01 November 2020

The Emotional Gambit and Jail

You'll recall that a few years back I tried to copyright the four reasons that no defendant can ever go to jail. BTW, all you defense attorneys out there are behind on your payments for their use; I figure most of you will have to sell your homes to make your payment by now. Anyway, over time I've come to realize that I've left out one other thing used by defendants in their attempts to avoid jail: The Emotional Gambit.

This epiphany came to me while I was watching a Korean show about their judicial/political system (about 25% of Korean shows seem to involve the judicial system) and the senior prosecutor quizzes a junior prosecutor about the things that defendants say which should never sway a prosecutor.

(1) "I'm sorry."
(2) "Please forgive me."
(3) "I repent."
(4) "I'll never do it again."
(5) "This is unfair."

Then he goes on to warn her (6) "The ones who cry are the most dangerous."

He's advising her before her first solo interrogation. In Korea prosecutors have more responsibilities than US prosecutors. They are tasked with interviewing suspects brought to them by the police and they can work out deals with suspects and victims which, as best I can tell, conclude the case without ever going to court. And, if the multiple Korean prosecutor television shows are to be believed (because we all know TV never get things about court systems wrong), no defense attorneys are involved at any point in that process.

It's a different world. Still, the advice above is something a US prosecutor should consider. So let's go thru the factors.

Crying is something most professionals in a courtroom will see thru jaundiced eyes. We've all too often seen crying as an attempt to manipulate the outcome of a court proceeding. Perhaps as often, we've seen it as a display of anguish at being caught and the fear of punishment (intermixed with the former purpose). On some rare occasions it even appears to be an actual display of remorse for the act. Even then, it is most often situationally prompted remorse. And before people start yelling at me for being a cynical prosecutor unable to recognize that people can be truly remorseful of their wrongful acts, ask yourselves a question: If the lady wailing away in front of the judge who is about to sentence her had never been caught would she be sitting home in her living room crying because she stole $1,500 worth of electronics from Wal-Mart?

Moving on, "I'm sorry" and "I repent" are more specifically expressed variations of the same thing: showings of remorse and refutation of the illegal act. These are basically subject to the same analysis as crying. Again, the most obvious purpose for the apology or refutation is manipulation of the court. To a lesser extent, it can also be seen as a display of anguish at being caught and the fear of punishment, although unlike crying verbal communications probably involve a greater level of manipulation over simple anguish. Again, betimes it appears that defendants are truly sorry and repent their act, but they still usually appear to be situationally prompted. The question to be applied here is the same for crying: If the lady proclaiming her sorrow and repentance in front of the judge who is about to sentence her had never been caught would she be sitting home in her living room with sorrow and repentance in her heart because she stole $1,500 worth of electronics from Wal-Mart?

The remaining three are more open attempts by the defendant to negotiate a better consequence. "Please forgive me" is a bald request for non-punishment. The implication of the request for forgiveness is that forgiveness comes with minimal punishment; it is a request to be treated as the adulteress when Jesus said "Let he who is without sin cast the first stone." As we all recall, no one was left to condemn her and Jesus refused to do more than place the woman on terms of good behavior: "Go forth and sin no more." To put this in more legally cognizable contract terms, the defendant is asking the court to gift her with minimal punishment without even offering consideration.

"I'll never do it again" is similar to "please forgive me" with a small variation. When a defendant says this, it is an open attempt to form a contract with the court. As part of this covenant, she offers to "go forth and sin no more" (be of good behavior). If the court accepts her offer she is asking as reciprocal consideration that the court only impose minimal punishment. 

Finally, "this is unfair" doesn't really concern a contract made by the court; instead it's about one enforced by the court. Assuming it's honestly made, it is a statement that the court's punishment violates the defendant's perception of a societal contract. This could be the defendant perceiving or wishing that the societal contract favors her freedom of action over all ("You can't deny me the right to carry a bazooka."). It could be the defendant perceiving or wishing that rights vested with her instead of another party ("I was going to inherit it in a couple years anyway"). It could be the defendant perceiving that the punishment is greater than a rational cost-benefit analysis would allow ("Five years? For this little charge?"). As well, beyond these more rational reasons; there are a number of less coherent "this is unfair" gripes by defendants which basically break down to the defendant expressing her distress at being caught and held to account.


Of course, it's seldom that any of these six occur without at least some of the others and the big four reasons a person can't go to jail. Most specifically, crying almost never occurs in a vacuum. It's almost always an addition to the other factors and, depending on your judge's proclivities, sometimes a multiplier. Along with the big four, these are all "I did it, but . . ." attempts to sway the outcome.

The most frustrating thing about all of these is that there are certainly people who are truly remorseful and who will never consider undertaking criminal activity again. The problem is that it is nigh unto impossible to separate the wheat from the chaff. Frequent flyers long ago figured out that if they rend their garments and gnash their teeth while wailing about their sorrow for their act they can get a better sentence from Judge X1. And they do it far better than those who are not accustomed to being in court and are somewhat overwhelmed by it all. Those whom we all know are putting on a show often do so far better than those who mean it.

Beyond the manipulators is a group that is as large and probably larger. These are the people I mentioned above who are situationally remorseful. While they are under the thumb of the court and facing sentencing they mean it. They are never going to do it again and they are extremely sorry that they did. They are going to turn their lives around and they mean it. And, having dealt with these people for years, I believe they mean it at the time. Then they get back out on the street. Months later, they're back in front of the court, once again extremely sorry for their act and swearing to the court with zeal of the converted that they will never do it again. And, I believe they mean it then too. It doesn't mean they won't be back in another few months or years in the same mode again . . . and again . . . and again. Lather, rinse, repeat.2

Finally we get to the truly bone deep repentant defendants. While I don't quite believe these are unicorns, I do believe it is incredibly hard for the judicial system to spot them. These most likely come in two flavors: (1) The one-timer, and (2) the out of proportion offender.

The One Timer is the lady who gets a DUI driving back from the office Christmas Party or the guy who shoplifts a book just to see if he can get away with it. If the offense is petty, this person is probably going to get a slap on the wrist and move on with their life.

The Out of Proportion Offender is the petty thief who stabs someone who jumped him, the lady who shot the woman she caught in bed with her husband, or the boat owner who's been told by the harbormaster eight times to tie his boat to the dock correctly and refused to do it resulting in the boat slamming into someone in a kayak and killing them. Here things are more difficult. The person has done an act with a result so drastic that it cannot be merely borne. A jury may nullify and refuse to convict a lady who shot and killed the woman she found in bed with her husband, but a prosecutor should not countenance the killing of a person unless it occurs upon threat of another's life (see "History" here for self defense in Virginia).



Every so often, there is going to be a person among the masses of defendants who is truly remorseful. Discerning that person is nigh unto impossible. Even when you believe a person is showing actual remorse, experience teaches anyone who has been in the courtroom for any period of time that it is almost certainly situationally prompted remorse and will produce little actual change in the person's behavior once she has returned to her life outside the judicial system. Obviously, it is the defense attorney's job to latch onto whatever real/fake/situational remorse his client shows and present that to the sentencing judge to the best of his ability. It's not as obvious that the prosecutor should always entirely discount a showing of remorse. However, a prosecutor should probably start with a fairly strong presumption against believing expressed remorse unless he can picture in his head the defendant being remorseful and repentant even if she'd never been caught and brought to court.  If he cannot, he should leave it to the judge to determine whether this lone defendant among the many is that rare gem of a truly penitent criminal.

1  Hopefully, no one out there who is a legal professional is foolish enough to believe that the frequent flyers don't know the judges just about as well as we do. The FF who wails away in front of Judge X will be stoic and calm in front of Judge Y because it just bounces off Y. Emotional appeal isn't the only thing we see this in. How often do you see d├ęcolletage in front of (female, professional, no nonsense) Judge Y as opposed to (old guy, wandering eye) Judge Q? Examples like this abound. Just because you have a piece of paper on your wall stating you can practice law doesn't mean you're the only one who can scope out the judges.

2  In a way, these are the most frustrating people to watch go through the system. You want to believe that if you could just provide these people with well paying, stable jobs they would become vested in society and stay on the straight and narrow. I'm convinced this would work for a fair portion of them, although only God knows what percentage. There's a reason a guy working a $60,000 a year job is less likely to shoplift from WalMart than the guy living off a government check. Of course, the problem is that most of the people who are situationally remorseful are going to go back out into a world with few opportunities to excel and lots of opportunities to fail.

10 September 2020

Abandon the Police: Options

We've all seen the signs and heard the chants. Although there is a core group which will swear it is absolutely serious about this, most people see it as sloganeering and the use of political passions as an excuse to transfer money to pet social projects. That's all in the political realm and I don't do political here. 

It's up to others to decide whether things like Eugene's CAHOOTS program is a contributing factor to Eugene's very high crime rate or if it mitigates what would otherwise be an even higher crime rate.1 Instead, let's talk about a world in which police forces were greatly reduced. What models have existed in the past and might be used if the police became a minimal force?

Constables: The 1,000 Man Model

The Idea: I was doing some research about constables recently and depending upon what period of time you research you find them having a variety of different responsibilities. At one point, it appears that constables were to be in charge of 100 men (basically the head of a household) and had the responsibility of making sure every man was armed (so he could be called up in levy) and that this group enforced the law in their zone.2

How It Works: An adaptation of this model for the modern world would have to include many more people per constable. Perhaps 1 per 1,000 adults would be a more appropriate. So, New York City, with a population of 8,399,000, would go from having 36,000 officers to 8,399 constables. If we take out those under 18 and above 55 it should lower the number to approximately 6,000.

In this system the constable would make certain that the adults in her area were armed well enough to respond to criminal activity. That would probably mean at least one rifle per adult and ammunition. When a criminal act occurred the constable would call up an appropriate number of these adults who would show up armed and act to take the culprit into custody.

Difficulties: From what little I've read on this, problems back in the day used to rise when a person committed a crime in a town and then went back to his own area because the members of the group in the area he lived in neither felt the need to arrest someone who was living peaceably in their area nor felt inclined to let members of another group come into their area to apprehend the criminal. I'll leave the exact parameters of that issue to anyone out there who wants to do some historical research.

Other issues that would seem probable to arise would be the difficulty of getting people to react quickly enough to respond to significant crimes such as robberies or kidnappings, the free rider problem in which a number of people won't respond because of inconvenience or because they perceive the danger to be too great, and the lack of training of the individuals responding which can make them cause much more damage and harm.

Posse Model

The Idea: This is a modification of the idea above wherein there is a law enforcement officer or two for basic peacekeeping and when a major crime happens he summons citizens generally to chase down the bad guys. If you've seen a western movie you've seen this in action.

How It Works: This is a less organized version of the 1,000 Man Model. The lawman doesn't organize the people in his area or make sure they are armed. He just calls them out when he needs them and assumes they will come and come armed and with ammunition.

There are actually laws still on the books from this model. In Virginia there are two statutes which are artifacts of this system:

§ 18.2-463. Refusal to aid officer in execution of his office.

If any person on being required by any sheriff or other officer refuse or neglect to assist him: (1) in the execution of his office in a criminal case, (2) in the preservation of the peace, (3) in the apprehending or securing of any person for a breach of the peace, or (4) in any case of escape or rescue, he shall be guilty of a Class 2 misdemeanor.

§ 18.2-464. Failure to obey order of conservator of the peace.

If any person, being required by a conservator of the peace on view of a breach of the peace or other offense to bring before him the offender, refuse or neglect to obey the conservator of the peace, he shall be guilty of a Class 2 misdemeanor; and if the conservator of the peace declare himself or be known to be such to the person so refusing or neglecting, ignorance of his office shall not be pleaded as an excuse.

The first authorizes a lawman to order citizens to help him. The second allows judges and prosecutors to order citizens to go get the criminals and bring them back. Of course, neither is much used in the current era of professional police forces, but they're still on the books.

Difficulties: This has much the same problems of the 1,000 Man Model. It would be difficult getting people to react quickly enough to respond to significant crimes such as robberies or kidnappings. There will be a free rider problem in which a number of people won't respond because of inconvenience or because they perceive the danger to be too great. The lack of training of the individuals responding could make them cause much more damage and harm. Beyond these problems is the probability that without some sort of supervision to make sure they even have firearms many individuals might not have a suitable weapon or adequate ammunition to accomplish the job if they are called upon.

Vigilance Committees

The Idea: These are committees of concerned local citizens who come together to decide who the troublemakers are and how to handle them. These have played a part in US history and in some places are looked upon with a sense of nostalgia. Montana even has the identifying logo of one of these committees on its highway patrols' patch (3-7-77).

How It Works: Historically, these were groups that came together privately, made their decisions as to whom the bad people in their communities were, and then acted as a group to deal with the bad people. In some cases this meant immediately going after the individual as a group, but in some cases (the 3-7-77 group listed above) the group would first give a warning so the bad person could clear town. In the end, the committee would apply violence as a group to affect a solution to the problem. This could have been anything from riding the bad man out of town on a rail, tar and feathering him, or just out and out killing him.

Difficulties: Some people look upon these with a bit of nostalgia, but they are incredibly problematic. One may be a necessity if there are no available lawmen, but it essentially makes the committee both jury and enforcer, thus eliminating any meaningful due process. Additionally, there is no guarantee that the committee will represent a majority or even a large portion of the population. An armed committee can impose its will thru fear and firepower even if it is a small minority. This is the realm of know-nothings and klansmen. If any form of organized law enforcement checked by courts is available this it will almost always be superior to this.


 These are the primary other historical models I've been able to find, although I guess Mob Justice could be another. Personally, I view mob behavior as perhaps vengeance, but not justice or policing. Good luck on choosing a replacement for lawmen.


1 This strikes me as an extremely difficult metric to compose and thus will be a matter of political and social philosophy unless and until there is some sort of a decision based on a serious lack of fiscal resources.

Yes, I'm sure this and the other models offered today are filled with all sorts of historical inaccuracies and lack a nuanced understanding of how things actually worked. I'm talking about models here, not trying to get a PhD in obscure historical matters.

18 August 2020

Virginia: Proposed New Laws: DOA's / Left Overs

A few more bills that don't fit elsewhere and I don't expect a single one of them to pass.

HB5012 - Would allow law enforcement officers to sue a person or group that harms him while he is on the job.

HB5020 - Would allow anyone with a concealed carry permit to carry in locations a locality has stated a firearm cannot be carried.


(1) Would remove from the firearm purchase for the question whether a person was involuntarily detained temporarily and agreed to check into a mental institution voluntarily. 

(2) In a personal sale of a firearm from person to person, the bill would remove the class 1 misdemeanor punishment from the buyer if no background check was done at a firearm store to confirm the buyer can legally posses, but the class 1 misdemeanor remains for the seller.

That seems backward. The seller may be willfully blind, but he's not the one who knows the buyer has a felony conviction.

Virginia: Proposed New Criminal Laws: Administration


SB5027 - Would illegalize police unions.   DOA.

SB5021 - Would forbid police union contracts from having provisions about hiring, firing, or discipline.  Probably DOA.

Public employee unions have only been legal in Virginia for a couple years and they've not yet caught on. They are also the reason pointed at for many of the problems in Northern and Western cities and activists complain they stop rogue officers from being disciplined. Those who favor unions also tend to be those who want stricter controls on police. They will likely bury these bills in committee.


SB5030 - Requires the disciplinary record of any officer involved in any case to be made available to the Commonwealth Attorney.

Presumably this is to make prosecutors check the records and report anything which might be used against the officer to the defense so it can be brought up in front of the judge or jury. That's not practical in reality. Most prosecutors aren't going to check officers' disciplinary records unless there is a reason to believe a particular officer has been disciplined. A probable side effect of this law will be that nothing will be noted in an officer's disciplinary record unless it is so bad that the officer is going to be fired.

SB5038 - Would create Mobile Crisis Co-Response Teams to deal with mental health issues during calls to respond. Mid-Level chance to pass.

This isn't a bad idea per se and extra resources provided to a locality are a good thing as long as expectations are realistic. These programs don't reduce crime, they just provide extra resources for dealing with a situation. They also cost money and that's probably the greatest impediment to this bill. It will either not pass or be passed with insufficient funding and staffing.


SB5014 - Requires crisis intervention team training for officers (training in dealing with those having mental issues). 

Not a bad idea as long as it is not just something imposed on law enforcement and done by repetition and rote every year so that on years 4, 5, 6, and 7 it's substantively the same as it was in year 1 and provides no actual benefit as it gets tuned out.



(1) Bans law enforcement from taking free military equipment being given away by the federal government. 

For years now, the military has been dumping this equipment on police departments who take the gift and then have 5 military vehicles sitting in the back lot rotting away. In general, I'm okay with departments not getting any more of these.

(2) Requires officers to get training in de-escalation techniques. 

Because this isn't happening already? Why do I get the feeling that there are members of the General Assembly who think officers approach every situation immediately shooting from the hip and screaming "Let God sort them out!"

(3) Requires standardized training across Virginia for officers.

(4) Police departments (not sheriffs) can't get state funds if they don't turn in paperwork having to do with tracking biases, engage in biases, or take equipment from the US military.

(5) A law enforcement agency can't hire someone unless it has done a background check on her employment at any other agencies.

 (6) Requires local law enforcement to report to Richmond if an officer is fired or quits because she violated laws or policies. It also requires this if an officer is merely placed on a Brady list.

That last is interesting considering that a prosecutor who maintains a Brady list will now be harming the officers' certification without due process.

SB5035 - Allows localities to adopt Civilian Review Boards to watch over police departments.

I don't have any particular problem with this. Note that it does not apply to sheriffs - probably because they already have a citizen review board (the voters). This brings more democratic accountability to police departments. It would be interesting to see how many mayors and city councils would cede this power to a citizen board.

SB5044 - Sets the time period for investigation of a citizen complaint to that of an outside accreditation agency.

Not sure what the time frame is because the proposed statute doesn't say.

17 August 2020

Virginia: New Proposed Laws: Attorney General Involvement


SB5040 - The bill will allow the Attorney General to participate in prosecutions of officers charged with a homicide if the local prosecutor allows them to.


SB5024 - Allows the AG to investigate claims of law enforcement behavior violating "rights, privileges, or immunities secured or protected by the laws of the United States and the Commonwealth", try to resolve these problems, and sue to enforce against law enforcement agencies.

This is similar to the federal AG intervening in local law enforcement. It will be interesting to see how this plays out intrastate. In a federal context my impression is that the feds swoop in, declare local departments to be in violation of a particular interpretation of the constitution, and rely on the fact that the County of Pitcairn can't possibly stand up to the federal government to force the locality to conform to the interpretation whether or not the courts would support that interpretation. However, the AG may not have that level of intimidation and greater power levels to rely upon.

Virginia: Proposed New Laws: Changes to Court Procedure

SB5030 Unless a judge allows a variance, search warrants would be served during the day after the officers announce their presence and purpose. If the officers do the search at night or without the knock and announce (and do not have judicial approval for the variance) then the evidence is not admissible in court.

SB5013 - Would allow marijuana citations to be prepaid.

SB5033 - (1) Would first define the "good cause shown" needed for a nolle prosequi , but do so in such vague terms that just about anything could be argued to for under it (or against). Wouldn't change much. (2) Would codify the taking of cases under advisement, but would require prosecution agreement. Currently, a judge can do it without approval from a prosecutor and changing that may not be constitutional as Starrs says it is an inherent power of the judge rooted in the constitution.

SB5007 - Beyond the attempt to dismantle jury sentencing mentioned previously this bill contains a couple other provisions:

(1) If a jury hangs and a mistrial is declared the defendant would not be retried on any of the unresolved charges. 

Don't like dynamite charges now? Wait until this goes into effect. Judges won't let jurors go until they resolve everything no matter how deadlocked they think they are. Actually, I don't have a problem with an end being declared at some point, but perhaps it should be after two juries deadlocked so that one rogue juror (or corrupted juror) cannot spike a trial because "the defendant's a Gemini; Gemini would never do this sort of thing; I don't care what the seven nuns testified to." Or, perhaps the judge could ask the numerical breakdown of the deadlock and if more than three are for a not guilty finding declare a permanent mistrial.

(2) Prosecutors would not be able to demand a jury during a declared emergency. As discussed in the last post, this is most likely not constitutional.

SB5043 - Would allow expungement of conviction of (1) under 21 possession of alcohol, marijuana, or tobacco products, (2) under 21 possession of alcohol, or any possession of marijuana or drugs if the charge has been deferred and dismissed under a first offender program, and (3) someone who received a simple pardon unless they've been convicted of a violent crime, drug distribution, and some others.

Nothing particularly troublesome there.

SB5046 - Would eliminate all mandatory minimum sentences.

While the mandatory minimums serve a purpose in some crimes, they did get expanded too far. It's a shame they're taking a nuke 'em all approach instead of trying to address this in a more nuanced manner.

Virginia: Proposed New Laws - Removing Democracy from the Courtroom

SB5007 - This statute would remove juries from sentencing in Virginia unless the defense asks for a jury sentencing. It is probably the most anti-democratic bill of the year, removing one of the best aspects of Virginia's jury system: local democratic participation in choosing a proper sentence reflective of community norms. And why is it being removed? It's a blatant attempt to shift power to defendants at the expense of the People.

The counterargument to this would be that jury sentencing is an impediment to the exercise of the jury right by defendants and often a threat usable by prosecutors because jurors are expected (in some cases required) to sentence higher than a judge and judges rarely reduce a jury sentence even though it is within their power (because a jury sentence is the will of the citizens). This is easily solvable. Have the advisory sentencing guidelines be published to the jury prior to their sentencing deliberations so they have the same parameters to start from as the judge would. Don't inform them of any mandatory sentence a judge could suspend and if they sentence lower than the mandatory have the judge impose the mandatory and suspend all but the jury's sentence. These two steps would make the jurors what they are intended to be, the voice of the citizenry in the courtroom.

The desire to get rid of jury sentencing is elitism writ large. Attorneys don't like it because it is unpredictable. Academic types hate it because it is reflective of the will of the local community rather than what is imposed as a one size fits all solution from outside. Defendants might get a heavy sentence for theft because the community despises theft despite it's relegation to almost a non-crime by legislation and sentencing guidelines. Prosecutors might get a light sentence for a drug distribution (particularly if the fix I suggest above was implemented) because the citizens don't see a problem with buprenorphine. Both sides should be forced to face sentencing juries and if I had my way they would whether the defendant pled guilty or not for all violent and sexual felonies. Trying to suppress it is a failure and anti-democratic.


It also appears that allowing jury sentencing only at the beck and call of the defendant is violative of Virginia's constitution. Jury sentencing has been a part of Virginia law since it abandoned death as the sole punishment for felonies in 1796. Our constitution lays out the situation in which a defendant can be sentenced by a judge:

In criminal cases, the accused may plead guilty. If the accused plead not guilty, he may, with his consent and the concurrence of the Commonwealth's Attorney and of the court entered of record, be tried by a smaller number of jurors, or waive a jury. In case of such waiver or plea of guilty, the court shall try the case. Art I sec. 8.

The court is authorized upon a plea of guilty to "try the case." The logical reading of "trying" at that time is the sentencing. This, read in conjunction with the history of Virginia jury trials having jury sentencing as long as the ability to be sentenced to something other than death has existed in Virginia, establishes a strong case that jury sentencing is part of any jury trial herein. Reading further into the language above, juries can only be waived by the defendant with the agreement of the Commonwealth and the judge. Nothing allows the defendant the right to pick and choose those parts of a jury trial she prefers to take place.

16 August 2020

Virginia: Proposed New Laws: Trying to Bring Back the Parole Travesty


Members of the General Assembly want to bring the parole monster back to life.

HB5015 - The mildest of the proposed parole bills, it requires the parole board to contact the victim (not just make an effort) and allows a victim to testify before the parole board virtually.

HB5035 - Would exclude 1st degree murder and sexually violent offenses from eligibility for geriatric parole. Probably DOA.

SB5018 & SB5034 (Elitist~3, Defense~3, Rights~4) - This allows inmates who are "terminally ill" or "permanently physically disabled" to get parole with no requirement that they have served a certain amount of time or be of a certain age. It comes from a good place in that it lets people out who are in a bad way if they can get past the parole board (which will presumably stop bad offenders from getting out). It will also be subject to all sorts of gamesmanship.

SB5016 - Turns parole back on and makes it available to all persons sentenced when it was not available. This is full on taking away sentencing as it was done by the people through juries and as it was promised to the people; we will have been lying to sentencing juries for 20 years because we have told them their sentence would not be subject to parole. It is removing sentencing from the jurors and judges and vesting it in a sentencing bureaucracy.

Parole was abolished in Virginia in 1995. There were good reasons to do this. Not that I want to adopt the old political slogan, but its corollary is true: under the parole system courts lied to victims and citizens. Ten years didn't mean ten years. It meant whatever the parole board decided it meant under guidelines both statutory and self created. I've been told stories from prior to 1995 of defendants getting misdemeanor, non-parole convictions because it was accepted that they would serve more time on them than felonies. There was no final sentencing hearing, only a string of potential end of sentences so that the victims would never have finality and be forced to relive the experience every time the guilty party came back before the parole board. It also creates a perverse incentive for the guilty party to keep contacting the victim in attempts to win her over or to engage in worse activities so that the victim stopped being an obstacle to his freedom. Parole is a bad idea that benefits no one but the guilty and those who want to save money by emptying prisons.

SB5034 - This puts in place a convoluted credit system wiping out most of the sentence for inmates not convicted of violent crimes. In the most likely classification, a person sentenced to five years would serve 17 days per month in the first year (57%), 14 days per month the second year (47%), 10 days per month of the third year (34%), 5 days per month the fourth year (17%), and 15 days per month in the fifth year (50%). Working that out is something of a nightmare, but I think 5 years would be killed with a little over 2.

That's such a bad law, imposing from above a serious cut in sentencing that is contrary to the judge's sentence and/or the democratic will expressed in a jury's sentence, that I have to wonder if it's not an attempt to offer a really, truly horrendous law in order to get the merely very bad parole law passed.

Keep your calculators close folks. If they pass either of these statutes we're all going to become junior accountants as we figure out what has to be imposed to get the actual sentence which should be served. One wonders if the sentencing guidelines, already adjusted to be about where parole would have put someone prior to 1995, will be adjusted upwards to reflect the re-imposition of parole. Logic would dictate that it should.

Virginia: Proposed New Criminal Laws : Police on the Street

So, the Virginia General Assembly is going back into session on Tuesday, 18 August 2020, for a session which I believe was originally meant to be about fiscal problems caused by the 'Rona, but has mutated into a session which I've heard called everything from the anti-police session to the criminal law reform session. As it currently stands, the bills introduced have ended at SB5047 and HB5044 (17 August 2020). I won't be surprised if all sorts of bills drop tomorrow, but there are a limited few as of today and here's my short breakdown and off the thumb analysis.


 Changing Substantive Law Regarding Officer Protections

SB5029 - This bill would raise the bar for felony convictions on attacking a police officer, requiring an actual battery (not just an assault) and "a visible bodily injury." It will also do away with the mandatory minimum six months in jail upon conviction.

To be fair, this statute needed a little more nuance. A person who missed when she threw a pebble at an officer faced the same punishment as someone who jumped out of an alleyway and hit an officer with a crowbar. However, it would probably have been better if they'd left the mandatory time in for a class of more serious offenders.

Flaws: The visible bodily injury would seem to leave out things like broken bones or torn ligaments or internal organ damage all of which could be as bad or worse than a visible injury. 

Unintended Consequences: The removal of the mandatory minimum six month sentence will probably result in more felony convictions. Previously, there has been a strong incentive to lower lesser batteries to misdemeanors because six months was a disproportionate sentence. That will be gone with the passage of this statute.

 SB5010 - This statute would increase the punishment for assaulting or battering a police officer to a mandatory minimum year or two years if it happens during a state of emergency.

DOA - Less chance of passing in the current General Assembly then I have of inheriting Bill Gates' billions (I'd be satisfied with just 1 or 2, Bill).


Changing Police Street Enforcement Procedures

 SB5002 - This bill would make it illegal for officers to use "choke holds."

This method of disabling a combative individual has held on in law enforcement because it is an effective means of bringing down someone without resorting to disabling sprays, electric shock, metal batons, or bullets. This is just the General Assembly removing choke outs from the use of force continuum. It may well have the consequence of hastening the officer up the continuum to more drastic means of gaining control with higher potential lethality, but that's the General Assembly's call.

HB5029 - This bill would make an officer failing to stop another officer from using unlawful force guilty of a class one misdemeanor or a class 6 felony if deadly force is used or a class 4 felony if the citizen is killed or suffers a permanent injury.

The difference between necessary force, unlawful force, and deadly force is going to be highly subjective. This could also subject officers to gamesmanship as yahoos go to the magistrate and try to take out misdemeanor charges against officers.


(1) Forbids choke holds.

(2) Forbids shooting at a car unless it is a danger to a person.

(3) Forbids use of deadly force unless necessary. Lists circumstances in determining whether necessary including whether the officer tried to de-escalate.

This is dumb. It assumes officers don't already abhor killing someone. I've known officers involved in fatal shootings; they are shaken by it. Also, they always attempt de-escalation as best the situation allows it. 

(4) A police officer witnessing another officer using unlawful force shall intervene and report the unlawful use of force to her superiors.

(5) Punishment as proposed under this bill for 1 thru 4 would be disciplinary action.

SB5029 (0, Defense~5, Rights~5) - This bill would make several offenses "secondary offenses." In other words, it makes it illegal for officers to act against these illegal activities unless another offense occurs first. This is the General Assembly trying to eliminate what the defense bar has called for years "pretext stops." It affects bad mufflers, bad license plate lights, noisy exhaust systems, illegal window tinting, items hanging from rear view mirrors, and possession of marijuana. Furthermore, it makes any evidence found after a search pursuant to the odor of illegal marijuana inadmissible in Virginia courts.

That last part is interesting and may be constitutionally suspect. Can the General Assembly tell courts to ignore evidence found pursuant to a search based on solid probable cause of illegal activity? A little research makes me tend to think they can, See Greenwood, but I don't see how that can be a universal rule. Imagine if the General Assembly were to write a law stating that although rape is illegal no evidence found pursuant to a search based upon probable cause that a rape occurred is admissible in court. I don't see how that could stand, but I don't have the time to sit and puzzle out a valid rule that would apply to both situations equally. There might be some sort of Moore-ish work around. Maybe after I finish breaking down all these potential statutes I might have time to come back to it.

08 August 2020

The New Jury Selection Statute (Virginia)

Last time, I used the new jury selection statute as an example:
The court and counsel for either party may inform any such person or juror as to the potential range of punishment to ascertain if the person or juror can sit impartially in the sentencing phase of the case.
That part of the statute is just rife with potential for abuse. To begin with, nobody really believes the part proclaiming its purpose. I would respect this a lot more if they'd just stuck a period after punishment and struck the rest of that sentence. I don't expect legislators to admit that they are trying to bake in potential jury nullification, but leaving it blank would have been better than adding the wink-wink, nudge-nudge "sure we mean that it's only used for sentencing purposes" language. There are other possible solutions to the problem identified which would have accomplished the same thing without risking jury nullification:
§ 19.2-00000: Sentencing Fairness

Upon motion by the Defendant after a jury has found him guilty, the judge shall inform the jurors of the sentencing range and question the members of the jury to ascertain if any individual jurors cannot set a sentence within that range. The judge shall remove individual jurors who cannot set a sentence.

Should the number of jurors remaining be seven or more the jury shall retire and determine an appropriate sentence.

Should the number of jurors remaining be less than seven the judge may proceed directly to sentencing without a jury recommendation upon the agreement of the defendant, attorney for the Commonwealth, and the trial judge. If a judge does not proceed directly to sentencing a new jury shall be empaneled specifically for the purposes of determining the sentence.

Nothing in this statute shall authorize either the defendant or the attorney for the Commonwealth to question the jury.
But, I can here someone stammering, that removes people from the jury who might argue for a lesser sentence because they don't agree with the sentencing range. The only problem with that statement is that if the statute actually adopted above works the way it proclaims it is supposed to it would eliminate the same people. The one I propose would be a trade-off. In order to receive a pristine finding in the culpability phase it has a potential to sacrifice several jurors in the sentencing phase who, if voir dire is done properly under the adopted statute, would never be there to begin with. So, it doesn't eliminate a mindset that the General Assembly proclaims it wants in the sentencing phase; it eliminates a mindset which the General Assembly has stated it wants eliminated. Of course, the statute I propose wasn't the one adopted so let's look at how the actual statute can be applied.


Best Practices


 As I see it, the defense should probably make a motion in limine to have the judge introduce the possible punishment and ask a general question as to whether there are any jurors who cannot apply it if there is a conviction - foreclosing the parties from asking questions about the sentence. This should probably go something like this:
Judge: The offense charged today is the illegal hunting of snipes, a felony which carries a punishment of between 5 and 40 years incarceration. Does anyone believe that if Mr. Jones is found guilty they will not be able to impose that sentence?
A judge will, and should, want to do this as a means of controlling the chaos in his courtroom by foreclosing any games played around the introduction of the potential sentence by the parties.

The defense will want this because the defense isn't actually interested in striking jurors who disagree with the level of sentence required for a charge considering the set of facts in the particular case. Presuming honest jurors, those jurors who disagree with any punishment for snipe hunting or think snipe hunting should be punished with a fine and not a felony will be struck even from the judge's question. However, by having the question come from the judge and forbidding the parties to question jurors about this the defense would preserve jurors who generally agree with the sentence provided by statute, but would think that it's not appropriate if all the prosecution can show is the defendant shot one snipe that was in his back yard.

On the other hand, if the jurors are going to be informed of the sentence range, the prosecution almost surely wants to have questioning of the jurors in this area to be done by the parties - specifically by the prosecution. Again, assuming honesty from the jurors, those jurors who disagree with any punishment for snipe hunting or think snipe hunting should be punished with a fine and not a felony will be struck even from the judge's question. However, the prosecutor has exactly the opposite motivation of the defendant. She wants to eliminate those jurors who generally agree with the sentence provided by statute, but would think that it's not appropriate if all the prosecution can show is the defendant shot one snipe that was in his back yard. She badly wants to ask a question something like this:
Ladies and gentlemen, the judge has told you that snipe hunting carries a punishment between 5 and 40 years. Snipes are so rare that almost none of us have seen one and the General Assembly has determined that they are a species requiring a high level of protection because they are endangered. If the Commonwealth were to show beyond a reasonable doubt that someone knew that this creature - so rare it is almost mythical - was coming into his backyard every couple days and that person didn't contact animal control or conservation officers or even try to capture the animal himself to release it into the wild but instead sat in wait and shot the animal - if the Commonwealth proves all this, could you impose the 5 to 40 year sentence? Please raise your hand if you can. Now please raise your hand if you cannot.


When I first saw this statute, I figured the best way for it to be handled is for the judge and the judge alone to ask the question. However, as I've mulled it over, I've come to the conclusion that this would unbalance the trial process. If telling the jury and limiting questions to the judge is the procedure adopted in the courtroom it is at best neutral and at worst introduces a factor in favor of the defendant that has nothing to do with the defendant's actual culpability. Worse, unless the judge has in depth knowledge of the facts of the case he probably shouldn't have pretrial he won't be able to determine if it introduces a prejudicial collateral issue. Therefore, I've changed my mind on this.

I think best practice under this statute will probably be as follows:

1. The Judge tells the jurors what the sentencing range is.

2. The judge asks generally if the jurors would have difficulty in imposing a sentence in the range.

3. The prosecution asks questions similar to the one above (during normal voir dire). 

4. The defense has an opportunity to ask questions (again during normal voir dire)


As to 3 above, this might well be characterized as "witherspooning lite." Witherpspooning has been the practice of questioning jurors in order to eliminate those who categorically will not impose the death penalty. However, in most other violent or large theft cases the prosecution probably shouldn't bother to ask questions about the range of punishment. After all, you aren't going to find many people who think that heavy punishment should not be imposed in ponzi schemes, rapes, murders, etc. It's only in cases where the prosecutor believes the defense is shooting for jury nullification based upon a possibility that the jurors will decide the potential sentence is too high that a prosecutor should engage here.

As to 4 above, I'm not sure a defense attorney should engage here at all. After all, he's not able to say out loud that the sentence range is so high that his client shouldn't be convicted. That is grounds for a mistrial if said after the jury is sworn in and if done during jury selection it's grounds to dismiss a tainted jury venire. While there is probably someone more clever than me who may figure out a way to raise a pertinent question that colors inside the lines, IMHO it's a situation where the foundation has been laid by the judge and the prosecution has probably built somewhat on it. After all, the prosecutor had to point out that only one snipe was killed in his question to the jury. A competent defense attorney can work with that in opening statements, questioning, and closing saying "one single snipe" a lot so that the insignificance of the crime sinks in without ever mentioning the range of punishment.

About the only time the defense should raise this is when the judge and prosecutor fail to. If the judge refuses to state it during her brief initial voir dire ("I believe the parties can handle this adequately.") and the prosecutor commits malpractice by not addressing it in his voir dire then, if the case is one in which the facts may seem minor compared to the range of punishment, the defense should raise the point.
Snipe hunting carries a punishment of 5 to 40 years. Does anyone have any problem with that?

The first sentence would be said nice and loud; the second - not so much. Basically, the defense wants to get the information out there, but doesn't want to strike anyone who actually has a problem with that sentencing range because they would presumably come down on the side of the defense.


If we ever get back to doing jury trials (sometime in 2025 after they've built cones of silence for every juror), it's going to be interesting to see how the judges handle this and what case law develops.