3/25    US military deserters seek refugee status in Canada.
        http://csua.org/u/bhq
        I'm basically just posting this article to reference this awesome
        quote by the deserters' lawyer:
        "We don't believe that people should be imprisoned for doing what
        they believe is illegal."
        \_ I think what the lawyer meant was "... for NOT doing what ...".
           \_ I figured you should just replace 'illegal' with 'right.'
              \_ This is all kinds of irrelevant, but if I think carefully
                 about the original statement I agree with it.  If
                 someone does something they think is illegal, but it's not,
                 then no, they should not be imprisoned.
                 But I think the first responder was right, the lawyer meant
                 "for NOT doing".
                 \_ That's not how criminal law works. People are tried
                    and convicted for doing something which they think
                    is illegal but it is not for some time now. The
                    mens rea is sometimes more important than the actus
                    rea in certain crimes according to some courts and
                    commentators. The concept here is that we wish to
                    deter criminal intentions for such crimes as
                    conspiracy.
                    \_ Conspriacy requires an agreement, an overt
                       act and the mens rea to join an unlawful
                       scheme. The unlawful scheme part is impt.
                       Simply thinking that what you are doing is
                       illegal is not enough. It has to be unlawful.
                       Ex. If you didn't know that the 21st amd
                       had been passed, but you concocted a scheme
                       w/ your buddies to smuggle booze from Canada
                       into the US thinking that you were breaking
                       law, it wouldn't be a conspiracy, regardless
                       of the fact that you thought it was a crime.
                       FYI, an actus reus is ALWAYS required in
                       order to get a criminal conviction whereas
                       there is no constitutional requirement that
                       a mens rea be shown (See Robinson v CA).
                 \_ Ah, I see.  Because Iraq was an "illegal war."
        \_ I agree with a pp that there is nothing wrong w/ the
           lawyer's statement. In order to be criminally punished
           a person must have violated the law. If a person thinks
           that they have broken the law but really they haven't,
           it is irrelevant whether the person thought that he was
           breaking the law.
           \_ No, you're completely wrong. It does matter in crimes of
              conspiracy. In fact, it's been ruled in the past that crimes
              of conspiracy don't even require that the other parties involved
              are agreeing to break the law, only that the defendant believes
              he is conspiring to break the law.
              \_ I am sorry, but this is just fucking stupid. Not you, the
                 government for prosecuting people for not breaking the law.
              \_ I don't think that you understand how conspiracy works.
                 \_ Well, you're wrong. I certainly do know how conspiracy
                    works in general. How it works in your particular
                    state is another matter.
                 Conspiracy is an independent crime from subtantive
                 crimes.  What is required for conspiracy is agreement
                 to an unlawful scheme. Once a party has agreed to an
                 unlawful scheme, that party is responsible for the
                 general intent version of any stubstantive crime

                 committed by all other parties to the scheme.
                 Note The underlying scheme must be unlawful, if you
                 and I agree to stop watching FOX news and then you
                 go off and kill someone, I'm not liable for voluntary
                 manslaughter even though I thought that not watching
                 FOX was a crime.
                 \_ Actually, that's completely wrong. If you actually
                    went to law school you'd have heard of the "empty
                    pocket theory" in which a pickpocket can be convicted
                    of attempt when he tries to pickpocket an empty
                    jacket. The same applies for conspiracy. It doesn't
                    take much to charge someone with conspirac.
                    What you are describing is actually techinically
                    a conspiracy, however, due to the inherent impossibility
                    of committing the crime by watching FOX, it is not
                    conspiracy. Your reasoning for why the above fact pattern
                    is wrong is simply wrong. If you had actually studied
                    conspiracy, you'd know about the "voodoo curse" doctrine
                    in which inherent factual impossibility excuses
                    conspiracy.
                    \_ What about what the above person claims? What if you
                       and I conspire to say, sneak across the Nevada border,
                       a perfectly legal act, but one that I believe is
                       unlawful. Can I be prosecuted for conspiracy?
                    \_ The empty pocket theory mainly relates to attempt is
                       applicable to factual vs legal impossibility.  In
                       attempt what is being punished is an act that is
                       close to being a complete crime w/ the mens rea for
                       that crime. A factual impossibility does not excuse
                       b/c a crime would have been committed except for an
                       external circumstance (the cops caught you in time,
                       the pocket was empty, &c.)  A legal impossbility is
                       different.  Consider a plan to steal a laptop from
                       someone's backpack during class. Let say you sit down
                       next to the target and you stick your hand in his
                       bag, but he left his laptop at home. You are guility
                       of attempted larceny. However, let's say that you
                       both have the same sort of backpack and you happen to
                       reach into your own backpack.  Even if the cops slap
                       the cuffs on you right at that point, you are not
                       guilty of an attempted crime b/c stealing from
                       yourself (regardless of the mens rea) is a legal
                       impossibility.
                       WRT "voodoo", if you conspire to kill someone,
                       and one of you happens to use voodoo and the
                       other uses a gun, you are both still guilty
                       of the conspiracy to commit murder. However,
                       if you conspire to kill someone only via
                       voodoo you are not guilty of the conspriacy
                       b/c killing via voodoo is not a crime.
                       (I believe you are referring to the Ivy case,
                       in which the brothers did time for trying to
                       kill a judge via a voodoo hex).
                       BTW, I got a decent grade in crim law.
                 However, if you and I agree to put up a web site that
                 lists all the locations of police speed traps in real
                 time so that people can avoid speeding tickets, a
                 conspiracy exists b/c the object of our conspiracy was
                 to help ppl exceed the speed limit which is unlawful.
                 Now if you kill someone, I will be liable for VMS.
                 \_ CALLAHAN: Hypothetical situation, huh? All right, I'm
                    standing on the street corner and Mrs. Grey here comes up
                    and propositions me... that if I come home with her, for
                    five dollars she'll put on an exhibition with a Shetland
                    pony.
                    MRS. GREY: If this is your idea of humor, Inspector...
                    BOARD EXAMINER: All right, what are you trying to do here,
                    Callahan?
                    CALLAHAN: I'm just trying to find out if anybody in this
                    room knows what the hell law's being broken... besides
                    cruelty to animals.
                    \_ What does this have to do with conspiracy?
                       \_ It's one of the laws being broken in the hypothetical
                          situation.
           \_ I'm not sure I understand how what you're saying applies to
              this case.  Desertion is illegal, and I'm pretty sure the
              deserters knew it was illegal.
              \_ My comment is directed at statement itself w/o regard
                 to the context.  I agree that in the context of the
                 desertion, the statement makes no sense.
        \_ Weren't there a bunch of CO cases during Gulf War I that rested on
           the argument that the US military service oath required you to
           'defend the Constitution...' (yeah, yeah, I know, that whole
           'following orders' thing.  -John