25 March 2017

What's in a Bond (Hearing)?

The setting of a bond is one of those things prosecutors and defense attorneys skirmish over all the time. Should the Pitcairn Axe Murderer get a bond? No. Should someone charged with a first-time reckless driving misdemeanor because of speed get a bond? Almost certainly, yes.  But what about the serial shoplifter who goes to various stores and walks out with a pack of gum one day and an Enquirer the next week and Snickers bar the week after that? These are the cases all us attorneys get together and conspire to give judges migraines over.

Those of you who watch a lot of TV hear "bail" talked about all the time. In a Virginia court you'll almost never hear that word. Instead you'll always hear "bond" talked about. For the sake of clarification, here are the basic definitions. Bail means being on pretrial release. Bond is the amount of money paid to get released. As a practical matter the word "bond" has been used to mean both of these things wherever I've practiced in Virginia (your mileage may differ) so you will hear me, other Virginia attorneys, and frequent fliers saying things like "he's on bond."

CONSTITUTIONS: To begin any discussion of this sort of topic we must look to the constitutions. It does not appear that the federal constitution's requirement that "Excessive bail shall not be required" has been applied to the States, although it is probable that all States have adopted similar requirements under their constitutions. Virginia adopted the a very similar constitutional provision - only leaving out the "shall." In Article I section 9 it states "That excessive bail ought not to be required." Both of these are lifted from the English Bill of Rights of 1689 which stated "that excessive bail ought not to be required." Note that this was not intended to declare a universal right to bail; it was meant to close loopholes used to keep those entitled to bail from being able to exercise that right. There is not and never has been a universal right to bail.

Beyond all that, Virginia's constitution demands more balance than the federal constitution. Article I section 8-A states that victims have "The right to protection from further harm or reprisal through the imposition of appropriate bail and conditions of release.

Once you get past the generalities and purpose of the constitutional provisions there must be a manner in which they are applied. There's a two part test in Virginia. First, a judge must decide if the defendant should be on bond. Second, if a judge decides that bond is appropriate he must decide what conditions of pretrail release are appropriate.

SHOULD THERE BE A BOND?:  Under 19.2-120, a person is entitled to bond unless (1) the judge finds that there is probable cause: (a) the defendant is unlikely to appear, or (b) the defendant is likely to hurt himself or others, or (2) the defendant is charged with any of a number of offenses listed in the statute (in the main violent and sexual charges, being already on bond for a felony charge, as well as the second time dealing a schedule I/II drug). In the second case a defendant can still get a bond, but he must overcome a presumption against bond (presumably to a preponderance standard).  (2)(c) The factors which the General Assembly has laid out to use in deciding whether the presumption has been overcome are: (i) nature and circumstances of the charge, (ii) the history and characteristics of the person, and (iii) danger to the community upon release.  Also note that there are similar presumption against bond provisions for illegal aliens under 19.2-120.1.  My experience has been that while some judges hold harder to the rebuttable presumption than others, all will decide that it has been overcome at some point.

WHAT KIND OF BOND SHOULD THERE BE?:  (A)  Conditions:  If a judge does decide to let a defendant out on bail there are several conditions he can set per 19.2-123, but the only ones that really mean anything are (1) the amount of bond to be posted, and (2) the possible imposition of pretrial services. The first of these is by far the more significant as pretrial services really can't stop someone from shoplifting or going to beat up a witness or running away to Oklahoma City; the bars of the jail can.  (B) Requirement: In setting conditions the judge is required to accomplish two things: (1) Assure the defendant comes back to court, and (2) insure the defendant is on good behavior prior to trial.  19.2-121.  (C) Considerations: In setting these conditions the judge is to consider (1) nature and circumstances of the crime, (2) use of a firearm, (3) weight of the evidence, (4) ability of the defendant to pay bond, (5) character of the defendant including (a) family ties, (b) employment, and (c) if she's in school, (6) length of residence in the community, (7) criminal record, (8) any prior failures to attend court, (9) whether the defendant is likely to try to obstruct justice, and (10) other factors.  19.2-121.

All the factors in setting a bond make sense except (4) above (19.2-121(iv) in the statute).  That one is problematic. On the one hand, it is arguably a sound consideration in determining if a bond is excessive for that individual. On the other hand, there is nothing in Virginia's constitution (or the 8th Amendment) that says "excessive for that individual."  Let's assume a defendant stands charged with malicious wounding and judge first decides that there has been a rebuttal of the presumption against bond then decides based upon all the other factors that an objectively appropriate bond is $10,000 (secured by cash or property).  If the defendant protests that he can only make $5,000 bond and the judge lowers it to $5,000, isn't he violating both (1) the requirements of the statute and (2) the requirements of Art. I sec 8-A of the Virginia constitution? After all, he has set the bond which he objectively believes will assure appearance in court and good behavior prior to trial - which would include protecting the victim from further harm or reprisal as required by the Virginia constitution. Lowering that bond because of the defendant's financial situation can only lessen the the assurance of appearance, lessen the probability of good behavior pretrial, and lessen the protections guaranteed for the victim. Sure the judge can write on a piece of paper "no contact", but we all know how useful that piece of paper is at 3 a.m. when the defendant shows up at the victim's house. The same goes for pretrial services. It can do weekly check-ins and drug screens, but it isn't a lot of good during that 3 a.m. confrontation either. This part of the statute really should be excised and if it's not, it should be the  very least of the factors considered by the judge.

19 March 2017

Appeals by a Virginian Prosecutor

Okay, so you're a prosecutor in Virginia and you've always liked Judge Smith, but he just made the most amazingly boneheaded decision you've seen in years. Can you appeal and how in the heck do you do it?

Well, you can, but it's limited to certain circumstances laid out in 19.2-398. Basically, this breaks down to (1) a dismissal of charges for speedy trial violations or constitutional reasons, (2) suppression of evidence for constitutional reasons, (3) bond conditions, (4) the judge violates mandatory sentencing statutes, and (5) if the judge rules a statute unconstitutional and dismisses the charges. If you've got a case that might fit go read the statute to make sure.

So, your case fits. Judge Smith suppressed the evidence in your Felony Snipe Hunting charges because he believes there was an unconstitutional search under the 4th Amendment. What do you do now?

Well, prosecutors in Virginia have very different rules for their appeals than defendants do. So even if you spent years doing appeals as a defense attorney, or maybe because you spent years doing appeals as a defense attorney, you need to know that the timeline is much, much shorter and conduct yourself accordingly.

First off, you need to know that the luxuriously long 30 days that defense attorneys have to file notice of appeal ain't there for you. Nope, under 19.2-400 a prosecutor gets a whole 7 days to file a notice of appeal (not even seven business days). First things first, get the judge to sign an order for transcripts to be typed up. Here again the timeline is different. Unlike an order for a defense appeal, your transcripts must be delivered no more than 25 days from the trial court's suppression order (defense gets 60), although the Court of Appeals can grant up to a 45 day extension. 19.2-405. Once you've gotten the order for transcription, file your notice of appeal. Rule 5A:6 is the form used to note an appeal. HOWEVER, be aware that it is not complete if you are a prosecutor. In addition to what's in 5A:6, if you are appealing a suppression of evidence you must "certify in the notice of appeal that the appeal is not taken for the purpose of delay and that the evidence is substantial proof of a fact material to the proceeding." 19.2-400. Note also that the written portion of 5A:6 wants a lot more information about both counsel than the form it gives you including whether defense counsel is hired or appointed, email addresses, Bar numbers, &cetera. Per Rule 5A:6, send the notice of appeal to the circuit court clerk, opposing counsel, and the clerk of the Court of Appeals. DO NOT FORGET to send along a fifty dollar check to the clerk of the Court of Appeals as your filing fee (because the  government paying the government always makes so much sense). Nope. Don't send any money. The fee is non-applicable per 17.1-266. At least it is according to a nice letter we just got from the Court of Appeals returning our check. Of course, on previous occasions they've taken our checks, so . . .

Then you wait until the transcript arrives. After this arrives, you must file a notice of its arrival and filing with the clerk of the circuit court (who should already have a copy) and send a copy to the defense attorney; make sure to certify that the notice has been sent to the defense attorney. 19.2-403THIS NOTICE MUST BE FILED WITHIN 3 days of receiving the transcript or 14 days of the judge's suppression order, whichever is later. 19.2-403.

From the day the notice of transcripts is filed, you have 14 days to file your petition19.2-402.  Send 4 copies to the clerk of the court of appeals and 1 copy to the defense attorney. Rule 5A:12.  Thereafter the defense attorney will have 14 days to file his brief in opposition.  19.2-402.  After that the only thing you might have too do is an oral presentation to judges of the Court of Appeals, if you demanded one in your petition. Then, the Court of Appeals decides whether to accept the petition within 30 days of the defense attorney's brief.  19.2-403. If it does, the Attorney General takes over and you just wait until someone sends you the result. 19.2-404. If you lose, you lose. The Supreme Court of Virginia doesn't exist as far as we're concerned. 19.2-408.

Okay, so that covers the timeline. Now, what should be in the petition? 

Petitions are pretty standard no matter who is filing them and they are governed by Rule 5A. DO NOT USE RULE 5. For some unknown, unfathomable, and irrational reason, the Supreme Court's petition/brief requirements always vary from the Court of Appeals' petition/brief requirements. Once in a while the worst of these variances gets fixed (Questions/Errors), but don't take the chance that a variance will get your petition kicked on a technicality.

What I put in a petition and the order I put them in (See Rule 5A:12):

1. Cover Page - Not required but makes a better presentation.

2. Table of Contents - List everything the Rules require and anything else you thought important enough to give its own header.

3. Table of Authorities - List every case (alphabetically), statute, or other authority and every place it is cited in your petition.

4. Nature of the Case & Material Proceedings Below - Briefly state (a paragraph or two) what type of case it is, what hearings took place, and the results of the hearings.

5. "Assignments of Error" - MUST be a separate section. MUST be under exactly that heading. MUST contain all errors you want to appeal. These errors must be more than a bare allegation of error; they are to describe the error without being overly verbose. MUST have a citation attached to each error where it occurred / was preserved. For this last, a defense attorney would normally cite where he objected. In most cases you probably don't need to do that as you are arguing against a defense motion and your objection is inherit in that (object to the ruling anyway to be safe).  HOWEVER, if a judge errs during sentencing of mandatory sentences note your objection. There was no defense motion here and therefore a much stronger argument that you waive your objection by not stating it to the trial court.

5. Statement of Facts - A summary of the facts of the case with citation to the record. Typically, this will be in the following format: Sentence, cite. Sentence, cite. Sentence, cite. Example: The defendants were caught snipe hunting (Tr. 23).

6. Authorities & Argument - This is where you (1) state the law as it applies to your facts, (2) the standard the Court of Appeals should use in reviewing the error, and (3) how the facts should have been dealt with in accord with that law. I like to break this up  in two sections for each error. I first lay out the law and standard under an Authorities section and then lay its proper application under an Argument section.

7. Conclusion - Brief summary of all the things you are right about and then STATE THE RELIEF you are asking for. It doesn't do much good to make the most perfect argument ever seen in the annals of Virginia's history if you don't ask anything to be done with it. After all, you could just be asking the Court of Appeals to make the judge be nicer to you. You could be asking for a writ of mandamus requiring the comp board to actually pay you a decent salary.. They don't know. They're just simple appellate judges who need these things spelled out for them. Typically, relief asked for will be an overruling of the trial judge and a return to the trial court for further proceedings.

There is no listed order for the sections of the petition, so you can exercise some discretion. Just don't be stupid about it. Remember, if the Court of Appeals rejects your perfect argument because your first section was the Conclusion and your last was your Assignments of Error you lose. You don't get to appeal to the Virginia Supreme Court and get a ruling that essentially says "Yes, it's stupid, but it's within the rules. Remand." You Lose.

8: Contact Information - Somebody's Bar number, phone number, address,, and email has to go on the petition. If you're proud of your work put yours. If you're not then there's always the newest kid in the office - he'll never notice. 
(and for those of you too literal minded to realize that's a joke - That's A Joke - put your dang name on your work).

9. Certification - You must certify when you sent a copy of the petition to defense counsel, whether you want to state orally why the petition should be granted, that the number of words in the petition is less than 12,300 (state the number in the petition exactly)(this last requirement is from Rule 5A:4), and that 4 copies have been sent to the clerk of the Court of Appeals. This last one doesn't seem to be required, but everybody does it anyway.

Other things to remember: Don't forget the format requirements under 5A:4. Font must be 12-point or higher. Paper must be 11.5 X 8". Double space your text except for Assignment of Errors, headings, quotes, and footnotes. Don't screw with your margins. Use black print on white paper.

Almost all of that comes out of the early days of computer printing when petitions and briefs were limited by page length instead of word count. I wouldn't expect those problems to surface much in modern days.

Interestingly, the Court of Appeals has not limited its font types like the Virginia Supreme Court has. I'd suggest keeping it to easy to read fonts such as the VaSC had previously limited its filings to (Arial, Verdona, and Courier) especially if you're going to keep your font at 12-point. They're not pretty fonts, but they're easily readable even after you've already read thirty briefs that day. The pretty  fonts (Times New Roman, Palatino Lynotype, &cetera) look better, but the serifs and swirls all blend together if you're over 35 years old and have been reading for an hour or two. [As an aside, the VaSC is going to regret allowing these fancy-blur together fonts. All the young attorneys will use them to impress the Court. All the older attorneys will use them to impress the client. All the Supreme Court Justices will go blind trying to read them (unless maybe the VaSC's requirement of 14-point font saves them.)]

And now I've taught you all the basics of filing a prosecutor's appeal to the Court of Appeals of Virginia. Go forth, be fruitful, and appellefy.

22 November 2016

Ambush in Bartlette - The Final Chapter (39)


“LIFE”

Yusif Habib looked around the empty office. It was stripped bare. Nothing was on the walls. The only thing on the desk was a closed portable computer. And, taped to the back of chair behind the desk was the front page of the latest Mountain Democrat. The two inch high headline said it all.

Underneath it, in Brad's unmistakeable scrawl was one word.

“congratulations”

------------


Madeline Mullins sat at the kitchen table at her house looking at the medium sized rock on her left hand. Every romance novel she'd ever read told her that her heart should be about to burst from joy. And yet, the best she was able to come up with so far was ambivalence.

Sure, Yusif was a good guy. Heck, he was probably the best guy she could hope to catch unless she moved to Roanoke or Knoxville or some other city. Still, if he hadn't sprung it on her at the stroke of midnight New Year's Eve – the very moment he officially became the commonwealth attorney - she wasn't sure she would have accepted.

What was further troubling, she suspected that Yusif knew it. She found herself questioning whether he knew she would waiver and manipulated her so that she couldn't refuse without looking like an ass. Or maybe he was just trying to be romantic and made the moment as special as he could. All she was certain about was that she really didn't feel like she had any choice when she accepted.

Well, she had months before any viable wedding date. She'd probably go through with it. Maybe.


--------


Robert “Bo” Ross stood in the courtroom as Judge Isom swore him and his deputies in. The room only had about half the usual number of deputies. Greg Harvey and a number of other deputies had retired or found other jobs between the election and now. Bo had refused to rehire several more. He was still uncertain about a few of the remaining deputies, but he couldn't fire everybody. Actually, he could, but then he and his chief deputy would have to patrol the entire county twenty-four hours a day until new ones could be hired. And, besides that, some of these guys deserved a chance to prove themselves.

Next to Bo stood Patrick Mahan, now wearing the gold oak leafs of a major. He was the new chief deputy and Bo was happy to have him. Bo knew that Pat had left his job in Boston after he got in trouble for being too honest in his testimony during a major trial. As far as Bo was concerned that spoke volumes for Pat's character. He could do worse than having a chief deputy who was too honest.

As soon as all the formalities were done, the two of them were going to get down to the business of making the Bartlette County Sheriff's Department the best department this side of Roanoke. And then they would make it even better.


----------


Father Jerome Tolton drove toward his next job for Bishop Mannion. He'd thought the Bishop would return him to the monasteries he'd been working with before he'd been sent to Bartlette, but that was already being handled by another and Jerome was being sent to Winchester instead.

The local church was thriving and well run so there wouldn't be the usual problems Jerome dealt with. However, the local prosecutor had just indicted the son of a parishioner on a capital murder charge. An overly clever defense attorney who saw how things turned out in Bartlette asked the Bishop if the Church could help there too. Bishop Mannion had been all too happy to assign Jerome to the task. Now Jerome was on his way to be one of the attorneys representing Kyle Bialik.

He heard a chuckle from behind him in the pickup truck's half-seat. “Murder and moral ambiguities. Your God seems to be abandoning you to my keeping. We're going to have fun, Father. Lots and lots of fun.”


-----------

Gill Pinsky sat at his desk enjoying a bagel for the first time in weeks. The biggest problem with going out to the stix was the lack of good, civilized food. The second biggest was all the stuff that piled up in his office. So, he was killing two birds with one stone.

He skimmed over a request by a judge that he take a capital murder case in Lee County. It was over a week old so he was certain someone had undertaken the defense by now. Still, he would call the judge later today and politely decline. His last foray to the wilderness would satisfy him for quite a while. The end had never actually been in question, but dealing with the rubes got under his skin after a while. He was going to be certain that all his cases were in the civilized parts of Virginia for the foreseeable future.

He picked up the next sheet of paper and shoved all thoughts of backward counties in the middle of nowhere from his mind.


----------


Brad Dollerby sat in his new office reading the secret agent novel his mother-in-law had bought him for Christmas. The hero was some sort of generic mix between Jason Bourne and James Bond and there was nothing particularly original in it. He knew the reason Abby had bought it for him. The whole story revolved around someone setting off a suitcase nuke in Haysi, Virginia which was about forty minutes north of Bartlette County. So far, the book hadn't explained why anyone would nuke a town of five-hundred people. It just had secret agents chasing each other around the world stalking and shooting at each other. Normally, he would have thrown away a book this bad after a couple chapters, but he knew Abby would ask him about it and he didn't want to lie to her. Besides, he didn't have anything else to do at the moment. Reading the book kept him from dwelling on the disasters of the last few months.

He had appointments scheduled for this afternoon, but this morning he was just sitting there in the hopes that someone would come in and plop down a hefty retainer to sue his neighbor because the jerk built a fence three inches over the property line or some other vitally important issue which people were willing to squabble about until the end of eternity.

He was in the middle of reading a portion of the book where the bad-girl villainess was revealed to be a misguided eco-warrior who bombed Haysi because . . . when Maggs yelled through the open door at him.

“You've got a phone call on line one.”

“Tell them to make an appointment like everybody else.”

“Sure, Nickel, I'll tell the chairman of the Republican Party of Virginia that he should get his butt in a car and drive down from Richmond so that he can have an audience with your majesty.”

On second thought, Brad reflected as he reached for the phone, maybe I ought to take this call.


----------
FINIS
-----------

17 November 2016

05 November 2016

Ambush in Bartlette: Chapter 38


­Gil Pinsky sat in the courtroom alternating between boredom and worry. There was no other place to go. His client was being held by the deputies in the room they jokingly called a law library and the prosecutor was up in his office. That left the defense table for Gil and his people.

Not that Gil was wasting the time. He was reading through files in his other capital murder case out of Newport News. However, it was a little difficult to concentrate on because he didn't really expect that one to go all the way to trial. The local African-American prosecutor had gotten himself elected a year back promising “equal justice for people of all hues and hopes.” When he charged a young African-American man with capital murder it sparked an uproar and Gil was doing everything in his power to fan the flames. The local NAACP chapter had proven easy enough to get active, but the higher ups both in the NAACP and ACLU were proving skeptical. There was nothing too unusual there. It was always easy to manipulate the dedicated and gullible members of local organizations, but their leaders in D.C. had to be at least a little perceptive to rise to the top. And they weren't proving too eager to fall in behind a guy who killed six people on a ten day armed burglary spree. Still, he'd find some leverage somewhere to force them to get involved. Within six months the prosecutor would cave and offer murder one or maybe – if Gil played got the national organizations to play the media right – murder two.

It would be good to get back to a part of the world where things made sense. There was no media here that was worth a dam. Sure, there were three television news vans out front of the courthouse, but one was from a Roanoke channel nobody even got on their cable here, one was from a Tennessee channel, and one was even from Kentucky. The situation with the local paper was even worse. The Mountain Democrat published once a week and mostly ran puff pieces on the front page with coverage of the local high school's sports on page two. Gil read it from front to back the first two weeks he was here and never picked up another copy. There was no worthwhile local media to engage with during this case.

And that was just one of the multitude of things that were wrong with this place both inside the courtroom and out. Everything he tried here fell to pieces. The latest failure had been the Christmas gambit. He'd been certain that the good Christian jurors of Bartlette would never go to Christmas dinner with the prospect of ordering someone's death hanging over their heads. The judge had even cooperated, although Gil had no illusions that it was to help his defense. The judge was obviously worried about what would happen if this case ran into the new year when the new prosecutor took over. Still, whatever his motivation, the judge held the jury in the courthouse until three in the afternoon the day before Christmas. The deputies and clerks had been beside themselves and the courthouse emptied in seconds once the judge released the jurors.

But, the judge wasn't finished. He'd ordered the jurors to return Friday the twenty-sixth and Saturday the twenty-seventh. When Gil objected to the Saturday – pointing out that he could not work on Saturdays for religious reasons – the judge had been singularly unimpressed and reminded Gil that he wasn't the only attorney appointed to the case. Gil was forced to leave Saturday in the hands of the local co-counsel and by some miracle nothing happened which required a lawyer who knew what he was doing.

Now it was eleven o'clock Monday the twenty-ninth and Gil was really starting to worry. Every day that Christmas faded into the past the chance for a sentence of death increased. These people weren't like those in other parts of the state. The grasp on civilization here was tenuous. During trial preparation, Gil found out that the first local attorney Judge Isom attempted to appoint to this case turned the judge down because he was afraid it would interfere with bear hunting season and he'd bought a bunch of dogs and spent months training them to chase bears down. If an attorney prioritized a barbarism like hunting bears with a pack of dogs over defending a human life it said all sorts of disturbing things about the community's character. And the longer those jurors were out the more Gil worried about that character.

--------------------------------

Brad sat alone in the room which would be his office for only a couple more days. He'd given Paula vacation until the new year so no one was answering the phone and he was ignoring it. There wasn't much he could do to fill the time. Maggs came over on Saturday and they cleaned out all his personal stuff and he'd even gone into each computer and wiped them. When the traitor got the office there wouldn't be anything on the computers he could use against Brad.

So, basically all Brad could do was watch shows on his phone. He finished an episode of Justified and looked up at the clock on the wall. It was one forty-five and there was no sign that the jury was anywhere near a verdict. When Sanger's attorney refused to put on a defense Brad thought there was a good chance the jury would come in before Christmas and thinking back on it he was fairly certain that was what Pinsky was trying to make happen. That backfired because it was too obvious; if Brad could figure it out then the jurors could too. However, when the judge required them all to come back the Friday after Christmas and Saturday too he'd been sure they would come back with a quick verdict. They didn't. So, now it was Monday and everybody was sitting around on pins and needles waiting.

His thoughts wandered to his new law office. Maggs presented it to him as his Christmas present and it was directly across from the courthouse in the old Vincent Coal building. He'd been so wrapped up in this trial and all the other stuff he had to do running the office himself without a deputy prosecutor that he hadn't even looked for an office. Maggs found him one on the second floor with a big space on the building for a sign facing the courthouse. It had a room for his desk and books, a conference room, and a waiting room out front with a little desk where Maggs informed him she would be working as his secretary. When she took him there Christmas morning it had been a poignant moment that both reminded him why he loved Maggs so much and drove home the fact that he was being forced out of a job he was devoted to.

The rest of Christmas had been touchy. His mother-in-law asked if he would invite the Priest over for Christmas dinner, but Brad refused using the fact that he always went to his parents’ get-together as an excuse. Consequently, Abby cooked a meal and took it to the church while Brad and Maggie went to his Dad’s house. There the men ate and watched football. The women did whatever women do on big holidays which Brad suspected involved making fun of the neanderthals in the other room who were celebrating the birth of Jesus by yelling about how much the Cowboys suck. Then he returned home with his wife where Abigail Mahan was waiting to ignore them.

When they got back, Abby went into her room, closed the door, and turned on her television. Brad didn’t have a problem with that, but it drove his wife nuts. She tried to get her mother to come out three times and when Abby refused to come out for supper Maggie went into silent mode. Brad spent the rest of his Christmas very carefully doing absolutely nothing which could cause that tinderbox to burst into flames. The next morning he rose early and went to the courthouse before the two women started back at each other and they seemed to have solved their problems while he was gone. So now he was free to just feel the pressure of the trial without too much tension at home.

He turned back to his phone, but fired up YouTube this time and started watching whatever videos popped up.

-----------------------

Everyone stood as the jurors re-entered the courtroom. Jerome was on the front row trying to read the jurors as they file back in. They all looked somber and didn't make eye contact with either attorney. Jerome couldn't make anything from their demeanor. Twenty minutes earlier, the state trooper acting as one of the bailiffs came out to the courthouse's tiny hallway and told the waiting reporters that the jury was coming back in. Now, as the clock on the wall of the courtroom said it was four-thirty-seven, the jurors were taking their seats.

The judge sent the deputy bailiff over to take the verdict form from the forewoman. He gave it to the judge who read it and then asked the forewoman if this was their unanimous sentence. When she replied “Yes”, the judge handed the form to the clerk. He looked at the paper and started to read.

“In the first degree murder of Keith Tolliver, we sentence the defendant Jefferson Sanger to life in prison.”

“In the capital murder of Theodore Pahl, we sentence the defendant Jefferson Sanger to . . .”

15 September 2016

Is Math Racist?

Via Gruntled Center, I found this article which leaves me wondering if the author has ever actually been involved in a criminal sentencing. She seems to assume some sort of godlike powers for both those putting together statistical frameworks for sentencing and those filling out the guideline sheets that are handed down.

Here's the statement which piqued my interest:
"[S]ome states started using recidivism models to guide sentencing. These take into account things like prior convictions, where you live, drug and alcohol use, previous police encounters, and criminal records of friends and family. "
(1) Prior convictions - Yes, they are used.

(2) Where you live - Really? In what world is this ever considered statistically? Virginia certainly does not (see Virginia guidelines for drug crimes as an example) and I doubt many other States have the resources to develop and keep up the kind of state-wide models that would be required. I haven't done any federal work in over ten years, but a look through their guidelines manual doesn't show anything along those lines either (see particularly chapters three and four found here). Sure, a specific judge may have enough knowledge to know what an area of his city/county is like and take it into account, but I want to see proof before I believe it is being put to significant statistical use.

(3) Drug and alcohol use - While this could be a valid consideration in sentencing (for reasons that could both be helpful or harmful to a defendant), I've never seen it considered in the statistical portion of sentencing guidelines. There is usually a section in the social history accompanying the guidelines that addresses this, but it's not part of the statistics.

(4) Previous police encounters - I don't know about other States, but introducing unadjudicated crimes and police encounters during sentencing is a big no-no where I've practiced in Virginia and if I tried to use something like that (without the defense attorney bringing it up first) I would get a dressing down by the judge. In the federal system things work differently and unadjudicated offenses tied in with the one you have been convicted of can be added in. But even there "previous police encounters" alone would not be statistically added in.

(5) Criminal records of friends and family - Again, in what world is this ever considered statistically? Where? I want to see empirical proof that this is used statistically anywhere in the U.S. before I believe it. Realistically, it can be a non-statistical consideration especially in communities small enough that the judge knows that the last three generations of Smiths out of Dry Gulch Hollow have been drug dealers. Familial relations is also part of the social history given to the judge along with the statistical guidelines. It may be considered, but not statistically.


In the end, this is a philosophical narrative mixed with some fear mongering. The author doesn't seem to have much actual knowledge about the current use of statistics in sentencing and in the end she offers two better uses for all these statistics she seems to think the criminal justice system has easily at hand for every day use. First, rehabilitate the prisoners who are likely to re-offend by teaching them a trade. I'm all for this too. I don't have high confidence in its ability to work in the real world, but it's a wonderful ideal to espouse. Second have friendly officers walking down the street handing out flowers to citizens rather than engaging in proactive policing. Here, I'm also not opposed - partially. Community policing is a good idea although it's usually not engaged in as much as I'd like because police departments don't have infinite resources (and other social and safety issues). However, I'm also a fan of proactive policing. Yes, I know that all sorts of professors have told us all that correlation after correlation after correlation after correlation after correlation after correlation of proactive policing (the dreaded broken windows) with dropped crime rates does not in any way, at all, ever point to any possibility of causation; instead, it's all about aging male populations (because we never make new young males to replace the ones that get old). However, there still seems to be an awful lot of correlation out there.

Anyway, I'll step off that soapbox for now. The use of statistics is generally a good thing. It provides a rational basis for large organizations such as legislatures and administrative agencies to act. However, they aren't being used in the 1984ish manner the author would have us believe. I won't claim this is because governmental agencies are above such a thing. Rather, it is because such a thing is beyond their grasps. I think if the author made a true study of the matter she would be shocked at what she would have to see as rather primitive statistical guideline systems actually in place in the various States and the federal government.

08 July 2016

The Great 2016 U.S. Supreme Court Freakout: DUI's

Every year there is a freak out over some decision from the U.S. Supreme Court. Sometimes, it's mostly a tempest in a teapot and that seems to be the case with this year's big paroxysm, Birchfield v. North Dakota, JUN16, USSC No. 14-1468.

Birchfield is a consolidation of three different drunk driving cases. It's poorly organized and requires at least a couple readings before you can suss out its organization and ruling. Everyone seems to be jumping to the false conclusion that it changes things an incredible amount, but if you actually read it rather than just listening to third person hype it doesn't (at least not in Virginia).


QUESTION:

The question is poorly laid out in the opinion so I'll quote the two sentences exactly:
The cases now before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested after being lawfully arrested for driving while impaired. The question presented is whether such laws violate the Fourth Amendment’s prohibition against unreasonable searches. 
Put more succinctly, can the government impose criminal sanctions for a person refusing testing to see if that person is intoxicated?


ANSWER:

The answer? Yes for breath tests. No for blood draw tests.


CASE ORGANIZATION:

The case rambles around, but it is organized into three possible rationales. First, do exigent circumstances justify the testing? Second, does search incident to arrest justify testing? Third, does implied consent justify testing? These three are confused in that the case is addressing both breath test and blood draws across the three questions.


EXIGENT:

To begin with, the court reiterates its holding in Missouri v. McNeely, APR13, USSC No. 11-1425, that while there are circumstances, to be determined on a case-by-case analysis, that justify an exigent blood draw the fact that the body metabolizes and removes the intoxicant is not enough by itself to make an exigent circumstance.


SEARCH INCIDENT TO ARREST:

A breath test is allowed as a valid search incident to an arrest because there is no expectation of privacy in air in the lungs and it can only provide evidence of drunkeness.

A blood test is not a valid search incident to arrest because the breath test is available, it is a significant bodily intrusion, and it can be used to develop evidence of more than drunkeness.


IMPLIED CONSENT:

The Court starts by stating very clearly,
Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.
So, under implied consent, non-criminal penalties for refusing a blood test are still valid. However, the court makes short shrift of the argument that criminal penalties should still be allowed.
Motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.

APPLICATION UNDER VIRGINIA LAW:

First, let's set out what the rule of this case is: A government cannot criminalize the refusal to submit to a blood test in order to prove drunk driving.


APPLICABLE VIRGINIA LAW:

§ 18.2-268.3(D) - A first violation of this section is a civil offense and subsequent violations are criminal offenses. For a first offense the court shall suspend the defendant's privilege to drive for a period of one year. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

If a person is found to have violated this section and within 10 years prior to the date of the refusal he was found guilty of any of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of §18.2-270, arising out of separate occurrences or incidents, he is guilty of a Class 2 misdemeanor and the court shall suspend the defendant's privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

If a person is found guilty of a violation of this section and within 10 years prior to the date of the refusal he was found guilty of any two of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270 arising out of separate occurrences or incidents, he is guilty of a Class 1 misdemeanor and the court shall suspend the defendant's privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under §46.2-391.2.

The green part is clearly allowed. The parts in yellow are allowed for breath tests, but not for blood tests. It's as simple as that. Here's the only thing which needs to change in the way in which officers handle DUI's in Virginia: When the officer reads implied consent for a blood draw he cannot mention any possibility of a criminal prosecution. If he does and the suspect relents and allows the blood draw it will be suppressed by the courts.

Otherwise, everything is just the same as it was. Carry on. Nothing to see here. At least until the Supreme Court goes back in session this Fall and people find some other tempest in a teapot to make them start screaming about falling skies again.

06 July 2016

Service Dog Fraud

Sadly, one of the statutes just put in place by our legislature is one putting a $250 fine on fake use of a dog under claim that it is a service dog. You'd think this wouldn't be much of a problem, but I know that I have spoken with more than one inn keeper about people claiming that all sorts of dogs are service animals in order to keep Spot with them in their hotel room. So, I thought I'd try to put down what the state of Virginia law is in this matter.

To begin with, let's look at the new statute: 
§ 51.5-44.1. Fraudulent representation of a service dog or hearing dog; penalty
 Any person who knowingly and willfully fits a dog with a harness, collar, vest, or sign, or uses an identification card commonly used by a person with a disability, in order to represent that the dog is a service dog or hearing dog to fraudulently gain public access for such dog pursuant to provisions in § 51.5-44 is guilty of a Class 4 misdemeanor [up to $250 fine].
I can't find anything under Virginia law specifically set up to give a handicapped individual a specific ID card. Maybe the DMV issues cards listing specific disabilities as part of providing ID cards. Consequently, I think the manner in which service dogs are identified is by the equipment they are wearing. In fact, that seems to be the exact method of identification called for in § 51.5-44(E):
 E. Every totally or partially blind person shall have the right to be accompanied by a dog in harness trained as a guide dog, every deaf or hearing-impaired person shall have the right to be accompanied by a dog trained as a hearing dog on a blaze orange leash, and every mobility-impaired or otherwise disabled person shall have the right to be accompanied by a dog, trained as a service dog, in a harness, backpack, or vest identifying the dog as a trained service dog, in any of the places listed in subsection B without being required to pay an extra charge for the dog, provided that he shall be liable for any damage done to the premises or facilities by such dog.
 Notice that there are only three types of service dogs allowed and each has to be wearing some sort of identifying device. This is the only real identifier that an inn keeper could use to differentiate Spot the pet from Spot the service dog. To be fair, one would expect that in the vast majority of cases it will be clear if someone has vision, auditory, or mobility problems.  However, the "otherwise disabled" leaves a lot of wiggle room. And if anybody wanted to cheat in that area it is ridiculously easy to buy the gear which proclaims a dog is a service animal.

The only real limit here is that "[t]he provision of emotional support, well-being, comfort, or companionship shall not constitute work or tasks for the purposes of this definition."  Va. Code § 51.5-40.1.

In the end, I have to conclude that hotels and motels should be within their rights under Virginia law to refuse service to people without the obvious handicap who don't have the dog properly outfitted. Beyond that, if anyone is caught faking they could end up coming to court to get fined. If the innkeeper is suspicious he should call local law enforcement to investigate.

24 April 2016

This Year's Vacation: Day 01

This year's trip began Saturday with a drive to Rome, Georgia to watch the Rome Braves host the Asheville Tourists (with a side trip en route to play disc golf in Dalton, Georgia).

Rome has shown all the creativity in choosing its name that all the Braves minor league affiliates do (except for the awesomeness that is the Carolina Mudcats) and is yet another "Braves." However, in Rome they have concentrated less on the "Braves" part and more on the "Rome" part.  The predominate logo you see is a baseball with a centurion's helmet. When you don't see that the logo you see usually involves a Roman column with a tomahawk. I really like the helmet logo and had to stop myself from buying more than  just the hat I planned to. If I have enough money left, maybe I'll swing by on my way back to Virginia and buy a shirt or even a jersey.


The Stadium: Rome has a pretty decent stadium. The concourse was surprisingly well filled with various food vendors of different types and at least three souvenir sellers in addition to the main shop. Most of the seats are located around the infield, although there is a place where you can sit on the grass beyond the right field wall. On both sides of the field, once you get to the outfield there are places for people to sit on the grass and watch the game and behind those are tables for people to sit and watch the game. All-in-all, it's a solid single-A ballpark.

The Show: I didn't get to see the local mascots in action much because Rome had some "famous" imported mascot whom I had never heard of. He did a fairly good job with skits between innings that kept the crowd entertained. They also had cheerleaders. And I don't mean the one or two girls (or guys) standing on the dugouts you see at many places who do a skit or two. Nope. Five or six girls were on each dugout between innings and up in the crowd during play. I've not seen that in American baseball before; it felt like I was watching Taiwanese games in the Premiere 12.

The Game: Rome and Asheville played an interesting game. Asheville seemed to have the better fielders and the Braves made some errors that hurt them and allowed the Tourists to play small ball and score single runs in both the third and the sixth. Rome got a homer from Jonathan Morales in the bottom of the seventh to bring the game within one run.





When the bottom of the ninth came around and the Braves were only down by one the crowd, which had shown a fair amount of interactive interest to that point, went nuts. The guys running the scoreboard encouraged them to scream between each pitch, ran the "charge" bugle call, and played the music for the tomahawk chop (every kid in the stadium knew it and did it).  Asheville's pitcher got rattled and walked two batters, which made the crowd get even louder and more worked up. Unfortunately for the hometown fans, then the Asheville pitcher calmed down and struck everybody else out. Still, it was great seeing the crowd become so live and into the game.


Overall, it was a fun experience and a good way to start this year''s Big Vacation. It's not quite the same experience as starting last year's at the Dayton Dragons, but nothing I've seen in the lower leagues is. If you are in Georgia it's worth making a trip to stop in Rome for a ballgame.

01 March 2016

The First Hearing Before a Judge

For a long time now, I've explained to people that the first time a defendant sees a judge in Virginia is not an arraignment. Most of the time I get a glazed look and bored nod and people go on calling it arraignment and some judges even toss an arraignment into the first hearing. So, once again today a situation arose and I had to explain it. Since I have it fresh in mind, I thought that I'd put it all down here so that people would actually know once and for all - the first pretrial hearing in front of the judge is not an arraignment.

We begin with 19.2-158, in Chapter 10 - Disabled Judge or Commonwealth and Court Appointed Counsel (yes, I know it's in a strange location - blame the General Assembly, not me), which requires a person who is incarcerated to be brought before the Court on the next working day after he is charged. This hearing has two, and only two, purposes: "the judge shall inform the accused of [1] the amount of his bail and [2] his right to counsel." The section then goes on to describe how another pretrial event shall occur (bond hearings).

On the other hand, the section which deals with arraignments, 19.2-254, is in Chapter 15: Trial and It's Incidents.  This section gives a general outline of how a trial is to proceed, starting with arraignment.

Going back to the first pretrial hearing (let's call it the Notification Hearing), the last paragraph starts with "No hearing on the charges against the accused shall be had until the foregoing conditions have been complied with" and I think this is the reason that those who make bond are also required to come into court for a notification hearing.

The notification hearing has a bare minimum requirement as stated above, but it's also a natural time to accomplish some other requirements. The judge is required, at some point, under 19.2-159 to determine whether the defendant needs a court appointed counsel. Although not required, the logical time to do this is during the notification hearing. And in some jurisdictions where the judge rides a circuit the only time a bond hearing can be done is the day of the notification hearing. And some places actually do a faux arraignment during the notification hearing.

Where do they get the idea that an arraignment should be done at the notification hearing? Most people I ask give an answer which boils down to "because we've always done it this way." More likely, the judges picked it up off of TV or a nearby State (Kentucky for example) that does early arraignment. In the end it doesn't really matter. The judge is clearly required to do the actual arraignment at the start of trial and an early arraignment accomplishes nothing. In fact, in some situations it has been specifically held to be ineffectual. See Hutchins v. Commonwealth, SEP99, VaApp No. 1439-97-3 (en banc, holding that early arraignment does not toll speedy trial).  Mind you, I don't expect the jurisdictions which do the faux arraignment to stop adding the surplusage to their notification hearing. It doesn't really harm anything. It's just a minor waste of time and there's no way that outbalances "we've always done it this way."

29 December 2015

Indigent Defense In Virginia - Pay

I haven't done indigent defense work in over nine years now, so I can't claim to be the most up to date expert on the nuances anymore. Thus, when a colleague asked me some questions about the manner in which court appointed counsel are paid I had to give an answer qualified by "but I haven't looked at that statutes in at least ten years."  After that discussion, I decided to look and see what the current state of the law is and it has changed significantly since I moved over to prosecution.

To begin with, there are certain (1) requirements. An attorney (a) has to turn in a detailed accounting of his time in the case (b) within 30 days of the completion of the case. After that the attorney is paid as follows:
Court Basic Pay Per Charge 1st Waiver 2nd Waiver
District Adult $120 + $120 Unlimited
District Juvenile (Misdemeanor Analogue) $120 + $120 Unlimited
District Juvenile (Felony Analogue) $120 + $650 Unlimited
Circuit Felony Death Penalty "An amount deemed reasonable by the court" N/A N/A
Circuit Felony more than 20 Years $1235 + $850 Unlimited
Circuit Felony less than 20 Years $445 + $155 Unlimited
Circuit Misdemeanor $158 + $0 Unlimited

Basic Pay Per Charge:

District Courts: In the district courts, (2) it seems clear that (a) the defense attorney is to be fully paid for the first charge. Back when I was practicing, the defense attorney didn't even have to account for his time to get paid for that first charge. However, in 2007 the General Assembly took out the "without a requirement for accounting of time devoted thereto" language and added the "detailed accounting" language, so (b) the defense attorney must now account for his time even on that first count. (3) For charges beyond the first the defense attorney must show that he spent more time in order to get paid. 

FIRST WAIVER: For all cases involving an adult or any case involving a minor in which an adult could be punished with 20 years or less, the trial judge can pay up to another $120.  For a case involving a minor in which an adult could be punished by more than 20 years, the trial judge can pay up to another $650.

Circuit Court: There is (4) no provision for any minimal payment in Circuit Court. However, it is clear that (5) if a charge is reduced to something that would pay less the defense attorney is still entitled to pay under the original pay scale.

 FIRST WAIVER:  For all cases in which the defendant could be punished by more than 20 years, the trial judge can pay up to another $850.  For all cases in which the defendant could be punished by 20 years or less, the trial judge can pay up to another $155. No first waiver on misdemeanors in circuit court.

SECOND WAIVER - ALL TYPES OF CHARGES: 

The second waiver is unlimited. However, it has to get cleared first by the trial judge and then cleared by the chief judge of either the district or circuit.

Reasonable Expenses: There is a paragraph which is often badly misconstrued by courts in paying indigent defenders. It is the paragraph which allows defense attorneys compensation for expenses. I'll quote it here so you can read it yourself:
The circuit or district court shall direct the payment of such reasonable expenses incurred by such court-appointed counsel as it deems appropriate under the circumstances of the case. Counsel appointed by the court to represent an indigent charged with repeated violations of the same section of the Code of Virginia, with each of such violations arising out of the same incident, occurrence, or transaction, shall be compensated in an amount not to exceed the fee prescribed for the defense of a single charge, if such offenses are tried as part of the same judicial proceeding. The trial judge shall consider any guidelines established by the Supreme Court but shall have the sole discretion to fix the amount of compensation to be paid counsel appointed by the court to defend a felony charge that may be punishable by death.
Basically, this paragraph allows payment for expenses and limits payments in cases wherein the same type of charge is charged multiple times (limited to the amount that would be the fee for one charge).

However, this paragraph has been badly misconstrued by various judges who have used it to limit fees which are charged by indigent counsel. That's a poor reading of the statute. This subsection's purpose is clearly laid out in the opening sentence: "payment of such reasonable expenses." Nothing in the rest of the paragraph indicates a movement away from that purpose. In fact the word "compensate" has a shaded meaning. It could mean being paid for time lost defending the case, but that is a strained reading. Instead, a more regular reading of that language would be that the defense attorney is to be paid back for outlays she has put forth out of her own pocket.

IF THE DEFENDANT DOES NOT SHOW FOR COURT:  If (6) the defendant has (a) a capias (bench warrant) or (b) show cause summons issued, and (7) the defense attorney has appeared in court at least once, then (8) the defense attorney can get paid after the defendant has been missing for a year.

All this and more can be found in Va. Code 19.2-163.

14 December 2015

Where Can I Carry My Firearm

Virginia, is one of those States which believes that there's not just a right to bear arms, but an obligation (at least where I live).  However, there are places and times when a person is forbidden to carry. Generally, these would fall into two areas of prohibition: private and statutory prohibitions.

The first is fairly straight forward. If a private citizen or organization specifically denies you the right to carry a firearm on its property you cannot carry a firearm on their property. The private citizen or organization would have an obligation to notify you that you cannot carry a firearm on its property, but as a non-governmental entity it has the right to restrict entry. If the private entity posts a "No Firearms Allowed" sign then it has effectively put up a no trespassing sign per Virginia Code 18.2-119. A person who walks into a store or residence past that sign knows she is specifically denied permission to be on the premises with a firearm. Then it simply becomes a matter of status. If her status is that of someone with a firearm she is in a location she is forbidden to be in. Therefore, she is trespassing.


And, before anyone starts screaming 2d Amendment at me in the comments, remember this is an interaction between a citizen and a private entity. The 2d Amendment only applies in dealings between a citizen and the government.


Statutorily, the General Assembly has passed several laws in Virginia which restrict where firearms can be carried. As these impinge on a right guaranteed in the Bill of Rights these should be subject to a strict scrutiny standard. However, the US Supreme Court has flinched away from explicitly stating that this is the standard. In fact, it has created some sort of weird, hybrid standard where citizens are entitled to own and use firearms (1) "in common use" at a set period of time, but only if the citizen does not fall into a certain (2) status (e.g. felon or mentally ill) or possess them in a (3) sensitive place (e.g. schools or government buildings). See District of Columbia v. Heller, 554 U.S. 570 (2008). I'm not going to address the first two parts of this test today; instead, I am going to mostly look at those places the Virginia General Assembly has declared by statute to be "sensitive."


A quick survey reveals the following statutes:


Courthouse:


18.2-283.1 - It is a class 1 misdemeanor (up to 12 months) for anyone except law enforcement (and the local treasurer?) to carry a firearm in the courthouse. - This makes sense in that there is a lot of emotional conflict in a courthouse and (perhaps most importantly) there is a constant possibility of an armed attempt to free an incarcerated inmate from a known location at a known time.


Schools:


18.2-308.1 - It is a class 1 misdemeanor (up to 12 months) to carry a firearm onto school grounds, a school bus, or a place where an extracurricular event is occurring. It is a felony with 5 mandatory years in prison if someone takes a firearm into a school building with intent to use it. - Hard to argue that a school isn't a sensitive place from which firearms should not be excluded.


Place of Worship:


18.2-283 - It is a class 4 misdemeanor ($250 fine) to carry a firearm "without good and sufficient reason" into a place of worship while a religious meeting is taking place. - Hmmm. Yes, this is a sensitive place, but also a private place. It seems to me that this should be something that should be decided by whomever makes decisions for a particular place of worship and handled under the trespass rules as laid out above.


Bar:


18.2-308(J3) - It is a class 2 misdemeanor (up to 6 months) to carry a concealed weapon in a place that serves alcohol if you drink any. - This is actually a mix of location and activity. It does not seem to fit the "sensitive place" restriction particularly well and perhaps is more of a status restriction (person drinking alcohol). It also does not forbid a person openly carrying from having a firearm in a place that serves alcohol.


Airport Terminal


18.2-287.01 - It is a class 1 misdemeanor (up to 12 months) to carry anything which expels a projectile in an airport terminal. - This is obviously both a public and sensitive space.

Certain Cities:

18.2-287.4 - It is a class 1 misdemeanor in public areas in the (a) cities of Alexandria, Chesapeake, Fairfax, Falls Church, Newport News, Norfolk, Richmond, and Virginia Beach and in the counties of Arlington, Fairfax, Henrico, Loudoun, and Prince William to carry a (b) rifle or (c) pistol with a magazine of more than 20 rounds and a (d) shotgun which holds more than 7 rounds of its longest round. - This is a mix of the sensitive place element and the common use element. It's hard to argue that all the public areas excluded are sensitive places, so this is really more of a declaration that these firearms cannot be carried because they are not in common use. The problem with that logic is that the firearms are not forbidden everywhere.

These are all the location related bans I found. It is not an exhaustive list of limits on firearm possession and I suspect there may be some more location restrictions squirreled away in parts of the Code outside of Title 18.2 (Virginia's criminal law).

28 November 2015

An Article 4 Free Inhabitant Doesn't Have to Have a License

Cudos to this officer. He remains calm throughout the entire incident in the face of incoherent babbling about **THE ARTICLES OF CONFEDERATION** and even when she starts screaming "rape" when he removes her from the car. [ignore the title of the video; this is not about feminism]

23 November 2015

Prosecutorial Primacy:
AG or Commonwealth Attorney?

Piedmont asked an interesting question in a comment on the prosecutorial powers of the Attorney General post:
The AG has authority to institute and conduct the enumerated types of prosecutions, but it's certainly not exclusive. What happens if both the CA and the AG want to prosecute? Can the AG step into and take over the CA's case?
The problem here begins in the Virginia constitution. A Commonwealth Attorney is a "constitutional officer" created under the local government portion of the constitution. Art. VII sec. 4. As such, the office does not fall under any branch of the government in Richmond. However, the only constitutional instruction for the office is that
"The duties and compensation of such officers shall be prescribed by general law or special act." Id.
The Attorney General, while an independent elected office, is clearly a part of the executive branch of the Richmond government created in Article V sec. 15. And yet again, the constitutional instruction as to his function is rudimentary:
"He shall perform such duties and receive such compensation as may be prescribed by law."
The language is effectively identical and therefore not very helpful to our analysis. So next we turn to the statutes.

The last post about the Attorney General examined the statute which outlines the statutory powers granted to and limitations within which the Attorney General must operate

The parameters within which the Commonwealth attorney operates are generally laid out in Va. Code Sec. 15.2-1627 - most specifically in subsection (B):
B. The attorney for the Commonwealth and assistant attorney for the Commonwealth shall be a part of the department of law enforcement of the county or city in which he is elected or appointed, and shall have the duties and powers imposed upon him by general law, including the duty of prosecuting all warrants, indictments or informations charging a felony, and he may in his discretion, prosecute Class 1, 2 and 3 misdemeanors, or any other violation, the conviction of which carries a penalty of confinement in jail, or a fine of $500 or more, or both such confinement and fine. He shall enforce all forfeitures, and carry out all duties imposed upon him by § 2.2-3126. He may enforce the provisions of subsection D of § 18.2-268.3.
So, the CWA has power over all charges starting at class 3 misdemeanors (maximum punishment $500). The AG has four basic functions it can do (1) assist the CWA without the CWA's permission [lynching crimes], (2) assist the CWA with permission [ID theft, street gang activity in prison, & cigarette sales laws], (3) prosecute with the CWA's permission, and (4) prosecute without the CWA's permission [see prior post for 3 & 4]. It's this last power which is interesting. There does not appear to be a primary prosecutor in those cases which the AG can pursue without a CWA's approval. Thus, there appears to be concurrent jurisdiction which would mean a race to conviction (assuming the CWA and AG are at odds) with the first to convict having the primacy of place because of double jeopardy protections in both the Virginia and US constitutions.

However, I think that the concurrent jurisdiction problem is solved by who controls the grand jury. While a grand jury is regularly impaneled by the local judge, only the CWA, after receiving information from law enforcement "may in such case issue or cause to be issued a summons for any witnesses he may deem material to give evidence before the court or grand jury." Va Code 19.2-201. As well, the only legal agency which can request a special grand jury is the CWA, Va Code 19.2-206, and the only legal agency granted authority to assist the special grand jury is the CWA. Va Code 19.2- 210. Finally, while the AG must approve applications for multi-jurisdictional grand juries, Va Code 19.2-215.2, two or more CWA's must apply for a multi-jurisdictional grand jury to the Virginia Supreme Court. Va Code 19.2-215.3. In order to participate in the multi-jurisdictional grand jury (and subsequent prosecutions) the AG must be invited in by the applying CWA's. Va Code 19.2-215.10. Since "no person shall be put upon trial for any felony, unless an indictment or presentment shall have first been found or made by a grand jury in a court of competent jurisdiction or unless such person, by writing signed by such person before the court having jurisdiction to try such felony or before the judge of such court shall have waived such indictment or presentment" the grand jury is a choke point which the Attorney General cannot get past without a defendant agreeing to waive it.  Va Code 19.2-217


So, the answer is, because of the AG's lack of access to the grand jury, the CWA has primacy in almost all prosecutions. The only time an AG could prosecute something without the CWA approving at some point would be (1) if the AG had the power to prosecute without the CWA's approval, and (2) the AG and the defendant agreed to go forward on an information rather than the defendant standing on his statutory right to a finding by a grand jury. That seems an unlikely scenario, but it is legally possible.