A hint of that this criminal operation might pull . . .

Pre-emptive Presidential PardonsCan you be pardoned for a crime before you're ever charged?

By Jacob Leibenluft

With six months to go before President Bush leaves office, the White House is receiving a flurry of pardon applications. The New York Times reported that "several members of the conservative legal community" are pushing for the White House to grant pre-emptive pardons for officials involved in counterterrorism programs. Wait—can a president really pardon someone who hasn't even been charged with a crime?

Yep. In 1866, the Supreme Court ruled in Ex parte Garland that the pardon power "extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment." (In that case, a former Confederate senator successfully petitioned the court to uphold a pardon that prevented him from being disbarred.) Generally speaking, once an act has been committed, the president can issue a pardon at any time—regardless of whether charges have even been filed.

As the Explainer has pointed out before, there aren't many limits to the president's pardon power, at least when it comes to criminal prosecutions under federal law. The president's clemency power has its origins in the practices of the English monarchy, and as a result, the Supreme Court has given the president wide leeway under Article II, Section 2 of the Constitution. There are some exceptions: The chief executive can't pardon someone for a violation of state law or nullify a civil ruling, and his power doesn't extend to convictions handed down in an impeachment proceeding. (It's also not clear whether the president can pardon himself for future convictions.

While pre-emptive pardons remain very rare, there are a few notable exceptions. Perhaps the most famous presidential pardon of all time occurred before any charges were filed. Gerald Ford's pardon of Richard Nixon absolved the former president of "all offenses against the United States which he … has committed or may have committed or taken part in" between the date of his inauguration in 1969 and his resignation in August 1974. In other cases, presidents have pardoned individuals after criminal proceedings have begun but before a judgment has been handed down. In late 1992, less than a month before leaving office, President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger, who had been indicted earlier that year on perjury charges surrounding the Iran-Contra affair. (A lawyer for Roger Clemens' former trainer Brian McNamee claimed the pitcher might receive a similar pardon from Bush if he were ever indicted.) In addition, broad presidential amnesties—like the one President Carter issued to those who had avoided the draft during the Vietnam War—are essentially pre-emptive pardons issued to a large group of individuals.

If someone hasn't yet been charged with a crime, how does the president know what to pardon them for? As in Nixon's case, President Bush could issue a pardon that applies generally to any crimes that may have been committed within a certain range of dates. More likely, a pardon could apply only to actions surrounding a single policy or place—say, the detention or interrogation of suspected al-Qaida members.

Explainer thanks Ken Gormley of Duquesne Law School, Harold Krent of the Chicago-Kent School of Law, and P.S. Ruckman Jr. of Rock Valley College and PardonPower.com.

Original article posted here.

5 or 6 seconds can get you 15 years

Md. court expands definition of rape; woman can revoke consent mid-act

The definition of rape just expanded in Maryland, where the highest state court ruled yesterday that a man could be charged with raping a woman who withdrew consent after they started having sex, according to The Sun.

Maouloud Baby was convicted of first-degree rape in December 2004 after jurors heard testimony that the 16-year-old continued having sex with a woman for "about five or so seconds" after she told him to stop.

The conviction had been overturned by lower-level appellate courts, but the Court of Appeals concluded that no means no, regardless of timing.

"We conclude that post-penetration withdrawal of consent negates initial consent for the purposes of sexual offense crimes and, when coupled with the other elements, may constitute the crime of rape," Judge Lynne Battaglia wrote in the majority opinion, according to the newspaper.

That wouldn't have constituted rape under a previous ruling. In a 1980 case, the same court ruled:

Given the fact that consent must precede penetration, it follows in our view that although a woman may have consented to a sexual encounter, even to intercourse, if that consent is withdrawn prior to the act of penetration, then it cannot be said that she has consented to sexual intercourse. On the other hand, ordinarily if she consents prior to penetration and withdraws the consent following penetration, there is no rape.

Upon conviction, the judge sentence Baby to 15 years in prison, but suspended 10 years of the sentence.

The Sun says seven other states have adopted similar definitions of rape.

Original article posted here.