Tuesday, June 27, 2006

Update on the Helder Case

A while ago, I wrote in "Jan Helder - Sympathy for the Devil?" about the fact that I know Jan Helder, the lawyer who had been found guilty by a jury of soliciting a minor, but whom Judge Whipple had refused to convict because the "minor" was actually a grown detective. In my post, I agreed with Judge Whipple's analysis of the law, and voiced my opinion that the law should have been more clear.

In an opinion issued yesterday (pdf file, the 8th Circuit ruled that the law was clear enough, and reversed Judge Whipple.

There may be a few motions to file, but this effectively is the end of the line for Jan's attempts to avoid jail time.

26 Comments:

Anonymous travelingal said...

Not knowing the details of this case (but I did read the appeal) it seems to me he had every intent of having sex with a child. That's pretty scarey stuff. It makes me wonder what he has done in the past. At least he won't be doing it again, ever, hopefully.

6/27/2006 10:57 AM  
Blogger Xavier Onassis said...

I mostly agree with travelingal.

Mostly.

But it comes down to intent.

Was he actively searching for an encounter?

Or did the cop advertise that "she" was looking for an encounter.

I think that makes a difference.

6/28/2006 9:18 PM  
Anonymous Anonymous said...

XO:

So, if the minor asks for it, its OK for you as a grown man to give it? I don't think so.

Don't try that excuse with the police or the judge. You and Helder will find yourselves watching (or washing) each other's back in the big house.

RM

6/29/2006 10:55 PM  
Anonymous Anonymous said...

Yes, he was actively searching for an encounter. He entered into the conversation, used mapblast to get directions to the house and drove there. If he hadn't been so eager, the deputies would have been in place and he would have been arrested inside the house. He also immediately returned to his office and tried to cover it up by taking his photo out of his profile when he realized the deputies had seen him.

The federal prosecutor has filed a motion to have Jan held without bond pending sentencing. As I read it, the judge will have no choice but to incarcerate him during the sentencing process. Jan has until 07/12/06 to respond. The blood is on the water . . .

7/05/2006 7:40 AM  
Blogger Debra said...

Jan Helder is NOT guilty of any FEDERAL crime.

The federal statute, as set forth in the original post, criminalizes ATTEMPT. Helder was indicted for "ATTEMPTED enticement." Congress did not define the term, "ATTEMPT" as used in the statute.

When Congress fails to define a term that otherwise has a clearly established meaning at common law, then our federal courts must apply the common law. See Morissette v. United States, 342 US 246, 263 (1952):

"[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed."

The essential elements of the crime of attempt, at common law, are 1) mens rea--specific intent to commit the crime (e.g., enticement of minor); and 2) actus reus--an overt act that comes dangerously close to the actual commission of the crime [e.g., enticement of a minor]. Although the overt act does not need to be the "last act" necessary for the commission of the crime before criminal liability for attempt will attach, the overt act must be an act that is likely (probable) to be successful in accomplishing the crime unless foiled in some way.

At common law, the OBJECTIVE focus--with respect to the critical actus reus element of the crime of attempt--was on the dangerousness of the CONDUCT without reference to the actor's SUBJECTIVE state of mind. Accordingly, an actor's belief could not make something a crime that is NOT a crime in the absence of that belief.

An example is the crime of receiving stolen property. It is not a crime to receive property that is NOT stolen. Accordingly, an actor's erroneous belief that the property is stolen cannot make a crime something that is NOT a crime in the absence of that belief. It is impossible, as a matter of law (as developed by the common law), for an actor's conduct to come dangerously close to the actual commission of the crime of receiving stolen property when the propety isn't stolen. At common law, an actor could not be convicted of an ATTEMPT to receive stolen property unless the property was in fact stolen.

The same holds true for Helder's case. His erroneous belief that he was enticing a minor doesn't make a crime when no crime exists in the absence of that belief. It is not a crime to entice an adult. It is impossible for Helder's conduct to come dangerously close to the actual commission of the crime of enticing a minor when he didn't entice a minor. Under the common law (the law that our federal courts are mandated to apply when Congress fails to define a term in a criminal statute), Helder cannot be held criminally liable as a matter of law.

The problem we have in federal prosecutions of attempted crimes is that our federal appellate courts have legislated from the bench--in violation of the separation of powers doctrine and the Supreme Court rule set forth in Morrissette (quoted above)--and adopted the Model Penal Code (MPC) formulation of the law of attempt to replace the common law.

The MPC is NOT the law anywhere in the United States. It is simply a model law that a legislature is free to consider and adopt or reject in whole or in part. Some state legislatures have adopted, in part or in whole, the MPC formulation of the law of attempt, but Congress has not. The drafters of the MPC were members of the American Law Institute--they are NOT elected legislators sitting in some legislative body and making laws to represent the will of the electorate. Only our elected representives in our state or federal legislative bodies have the power to make policy choices that are reflected in our laws.

Under the MPC, the focus is shifted from the dangerousness of the actor's conduct (an OBJECTIVE standard of guilt) to the dangerousness of the actor's mind (a SUBJECTIVE standard of guilt). The essential overt act element of the crime was REDEFINED to mean a substantial step that strongly corroborates the actor's criminal intent or purpose. (In substance and effect, the MPC has eliminated the actus reus [conduct] element of the crime because the entire subjective focus is on the mens rea and any act that corroborates the mens rea.) Accordingly, under the MPC formulation, an individual such as HELDER may be convicted for an attempted crime based upon his erroneous belief even when it is improbable or impossible for his conduct to ever come dangerously close to the commission of the actual crime.

However, again, CONGRESS never adopted the MPC formulation of the crime of attempt. If CONGRESS desires to abolish the common law meaning of the term "attempt" and replace it with the MPC formulation, CONGRESS must say so explicitly. The power to define FEDERAL crimes belongs exclusively to CONGRESS.

Inasmuch as the JUDICIAL adoption of the MPC formulation of the law of criminal attempt is an ultra vires act--usurps an exclusive legislative function--it currently is NOT a cognizable crime to attempt to entice a minor when the person enticed was NOT a minor. Although our federal courts have legislated from the bench and adopted the MPC formulation, it is unconstitutional for our courts to do so. Helder was convicted in violation of due process and the separation of powers doctrine.

7/30/2006 4:31 PM  
Anonymous Anonymous said...

Does anyone know if Jan Helder has been sent to prison as of this date?

8/03/2006 12:13 PM  
Anonymous Anonymous said...

Mr. Helder is playing out his string in front of the 8th Circuit. He motion for rehearing En Banc has been denied as well as a motion for rehearing by the panel. The only thing left if the 'Hail Mary' in the form of a Writ to the Supreme Court which will most likely also be denied [as it was in Blazek, the companion case]. After that, all that is left is the issuance of the mandate. At that time, the Western District of Missouri will most likely grant the motion to detain pending formal sentencing. So the answer is 'NO' he is not incarcerated as of this date, but is stepping closer every day. He has been suspended from law practice and is shutting down his offices.

8/07/2006 10:44 AM  
Anonymous Anonymous said...

The phone at the Helder Law Firm was answered this day.... this sad and awful situation has a little more time to go on. Hopefully his family will sutvive this better than he will.

8/18/2006 1:38 PM  
Anonymous Anonymous said...

I am aghast that this is still going on and I assume he still walks the streets freely during this time? If it was re-instated why does he not serve time until something happens?

8/23/2006 1:38 AM  
Anonymous Anonymous said...

Why is it that there is no news of Mr. Helder being incarcerated???

8/24/2006 5:05 PM  
Anonymous Anonymous said...

Here is an update on Mr. Helder's case. The US Attorney had filed a motion for detention pending sentencing. After the 8th Circuit issued the mandate, there was a detention hearing. Judge Whipple took the matter under advisement. Judge Hays was assigned to do an independent review of the motion. She recommended the motion be granted and Mr. Helder be detained. Supposedly his website was pulled, but I can still access it at www.helderlaw.com.

I feel for his wife and children. Whether this was a part of predatory pattern or just a bored yuppie trying to add some kinky spice to his tedious middle-class existence, his actions were a travesty and a stain on the legal profession. His detention is immiment, but not soon enough for me.

8/29/2006 10:31 AM  
Anonymous Anonymous said...

http://www.helderlaw.com/ doesn't get you the Helder Law Firm any more... G-d Bless, help and watch over his children.

8/29/2006 10:07 PM  
Anonymous Anonymous said...

Hey Debra... maybe you can take over his case load? Whatever Mr. helder did or didn't do, his intentions appear to be clear enough. That you can defend this is beyond me.

8/29/2006 10:09 PM  
Anonymous Anonymous said...

http://www.kansascity.com/mld/kansascity/news/15384934.htm

8/29/2006 10:10 PM  
Anonymous Anonymous said...

I don't know how many of you have children but it really pisses me off when the perverted dipwads try hitting on my children. It should be illegal for an adult to talk sexually to a child, yes there are extenuating circumstances such as sex ed but thats about it.

9/14/2006 1:10 PM  
Anonymous Anonymous said...

I don't know how many of you have children but it really pisses me off when the perverted dipwads try hitting on my children. It should be illegal for an adult to talk sexually to a child, yes there are extenuating circumstances such as sex ed but thats about it.

9/14/2006 1:10 PM  
Anonymous Anonymous said...

Jan Helder is being held in Bates County Jail, located in Butler Missouri. His intake date was 08/29/06. He will remain there until sentenced in federal court.

10/07/2006 9:55 AM  
Anonymous Anonymous said...

Update: Helder was sentenced to 5 years in federal prison today.

11/29/2006 10:16 PM  
Anonymous Anonymous said...

Has he been tried by both Federal and State now or just the one? One has to wonder is his wife a saint or a fool for staying with him and his perversions. What does that teach their children as a morale lesson as well?

3/01/2007 4:38 PM  
Anonymous Anonymous said...

It teaches his children that everyone makes mistakes and can make amends for those mistakes to the people he has hurt (wife and children). In my opinion, Helder's wife has shown incredible character by staying with her husband. It would be much easier to jump on him with the rest of you lunatics who exist under the delusion that you have never erred in your own lives. Everyone screws up in life! Fortunately, most of us don't have it pasted all over the internet and the slime bag media.

Grow up!!

8/16/2007 10:25 AM  
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