The Grand Jury in the 21st Century

Chapter 20 of the Texas Code of Criminal Procedure contains information pertaining to the details of a Grand Jury. This involves not only its purpose, but its duty and the mechanics of how it works. While I have referenced some portions of that chapter in this article in order to avoid plagiarizing the text, I also have woven in my thoughts and comments on various parts of the chapter. I did not quote all of the sections but only those that I consider to be more interesting and more commonly misunderstood.

When a person is charged with a felony offense in Texas or an "otherwise infamous crime" and occasionally a misdemeanor, the prosecuting attorney, presents the case to a grand jury for its consideration for an indictment. If a case is indicted, then charges are pursued and the case must be resolved in a legal proceeding. It may not reach trial, and probably will not, as only about 8 to 10 percent of all criminal cases are ever tried to a judge or jury. If a case is "no-billed" then the grand jury says that there is not enough information present to pursue charges further. This is often a preferred method for prosecutors who are reluctant to dismiss a case for political or other reasons. I call this "passing the buck" because the prosecutor is failing to accept responsibility for his or her own decision.

Grand jury proceedings are considered "secret" and only a certain number of persons are allowed in the proceeding at different times. A defense attorney and the accused are never present in the grand jury room, unless the accused is providing witness testimony (not advised). Article 20.011 of the Texas Code of Criminal Procedure provides the following list of persons that may be present in the grand jury room while it is conducting proceedings:

(1) Grand jurors;

(2) Bailiffs;

(3) The attorney representing the state;

(4) Witnesses while being examined or when necessary to Assist the attorney representing the state in examining other Witnesses or presenting evidence to the grand jury;

(5) Interpreters, if necessary; and

(6) a stenographer or person operating an electronic recording device, as provided by Article 20.012.

If the grand jury is deliberating, only members of the grand jury may be present. As you can see from this list, the limited access greatly assists in maintaining the secrecy level, and although a record is maintained, these documents are rarely accessible to the public if ever.

From the above list, an attorney representing the State means the Attorney General, district attorney, criminal district attorney, or county attorney. The attorney representing the State, is entitled to go before the grand jury and inform them of offenses liable to indictment at any time except when they are discussing the propriety of finding an indictment or voting upon the same.

Article 20.04 allows for the attorney representing the State to examine the witnesses before the grand jury and to explain the proper way of questioning witnesses by the grand jury; however, no other person may question witnesses and without special permission may not directly address the grand jury, so often, the accused's attorney never presents evidence or testimony to the grand jury. While Texas law allows for an accused to present evidence to the grand jury, as a criminal defense attorney, I would recommend against it because the defense attorney will not be present in the room to advise the accused how to answer a question or how to protect his or her interests. Depending on the county and the individual State's attorney's attitude, favorable evidence may or may not be presented to the grand jury.

Article 20.15 provides that if a person refuses to testify before a grand jury, that information will be provided to the State's attorney or to the Court and the witness may be compelled to answer questions by imposing a fine not to exceed five hundred dollars and placing the party in jail until he or she is willing to testify. American society experienced this during the Clinton presidency. To some extent, it troubles me that someone can be jailed for refusing to testify. As a criminal defense attorney, I would advise someone that is subpoenaed to go but to only answer the questions that they know answers to and that do not possibly incriminate them of any wrong-doing. I do not believe it to be a common practice for grand juries to summon the accused, but it does happen.

If an accused or suspected person is subpoenaed to appear before a grand jury prior to any questions before the grand jury, the person accused or suspected shall be orally warned as follows:

(1) "Your testimony before this grand jury is under oath";

(2) "Any material question that is answered falsely before this grand jury subjects you to being prosecuted for aggravated perjury";

(3) "You have the right to refuse to make answers to any question, the answer to which would incriminate you in any manner";

(4) "You have the right to have a lawyer present outside this chamber to advise you before making answers to questions you feel might incriminate you";

(5) "Any testimony you give may be used against you at any subsequent proceeding";

(6) "If you are unable to employ a lawyer, you have the right to have a lawyer appointed to advise you before making an answer to a question, the answer to which you feel might incriminate you."

These rights are very similar to those contained in the Miranda warning that is so commonly given to arrestees by the police. The most important part of this is the right to refuse to make any answers that may incriminate the accused... at least this Constitutionally protected right has not been lost.

Nine members of the grand jury must find that the information is sufficient to sustain upholding an indictment. When this happens, the foreperson of the grand jury will notify the State's attorney, who is then responsible for preparing the documentation and submitting it. Here, it is not a unanimous requirement to find that charges should proceed, but it does require a "majority." Usually, grand juries consist of sixteen to twenty-three people.

Personal Opinion

The grand jury is based in the United States Constitution's 5th Amendment. While I believe it had a place in history and understand that it will likely not be amended, I sometimes question its usefulness today. As a criminal defense attorney, I have experienced multiple cases where the State's attorney does not want to proceed with a case but rather than dismissing the case on his or her own, they will present the case to a grand jury expecting them to no bill the case... this means, charges would not be filed but the State's attorney could "pass the blame" for the lack of indictment. I mentioned this previously. Or, I believe that grand juries often act as "rubber stamps" for the prosecutors and pass anything that is asked of them. While I would like to believe that this is untrue, the fact that the proceedings are cloaked in secrecy troubles me. After all, court proceedings are open to the public, so why shouldn't this phase also be?

So, to conclude, a grand jury is one tool for investigation but given that it is so one-sided, it seems that it is little more than another way for the State to place blame. Thus, the next time you hear that someone was indicted by a grand jury, that does not mean that all is lost or that they have a poor case. Rather, it means that the State will be proceeding with charges against them.

Bill of Sale - Legal Form Explained

A "Bill of Sale" is a legal document that is used when you sell or transfer the ownership of goods or items such as a car, boat, equipment, photocopier, computers, furniture, or other assets from a seller (also called a "vendor") to a purchaser. A Bill of Sale may also be used for the purchase and sale of intellectual property such as a customer list or a website. A typical Bill of Sale is provided by the seller to the purchaser and depending on the circumstances usually describes: (i) the names of the vendor and purchaser, (ii) a list of the items being purchased and sold, (iii) the purchase price and method of payment, and (iv) possibly also various legal terms depending on the complexity of the transaction.

If you are buying a business and as part of the purchase you are purchasing all the equipment (eg. furniture, chairs, office equipment, inventory, and supplies), you should request that the seller provide to you a Bill of Sale agreement. One of the main reasons why a purchaser wants to receive a Bill of Sale from the seller is to prevent the seller from later claiming that the seller owns the assets listed on the Bill of Sale document. Essentially the Bill of Sale is a receipt or a written record of the purchase and payment of the purchase price similar in nature to the sales receipt you receive from the cash register at the time you purchase an item at a retail or convenience store.

The Bill of Sale is similar to a "sales receipt" however it may also contain additional legal terms regarding the purchase and sale. The document will serve as proof of the purchase and sale of specified items listed on the Bill of Sale.

Other provisions that you may wish to have in a Bill of Sale include terms dealing with such matters as the condition of the equipment (eg. "subject to being able to obtain financing"), and other provisions such as a "warranty" by the seller that the seller is the legal owner of the equipment being sold and the items are in good and working order. In the event that someone else claims they are the legal owners of the equipment, the "warranty" provisions in the Bill of Sale would give the purchaser some legal rights to make a claim against the seller. In the even that the item is damaged or doesn't not work as claimed, the "warranty" provisions would also provide some legal rights for the purchaser.

It is important to note that receiving a Bill of Sale from the seller is not a guarantee that the seller is in fact the legal owner of the items listed on the Bill of Sale. Technically, one cannot sell what they do not own. By extension, when someone purchases something they only acquire the legal rights in the items to the same extent that the seller possesses. As such, if the seller is not really the legal owner of the items, then the seller has no legal rights of ownership, and therefore the purchaser acquires no legal rights of ownership in the items on completion of the purchase. For example, the items purportedly being sold by the seller may actually be items that the seller has does not legally own but has only leased from a supplier and not actually purchased them. An example of such a situation is someone trying to sell a photocopier that is actually only leased. In such a case, the seller does not actually own the photocopier and does not have the legal right to sell it, even though the seller may be physically in possession of the photocopier. As such one must be careful when purchasing used items or items from someone other than the manufacturer or a retailer or a distributor. If the purchaser is buying new goods from a manufacturer, retailer, or distributor then usually there is an acceptable risk that the seller is not the legal owner of the items and the purchaser can be relatively confident that they are purchasing the items from the true owner of the items.

If the items listed on the Bill of Sale are either used items or are new items but are being sold by someone other than the original manufacturer, retailer or distributor of the items, there is a risk that the items may be actually legally owned by someone other than the seller and in such a case the true legal owner has the legal right to recover the items from the purchaser notwithstanding that the purchaser paid for the items and has a Bill of Sale from the seller. As such, if the purchaser is not careful, the purchaser may find itself paying for items but not actually acquiring ownership of them.. In such a case, all is not lost for the purchaser because the Bill of Sale may be used by the purchaser in a lawsuit by the purchaser against the seller to claim monetary losses incurred by the purchaser for breach of contract, specifically breach of "warranty" (provided that the Bill of Sale is written properly. In order for the purchaser to avoid the above situation and to be protected as much as possible, it is important that when using a Bill of Sale the purchaser also examine other documents that are in the possession of the seller so that the purchaser can satisfy itself that the seller is in fact the true owner of the items being sold. For example, in the case of used goods, the Purchaser should ask the Seller to provide a copy of the original purchase order showing where the Seller originally purchased the items. If the Seller is unable to provide any documentation, then the Purchaser needs to be careful in proceeding forward. The purchaser may also wish to do a search in the local government office for any liens that have been registered against the items being sold or the seller.

The use of various legal forms are useful for transactions and can be found online. Sample Bill of Sale documents can be found online. Please note that the information in this article is for discussion purposes only and not intended to be free legal advice. It is by no means legal advice or even a statement of the law on this subject. Please do not rely on the accuracy or completeness of this information. Any question or concern elicited by the information on this page should be taken to a lawyer who will consider the facts of each case and the legal remedies available.

Modern Furniture: A Staging Must!

When it comes to selling your property, there is no doubt about it, you need to appeal to the masses. This means that your 15 year old living room set won't cut it. There are, however some simple solutions that can help you modernize the look of your home, without necessarily breaking the bank. For instance, if you were planning on updating your furniture once you've moved into your new house, it may be wise to do so right away and move the furniture once your house is sold. Certain items such as chairs and sofas can be re-upholstered to give them a fresh new look. You can also invest in inexpensive accessories that will attract the buyer's attention to a more modern decor while preventing your old comfy couch from becoming an eyesore.

As a first step, you will need to determine which furnishing items you will be keeping once you are in the new house and which ones you will be replacing. It is crucial that this step be taken immediately as it will go a long way in helping you sell your home. It is wise and even recommended that the furniture you are planning on replacing after you move, be replaced immediately. It's time to go shopping! Yes it may be a hassle to buy it all now and then move it once the house is sold but remember that if buyers are not making offers because the house doesn't appeal to then, you may never be buying all this furniture, whereas buyers will be more likely to make an offer on a house they see themselves living in. Although they will not be buying your furniture, it is the overall look of the house that has to speak to the buyer. You need to guide their imagination and show them how nice it can be.

Although you are planning to move, you may not be planning on purchasing new furniture. After all, why throw away such good comfortable furniture that has already been broken into. There is also a simple solution for that. Slip covers for sofas, love seats and armchairs are a fantastic and inexpensive way to breathe new life into your dated living room set. For the bedrooms, whenever possible remove any headboards with a dated took and use fresh modern linen to dress your beds. Set the dining table with modern plates and a bright centerpiece to attract attention away from the older table. Re-upholster chairs for a fresh modern look. If your rooms are over flowing with furniture, it will be important to get some of it out of the house and arrange to store it until your house is sold.

Last but not least, you can use decorative items and accessories to attract the buyer's attention and tone down the dated look. Bright, bold and contrasting colors tend to attract the eye. The buyer will be focused on the colorful item and will probably be less likely to notice the dated decor. The most important accessories you can modernize are your window coverings. They are a dead giveaway and no matter how expensive and chic they are, if they are from another time, it will be a turnoff to the modern buyer. Other examples of using accessories to deter attention can be a contrasting colored throw placed on an older couch, which will catch the buyer's eye. The same is true for an old dresser. You can easily invest in a colorful, modern vase to offset the age of the dresser. Adding art to your walls will also have the same effect. The idea is to tone down the older furniture by enhancing it with modern accessories.

In the end, you do not have to buy or rent new furniture to stage your house. You simply need to give buyers what they are looking for and if that is a modern look and feel, there are ways of doing it without spending thousands on furniture you don't necessarily like. If you are going to be changing your furniture, by all means, buy it and stage your house with it. It will go a long way. If this purchase is not part of your plan or your budget, you can use re-upholstering as an effective alternative to bring your old items into the twenty first century. alternately, you can also use modern decorative accessories to give your buyers the impression of a modernized look. The options are plenty and the more modern the look, the more likely you are to sell quickly.

Podcasting and How to Make It Real Easy for You

Podcasting is one of the newest waves of online media. It's use mainly for communication as well as for Internet promotion. Podcasting has also evolved that you can hear it not only in your PC or laptop but also in your mobile phone.

Learning how to podcast doesn't have to be too complicated. You can begin with these ideas:

Set up your equipment. Others would create their own mini studio, complete with software and other equipment. You can do that, but if you don't have a budget, you simply need a dependable headset with a microphone. You can choose one that can reduce outside noise to its minimum level. You also need to have a computer that has a great speed.

Find a quiet spot. You don't want your podcast to pick up unnecessary background noise, such as crying babies, honking cars, and music-blasting radios, and a whole lot more. Thus, you need to look for a place where you can never be bothered by them. You can also pick the best time to do the podcast. For example, if you have children, the most ideal time is when they are already in school.

Know what you're going to say. If you have a niche, you should find a topic that is related to your chosen industry or specialization. For instance, if you're an interior designer, your podcast may be about how to decorate a home during the summer or how to create throw pillows without spending a lot of money.

Should you create a script? Yes, it's important you do so for a number of reasons. First, people expect your podcast to last for only a few minutes, the longest perhaps an hour. Anything longer than that and your listeners would start to get real bored. They are also busy individuals.

Second, you want to get rid of dead air, which drags the podcasts or makes you less authoritative. A script can also be edited to make your monologue more engaging and pleasant to hear.

Try it. Since you're new to podcast, you may want to have a dry run first before officially recording your first audio. This is to test your equipment, to practice your speaking voice (perhaps it needs modulation), hear how you sound to listeners, and get initial feedback.

Get rid of the tensed nerves. Even if you're simply recording your voice, you can't help it but feel a little bit tensed. Would I buckle? Would I have listeners? What would they say? Would I receive a lot of complaints or criticism?

You have to put aside all your worries, though, since they tend to show in your manner of speaking. To help calm yourself down, you can watch subliminal messages videos, which are actually affirmations. The panoramic sceneries, the soothing sounds, and, most of all, the hard-hitting messages about empowerment and confidence would give you a fresh and positive mind-set.

You can watch the videos at least a few days before the podcast, and you need to do so regularly. This way, your subconscious mind would really be able to pick up the messages.

The Government Can't Protect You and Bigger Government Can Do Even Less To Assist You

Indeed, I am so amazed that in the aftermath of Hurricane, Super Storm Sandy that left-leaning socialist thinking political pundits are using this horrible storm as a launching point to purport into the mass media that this is exactly why we need a big government. That is to say that we need enormous agencies and big government to help rebuild and save people from catastrophe. Well, personally, I'd say that is nonsense, in fact the reality is just the opposite. Let me explain.

There was a troubling piece in Government Executive News on November 1, 2012 titled; "GSA rushes supplies to Sandy response teams," by Charles S. Clark and you might want to look that article up and check out the picture attached.

Now then let me ask you all something; if the government can't even supply its own teams trying to help out, then how the hell is it supposed to help the people its suppose to serve? It can't, and just look at the accompanying picture. This is your government at work, they put in the dikes, drew up the flood plans, and engineered this potential failure, wake up the government cannot protect you, it cannot even supply itself to keep the people there it has sent in.

Look the truck terminals, ports, and many rail heads -- if not the tracks leading into the area which had the most damage -- are still out, and most will be for 3-5 days. Power is expected to be back in most areas by November 11, but the storm occurred on October 29-30. FEMA and first responders have hijacked most of the remaining bandwidth on the 3G and 4G wireless networks for their own uses. Thus, businesses cannot help themselves or get their services up and running.

So when left-leaning folks say that business and the free-market cannot move mountains to fix the damage or restore society and civilization, it's not that they can't, it's that they are not allowed too. Meanwhile, the government, the most bureaucratic organization on Earth comes in to take control to feed their own engine up and beyond the needs of the people, and then they will duly deliver to the people what "they deem" appropriate, not what the citizens or those in need, truly want or need.

When it comes to disasters in the US, the government doesn't do nearly as much as they claim they are doing, and on those rare occasions they do, it's usually through the help of businesses, or individuals which just happen to be amongst their ranks, who probably could have done much more through the free-market to help out. Look, I know for a fact what I'm talking about here. I've been amongst the private sector in times of chaos and calamity.

I can't tell you how many times the government stopped us from serving those who were truly in need, blocking off roads, or preventing passage, and even threatening arrest if I helped my fellow man. It's BS what goes on, just ask anyone in the know, and those who think otherwise, they don't know, they just spout off this big government BS, and demand that everyone else feed the bureaucracy with tax monies. I'm quite frankly tired of it.

Prayer of Protection From Selfishness

The prayer of the Psalmist to his LORD:

"Turn my heart to your decrees, and not to selfish gain." ~Psalm 119:36 (NRSV)

In this day and age, or in any day, we may be blessed most of all in relinquishing our extraneous desires. When we become aware of our overburdening desire, that which is selfishly motivated, we will be blessed when we take courage to turn back to God by turning our hearts to the LORD'S decrees. In New Testament language these decrees - the ordinances, precepts, and commandments of God - God's Law - are love.

Love is the higher law.

When we pray a prayer for protection from selfishness, we pray for awareness of our motives, and for the courage to surrender willfully our selfishness to God. We pray, additionally, that we might come to repent in orders of love toward those close by us; our loved ones, our friends, our work colleagues, and those we fellowship with in our church settings.

THE PRAYER FOR PROTECTION FROM SELFISHNESS

Most gracious God and Father of all creation,

I bear witness of your glorious nature and unfathomable power for goodness. Nothing compares to you, O God. I come before you, as I do always, as a servant who has no right to do your work, apart from the right with which was bought for me by Jesus Christ my Lord. I am humbled in your Presence when I think of being apportioned work within your Kingdom; that you consider me worthy enough to join in your work. Your work is the biggest privilege of my life.

I confess before you, Almighty God, that I have this motivated self-interest and that I seem to be unable to live without selfishness when I'm without your Presence. I need you, for I need your protection against this foe: the extraneous desire. Without you in my life, my life would be pointless, and my selfishness would completely ruin me.

I thank you in advance for the things you are already doing in and through my life to expunge my encroaching sin. Whilst I am aware, I can give my selfishness to you. And as I act in selfishness, please LORD, remind me of my folly of short-sightedness.

I need you, Holy Spirit, to continually reveal the vanities of my desire. Draw me into your Word, LORD. Help me be honest regarding my poisonous desires. Help me to find ways of quelling my selfish desires. I ask for the peace that transcends understanding in order that the glory for having controlled these selfish desires runs to you, O God.

It's in Jesus' salvific name that I pray, AMEN.

***

Where would we be in life without love? We would be marooned; vanquished without purpose; completely devoid of hope. Everything that is selfish sets itself against love, but everything that is selfless promotes love.

When we pray for protection from selfishness, we pray for God's power to know his will and to love God and everyone else more.

© 2012 S. J. Wickham.