your life, keeping the government out of your hair, out of your home, out of your car, right off your phone and your bedroom. Thank you out of the way that are negative rights. They restrict restrain government action, so freedom of speech. Government can't pass a law which impinges or interferes with our constitutes right to freedom of speech. Same with the Second Amendment and the third, fourth, fifth, etc. Okay. What's a pOsitive right then? Well, positive rights are rights that are found in lots of constitution constitutions around the world. They're usually found in a lot of countries that like heavy handed government. Many times if you look at the constitution of a socialist government, you'll see lots of positive rights, the right to food, the right to healthcare, the right to an education.

Speaker 3:39:19Are you hearing these things yet? They're right to daycare, right? Well, these are positive rights, meaning they forced the government to do things. They tell the government, you must provide food, you must provide education. You must provide healthcare. Right? So it's the exact opposite of what we think of as a constitutional. Right. So in this particular situation, it's interesting because the victim's rights, uh, the marcy's law thing, what it does by making it a constitutional right, it's a positive, right? Because at the heart of it right is that the government has to notify the victims every time there's a hearing involving the, uh, the person who's accused of the crime in the case in which the victims involved. Right?

Speaker 2:40:04Well, that's thing I think that's a good thing. It's good. How else are they going to know if the government does not

Speaker 3:40:09fine, let him. I liked that as a law. It was fine with that and I think victim should have the right to come to court. They said the right to be heard. They have the right to make a statement at sentencing. They have the right to make a statement of bond. They should be notified of everything. All for that. My concern is it's called this slippery slope. When you give government more responsibility or tell it has to do something. It tends to keep going or it screws the completely up one of the other or both governments. Very good at doing both.

Speaker 2:40:39All right. Let me give you an example. We'll. Well this woman, we'll just call her laura. She was a crime victim. She was, she was, uh, she was assaulted and carjacked and almost killed, uh, at the age old shopping center down near the target and you know, and, and, and, and atlanta city of atlanta. And uh, they arrested the two codefendants and they were going through the process. Well, not too long ago, there was a hearing. Well, she knew that the one guy for sure it was locked up. She didn't know where the other codefendant was while she's sitting in court and this guy comes in and sits down next door and when the judge announced the case and the people involved in the case, she stood up and right next door, unbeknownst to her, the other co defendant who was out stood up. Now, number one, a victim's rights advocate should never let that happen. And dekalb county should never have let that happen and should have notified her that he was going to be here that day. I'm just thinking that marcy's law gives, I think, gives the, the law that's already there. A little more teeth, little more. Yes. And, and, and hold the government accountable for when they screw up because in this case, that was a major screw up. She'd already been through a lot of psychological, uh, you know, rehab and everything else. and this just totally upset her.

Speaker 3:42:11And one of, one of the things that we do is, um, and we do represent victims of crime as well. And what we see is, is that there are definitely holes in the process. So to argue what you're saying for a minute and you make a good point, mike, is that, um, is that the problem is again, you're dealing with a prosecutor's offices which have victim's rights units that he usually overwhelmed with cases

Speaker 2:42:33that's not, you know, what those stuff falls through. False. Sorry. Then you know, what, then hire more people to deal with the victims.

Speaker 3:42:40Well, and, and that's, and, and that's the argument. We'll see how it all plays out. But uh, but my guess is, is that um, it may do some good, it may not, we'll see, but certainly a victims deserve the right and have the right under the law to be notified and they always have to come to court and they should be working with the victims rights units to make sure the thing that you're talking about doesn't happen because your prosecutor's office can help you with that situation to make sure that you're not stuck right next to the defendant in a case.

Speaker 2:43:12Okay. Gotcha. Well, I'll tell you know those things can sometimes fall through crack, but if you know, especially victim like this, who is a very sensitive emotionally after bin, after everything she had been through and, and almost killed, I tell ya, there's no excuse on the government's part as far as I'm concerned. Well thank you everybody for joining Myself and defense attorney dan conaway auto rested. We'll see you right back here on the new top. One six

Speaker 1:43:37slash seven next saturday, 8:00 AM. It's arrested. Thanks for listening to arrested with Mike Brooks and atlanta criminal defense attorney dan conaway. Well, this show provides general information. It does not constitute legal advice. The best way to get guidance on your specific legal issue is to contact a lawyer. For more information or to schedule a meeting with an attorney, please visit conaway and strickler.com.

See All Episodes