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Oct. 30, 2022 - Lionel Nation
17:07
The Paul Pelosi Attack From A Criminal Law Perspective

As if this required more analysis. Because it does.

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In view of the brutal attack on Paul Pelosi by this assailant, this is a perfect time for us to discuss some of the criminal law aspects of what's going on and to dissect this.
Not from the usual point of view, but from that of a legal point of view.
From the prosecutor's point of view.
What I would be looking to in terms of either prosecuting or trying to defend somebody.
And by the way, when you say defend, defend almost always sounds like you're trying to justify.
You're trying to say, it's okay what he did.
That's not what defend means.
It's to prevent.
Rather, to propose viable defenses in a frame of reference that might be amenable to any kind of defendant in this.
Because remember, a lawyer has to act on the part of the client, the defendant, in a way that this client would act if he or she knew the law.
So it's a fascinating case, and one that requires Close inspection.
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Okay, let's look at what this is, first of all.
Now, there are many, many statutes that are available to people in California.
I believe an abuse of the elderly charge was tacked on, attempted homicide.
But burglary, burglary is the first that comes to mind.
And burglary is one of these statutes, which I've talked about forever, which people think means stealing.
Or trying to steal something.
He normally has theft involved.
Even though theft, in most respects, and in many respects, is what is accompanied in burglary.
Burglary is defined at common law, and for the most part, across the country, as the entering or the remaining.
In a dwelling, structure, or conveyance with the intention of committing an offense therein.
Let me stop and back up a little bit.
There's no breaking and entering.
At common law, you had to break something.
You had to do something.
You couldn't just walk in.
You had to break a lock or a window or something.
At common law, burglary was only at night.
Now, it doesn't matter when it is.
You had to enter.
There is an addition which people changed.
Statutes and jurisdictions changed.
It's the entering or remaining.
Because some people would go into, let's say, a store.
You go into a store.
You hide.
And then when they close the store at night, then you come out.
And you do your theft or whatever it is.
So you entered with the consent, with the license of the individuals who own the store.
But you remained.
See, now that's the difference.
You should have left.
You're trespassing.
You should have left at the time that the store closed.
Anyway.
So is the entering or remaining in a structure, conveyance, or a dwelling with the intent to commit an offense therein?
At common law, you had to commit a felony.
Now it's any offense.
So going through this again, because it sounds very, very garbled, you went into a home.
With the intention of going in to commit an offense.
Let me ask you this question.
Let's assume that you were walking along and it started to rain.
And you looked and there was a porch.
A screened-in porch.
And the door was open and you went in and you stayed in this area.
You stayed in this porch.
Until the rain left or until this inclement weather.
And then the police showed up and there you were.
Is that burglary?
No.
What you entered or remained in a building structure or conveyance, but not with the intention to commit an offense therein.
At best, what this is is trespass.
And trespass is a lesser included of burglary, meaning that in order for you to commit burglary, you have to trespass first.
Then when you...
Kick it up a notch, as Emerald would say, then it becomes something else.
Trespass at first, but then with the intention to commit an offense therein, then it goes to burglary.
And then it can also, depending upon the state, it can change.
If it was a structure, interesting, that's one thing.
If it's a conveyance, a car, a train, a truck, that's one thing.
But a dwelling?
A dwelling?
I gotta tell you this one thing too.
This happened to me a couple of times.
I always tell people, whatever you're charged with an offense, whether it's a traffic offense, speeding, anything, read the statute.
Read it.
You'd be surprised.
Let me tell you why.
Years ago, in the state of Florida, I'm from Florida, not Florida.
You vacation in Florida, I'm from Florida.
There was this one charge of somebody who was he was charged with burglary of a dwelling.
And it was an aggravated offense.
They charged you more with breaking into somebody's home or where somebody lived than, let's say, a shed.
And it was something like it was a groundskeeper's something.
And we look For the first time, we just assumed what a dwelling was.
And it meant something that is equipped to allow living or accommodations at night or with electricity.
It involved or it basically contemplated almost like a house.
Not just some little shed like in Slingblade, but a place, a house sort of with lights.
Running water.
It's very interesting.
Had I not read this, I would have just assumed.
But here's the best one.
There was a year, years ago, in Florida, where there was a Super Bowl.
And a bunch of people who were drunk and who were a bit obstreperous were asked to leave.
Well, they didn't.
And they were charged with trespass of a structure, because at the time it was Tampa Stadium.
Tampa Stadium, don't you think it's a structure?
I would think so.
Read the statute.
A structure, according to the statute, which you had to satisfy in order to be guilty of burglary of a structure, read, and I'm paraphrasing, something to the effect that said, a building permanent or impermanent, That has a roof over it.
Now, Tampa Stadium did not have a roof.
There was no dome.
It was open air.
Still is.
Is Tampa Stadium a structure?
Now it's Raymond James.
Is it a structure?
Is Yankee Stadium a structure?
Well, not according to that statute.
And so after this event, there were hundreds and hundreds.
I don't know how many of these motions to dismiss from all over the place saying this is not a structure.
Had somebody not read the statute or the particular definition, had they just assumed what a structure is, nobody would have known this.
So, that's number one.
It's burglary, certainly.
Armed or assaulted burglary could be even more, depends upon where it is.
Certainly the aggravated battery, attempted murder, attempted homicide is certainly there as well.
But let's get into the notion of his mental state.
Can that in any way affect this?
From a practical matter, good luck.
Play a role at sentencing.
It might be taken into consideration by a sentencing judge.
But in order for, in most jurisdictions, for you to be so insane, so insane, that you can be legally absolved of any kind of criminal liability or exposure under the McNaughton Rule, which is pretty much the law of the land, you have to not be able to appreciate.
Right from wrong.
And in virtually no case do you ever see that.
Where somebody is so insane, they're thinking, this is great.
What I'm doing is heroic.
Because they always run from the police.
They secrete themselves.
They hide.
They cower.
They come under darkness of night.
So they know something's wrong.
They know they're breaking the law.
They know something.
But what happens if the person believes they're in a battle, believes that, yes, I did come under cover of night, but it's because the galactic Robometron swarms were after me.
What happens if somebody pushes somebody in front of a subway and they knew it was wrong, but the voices made them do it?
It gets a little tricky.
But suffice it to say, In this particular case, there is going to be no chance whatsoever of any kind of insanity defense being successful.
Now what about motivation?
What about if something motivated them?
Political thoughts, books, songs, poetry, historical references, TV, songs.
Remember in the old days they had backwards masking.
If you played it backwards, you could hear source of the devil.
Motivation is a waste of time in criminal law.
In criminal law, we care about intent.
What did you intend to do?
Not what motivated you.
Not what inspired you.
Not whether you had animus towards this person.
No.
That may be relevant in other circles and other fora.
But from a criminal law point of view, Whatever motivated you is really of no importance to anybody else.
It's interesting.
Sometimes motivation is important because it may help intent.
In the case of arson, if somebody could say they were having all kinds of financial problems and they just bought a very large policy, some type of structural policy, and then the arson immediately took over, Being able to explain financial problems might, through motivation, might help things, but it's not necessary.
It's not critical.
It's not critical at all.
Now, what needs to be done right now is to understand this one.
What if this individual claims that by virtue of this coverage he is unable to have a fair trial?
This assailant, this arrestee.
That there's no way I can possibly get a fair trial in California, in San Francisco, in the home of a beloved politician or somebody of note.
And all of this, you know, this publicity is going to completely disenable me from enjoying a fair trial.
Also, good luck with that one.
Because I think we all know pretty much today that no matter where you go, no matter what you do, the idea of you escaping the influence of either social media, conventional media, terrestrial media, especially when the targeted victim of your criminal activity is somebody who is famous in their own right, good luck.
Changes a venue.
I don't think it's going to make any sense anymore.
Because where are you going to go?
Where can you go?
Other than, let's say, San Francisco proper, but where can you go where nobody will know of your victim or of the case?
You might be able to tweak it in terms of the actual venue, the jurisdiction.
You might say the people are so close to this particular victim that they can't separate themselves.
That, I predict, is worth a try, but don't expect too much from that.
In any event, I hope this adds some perspective to this most horrible crime.
From the viewpoint of criminal law...
And criminal jurisdiction.
And I would so much appreciate you liking this video.
Liking it.
Subscribing to the chapter, to the chapter, to the channel.
I can't speak for some particular reason.
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