Wednesday, 6 July 2011

The Statute of Limitation

God Listens not to your words save when He Himself utters them through your lips.
By Kahlil Gibran in the Prophet

On this seemingly uneventfully summer day, some of the children of this diverse middle to upper middle class professional neighborhood could be seen on bicycles, playing hopscotch, jacks, dodged ball or the favored game of many children, hide and seek. It was now several months into summer break when, due to restless energy, two older boys from the less prestigious side of the community decided to challenge boys from the more affluent area to a weekly bicycle race.

Although the boys of a lesser god from locations like Kensington Street, McMillion Avenue and Walton Drive did not believe that the boys from the private avenues such as Lewis Place, Westminster Lane or Fountain Terrace would accept the challenge; they were competitive surprised and excited when their skepticism proved incorrect.

The area of town where the race was to take place was situated within walking distance of four local hospitals. That fact accounted for the rigid social stratagem which separated doctor's children from the children of families of a lower hierarchy. Traditionally, children of the more affluent residents never socialized with the children of a lesser tier, until the advent and orchestration of the weekly race.

This robust race soon connected children within a five mile radius while the competition began to take on its own momentum and purpose.

On a rich brightly lite summer morning, the first day of what was soon to become the infamous race, as the boys from the higher end streets arrived, simultaneously, on their shinny, seemingly new, Primos, Battaglins, Pinarellos and Focuses; also travel were an array of other expensive and impressive two wheeled vehicles. Then, when, in meeting, a succession of exaltation's like; "Wow, unbelievable, awesome," instantaneously, the proverbial ice was melted.

In the affluent residential area of town, the rigid social stratagem was religious adhered too, except on the day of the bike race. The children of doctors associated exclusively with other kids of like parental hierarchy.

It was in such a neighbour, on a lovely summer day, that two men who were alleged members of organized crime, crept into this neighborhood of naivete and in front of four children killed a three month old child. The infant's mother was also a witness to this horrific crime. The criminal action against this child, or more precisely, this infant, that caused its death was a cruel and intentional murdered.

Statute of Limitation or Ripley's believe it or not. As a child, even when I heard the words, I had no idea what mafia or organized crime meant. The two men who where in the home of Calvin and Dovie Johnson on ,that, what appeared as an, ordinary summer day, were very versed on the topic of the Statute of Limitation. In all of the fifty states within the United States there is no Statute of Limitation on murder. Although, it is significantly appropriate, that murderers will always be held accountable for their crimes. Yes, it is very significant that no time limit for taking a killer to trial is set, yet when the intentional killing of a three month old infant is committed; it's too bad that the stature can not extend into some portion of eternity.

Freddie Mae Richard, mother of the infant, had been attempting to become a mother for over four years. One would never know this fact as she could always be seen with a wide smile on her fact and a quick step. One day as I was walking home from the candy store, she stopped me, stating, "don't be afraid, my pastor told me to do this." She then placed her right hand on my right forearm for a few minutes. She then closed her eyes for a while and prayed. Following, she smiled, gave me a huge hug and walked back across the street to her house.

Three months after the birth of her first and only child, the infant was killed by members of the mafia and the only reason given for this brutal act was that some, "THEY," did not want any person of spiritual acumen to advance into public awareness. Believe it or not, that was the only explanation cited for cruel crime.

Freddie Mae and her husband divorced years later but the last time I saw her, she still wore that infectious, never ending smile.

As the correlation between the Statute of Limitation and Ripley's Believe It or Not, continues, years later, due to Mk-Ultra one of the children who witnessed the murder confessed to the crime. The infant's mother vehemently stated that the person who confessed had nothing to do with her daughter's death but the infamous, "THEY's," the engineers of project like MKULTRA value no ones rights or life.

Statute of limitations
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A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated. In civil law systems, similar provisions are typically part of the civil code or criminal code and are often known collectively as periods of prescription.

Common law legal system might have a statute, for example, limiting the time for prosecution of a debt or crimes designated as misdemeanors to two years after the offense occurred. Under such a statute, if a person is discovered to have committed a misdemeanor three years earlier, the time has expired for the person to be prosecuted. While it may seem unfair to forbid prosecution of crimes that law enforcement can later prove to a standard required by law (cf., e.g., Beyond a reasonable doubt, Clear and convincing evidence, and Preponderance of the evidence), the purpose of a statute of limitations or its equivalent is to ensure that the possibility of punishment for an act committed long ago cannot give rise to either a person's incarceration or the criminal justice system's activation. In short, unless the crime is exceptionally heinous in nature (such as murder where there generally is no statute of limitations), social justice as enacted through law says that lesser crimes from long ago are best left alone so as not to distract attention from more serious crimes.
[edit] Reasons for statutes of limitation
One reason is that, over time, evidence can be corrupted or disappear, memories fade, crime scenes are changed, and companies dispose of records. The best time to bring a lawsuit is while the evidence is not lost and as close as possible to the alleged illegal behavior. Another reason is that people want to get on with their lives and not have legal battles from their past come up unexpectedly. The injured party has a responsibility to quickly bring about charges so that the process can begin.
Limitations periods begin when a cause of action is deemed to have arisen or when a plaintiff had reason to know of the harm, rather than at the time of the original event. This distinction is significant in cases in which an earlier event causes a later harm (e.g., a surgeon negligently operates on a patient, who subsequently suffers the consequences of that negligence years later).
In a related concept, contracts may also have a term under which they may be the basis of a suit, and after which a plaintiff is held to have waived any right to claim. Under Article VI of the United States Constitution, private contracts cannot be abridged; this provision has been held by the United States Supreme Court to mean that the federal government or a State can only vitiate a contract if it directly opposes an important public policy. Similarly, the Charter of Fundamental Rights, codified into law applicable to European Union countries by the passage civil lawsuit, is said to have accrued when the event beginning its time limitation occurs. Sometimes it is the event itself that is the subject of the suit or prosecution (such as a crime or personal injury), but it may also be an event such as the discovery of a condition one wishes to redress, such as discovering a defect in a manufactured good, or in the case of controversial "repressed memory" cases where someone discovers memories of childhood sexual abuse long afterwards.
[edit] Statute of repose
An idea closely related, but not identical, to the statute of limitations is a statute of repose. A statute of repose limits the time within which an action may be brought and is not related to the accrual of any cause of action; the injury need not have occurred, much less have been discovered. Unlike an ordinary statute of limitations, which begins running upon accrual of the claim, the period contained in a statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted. This often applies to buildings and properties, and limits the time during which an action may lie based upon defects or hazards connected to the construction of the building or premises. An example of this would be that if a person is electrocuted by a wiring defect incorporated into a structure in, say, 1990, a state law may allow his heirs to sue only before 1997 in the case of an open (patent) defect, or before 2000 in the case of a hidden defect. Statutes of repose can also apply to manufactured goods. Manufacturers contend they are necessary to avoid unfairness and encourage consumers to maintain their property. Consumer groups argue that statutes of repose on consumer goods provide a disincentive for manufacturers to build durable products and to notify consumers of product defects as the manufacturers become aware of them. Consumer groups also argue that such statutes of repose disproportionately affect poorer people, since they are more likely to own older goods.
[edit] Expiry
Once the time allowed for a case by a statute of limitations runs out, if a party raises it as a defense and that defense is accepted, any further litigation is foreclosed. Most jurisdictions provide that limitations are tolled under certain circumstances. Tolling will prevent the time for filing suit from running while the condition exists. Examples of such circumstances are if the aggrieved party (plaintiff) is a minor, or the plaintiff has filed a bankruptcy proceeding. In those instances, in most jurisdictions, the running of limitations is tolled until the circumstance (i.e., the injured party reaches majority in the former or the bankruptcy proceeding is concluded in the latter) no longer exists.
There may be a number of factors that will affect the tolling of a statute of limitations. In many cases, the discovery of the harm (as in a medical malpractice claim where the fact or the impact of the doctor's mistake is not immediately apparent) starts the statute running. In some jurisdictions the action is said to have not accrued until the harm is discovered; in others, the action accrues when the malpractice occurs, but an action to redress the harm is tolled until the injured party discovers the harm.
As discussed in Wolk v. Olson, the discovery rule does not apply to mass-media publications such as newspapers and the Internet; the statute of limitations begins to run at the date of publication.
An action to redress a tort committed against a minor is generally tolled in most cases until the child reaches the age of majority. A ten-year-old who is injured in a car accident might therefore be able to bring suit one, two, or three years after he turns 18.
It may also be inequitable to allow a defendant to use the defense of the running of the limitations period, such as the case of an individual in the position of authority over someone else who intimidates the victim into never reporting the wrongdoing, or where one is led to believe that the other party has agreed to suspend the limitations period during good faith settlement negotiations or due to a fraudulent misrepresentation.
Generally speaking, in the case of private, civil matters, the limitations period may be shortened or lengthened by agreement of the parties. Under the Uniform Commercial Code the parties to a contract for sale of goods may reduce the limitations period to not less than one year but may not extend it.
Although such limitations periods generally are issues of law, limitations periods known as laches may apply in situations of equity (i.e., a judge will not issue an injunction if the party requesting the injunction waited too long to ask for it). Such periods are not clearly defined and are subject to broad judicial discretion.
For U.S. military cases, the Uniform Code of Military Justice states that all charges except for those facing general court martial (where a death sentence could be involved) have a five-year statute of limitation. This statute changes once charges have been prepared against the service member. In all supposed UCMJ violations except for those headed for general court martial, should the charges be dropped, there is a six-month window in which the charges can be reinstated. If those six months have passed and the charges have not been reinstated, the statutes of limitation have run out.
[edit] Prescription
In civil law countries and the U.S. State of Louisiana, almost all lawsuits must be started within a legally determined period. If they are presented after that time, an institution called prescription applies, which prevents them from filing the case.
For criminal cases, this means that the public prosecutor must prosecute within some time limit. The time limit varies from country to country, and increases with seriousness of the alleged crime (for example, in most jurisdictions, there is no statute of limitations for murder). When a time limit is suspended, it does not run (akin to hitting "Stop" on a stopwatch). Common triggers include the defendant being on the run. When a time limit is interrupted, it is restarted (like hitting "Reset" on a stopwatch). This may be triggered by a new crime committed.
If a criminal is on the run, he can be convicted in absence, in order to prevent prescription, or the time limit does not elapse during that time.
The prescription must not be confused with the need to prosecute within "a reasonable delay", an obligation imposed by the European Court of Human Rights. Whether the delay is reasonable or not, will depend on the complexity of the trial and the attitude of the suspect.
[edit] Exclusions
[edit] Fraud upon the court
In the United States, when an officer of the court is found to have fraudulently presented facts to court so that the court is impaired in the impartial performance of its legal task, the act, known as "fraud upon the court", is a crime deemed so severe and fundamentally opposed to the operation of justice that it is not subject to any statute of limitation.
Officers of the court include: Lawyers, Judges, Referees, and those appointed; Guardian Ad Litem, Parenting Time Expeditors, Mediators, Rule 114 Neutrals, Evaluators, Administrators, special appointees, and any others whose influence are part of the judicial mechanism.
"Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication". Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23
In Bullock v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated "Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. ... It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function --- thus where the impartial functions of the court have been directly corrupted."
[edit] International crimes
By way of custom of international law, genocide, crimes against humanity, and war crimes are usually not subject to statute of limitations, nor to prescription. This custom has been codified in a number of multilateral treaties. States that ratify the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity agree to not allow limitations claims for these crimes. Article 29 of the Rome Statute of the International Criminal Court states that genocide, crimes against humanity, and war crimes "shall not be subject to any statute of limitations".
[edit] Heinous crimes in the U.S.
Crimes that are considered exceptionally heinous by society have no statute of limitations. As a rule, there is no statute of limitations for murder, especially capital or first-degree murder.
[edit] Continuing violations doctrine
In tort law, if a defendant commits a series of illegal acts against another person, or, in criminal law, if someone commits a continuing crime (like molesting a child over a long period of time, which can be charged as a single offense), the period of limitation may begin to run from the last act in the series. In the 8th Circuit case of Treanor v. MCI Telecommunications, Inc., the court explained that the continuing violations doctrine "tolls [i.e freezes] the statute of limitations in situations where a continuing pattern forms due to [illegal] acts occurring over a period of time, as long as at least one incident . . . occurred within the limitations period".[1] However, in the United States, there has been doctrinal confusion in the courts regarding whether or not the continuing violations doctrine applies to particular violations. For example, the continuing violations doctrine has been ruled to apply to copyright infringement per Taylor v. Meirick 712 F.2d 1112, 1119 (7th Cir. 1983), but has been ruled to not apply per Stone v. Williams, 970 F.2d 1043, 1049-50 (2d Cir. 1992). [2]
· [edit] See also in Ire


Maryam Ruhullah