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Judge Joan Shkane

Legal Myths and Reality

By Judge Joan Shkane

MYTH: A pardon for a crime by a U.S. President will pardon the criminal for all purposes so that a convicted criminal will never be punished on that conviction.
REALITY: We are all subject to two types of law, state law, and federal law. Sometimes they are different, sometimes they are very similar. Generally, criminal law is each state’s authority to decide, but there are also many federal laws that we must obey. A U.S. President does not have the authority to pardon a criminal for violating any state’s offenses. Therefore, under this law, a state could still prosecute and convict and then sentence for violations of its own criminal laws, and expect the criminal to serve his/her sentence unless a state governor pardons him/her. However, there is a path that the federal government could use to get around a state’s power to enforce its own laws. The U.S. Constitutional clause against double jeopardy (being tried twice for the same offense), could prevent prosecution and/or serving a sentence through a state court after a U.S. Presidential pardon. The New York State Attorney General’s office, all attorneys, does not believe that the double jeopardy clause was intended originally by the founders of the country to prevent a state from being able to pursue violations of its own state law. Legislation will be introduced in the New York Legislature to prevent a blanket pardon, and to ensure that in New York no one is above New York law, regardless of what the federal government chooses to do or excuse. The new legislation is suggesting that unlawful acts in New York will not go unpunished. Those supporting the state law believe that the federal legal system and the federal government should not provide a basis for wrongdoers to escape state justice.

MYTH: The public has little input or participation in making court policies, and has little impact on legal policy except through elected representatives.
REALITY: Oneida County residents participated as “court watchers” several decades ago. They would attend courts, make notes, and use that participation to appropriately comment on procedures. It has been years since any local group has done this. Now, Court Watch NYC in January began training court watchers for Manhattan and Brooklyn. These residents sit in the audience on criminal cases and take notes on bail issues, the accused’s language skills, racial biases and other issues in the proceedings. Many see this plan as supporting one of the premier and most ancient rights in a democracy, that is, the public’s right to participate in forming and enforcing legal policies and procedures. So far, the project has trained over 150 court watchers who serve in shifts. Their immediate goal is to influence judges and prosecutors to change bail procedures. They believe that “power shift is going to change the way that justice is meted out on a day-to-day basis.” Other communities in California and Chicago have similar projects. The results will be shared in weekly reports on their websites. They believe that the ultimate goal is about community engagement and participation in the system. Some local unofficial court watchers have wondered if it is time to re-engage in upstate New York communities.

MYTH: Identity theft is an easy crime to prosecute and prove.
REALITY: Up until a recent decision from New York State’s highest court, identity theft was a very difficult crime to prove. The paraphrased law reads as follows: A person is guilty of the crime of identity theft when (s)he knowingly (not by accident), and intending to defraud another, assumes the identity of another person by pretending to be that other person, or by using personal identifying information of that person. Some legal scholars read this law to say that the prosecution must prove that the accused BOTH used the victim’s personal identifying information AND also pretended to be that other person. The Court now said that simply using the personal identifying information of the victim will be sufficient to prove that the accused assumed the victim’s identity. This is a developing area of the law and the Court is seeking to make the crime easier to prove in order to convict. Many people believe that this is a serious crime of which anyone can easily be a victim, and should be treated as such.

Giving attention to legal myths is not wrong. It can be a starting point for developing an interest in the law. However, if legal issues are important in your life, for instance regarding custody of your children or money paid for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths. This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.


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