Randy Cassingham's Blog

Posted by Bonwell, Portland on November 21, 2009:

The "no defense" comment is unfortunate, but I actually don't think there's a real story here. Incredulity about major papers not covering a story is often a red flag that the story isn't really as disastrous as it seems to be.

So we're deciding to take this guy's word that there was a loaded shotgun with shells just sitting on his property. I think that is, at the VERY least, extremely unusual, and I would go as far as to say suspect. Say this guy committed some horrible crime and knew he would get caught, so he thinks, "hey, if I'm the guy just turning the gun in, they'll think it couldn't possibly be me!"

People get arrested all the time and given penalties that seem extreme out of context. In this situation, a guy walks around with a magically appearing shotgun, there's a strong case to be argued that he needs to be watched while they solve the case of the magical shotgun. If he beats it on a technicality, they've still got him for five years. If there's no offense committed, they let him go.

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I don't think you've read the story/post clearly. Clarke has been convicted. It's not like they've simply arrested him while they sort out what's happening, which could be defensible. Rather, he has already gone to trial and the jury pronounced him guilty. Sentencing comes next month, and the crime he has been convicted of has a 5-year minimum sentence. -rc

Posted by Neil, Cheshire, UK on November 22, 2009:

Do you not have Absolute Discharges in the US? Our courts have the power to say that no (further) punishment is appropriate. This either means that the defendant has already suffered enough (through seeing the consequences of his negligence, perhaps) that there is no need to do anything further to stop him reoffending, or that, though the defendant's conduct was not technically justified, the judge wishes to condone it.

Unfortunately, I rather fear that this won't be an option where there's a statutory minimum sentence. If that is imposed, I will certainly be writing to my MP.

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I've since read up a bit on your discharge provisions, after Richard in England pointed it out as a possibility. In the U.S., we have the concept of a "suspended sentence" (similar to your conditional discharge), where (say) someone is sentenced to a 5-year prison term, but it's "suspended" for a period of time and, if the convicted does not get into trouble again during that period, he never has to report to prison. I'm not aware of an expanded version of this where it doesn't matter if the convicted is in legal trouble again (your unconditional discharge), but I'd not be surprised to learn that some states have something similar; surely at times a suspended sentenced is administered in that way, officially or not.

My understanding of the particular law in question was that the 5-year sentence is mandatory -- no discretion allowed by the judge. Apparently that's not necessarily true, but the linked-to source articles make it clear that Clarke expects to go to prison. -rc

Posted by Craig, Melbourne, Australia on November 22, 2009:

Do think the "strict liability" is interesting - if I get shot by someone with a sawn-off and am able to take the gun off the offender before he flees, would I get charged with firearm possession by the police when they show up (presumably after they provide me with medical treatment for my injuries)? Poor example against zero tolerance though, Randy, as Paul Clarke was perhaps more than just an innocent idiot. I'm sure people arrested in the street for drug possession have claimed "I found them and I was just taking them to a police station - honest".

There are calls for ZT type laws in Australia occasionally. There are always going to be people ready to follow idiots.

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I have not seen any suggestion in the media (though again, coverage is scant) that there is any doubt about how Clarke came into possession of the weapon. His lawyer pointed out (as noted in the linked articles) that his garden backs up to public green space, and his wall is lower than his neighbors', so anyone could have tossed it over the wall from that public space. As stated, I do think Clark is stupid, but I still think it's a good example of zero tolerance in the "real world". -rc

Posted by Mike from Dallas on November 23, 2009:

As I understand it, in the US, a judge does have authority to overturn a conviction, but rightly or wrongly, it's such a contentious position to take that judges use it only rarely with extreme care.

I agree that something is funky in the unspoken details of this story. And that there were more preferable ways to deal with the situation, especially in light of potential evidence of a crime by such a weapon's very existence in that situation.

But to rely upon the concept of Absolute Discharge still does not mitigate the time and cost of defending oneself against a charge in which the details and circumstances are not even subject to discussion and consideration. And such final disposition is not even guaranteed. The Law is not a one-size-fits-all blanket, but a surgical instrument to dissect the minute details of a case and examine it with intense scrutiny. To relegate the law to ZT is to render it worthless.

The example was perfect. Shall I save the Queen at my own expense, not to my life, but to my freedom and chattel at the whim of the Queen's own Law?

Posted by Lenny, Hialeah Fl. on November 23, 2009:

Regarding the Brits, and their ZT, I would like to tell you about a supervisor I had. He was Jamaican born, and proud of his heritage. He liked doing things the "proper" way. One day we were talking, and I was trying to get him to understand that some times you do not, or should not, do things just because that was the rule. I asked him if he had ever seen the movie Gallipoli. It was an early Mel Gibson movie that, as a royal subject, he had his duty to do. They were told to get out and fight. They came in waves, one after another, straight towards a German machine gun. Thousands were killed, but they did what was "right" and followed orders. The movie was from 1981 and set in Turkey during WW1.

Posted by Richard Hanson, Rochester, UK on November 23, 2009:

I don't know why the press glossed over this one (I don't take newspapers and for personal reasons I won't ever touch The Sun again), but it was picked up by the BBC on PM, their evening news and current affairs program on Radio 4, on the day of the hearing, and it was also on their news website (but I cannot locate it anymore - either it has gone or - more likely - I can't get the right search terms).

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Good to hear! -rc

Posted by Frank House, Scotland on November 24, 2009:

"Absolute" (no mens rea) offenses have been around in the UK for a while. A higher education lecturer was convicted of cannabis possession several decades ago because she lent her holiday cottage to some students and they smoked a few joints there. She was not present and did not know of the event until the police came for her.

I never managed to follow up how it ended, but she was due for a "mandatory" prison sentence.

Posted by Marc, Chicago Western burbs on November 24, 2009:

British Absolute Discharge sounds much like our Sentence to Time served when a judge decides that the time the accused has spent in jail is sufficient punishment for the crime involved. The problem with both of these solutions is that the accused has still been convicted and now has a permanent record of a felony conviction which could be used against him to support a determination that he is a habitual criminal if he gets into trouble in the future. It can also be used by a prosecutor to support a recommendation for a longer sentence if he has a future problem with the law.

Posted by Henry, Morris Cove, CT on November 24, 2009:

I subscribe to a service that sends me a daily quote. Here, coincidentally, is the one I received today:

"The truth is that many people set rules to keep from making decisions." --Mike Krzyzewski

Posted by Seth, Mpls on November 24, 2009:

I wonder what would happen if somebody threw a gun (in a bag) into the judge's yard (and set up a video camera, with an Internet connection, to watch). If the judge picked it up, he'd be guilty, and the evidence would be on the net irretrievably.