Lawyer talk off the record on the air in 2024

Steve Palmer: All right, here we are. Lawyer Talk off the record on the air. We are back. It is July 18, 2024, and as I have promised, Lawyer Talk is back. We are back with questions. We are back with breakdowns. We are back with interviews.

Troy Henriksen is a law student at Capitol University

and now I'm back at the roundtable here with Troy Henriksen. Troy is, a law student, works with me upstairs at the law firm, which is now Palmer legal defense, where you can find that easily@palmerlegaldefense.com. where we handle predominantly criminal cases. so you're thinking, why on earth would I want a law student here at the roundtable? Well, here's why. We have the q and a series, and it turns out that law students are inquisitive folks, and Troy has got a. Well, first of all, Troy, where do you go to law school?

Troy Henriksen: I go to Capitol law school.

Steve Palmer: He goes to Capitol Law School and second year, you finish. Are you starting your second year, starting your third year?

Troy Henriksen: So I'm starting my second year. So we call that rising 2 L

Steve Palmer: You're a rising 2 L So just for. Just so everybody understands, this is law. This is where it all starts. All the nonsense starts in law school. You don't say, I'm in my first year in law school. You say, I'm a one l. Like somehow it's more significant if you say one l, and then you say, two l. Now you've got rising two l. This is where you get indoctrinated into all this stupid language and all the stupid vocabulary. And, and then if you don't break free from that, like we do it here at this table, you're stuck with it. So you're. You're. You're. You're gonna. You're on the path. At any rate, Troy is an inquisitive guy. Cause law students, as I said, are inquisitive folks. And as we were kicking around what to do, what question to take today, you had a question, and it was actually a pretty good one. So why don't you tell us what it take? You give me the question, and I will give you the answer. That's how this works. See, it's q and a. You're the q, I'm the a. Right?

You gave a factual scenario that talked about strict liability because. But what is strict liability

Troy Henriksen: The question would be, what is strict liability?

Steve Palmer: So what? But you gave it to me. Come on. You gave it to me in a better context than that. So here's what happens in law school, folks. You. They give you cases to read, and what you're supposed to do is glean from those cases what the law is. But what they never tell you is there is no, there's no firm answer. It's never really there. They hide the ball from you because. And there is no ball, as it turns out. but you read cases which are comprised of facts, like that's what happened. And then the court decides what, happened in the. From those facts, and they apply some rule of law and then they come up with a decision. But you gave a factual scenario that talked about strict liability because. Strict liability, that's Lawyer Talk or that's double speak. We'll call it lawyer double speak, and we're going to translate that in a second. But what's, what's the fact pattern you talked about?

Troy Henriksen: The fact pattern is a man that's 21 years old. He was mentally, handicapped. Doctors, came in and gave an IQ test of 50 something. They made his age mentally. At eleven. He had consensual sex with a 13 year old girl. This girl called him up, told him to come over, get a ladder, sneak up into my bedroom and have consensual sex with witnesses there that testified that it was consensual. And then he was charged after the 13 year old had a kid, his kid, and, then he was convicted of rape, even though he got consensual sex and thought she was 16. She told him he was 16, so he thought everything was fine. But then he was still convicted after all that fact pattern, right?

Steve Palmer: So it's like the old Jack Nicholson and one flew over the kook. You don't even know that movie, do you?

Troy Henriksen: I love that movie.

Steve Palmer: All right, so she was 16 going on 21, if you know what I mean. Anyway, but this, you know, it's interesting. And that case was when? Do you know the date of it? No, this is just a case you read in law school. Yes.

Troy Henriksen: This is what they toss strict liability over.

Steve Palmer: So what's interesting about that is that happens all the Time. It probably happens now more than it ever has happened because of the Internet. So what happens is these girls are out, on the Internet and they are actively surfing and, engaging with the creepers out there. And the creepers out there are more than happy to go hook up with a 13 or a 15 year old or whatever. But it also happens often enough where the girls lie about their age, where the girls will say, look, I'm actually 18 or I'm actually 17 and I'm above the age of consent. And, the guys bite on it and they go and they hook up and next thing you know, you get the knock on the door and the cops are there. I. Or I have one. I had one case I was working on where, the girl's mother actually left a note on my client's door that said, I hope you know that the girl that you've been dating is a 14 year old or something along those lines. And, you know, then it's like, holy crap, what do I do? And we get those calls all the Time. And a lot of times they're prosecuted, sometimes they're not. but that scenario is coming up more and more and more these days with the admin of the Internet and, online activity. But so what. The real question, there's lots to unpack there. The first thing to unpack is, this guy is obviously mentally disabled. He doesn't have capacity. so he's, whether it's, whether he had downs or whatever it is. And back in the old days, they said he was mentally retarded or whatever it would be. So the first question at the outset is, can you even prosecute the guy if he doesn't have the capacity to even know what he's doing? And there's a safeguard for that. The courts will conduct what's called a competency evaluation. But what really is going on? They bring in a shrink, they bring in a psychologist, and the psychologist does an evaluation. They asked a bunch of questions, and they figure out first whether this guy understands what's going on. Does he understand that he's being accused of crimes? And the second component is, can he help his lawyer? Can he actually communicate with his lawyer in a way that helps us defend the case? In this case you're talking about, I think that was sort of a foregone conclusion that he was competent and knew what he was doing. So he was accused. And now the real question is, what in the heck is strict liability? Let's go back. Let's do some. Here's the Time for a little history lesson. Generally speaking, what I tell folks is, crimes typically have two components. You have to have an act. You have to do something or not do something that you should. So you have to have an act or a failure to act when you should have acted. So if I punch you in the face, that's an act, right? And again, fancy Lawyer Talk terms, they would call that actus reus. They would say, that's the act. The other thing you have to have is some sort of mental capacity or, mental thought process to do it. you have to have the mental thing or the mens rea, you have to have an act and you have to have some intent. So if I'm swinging my hands wildly in a crowd and I hit somebody, that's treated a little bit differently than if I. If I punch you with the intent to hit your chin and knock you out. So you have to have an act and you have to have the mental thing. But what, but here, what you're talking about is there isn't any mental thing. There is no, intent to commit this crime. And whats happened in modern times is we have a hierarchy of mental things. The most intentional mental thing is called I did it on purpose. And when I talk to people about this, I always say, this is about kids. Anybody whos ever had kids and ever seen kids play and tell, they come to mom and dad and say, bobby did this, and he did it on purpose, like he meant to do it. It matters to people that he did it on purpose. And purposeful is the most, is the highest level of intent. So to commit murder, you do it. You take, you do it with the purpose, to kill.

How do you define knowingly? Well, it's less than purposely

So I did that on purpose. If I steal something on purpose, it's different than if I, swung my hands around sort of randomly. But you have purpose, then you have something called knowingly. Knowingly. How do you define knowingly? Well, it's less than purposely. So you know that your consequences are likely to produce, a certain result. That's the fancy way of saying, well, you sort of should have known that if you're swinging your hand wildly around, you might hit somebody. Below that, you have something called recklessly. Recklessly is, It actually sounds worse than knowingly, but recklessly would be like you had heedless disregard for consequences or for facts and circumstances that you knew were dangerous. And I get it. There's lawyers out there. I'm summarizing. You don't have to go to the books, but basically it means you're being a jackass of the highest order. So when you're driving down 315 on your way home today, and you're going 100 miles an hour, and you run into somebody from behind, because every day at 05:00 the traffic backs up on east north Broadway, well, guess what? You're acting recklessly. That's a very reckless thing to do, because you're driving 100 miles an hour. And if you don't think that driving 100 miles an hour is a heedless disregard for the, consequences, well, then you're wrong. It's reckless. and then the level below that, negligent. What the hell is negligence? Again, what negligence means is I screwed up, I made a mistake. If I'm driving along and I just didn't see the red light, I was checking my radio at the Time. That's negligent. and that's the lowest form. And then you get to strict liability. I get this all the Time. The best way to look at strict liability, speeding ticket. I hear it all the Time. I was going 70 in this 55, but I didn't know I was going 70 in a 55. And I go to court and I say, prosecutor, my client didn't know he was going 70. He thought he was going 55. You know what they say, we don't give a shit because it's strict liability. It doesn't matter what you were thinking, whether you were negligent, whether you were purposely, whether you were knowingly, whether you were, it doesn't make any difference at all. It is a crime by itself to drive over 55 miles an hour on certain highways. That's what this guy does. Or if that's what the client's doing, that's strict liability. He is strictly liable for that. You know what else is like that?

Troy Henriksen: Having sex with a minor.

Steve Palmer: Statutory rape. Statutory rape. If you don't, it doesn't matter that you thought that the girl or the guy was of the age of consent. Now, not all crimes will equal statutory rape, but the rape that you're defining in your case is like that. Somebody, the law would say in the general assembly here in Ohio, the legislative branch of government says, we're going to define this crime this way. If you have sex with somebody who is below the age of consent, that's statutory rate. And it doesn't matter that she consented because she is legally below the age of consent. She, she's not old enough to consent. And nana na na na, we don't care that you didn't know. and now, why is that fair? I'm not saying it's fair. I'm not saying it's not fair. But that's what the, that's what the law, as I said now, I would guess the public policy. I mean, do they teach about public policy in law school?

Troy Henriksen: Somewhat. They dabble with it.

Steve Palmer: Why would they have, like, why would, why would that be the case in law? And, you know, there might be good reasons for that. You could say, well, look, we need to protect these younger kids. And if that means that we catch in the dragnet, the adults, well, guess what? The adults should have freaking asked and known. Should have asked and known. And what they complicated your scenario with is the guy didn't have the necessary mental capacity to ask and know. but that's sort of a red herring. You know, that's like, that's, that's designed to trick the law students. It doesn't matter. so the idea of it is we have created a rule that says this is a crime. It is a crime to have somebody or have sex with somebody who's under the age of consent. And it doesn't matter if you did it knowingly. It doesn't matter if you did it on purpose. It doesn't matter if you did it recklessly or even negligently. It is a strict liability crime. Now, I'll tell you this, it gets, it can get worse. If he knew there are worse crimes. And a lot of times what you'll see is sort of a handful of possible things that you could charge somebody with. So you might see a gross sexual imposition in Ohio, or you might see corruption of a minor, or, some other sexual conduct with a minor that isn't quite rape, designed to sort of catch those. And when we go into court and defend those guys, it does matter. So it's not like this guy's going to prison for twelve years or eleven years on a rape. There might be mitigating circumstances that matter, and one of those circumstances might be he didn't know. And not only it might be more mitigating if he didn't know and the girl gave him reasons not to know, actually misled him. that would make things a little different, and it may not make him innocent, but it'll certainly impact what happens to him. So strict liability means it doesn't matter that you knew, it doesn't matter that you didn't know. It just matters that you did the act. The act itself is the crime.

If you have questions, submit them here on LawyerTalk. com

All right, so there you have it, folks. Lawyer, talk Q and A. We are back. We are at the roundtable with Troy. Probably see Troy some more with questions like this. But if you have your own questions, it's simple. Lawyertalkpodcast.com dot everybody who submitted questions, you know how to do it. You go to lawyertalkpodcast dot podcast.com, submit a question and we will get to it right here on LawyerTalk. We are off the record, on the air, at least until now.