UPDATE: "STATUS" DATE FOR NFL PLAYER PLAXICO BURRESS ON GUN CHARGE

NY Giants receiver Plaxico Burress

Plaxico has a "status" date on his gun charge today. ESPN reports that the prosecutors are demanding jail time for Plaxico. Article here.

I previously wrote about Plaxico, and other athletes, and their complete disregard to follow the laws and common rules of decency that rest of society must follow. Blog here. Please revisit this blog, as I suspect a plea agreement is in the making. Remember, the guy shot himself in the leg.  I don't see much of a defense there!

www.tamaraholder.com & www.xpunged.com

THE RIHANNA/CHRIS BROWN SAGA - UNFORTUNATELY, I SEE IT EVERY DAY

Rihanna & Chris Brown at the pre-Grammy's - right before the alleged fight

On February 8, 2009, Chris Brown & Rihanna allegedly got into a physical altercation where Brown allegedly choked, punched and bit his girlfriend. Recent discussion alludes to the fact that Rihanna initiated the fight after she discovered a text message from another woman on her man's phone.

As a criminal defense attorney, I see domestic cases almost every day. Unfortunately, the majority of the cases are dismissed out of court because the alleged victim refuses to testify due to fear of retaliation or, more commonly, reconciliation between the parties.

Therefore, without live testimony, prosecutors generally do not have any other evidence to prove the case beyond a reasonable doubt. If you don't have the victim's word, you don't have much of anything because there are rarely 3rd party witnesses in domestic incidents. In this case, Rihanna is allegedly back together with Chris Brown. And, she asked the judge not to issue a no-contact order against Brown. All signs point to her desire not to want to testify against him as well. Article here. Granted, prosecutors can subpoena her to testify but rarely are witnesses forced to testify if they do not want to...at least in a case like this where it involves abuse in a romantic relationship.

Rihanna is a teen idol who is being watched by all of her fans across the world. Her decision on whether to testify will send a signal to all women in abusive relationships. Physical aggression occurs in 1 in 3 teen (ages 18-24) dating relationships. (Sarah Avery-Leaf & Michele Cascardi, Dating Violence Education: Prevention and Early Intervention Strategies, in Preventing Violence in Relationships 82. Paul A. Schewe ed., 2002.) 90% of all family violence defendants are never prosecuted, and one-third of the cases that would be considered felonies if committed by strangers are filed as misdemeanors (a lesser crime). (News from U.S. Senator Barbara Boxer, September 2, 1993) 

Most of my blogs are about defending the criminal.  But domestic violence and sexual abuse is inexcusable.  Not enough people speak out against abuse because many victims are ashamed.  Women in Hollywood speak out for all kinds of causes that have personally affected their lives.  For example, Brooke Shields was the first famous person to bring post partum depression to light. The last famous victim of domestic violence that I can remember was the Ike & Tina Turner tumultuous relationship.  Rihanna can use this painful time in her life to speak out against domestic violence. Of course, it makes me look "good" when the state drops a case against my client because the victim does not want the state to proceed on the charges, but, at the end of the day, I am not the one who goes back to the same pattern of violence. 

Another issue that this case brings to light is the repeated disregard of the law that musicians, actors and athletes possess.  If Chris Brown were not Chris Brown, he would be facing greater felony charges, possibly even attempted murder with no bond.  Remember, Rihanna almost lost consciousness.  An over-zealous prosecutor could have wanted to trump up the current charges and really stick it to him.  But, since Chris Brown is Chris Brown, he is apparently seeking a plea agreement to misdemeanor charges, according to TMZ.  Article here. Chris Brown beat the s**t out of his girlfriend.  Did you see her face?  This wasn't a little squabble or a hair-tussling match.  In fact, even if Rihanna did initiate the fight, Brown's attempt to "fight back" went one step (or two or three steps) too far. Just because Mr. Brown is a celebrity, that does not mean the rules do not apply. See my blog on this issue as it pertains to athletes here.

Here is my unfortunate prediction: Prosecutors will reduce his charges to misdemeanor battery.  He will be required to take domestic violence classes and perform community service.  Maybe, he'll do a bit of jail time.  If Rihanna isn't testifying against her boyfriend, the state probably will not proceed on the felony charges.  They need her if they want to win the case, regardless of what they say - that they can proceed on her pictures and her statement.  Plus, this is Hollywood and it seems like the rules don't apply in LA-LA Land the same way they do in the rest of the country.  I've seen this situation too many times to predict any differently.  Maybe Rihanna will stand up for herself and for the thousands of victims of domestic violence who do not have a voice.

www.tamaraholder.com and www.xpunged.com

HUDSON FAMILY MURDERS: UNDERSTANDING CAPITAL MURDER CHARGES IN ILLINOIS

 Balfour Arrested & To Appear Before Judge for Bond

William Balfour - IDOC Inmate Photo

On Monday, Dec. 1, 2008, William Balfour was arrested by the Chicago Police for the triple murder of Jennifer Hudson's mother, brother and nephew. Police arrested him while was in the custody of the IL Dept. of Corrections, awaiting a violation-of-parole hearing that was to occur on Wednesday, Dec. 3. That parole hearing will no longer take place because Balfour is now sitting in the Cook County Jail facing murder charges. Article here.

The law requires Balfour appear before a judge within 48-hours of arrest for a bond hearing. The law further states that all persons SHALL be bailable with several exceptions, one of them being that the person is accused of committing a capital offense. (IL is a capital punishment state; however, Gov. Ryan issued a moratorium on capital punishment before leaving office in 2004 - he commuted the sentences of tall of those on death row. Our current governor, Gov. Blagojevich, has maintained the moratorium.) Thus, Balfour will most likely be given NO BOND - he will not be allowed out of custody while the case is pending.

CAPITAL MURDER CHARGES?

In this case, Balfour will be charged with capital murder. There are several ways the State might charge these as capital crimes:

1) 2 murders convictions + 1: Capital punishment is allowed under IL law if "the defendant has been convicted of murdering two or more individuals so long as the deaths were the result of either an intent to kill more than one person..." The State can charge Balfour with 2 counts of murder under one case number: the murders of Jennifer's mother and brother that occurred in the home. Then charge him with the 3rd murder under another case number, as a single count: the murder of Jennifer's minor nephew. The state would then "elect" to prosecute the 1st case/2 murders and then prosecute the 2nd case/3rd murder.

It would look like this:
Case No. 08-1234
Count 1) 1st Degree Murder - Darnell Hudson Donerson (mother)
Count 2) 1st Degree Murder - Jason Hudson (brother)

Case No. 08-5678
Count 1) 1st D Murder/Capital Murder - Julian Hudson (nephew)

(Why 2 separate cases? Remember there are essentially 2 separate "acts" - the murders in the home, and the murder in the car - they occurred at different times so they will be filed as separate cases. The mother and brother's murders, however, will be charged under the same case # because they occurred .)

In this scenario, if Balfour is convicted of the 2 murders of Jennifer's mother and brother, they can seek the death penalty for the 3rd murder of Jennifer's minor nephew.

2) Murder of a child: The State can seek the death penalty if "the murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty." This essentially allows the State to automatically seek the death penalty of Jennifer's minor nephew without needing the other convictions, as explained above.

In this scenario, the State would only seek the death penalty for the murder of the minor nephew.

3) Felony-Murder: The State can also seek the death penalty if "the murdered individual was killed in the course of another felony." This is called "felony murder" and it means that if Balfour killed the family members while engaged in another felony, he can be charged with capital murder. In this case, it may be argued that Balfour killed Jennifer's mother and brother while committing a home invasion/burglary, or something of the sort. And in the case of the minor nephew, it may be argued that he committed the murder while committing a theft of the vehicle. Remember, "felony murder" doesn't need to be proved for the murder of the child. The death penalty is automatic. See 2) above.

It would look like this:
Case No. 08-1234
Count 1) 1st Degree Murder/Capital Murder - Darnell Hudson Donerson (mother)
Count 2) 1st Degree Murder/Capital Murder - Jason Hudson (brother)
Count 3) Home Invasion/Burglary/etc.

Case No. 08-5678
Count 1) 1st D Murder/Capital Murder/Victim Under 12 - Julian Hudson (nephew)

In this scenario, the State would seek the death penalty of Jennifer's mother and brother under the "felony murder" theory and the death penalty of Jennifer's minor nephew under the 2nd explanation.

IF CONVICTED, EXECUTION UNLIKELY

As I explained above, Gov. Ryan issued a moratorium on the capital punishment and it still exists under Gov. Blagojevich. Before leaving office, Gov. Ryan commuted the sentences of 156 IL inmates - he removed them from death row and gave them life in prison, because of evidence of police misconduct and wrongful convictions. What's interesting is that although Gov. Blagojevich did not support the moratorium, he has not executed any inmates. "I think a blanket anything is usually wrong," Blagojevich said. "We're talking about convicted murderers, and I think that is a mistake." Article here. I'm not surprised he has not executed anyone even though he opposed the moratorium: he has pretty much refused to deal with the issue of the convicted, whether it be granting pardons or granting executions.

If Balfour is convicted and sentenced to the death penalty, that does not mean he will be executed. Of course, execution does not occur immediately, but instead years and years after conviction, after all appeals are exhausted. More likely than not, probably certainly, Gov. Blagojevich will not be the Governor at the time of the possible execution of sentence. So, the death sentence will be totally dependent on IL's Governor at that time.

 www.xpunged.com and www.tamaraholder.com