Criminal Law & Process – Page 77 – Marquette University Law School Faculty Blog

Love and Violence: Valentine’s Day Edition

Post author:Lisa A. Mazzie
Post published:February 14, 2012
Post category:Criminal Law & Process Family Law Feminism Popular Culture & Law Public

On Monday, February 6, Florida couple Joseph Bray and his wife Sonja got into a fight because, she says, he failed to wish her a happy birthday. According to the arrest affidavit, the fight escalated; Joseph Bray pushed Sonja Bray onto their couch, grabbed her neck, and raised his fist to hit her, although he did not strike her. Joseph Bray was arrested and when he appeared in court on a domestic violence charge, you can be sure the judge issued appropriate sanctions.

Or not.

Judge John Hurley ordered in lieu of posting a bond that Joseph Bray get his wife flowers and a birthday card, take her to Red Lobster for dinner, then take her bowling. And he ordered the couple to see a marriage counselor.

A Comparison of an Article 32 Investigation with a Federal Grand Jury (And Why the Former Prevails)

Post author:David Behm
Post published:February 1, 2012
Post category:Criminal Law & Process Public

My recent military law class helped me to understand the judicial system employed by our armed forces. Many similarities exist between the judicial system in the armed forces and the Article III courts, but differences stand out as well. One such difference is that between an Article 32 investigation and its civilian counterpart, a federal grand jury. An Article 32 investigation provides more rights and opportunities for the accused than a federal grand jury. With that in mind, and an eye on overarching judicial policy, I concluded that the Article 32 investigation is better.

The comparison of the two judicial systems stems from the fact that both are designed to avoid trials on baseless charges. Beyond the similarity of this broad rationale for each process, however, little is in common between the two. An Article 32 investigation results in a non-binding recommendation, is limited to the charges on the charge sheet, and provides that the accused and counsel may be present. Conversely, a grand jury session’s indictment is final, allows any charges to be found, and neither the accused nor his or her counsel is allowed at the session.

Cockfighting, Congress, and Interstate Commerce

Post author:Scott C. Idleman
Post published:January 30, 2012
Post category:Congress & Congressional Power Constitutional Interpretation Criminal Law & Process Federalism Public

Some convicted defendants in South Carolina are crying foul at the application of the federal Animal Welfare Act to criminally punish the promotion of cockfighting. The statute is said to be based in the power of Congress, found in article I, section 8 of the Constitution, to “regulate commerce . . . among the several States . . . .” Federal prosecutors successfully applied the statute at the trial level, and now the case is before a three-judge panel of the U.S. Court of Appeals for the 4th Circuit.

The defendants (now appellants) argue that their conduct is not sufficiently related to interstate commerce, and is too local in character, to justify Congress’ exercise of its interstate commerce authority. Their contention in this regard is not about whether the promotion of cockfighting may be banned, but rather whether such conduct may be banned by Congress, which can only enact statutes that further its constitutionally enumerated powers. (Such conduct is largely prohibited, albeit with a lesser criminal sanction, by South Carolina law.) Their contention, moreover, appears not to be that the Animal Welfare Act as a whole is unconstitutional, but only that its application to their particular conduct exceeds Congress’s interstate commerce power.

The appellants’ arguments have a familiar ring to them.