Gary:

To start, the court has basically said being drunk or high is no longer a defense to a crime. It's sort of taken away from us. Now in regards to questions about capacity - if the guy is incompetent by reason of mental retardation, that person should not be brought to trial. It can also be raised sort of like insanity defense. The other way that I think it is relevant in this case is because, obviously, the cops feel like they can go so far with pushing something without entrapping someone. There's a threshold if someone has mental capacity issues; they don't have the understanding and sophistication of a normal adult. That being the case, it will probably take a less aggressive person to get that person to do something that they might not normally have done. I think that the entrapment argument is even stronger in that situation. I do think there needs to be a hard line about how long law enforcement leaves it alone.

When law enforcement is setting these stings up, many times the agency will have an operational plan in place. That's sort of gives a set of rules that the officer are suppose to obey by, in the theory at least. When you're defending a case and you have a private lawyer, the public defender doesn't matter. They should really check to see if there are operational plans that were used in this sting and if the way this sting was conducted with regards the individual and whether they comply with the operational plan.

There needs to be some sort of objective line to that. They play it both ways, and it is unfair. Again, there is going to be a recognition that drugs and alcohol have some effect on a person as what's acceptable and what's not acceptable, why shouldn't that apply to a defense, or least a mitigate in criminal cases.

Donavon:

I will go a step further, because I love analogies, is it that why we have ladies night at the bar? Two-for-one drinks, because we think that when women are intoxicated, guys have a better shot with them? I have a much better shot than if I am standing in front of Macy's.

Gary:

To bring this into the fold with regards to the contacts with these things, I think they were encouraging the defendant to either drink or take drugs during a conversation. I think that would certainly help with the entrapment defense too.

Continue to Part 7 >>

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