Review Of The Charges

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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16 Responses

  1. Avatar Arcane_NH
    Ignored
    says:

    Thank you Burt. I always enjoy reading your articles. Keep up the good work, and good luck on securing the judgeship you mentioned a while back.Report

  2. Avatar Chris
    Ignored
    says:

    Very informative. Thank you.Report

  3. Avatar Glyph
    Ignored
    says:

    ARGH THIS IS TOO LONG AND COMPLICATED ALL I WANT TO KNOW IS SHOULD I GET MY PITCHFORK AND TORCH OR NOT

    (Just kidding, thanks Burt).Report

  4. Avatar Tod Kelly
    Ignored
    says:

    On the one hand: Dude, what the fish are you doing banging all of this out with the hectic week you’re having — during a rare time when you could actually be relaxing?

    On the other hand: This was pretty fishing awesome.Report

  5. Avatar Michael Cain
    Ignored
    says:

    Nice.

    Off on a tangent, but somewhat of an illustration of a point that I sometimes get stuck trying to make. There are good things about citizen initiative/referendum powers. There are also bad things. Too few people understand that there’s no such thing as a law in isolation. Individual items fit into a vast (20-some volumes of small print in my state) hyperlinked body of statute [1]. What a new law means in the context is almost never just what the new law says — and it may take several court cases for the judges to sort out just what it does say.

    [1] The online version damned well ought to be heavily hyperlinked for real. One of my least favorite chores when I was a legislative staffer were the days when I had to sit down and chase through all the potential ramifications of a change in one part of the statute.Report

  6. Avatar Stillwater
    Ignored
    says:

    Awesome Burt. Thanks so much for breaking this down. One question tho. You wrote

    I can’t tell on that basis whether or not Duncan is being put on trial for writing a rap song that pissed off the D.A., or whether the D.A. says that Duncan had something else to do with the nine shootings.

    Isn’t part of the problem here that the scope of the law as written is wide enough to include merely having made so money by rapping about gang activity just so long as the rapper was a member of the gang and the gang engaged in criminal activity?Report

    • Avatar Burt Likko in reply to Stillwater
      Ignored
      says:

      There has to be some sort of link between the rapping and the gang activity. The third element is “Defendant willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by the gang’s members.” If the activity in question is rapping, the rap must “promote, further, assist, or benefit from” the crimes that the gang members are doing.

      I agree that is potentially a problem. If Duncan’s rap is inspired by his friends in the gang bragging about their criminal exploits, that’s potentially within the embrace of this statute and if so, there’s a pretty serious First Amendment problem here. But I’m not and can’t be sure if it is practically a problem in this case.Report

      • Avatar Stillwater in reply to Burt Likko
        Ignored
        says:

        Burt,

        There has to be some sort of link between the rapping and the gang activity.

        Is it crazy to think that the “link” is membership in the gang? (I hate to keep repeating it, but that’s the way the law reads to me…) It seems to me that that’s what the prosecution is hanging it’s hat on. And that would be the case even if we assume the prosecution is leaning on Tiny to get him to rat out his associates.Report

      • Avatar Jaybird in reply to Burt Likko
        Ignored
        says:

        Wouldn’t that *STILL* be covered under the First Amendment, or does “peaceful assembly” not qualify if you’re hanging out with people you know to be felons? Or is the law broad enough to say “you can’t benefit from your friends breaking the law”?

        But, if that’s the case, wouldn’t _In Cold Blood_ be actionable under this reading?Report

      • Avatar LeeEsq in reply to Burt Likko
        Ignored
        says:

        Jaybird, exactly. The law seems overbroad in its intent and application.Report

  7. Avatar Glyph
    Ignored
    says:

    If it turns out Suge Knight is involved in any way, then I retract all criticisms of the prosecution and they should throw the book at Tiny Doo.

    http://www.salon.com/2015/01/30/ex_rap_mogul_suge_knight_arrested_in_deadly_hit_and_run/Report

  8. Avatar Brandon Berg
    Ignored
    says:

    As for me, my Scotch is gone and I’ll visit with you all in the morning.

    I’m so sorry for your loss.Report

  9. Avatar KatherineMW
    Ignored
    says:

    3. Defendant willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by the gang’s members.

    Burt (or another lawyer), could you explain to me what “willfully” connotes in this context? It’s not clear from the statue that a person needs to knowingly benefit from a criminal action. And if that’s the case, it seems like the law could be criminalizing associating with people who have committed crimes, provided a person derives any benefit whatsoever from associating with them.

    Not only am I not a lawyer, I’m not an American, but that seems to violate freedom of association (which isn’t directly in the text of the First Amendment, but Wikipedia tells me that courts have interpreted the First Amendment to include it).Report

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