Earlier this week, we released a short video about the need to alter the current state statute on domestic violence. As it stands, the statute is a prime example of how too often the law does not judge a person’s intent, but instead only looks to see if the person violated the strict letter of the law. Domestic violence laws are meant to be used to prohibit and punish those who injure or harm others they live with—spouses, partners, roommates, etc.
But as government inevitably does, the current statute goes too far and punishes innocent people. This comes about because in Utah if you “commit any offense against property,” specifically “the property of another,” you are also committing domestic violence. On its face that seems fine, until you think back to your recent joint tax return that you filed and you realize that all your property is jointly owned with your spouse. Therefore, that property you just smashed on the ground is considered to be “the property of another”.
All of a sudden, depending on the cost of the property, you might be looking at charges up to a 2nd degree felony.
Editor’s note: The following is a lightly edited interview with Kirsten Tynan, executive director of the Fully Informed Jury Association. The organization works to informed potential jurors about the nature and importance of juries, and the power jurors have to refuse to convict defendants of violating an unjust law.
Libertas Institute: Why are juries important?
Kirsten Tynan: In the legal system, there are many parties involved who have a vested interest in a certain outcome. Really, the only independent party in the courtroom is the jury—or, if you prefer, each individual juror. The judge obviously is paid by and works for the government; judges often come from the ranks of prosecutors. They have an interest in keeping business rolling by keeping the courtroom full. Prosecutors, of course, are often elected officials whose livelihood depends on getting prosecutions and whose continued employment often depends on appearing to be tough on crime.
Defense attorneys are also not always independent; although we may think of them as always on the side of the defendant, that’s not always true. A lot of public defenders, who incidentally are also paid by the government, have a cozy relationship with the other government employees in the courtroom and may not steer their client in a direction that is in their client’s best interest.
So really, the purpose of the jury is to be an independent body that stands between the defendant and a malicious prosecution, unjust law, or corrupt process. They are there to be a bulwark for liberty.
Last week, Sam DuBose was shot in the face and killed by a University of Cincinnati police officer, Ray Tensing, after being pulled over for not having a front license plate on his vehicle. Today, the officer was indicted for murder—a result that would not have happened, were it not for the officer’s body camera.
Officer Tensing’s statement to the reporting police officer affirms that Tensing “began to be dragged by a male black driver who was operating a 1998 Green Honda Accord.” Tensing claims that “he almost was run over by the driver of the Honda Accord and was forced to shoot the driver with his duty weapon.”
Another officer, Phillip Kidd, offered corroborating testimony to the reporting officer, affirming that he “witnessed the Honda Accord drag Officer Tensing, and that he witnessed Officer Tensing [subsequently] fire a single shot.”
Both officers lied.
“You guys killed my dog!” Utah resident Sean Kendall told several police officers. “I’ve had this dog for three years. He was my best friend—and he was shot because an officer couldn’t back the [expletive] up out of my house!”
Geist, Kendall’s Weimaraner, was inside Kendall’s fenced backyard when Officer Brett Olsen shot and killed him on June 18 while searching for a missing three-year-old boy, after opening Kendall’s fence and entering the backyard without permission or a warrant.
Kendall’s video went viral, media attention poured in, and concerned citizens took to the streets in protest of this use of perceived excessive force. The “Justice for Geist” Facebook page for supporters now stands at nearly 80,000 likes. Despite the officer being cleared of the shooting for “acting within policy,” many Utahns remain upset that Geist was killed when, they believe, the officer could have acted in a different manner, thus removing the need to attack the dog.
As the rallies and letters to the editor and angry interviews percolated in the weeks following this shooting, I couldn’t help wondering how Melissa Kennedy felt watching the outcry.
In his 2014 State of the State Address, Utah Governor Gary Herbert said:
Addressing population growth also involves improving our criminal justice system and providing structure for individuals to become productive members of society. There has been a great deal of discussion about relocating the state prison. This is a discussion worth having, but it must be done in the larger context of reforming our criminal justice system as a whole.
I have asked for a full review of our current system to develop a plan to reduce recidivism, maximize offenders’ success in becoming law-abiding citizens, and provide judges with the tools they need to accomplish these goals. The prison gates through which people re-enter society must be a permanent exit, and not just a revolving door.
In light of the Governor’s priority to address criminal justice reform he has instructed Director Ron Gordon and the Utah Commission on Criminal and Juvenile Justice (CCJJ) to make reforms by the end of the calendar year. This will include reviewing and changing policy as well as proposing legislative reforms for next year’s session. CCJJ has adopted this review project as its priority study item for this year and has been conducting town-hall style public hearings around the state to obtain feedback and suggestions from the public on criminal justice reform.
As we explained in our asset forfeiture policy analysis, “policing for profit” is a problematic element in law enforcement. Similarly, there is a concern that local justice courts in Utah can prosecute and adjudicate for profit as well. Since justice courts are created by cities and counties, it is in the interest of the sponsoring local government entity to ensure that the court brings in revenue from fines and forfeitures. To correct this problem, there is a legislative proposal to implement state circuit courts in Utah to hear criminal misdemeanors, removing them entirely from justice courts.
Representative Jeremy Peterson has introduced HB 319 to rebalance the type of cases heard by justice and district courts in Utah. The bill came out of the interim meeting of the judiciary committee last fall. The proposed circuit courts would take over jurisdiction from justice courts for criminal matters leaving the justice courts to handle only civil violations and municipal infractions. Peterson’s proposal aims to correct many problems with the current system.