Tuesday, February 02, 2010

The Brendon O'Connell Case: Sentenced to Death for Chewing Gum?

Christopher Jon Bjerknes



In order for an indictment to be a legal accusation based upon probable cause and made in good faith, it must at a minimum allege that an offense has occurred, specify the alleged offense with sufficient clarity to enable the defendant to prepare and assert a defense, and establish each and every element of the alleged offense. Consider the following quotation of jury instructions which names the four elements of first degree murder:

"Murder in the first degree is the wilful, deliberate, malicious and premeditated killing of a human being. Malice, wilfulness, premeditation and deliberation, these four things, must co-exist before a defendant can be convicted of murder in the first degree. And the burden is upon the State of Alabama in this case to convince you gentlemen of the jury beyond a reasonable doubt, and to a moral certainty, that these four elements did co-exist before the defendant can be convicted of murder in the first degree, the highest degree of unlawful homicide."--Ala. Code, tit. 14, §§ 314-20 (1958 recomp.) (repealed): http://www.law.ua.edu/colquitt/crimmain/crimmisc/jurymur.htm

An indictment alleging murder in the first degree must, at a minimum, allege that a human being has been killed, that the accused caused the death, and that the accused did so with malice, wilfulness, premeditation and deliberation. An allegation which fails to allege each and every one of these elements, fails to allege the crime of murder in the first degree.

Not only must the government allege each and every element of the offense being alleged, the government must also prove each and every element beyond a reasonable doubt to the satisfaction of the jury in order for the jury to find the defendant guilty of the accusation. However, where no elements are alleged, the jury will not be asked to determine if the elements which were not alleged in fact occurred. Therein lies the danger of an insubstantial accusation. A person can be convicted and sentenced based upon conduct that is entirely legal.

Assume that the government issued an indictment which stated,

"Person X commited murder in the first degree in violation of Statute 10001 of the Looneyland Criminal Code; in that he chewed bubble gum."

The government could issue such an indictment despite the fact that it is obviously fatally defective on its face due to its failure to allege that a crime has been committed. Nevertheless, if defendant X failed to object to the indictment and demand that it be dismissed on the grounds that it failed to allege an offense and all of the elements of the offense, the defendant could be tried, and the government would need only prove what it had alleged, that the defendant chewed bubble gum, in order for the defendant to be found guilty and sentenced to death. An innocent man who fails to defend himself from an illegal charge that fails to state that a crime has been committed can conceivably be executed if the government simply proves what it has alleged.

There are, of course, remedies and rights to prevent such an occurrence. The defendant has the right to have the indictment dismissed before trial. The defendant has the right to demand specific jury instructions which require the jury to find as fact that all of the elements of the offense in fact occurred. The defendant has the right to claim innocence at trial that despite the fact that the allegation is factually correct, it fails to allege that a crime has occurred. After the trial, if convicted, the defendant has the right to move to quash the conviction on the basis that no crime was proven. Then, the defendant has the right to appeal.

However, how many Pro Se defendants know these rights and requirements under the law and know how to exercise them? Very, very, few, I suspect. So it is possible that a man could be sentenced to death for chewing bubble gum.

An indictment for "racial vilification" must allege all of the elements of the alleged offense and in so doing: specify the exact language of the alleged "vilification" and explain how it constitutes "vilification" and how it constitutes the "vilification" of a "racial" trait; allege that the accused believed the "vilification" to be false statements; allege that the defendant did not intend to forward the public interest by making the alleged "vilification"; allege that the defendant believed the group allegedly "vilified" is a "race" as defined by the statute; demonstrate that the group allegedly "vilified" is a racial group under the letter of the law; allege that the law provided the defendant with notice that the "vilified" group is a "race"; allege that the defendant intended to "vilify" what the defendant believed to be a "race"; allege that the defendant had no legal right to make the statements he is accused of having made; allege that the alleged "vilification" in fact plainly vilified the "race", was heard in public and was meant to be heard in public; allege that the "vilification" was unambiguous and could only be interpreted by a reasonable man as the "vilification" of a "race"; etc. etc. etc.

Of course, no such lawful indictment could be had alleging that a person, believing his statements to be true and in the public interest, made a valid and accurate critique of religious beliefs; because such conduct violates no laws, is not an offense and does not constitute a crime. Any such fatally flawed indictment must be dismissed at the earliest possible date so as to end the illegal harassment of the wrongfully accused; and, where the court refuses to dismiss such a fatally defective indictment, and society suffers the suppression of public debate on a matter of public interest as a result, the denial of the motion to dismiss ought to be appealable directly and immediately to the highest court as a matter of substantial, pressing and urgent public interest.