>And, since you seem to know your law, can Mr. Siller and Mr. Charle take legal action against Mr. St. James and the courts for their improper prosecution?
No. In this case, they would have immunity from suit. But as a matter of attorney discipline, no member of the bar has immunity from being admonished, censured, or placed in a remedial program, or in the case of gross negligence or misconduct, from facing suspension of his or her license or disbarment.
Did Assistant District Attorney Kerry St. James violate the Rules of Professional Conduct, which govern the actions of attorneys in Colorado?
In this regard, Rule 3.8, Special Responsibilities of a Prosecutor, requires, inter alia, that a "prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause." In addition, there is a question whether Mr. St. James violated Rule 3.1, Meritorious Claims and Contentions.
In turn, these questions raise a fundamental issue of whether the gravamen of the State's action against the defendants is justicable under Colorado law. According to newspaper reports, they were charged with felony burglary and misdemeanor theft.
By way of background, these offenses are defined in the Colorado Criminal Code. First, § 18-4-401 (1) of the Colorado Revised Statutes ("CRS") states that a "person commits theft when he knowingly obtains or exercises control over anything of value of another." While no doubt the over-ripe produce taken from outside the store was of value to the defendants, that is immaterial. The important thing is that the decretal language of the statute requires that the produce must be of value to the putative owner. However, in view of the store owner's alleged abandonment of the produce as garbage, it no longer had any value to him. Thus, any prosecution was not actionable, because this essential element of the crime of theft was lacking.
Second, a necessary element of the crime of burglary, as defined in CRS § 18-4-202, - 203, is that it must be done "with intent to commit therein a crime....against another person or property." Here, the alleged underlying crime, i.e., the "theft" of abandoned produce, is no crime at all. As Colorado's highest court held in Henson v. People, 166 Colo. 428, without proof of the value of "stolen" property there can be no conviction. Simply re-stated, produce which has been thrown out no longer had any value to the putative store owner.
Moreover, another essential element of burglary is intent to commit a crime against property. "Intent" is a state-of-mind requirement. In this instance, it is of some probative value that the newspaper reported that "Hieb [the store owner] said an inspection showed the men never entered the store." This statement appears to provide exculpatory evidence as to the defendants' state of mind, because they would have reasonable grounds to believe that over-ripe produce abandoned outside of the store would have had no value to the owner, and thus supports their contention that they were not intending to commit an act of theft.
Therefore, it appears that Mr. James has misinterpreted the legislative intent of the law with respect to value of the goods and the defendants' state-of-mind.
Sweet Pea owners: 'We didn't want this'
>And, since you seem to know your law, can Mr. Siller and Mr. Charle take legal action against Mr. St. James and the courts for their improper prosecution?
No. In this case, they would have immunity from suit. But as a matter of attorney discipline, no member of the bar has immunity from being admonished, censured, or placed in a remedial program, or in the case of gross negligence or misconduct, from facing suspension of his or her license or disbarment.
September 2, 2006 at 4:35 p.m. ( permalink | suggest removal )
Sweet Pea owners: 'We didn't want this'
Did Assistant District Attorney Kerry St. James violate the Rules of Professional Conduct, which govern the actions of attorneys in Colorado?
In this regard, Rule 3.8, Special Responsibilities of a Prosecutor, requires, inter alia, that a "prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause." In addition, there is a question whether Mr. St. James violated Rule 3.1, Meritorious Claims and Contentions.
In turn, these questions raise a fundamental issue of whether the gravamen of the State's action against the defendants is justicable under Colorado law. According to newspaper reports, they were charged with felony burglary and misdemeanor theft.
By way of background, these offenses are defined in the Colorado Criminal Code. First, § 18-4-401 (1) of the Colorado Revised Statutes ("CRS") states that a "person commits theft when he knowingly obtains or exercises control over anything of value of another." While no doubt the over-ripe produce taken from outside the store was of value to the defendants, that is immaterial. The important thing is that the decretal language of the statute requires that the produce must be of value to the putative owner. However, in view of the store owner's alleged abandonment of the produce as garbage, it no longer had any value to him. Thus, any prosecution was not actionable, because this essential element of the crime of theft was lacking.
Second, a necessary element of the crime of burglary, as defined in CRS § 18-4-202, - 203, is that it must be done "with intent to commit therein a crime....against another person or property." Here, the alleged underlying crime, i.e., the "theft" of abandoned produce, is no crime at all. As Colorado's highest court held in Henson v. People, 166 Colo. 428, without proof of the value of "stolen" property there can be no conviction. Simply re-stated, produce which has been thrown out no longer had any value to the putative store owner.
Moreover, another essential element of burglary is intent to commit a crime against property. "Intent" is a state-of-mind requirement. In this instance, it is of some probative value that the newspaper reported that "Hieb [the store owner] said an inspection showed the men never entered the store." This statement appears to provide exculpatory evidence as to the defendants' state of mind, because they would have reasonable grounds to believe that over-ripe produce abandoned outside of the store would have had no value to the owner, and thus supports their contention that they were not intending to commit an act of theft.
Therefore, it appears that Mr. James has misinterpreted the legislative intent of the law with respect to value of the goods and the defendants' state-of-mind.
September 2, 2006 at 3:25 p.m. ( permalink | suggest removal )