Scary: The Lynne Steward case

OK, I see the disconnect here. I'm afraid neither of us may have to legal experience to answer this question either. Are contracts, in general, legal? Yes. Did she then willing break this contract and really had no intention of keeping it? Probably yes as well. Does that make her guilty of fraud? Again probably yes.

Here's the legal question though (and one I freely admit that I don't have an answer to). If the contents of the contract concerned a SAM, and SAMs turn out to be unconstitutional, can you be held liable for intentionally breaking, and never even attempting to keep a contract whose subject matter is itself, now illegal? I don't know, and I never considered it from this point of you as you are BTA. You have a valid point - or rather a valid question may the more appropriate term - but I do not have the legal background to correctly answer this.

We need some legal help from dmc here!

EDIT: Spelling, grammar

 

@BTA: I agree it's awful when people sign things without intention of keeping the promise, but if the requirement is illegal, the promise is void from the beginning, so there's no breach.

As in, if you blew up a wax figure with a cluster grenade thinking it were someone you didn't like, you wouldn't be committing murder.

Or if you printed expired money in your basement, you wouldn't have committed forgery.

Morally, the guilt is the same, but courts aren't punishing thoughts. So someone who does something just thinking it's illegal won't be punished if it's legal. Breaking unconstitutional laws is normally legal (it doesn't mean you are allowed to do everything it forbade you, but you can't be held responsible from that given law - if they find a constitutional paragraph for your deed, they can still get you).

Well, but I must say I don't know enough to say if the SAM had been constitutional or not. It may well have been. If it had been constitutional and there's a law saying you go to prison for defrauding the government, she should go.

 

As for that she signed the SAM, they seemed to me like obligatory condition to grant her access to her client - without signing them she probably wouldn't have been allowed to visit him at all.

So it is surprising that you suggest that she had really a choice.

If any, she had a choice between practically abandoning her client until SAMs are checked in court or signing them and see him.

Considering how old that hag of a sheik is he might well be dead before the end of a lawsuit checking their constitutionality.

 

Chev, you're wrong here

That would still be attempt of murder, only on an unsuitable target, an error in objecto, still a punishable crime. Intent does count.

Not one might come and say: Hey, if that's attempt of murder, then Ms. Stweart is guilty of fraud as well, if it is for individual guilt and culpable behavior. Right, but as chev said, rightly this time, only if the SAM were legal

BTA,
that is where my legal opinion and yours fundamentally disagree, which is probably insurmountable - I just read the option you suggested for the lady wanting to have children on top of this page.

Your suggestion she could go to court to sue the company to stop the practice would be a hollow victory.

What would that get her? Only trouble and after suing the company she certainly will not get the job she wanted. Not to mention the bad press.

You suggest her to become a Joan of Arc for the cause of non-discrimination, which is unrealistic and naive.

This is not a real alternative, because she'd be screwed anyway. I'd say her interest is much more direct and pragmatic - the company is the jerk here, and if they ask illegitimate questions and discriminate, that's what they should get for it.

I may be cnyical here, but that's how you really deter a company from doing it - get them some nasty consequences.

The case I described is the law in germany, here you do have the right to lie for the reasons I lined out. It may not be as idealistic as your approach, but it has the advantage of being a workable, if ruthlessly pragmatic, solution.

I still think the case against Stewart is weak and stretched, and the penalty excessive - and as usual we won't come to an agreement here - but that wouldn't spoil having a beer with you

[Of course not Rags. Our political/philosophical disagreements don't bother me at all with respect to you personally - BTA]

[ March 11, 2005, 01:19: Message edited by: Blackthorne TA ]

 

Error in obiecto pretty much always precludes prosecution in case of attempt. It's called clumsy attempt and people are mostly not prosecuted for it. At any rate, it's even the same paragraph as the real thing but it isn't the real thing. It's still an attempt, so it isn't finished. An attempt is the whole crime with all stages except actually committing it. So you are only attempting forgery if you print expired money in your basement and you are only attempting murder if you "kill" a wax figure. But you haven't actually committed murder or forgery. Depending on the jurisdiction, you may or may not end up prosecuted.

Not really. If the requirement is illegal one has (legally) sort of a right to sign it without meaning really to comply. I can see reasons for deciding still to punish such kind of behaviour, but normally it isn't punished.

There was no crime if the SAM was illegal. Depending on the interpretation of the legal rule which penalises defrauding the government, they may or may not be grounds for putting her in prison for fraudulently signing an illegal SAM. I suppose not, but it is possible to make a rule that even in the case of illegal requirements one should still resort to the courts instead of fraud - although it couldn't be required that she stay away from doing the thing for which the illegal SAM is a requirement.

 

You very well may not be. Like I said, this is something that's going to go to court, and have millionaire lawyers arguing about. I don't think anyone on these boards, and certainly not myself and BTA have the authority or experience to answer such a question completely. While Ragusa, Beren and Chev make compelling arguements, it also must be pointed out that all of their own legal experience comes from Germany, Canada, and Polland respectively, and while these are all western nations, it may be possible that the law is different here in the U.S. than there.

One thing that I will say (and this is where Ragusa and I diverge): As of this point, the SAM is considered consitutional and legal. As such, I currently view her as guilty as charged. It will be a separate case that will determine the constitutionality of the SAMs themselves, and while that may ultimately affect her fate, as it stands now, to the prison she's a goin'.