28 August 2003
Minors and the Law:
(1) Rough justice administered in a jail for sexual abuse of a minor.
(2) A 12 year old is convicted of sodomy against a 46 year old woman.
(3) A serial child abuser pleads guilty to yet another charge which was brought many years after the fact. Not that much changes in his life either way. After he finishes his time in prison for the rapes he will be put under civil detention because of his mental illness.
(4) The woman in charge of foster parenting in Alaska faced domestic charges. Not really confidence inspiring.
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Computers, Viruses, and the Law:
(1) In Britain they have come to realize that organized crime can use computers to steal from people.
(2) In the U.S. we have come to realize that it is dang near impossible to catch and prosecute internet criminals.
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Buying the jury didn't do the dealers any good in the long run but it is coming home to roost for the jurors.
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Apparently there was some sort of a race to see who would indict MCI and its prior CEO first. Oklahoma's Attorney General beat the U.S. Attorney of New York to the punch.
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Can you have a gun on school grounds or not? Dillon's rule forbids localities from creating stiffer laws and punishments than the law which has been passed by the Legislature so this is something of a no-brainer. Gotta wonder why this is being passed on to the Attorney General rather than being hashed out in court.
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J'accuse!
The Pilot does everything but come out and say that a judge, the Clerk of Court (his wife), and several lawyers were rigging the system.
It "praises" the Chief Judge: "By taking away scheduling from Cynthia Morrison and by spreading the DUI caseload more evenly among all four judges, Sword has done just about all that he can to contain the damage to the court's reputation."
The Virginia Pilot created this problem by pointing out that only 94% of those for whom the judge has ordered rehab and reduced their sentence have not reoffended.
Now the Pilot has insinuated corruption of the system, pressured a chief judge into taking steps for which it damns him with faint praise, and at the end insinuates that the judge involved is engaging in abuse of discretion. It created a (non)problem and continues to happily report on it.
Disturbing.
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Law Enforcement and the Law
(1) The man whose actions led to the death of a Henrico policeman couldn't be found guilty of homicide but he didn't walk away. He got 15 years on various and sundry charges.
(2) A sergeant in Greene County has made the ultimate sacrifice.
(3) Life as a traffic officer in England.
(4) About half of L.A.'s sheriff's deputies who were disciplined never did what they were supposed to.
(5) The guy who the FBI and Justice Department concentrated its effort on in the anthrax investigation - you know, the guy they never found anything on - is sueing because of the havoc wrought on his life.
(6) In Britain concerns that the macho culture of police enforcement might cause officers not to seek help they need for work related problems may lead to ongoing psychological evaluations. "The proposal would probably involve officers regularly completing health questionnaires. If necessary, officers could then get further help and talk face-to-face with occupational psychologists." My only question is, if they are to dang macho to seek help won't they apply the same machismo to the questionare? Being macho doesn't necessarily make you an idiot and the "right" answers will be given like clockwork.
(7) In Lynchburg the city council has agreed to try and perhaps improve, maybe, the pay of local police. It's a believe it when you see it situation.
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27 August 2003
NO! NO! NO! NO! NO! NO!
NO DAMMIT!
Governor Warner is pandering to the prohibitionists by suggesting that the already draconian DUI laws be made worse. AND HE WANTS TO BRING BACK THE MOST UNJUST LAW ON THE BOOKS OF VIRGINIA - the habitual offender.
I cannot count how many times I have stood in court and watched clients who have no choice but to drive (mass transit was voted out of existence by the county I'm in and never existed in rural counties) face this unjust charge. I've had people get that mandatory, unsuspendable year for driving to pick up a kid stranded after a party, driving to get groceries, driving to get away from situations which were going to turn violent, and -time after time after time - driving to go to work so that they can support their families. Everyone who spends more than a day in trail courts, and isn't absolutely clueless, realizes how unjust the laws are which take licenses away and/or criminalize driving. We all know these people still have to drive and that eventually they will end up in jail for driving. The habitual offender statute is the king of these unjust statutes. It makes people who have no serious record have a felony - thus abrogating their citizenry rights. It takes the breadwinner out of the household - thus usually causing serious financial harm to those the man was driving to work in order to support. And worst of all, IT DOES NOT STOP THOSE WHO DRIVE DRUNK FROM DRIVING.
All I can hope for is that this is typical prohibitionist blather from the Pilot (which looks for any evil involving the demon drink and driving and magnifies it as much as possible).
Or maybe some common sense from the Legislature.
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If you are the chief of police and your city has the highest crime rate for major cities 6 years in a row you will lose your job.
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Apparently, torturing one girlfriend isn't enough to get you a long sentence in San Fran. Now he's done it again.
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As a solo practitioner the prospect of something like this both makes me terribly excited (this is a once in a lifetime battle against overwhelming odds with Amici lined up both to the left and right of you) and terrified (this case would probably put my office out of business in 6 months or less as it consumed all my time and kept me from pursuing other cases).
Found at The Legal Reader.
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Articles defending the PATRIOT Act, though few, can be found. Here's one and here's another.
Both defend the Act on the grounds it is constitutional. Perhaps (I ain't got time to argue it now). But the fact that something is constitutional does not make it correct. Almost any law infringes on some right and the removal of rights not explicitly enumerated (thus reserved to States and citizens) will always be a gray area of constitutional law. However, there must come a time when we heed Mr. Franklin's warning: "They who would give up an essential liberty for temporary security, deserve neither liberty or security." I think that time is now. Whether or not these are technical violations of the constitution they violate the spirit of American liberty and if they are allowed to pass will be followed by worse.
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26 August 2003
Here we go again. How much weaker will Miranda be after this round of federal supreme court decisions?
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What would make you think you could get away with going to multiple stores and glueing dirty pictures and stories into teen magazines? For that matter, why the heck would you do it?
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Hmmm . . . Women are less honest then men (at least in Iowa). Thus is confirmed the suspicions of every male.
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A lawyer who messed up and then tried to fix it by filing a RICO/civil rights case is ordered to take ethics courses at a law school.
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25 August 2003
Riverside Regional Jail has lost my client. She has no bond so we know she's not on the street (at least she's not supposed to be). When I got to court today I was informed that what had probably happened was that they had signed her out to another jurisdiction's jail (she has charges all over the Commonwealth and up and down the East Coast). But they never got her back and have no idea where she is.
Of course, the case was continued for a month so they could find her.
Yup, like I've said a thousand times, that regional jail idea is a real winner.
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Last Week's Death Cases:
(1) Texas actually halted an execution process.
(2) In Indiana you can convict someone of a murder someone else admitted to, was convicted of, and died serving time for.
(3) Murder by Association? The prosecution is trying to prove the NC Peterson murder case by providing evidence from a prior death.
(4) A man who participated in the killing of someone because he was Jewish may be out of jail in less than a year. That's bad. The prosecution is trying to censor his reading list. That's also bad.
(5) You cannot kill your political rival for the Sheriff's office.
(6) Murder is murder. If you believe that killing the unborn is murder that doesn't justify the killing of others. However, there appear to be those who disagree with me on this.
(7) Indiana's AG allows expanded DNA testing in order to resolve whether someone sentenced to be killed actually committed the crime.
(8) The Sniper Case:
(a) What do conspiracy of passport fraud, mugging, killing a witness in your divorce, and saying "America got what it deserved" have in common? They are all things which have nothing to do with the sniper case which the prosecutor wants to admit in order to convict Muhammad.
(b) And here's the Defense team's response.
(9) In the Scott Peterson Trial:
(a) Now that the judge has decided that the trial will be open to the public the Defense has decided that cameras should be allowed in the courtroom.
(b) And, in a development I'm sure thrilled the Peterson Defense team, O.J. has expressed his sympathy for Scott Peterson.
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24 August 2003
O.K. those of you who are 1L's at Harvard should not borrow Jeremy's notes on CrimLaw. No matter what he tells you, the death penalty for burgalry only exists in certain parts of the world like Iran, Saudia, Somolia, North Korea, Texas, and the 4th Circuit.
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Acts Involving Children:
(1) "The Mississippi Supreme Court . . . held Thursday that a fetus is a "person" under state law and wrongful death claims can be filed on its behalf."
(2) I'm not sure 25 years is a harsh enough sentence for a lady who tried to cook her own child.
(3) Beating and murdering children. No punishment is severe enough.
(4) If a teacher in California photographs the testicles of his students he only faces up to a year in jail. There had to be some problems with the prosecutor's case to settle for so little punishment.
(5) In light of the last three cases it is almost comforting to read about a headmistress who would only cheat those in her charge out of money (L500,000 = $710,000+) and not actively try to kill them.
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If you steal a credit card - and use it at the same store you stole it from - at least check the name on the employee's tag before you hand her the card.
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Steal from a social worker at a church which has been helping you and then hit the pastor in order to make your getaway. Just exactly how far down Dante's rings does that place you?
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In Des Moines it doesn't pay to be a purse snatcher: you end up in your skivvies, get pounded by the locals, and then you are arrested.
Cudos to the good citizens of Des Moines.
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All this guy was doing was doing was engaging in a harmless hobby. I mean, who doesn't sit in their house day after day mixing inks and trying to figure out how to make exact duplicates of U.S. currency? Gotta wonder how he faked the water mark and duplicated the strip.
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O.K., this is the third time these people have solicited me thru e-mail to become a "male escort." Flattering as that is - and as much as it proves they have not seen a picture of my short, round self - I think that's got to be against some federal law.
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Drugs in the World:
(1) Tired of that heroin addict / panhandler? Enjoin him from begging. Yeah that'll work.
(2) In South Africa they're dealing with dagga smugglers.
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If she has already forged a number of documents, what makes you think your secretary won't turn on you if you try to help her create a story to help her from getting convicted?
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Police and the Law
(1) Law enforcement in Iowa has cracked down hard on Meth dealers: "the unit has more than doubled the amount of methamphetamine taken off the street. Nearly 800 people have been arrested."
(2) The new police chief in Shrevport is trying hard to heal rifts between the department and African Americans.
(3) Police accused of causing the death of a man who called 911.
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22 August 2003
PLEASE NOTE: This is entirely my opinion and has not been thoroughly researched. I am shooting from the hip here folks. DO NOT MISTAKE THIS FOR LEGAL ADVICE.
ethicalEsq? has noted SW VA Law Blog's post about the Wise county case I previously blogged about here. I've already opined as to the legal charges in my last post so I'll try to limit this one solely to ethics.
I think this article is misleading1. In Virginia, government actors must have a parent present to go forward on a prosecution in court. However, not even a State actor, such as law enforcement, needs permission to question a minor (e.g. Lee Boyd Malvo: 17 years old questioned without any guardian).
There is also what I would characterize as a strong presumption of competency in Virginia for any child 14 years of age; I've represented children with similar intellectual handicaps to the minor in the article and they were found competent under the laws of Virginia.
This is the law as it has evolved in Virginia. I have no delusions that it evolved in this manner in order to be Defense friendly - in fact, in most situations these laws ease the burden on law enforcement and make it almost impossible to keep a minor from facing his day in court.
With all of that said I think that, in Virginia, any minor older than 13 can be talked to by an attorney without the minor's guardian present and there is no legal bar to that interview. This takes a lot of wind out of the sails of any charge of ethical violations. If the Bar really wanted to pursue this I think it would have to shoehorn it in under the catch-all: Rule 8.4 "It is professional misconduct for a lawyer to: (b) Commit a . . . deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer." In my opinion that "reflection" would have to be as seen thru the eyes of the Defendant or the judge - not the prosecutor (or else lots of Defense attorneys are going be out of the Bar in quick order). I don't think the Defendant has anything to complain about here and a neutral judge shouldn't either.
Indeed, I think that it would probably be unethical not to talk to THE witness against your client (who is presumed competent) if she is willing to talk to you. I know that if someone were my attorney and she declined to talk to THE witness who was going to be used to hang me it would reflect badly on my trust of that attorney and I think both the client (me) and the judge would be right in questioning the fitness of that attorney.
Does this feel slimy? YES. But so do many things which a Defense attorney should do2. Most of the time this is because of the presumption that if someone is accused it means that the person must be guilty. It makes most any action taken to put forth a true defense for your client appear unclean to the general public. Take the following as examples: "How can he argue that the cocaine in the Defendant's closet was found thru an unconstitutional search and should be excluded?" "How can he stand in front of the jury and accuse the officer of tampering with the evidence?" "How can he question an underage witness without making sure her mother was there?" I daresay that a quick gut check militates against any of these because at a basic level we all believe that people should be punished for their crimes, police are honest, and children should be protected.
But what if we start from the perspective that the Defendant is entitled to a strong defense, is entitled to the same rights as the rest of us, and is innocent? How dare you not argue that a citizen should be protected from officers who forced their way into a house with a warrant to look for a rifle and searched until they found a rock of crack in the pocket of a coat in the closet? How dare you not sharply question the officer when evidence appeared in the Defendant's lunch bag and his mother will testify that she packed it (without any dope in the bag) and handed it to him as he walked out the door where he was immediately snatched by waiting police officers? How dare you not interview a 16 year old - who is presumed competent and is willing to talk to you - without the coercive influences of a parent, social worker, or police officer (who will influence her to stick to the story they have sold to her and will probably stop the interview if the girl starts telling the truth)?
Well, that's my view from the trenches. Will it be a popular view? No. But I think it is the proper one.
1 The article is also short and missing all sorts of information I would like to have to flesh out this discussion. Things like: How could the girl's mother, knowing what is supposed to have happened to her daughter, let her daughter go without supervision for the length of time all this took? Was the girl lured to the house or did she go over voluntarily? If she was lured, did the attorney have foreknowledge? I doubt she was lured because I think that would have resulted in abduction charges rather than obstruction - but I would still like more facts.
2 I say should because I believe the trend is to lower the ethical requirements by changing zealous representation to things such as "reasonable diligence."
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OFF POINT
A photo of the new kitten at my apartment
Sorry it's not a better picture but the little squirt wouldn't stop squirming around so all the other pictures are blurry.
Momma and kitten are doing well. However, the dogs are confused. They keep hearing the kitten mewl and they want to investigate but momma has changed from a cat that always runs from them into a raging ball of fur and claws. I watched my 15 lb. cat drive off my 80 lb. lab and my 40 lb. mutt away before I could get across the room to fuss at them. The Lab stopped when the hiss came, stayed out of claw reach, and just looked scared. The smaller dog (not the brightest in the world) came forward and got absolutely swarmed. Momma tagged him at 3 times on the snout with full claw extension in less than 1/2 a second. He wasn't hurt but he backed off with a look of absolute shock. Needless to say, my house is now segregated into zones with closed doors between the cats and dogs.
Now back to your regularly scheduled criminal law . . .
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Why? Why would you steal "It?"
I'm not sure I'd even take one if it were given to me. These useless things are proof that advertising and hype can triumph over common sense.
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Police in the Law:
(1) Governor Warner is going to make sure that no racial profiling exists. My experience has been that profiling does exist but it's more complex than being based on just color. You can be white, hispanic, asian, black or martian green and if you look like you are a staid, conservative, rich bank vice-president the officer is going to put a lot more thought into it before he pulls you over. On the other hand, if you are a young male or poor person of any shade . . .
(2) In Miami a federal judge is upholding the convictions of some officers and allowing the retrial of others for covering up shootings.
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Gangs and the Law
(1) Smuggle your semen out of prison and you may continue your line but you'll spend a little longer in prison. Apparently this has happened FIVE TIMES at the same facility.
(2) A gang leader tries to change the way things are and gets shot for it.
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The problem with trying to cover up your laziness by stealing pig bacteria is that people probably aren't going to believe someone broke into a lab to steal pig bacteria.
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The Difference Between the USA and England:
In England they are not sure that eating a meal and stiffing the restaurant is theft so they will just ban you from all the restaurants.
In the US they even check to see if your money is good before you get a single piece of food.
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Terrorism News
(1) Two Pakistanis sneak into the country and try to buy a one-way ticket with no luggage; when questioned, one of them walks away from the ticket counter leaving $800 behind. The only thing the government can find to charge them with is illegal entry. One suspects these two gentlemen might be "material witnesses."1
(2) If we call you a "60's radical" rather than a terrorist you get out of jail after only 20 years when you are involved in the murder of two police officers and a guard during the theft of over $1 million.
1 Hey, if we're going to abuse the law and constitution let's at least do it in the obvious cases.
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O.K. this is just kinda weird. I never had any teacher want to spank me on my birthday. I'm not sure there should be any charges but it is weird.
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In Iowa they are charging someone with a felony for shooting paintballs at people. Thank goodness I didn't grow up out there. While we didn't have paintball guns my brother and I had a grand old time shooting at each other with rubber pellets from our BB guns. We'd have been convicted for sure.
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There are sentences and then there are sentences . . .
(1) Moon the jury and get 20 years in jail - if you're going down anyway you might as well enjoy the ride.
(2) If you're a guard and you urinate on prisoners you get 15 days in jail - cleaning toilets.
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If you shoot somebody's dog the prosecutor should charge you with a felony. Animal cruelty's not the only one - you can also be charged with stealing a dog (a class 6 felony in Virginia).
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Another Richmond councilperson in federal court. It will be interesting to see how this one turns out; it doesn't seem to be as easy a slam dunk as Saad was.
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Love playing baseball but shown up by Barry Bonds? You could always become a professional bank robber instead.
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21 August 2003
Sorry, no posting for today (at least until this evening). I didn't have the time to comb thru the web last night / this morning because I was building shelves at my office until about 10 p.m.1 When I got home my cat was having a kitten and that kept me awake until about 1 a.m. so I didn't rise at my traditional 4 a.m. And I'm about 10 minutes from leaving for court so nothing is going to be posted until at least 5 p.m.
1 One of the fun things about being a true solo practitioner is that I am my own maintenance guy, janitor, secretary, and I get to practice law on the side.
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20 August 2003
Despicable Story of the Day:
I feel guilty when I lock my dogs in their cages - how in the world could somebody lock a 5 year old kid in a dog cage every night?
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Two ladies who arranged for an alleged victim in a rape to meet with the Defendant's attorney are charged with obstruction of justice. The prosecutor's also made some noise about charging the attorney.
The charge isn't appropriate. To be convicted they would have had to stop the girl from testifying or tried to stop her from testifying thru threats or force. Of course, the reality is that in a number of jurisdictions this is a catch-all charge and some judges will convict people under it for almost anything. The local slang for it is misdemeanor pissing off the officer (felony pissing off the officer is formally known as felony assault on an officer - usually spitting or minor contact after you have spent the last hour making the officer's life a living hell).
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Ascroft's take on the fact that the PATRIOT Act has been almost universally blasted from the left and right:
"To abandon these tools," Mr. Ashcroft said in a speech here at the start of a national tour, "would senselessly imperil American lives and American liberty, and it would ignore the lessons of Sept. 11."I don't know about the rest of you but the lessons I learned from 9-11 go something like this:
(1) More field agents are needed so that reports of young Arab men learning to fly, but not land, planes are investigated rather than being lost in the static.
(2) Well known items, such as airplanes, which have often been used by terrorists in the past should be seriously protected.
(3) That, just maybe, our agents should be allowed to work with less than squeaky-clean individuals in their pursuit of evil men.
(4) That inter-service rivalries hindered the defense of our nation.
O.K. Quick pop quiz: What does any of that have to do with the laws which now allow law enforcement to look at which books I read at the library or sneak-and-peeks at citizens' homes?
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It's a good thing Sammy the Bull couldn't live the straight life. 'Cuz if he hadn't been caught stealing, he'd probably be dead now.
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19 August 2003
The University I went to law school at has been ranked one of the top ten party schools in the nation. The General is spinning in his grave.
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Death Cases:
(1) You too can win your own murder trial!
(2) Kill 5 members of your family and sue the rest.
(3) No cameras in the Scott Peterson prelim.
(4) No jury consultant for the Defendant in the Muhammad sniper case.
(5) Because of the ill-considered statements of the prosecutor in the Malvo case interviews with numerous third parties have already been turned over in that case and most likely will be in the Muhammad case.
(6) The hardest defense of all to sell to the jury.
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Gotta love that initial interview with your client. You always find such realistic expectations.
found here
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Police in England raid a house, hold a man's children at gunpoint, the charges don't stick, and the government ends up paying.
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1 in 37 U.S. citizens has spent time in prison. After which time most of them have been supervised by probation officers.
In other countries some people try to keep from causing their government from spending all that money on them (morons didn't realize there is more than one guard at a prison). Or they may have just been self interested - perhaps they didn't like the music.
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Lynchburg is facing a shortage of officers due to a poor salary scheme. Maybe they should borrow some officers from Warrenton - where there is obviously too little going on to occupy the deputies if they take breaking up a bunch of kids at a kegger this seriously.
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Choices. We all make choices in life. Some of us choose to do strong arm robberies to get $300 (and later 27 years). Some of us choose to poach 4 million rands worth of abalone (549,284.63 US dollars). And the really big hitters choose to work in the $25 million range.
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18 August 2003
Southern Appeal has named me a member of the First Brigade. I'm sure he is refering to the Virginian First Brigade commanded by General Jackson. It is a great honor to be mentioned with such men. Unfortunately, it is an honor I must decline.
My heart, now and forever, belongs to the 1st Kentucky (Orphan) Brigade.
I guess he can leave me listed as 1st Brigade, just as long as we all realize which 1st Brigade he's refering to in my case.1
1 For those of you who are Yankees or from territories west of Texas don't even try to figure out why two Southern Gentlemen would quibble over such a point, even in jest. It's a Southern thing - you wouldn't understand (and if you try too hard your head might explode).
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I've been watching the tapes the Eastern District of Virginia makes you watch before you can be on the court-appointed lawyers list. Most of it is pretty worthless because it is a tape of a CLE held sometime in the past and they don't give you the CLE's booklet (the most important item for the majority of CLE's). Like most CLE's the majority of speakers are well practiced individuals who say things like: "as we all know from the Grtycinszky case and rule 55b we can't raise certain objections at trial and I've spelled all this out in my outline on page 189." Then there is the full third of the tapes (all 12 hours) which go something like this: "Questions? Yes Mr. Smith?" This is followed by a 5 minute lecture/question which I cannot hear because there is no microphone anywhere but at the dais; it is reminiscent of the old Peanuts cartoons where all you hear from the adults is Waa, waa, wa, waaaaah. Then the lecturer says something to the effect of "Yes, you are absolutely right and if you apply those cases in the manner you suggest you will master the practice of federal law."
I've really only gotten 3 things from the tape:
(A) A judge stood at the dais and told the attorneys how he and the other attorneys who had been tapped to become federal judges were absolutely shocked at the straight-jacket the federal sentencing guidelines put the judges in. He admitted this was because very few of them had ever practiced criminal law - it's such a comforting thought that few federal trial judges have criminal experience (and I'm sure the majority who do have been prosecutors). If so few trial judges have the relevant experience one must wonder about the experiences of those with enough political pull to become appellate judges. Not that the trial judges do a poor job with what little they have left to do.
(B) Another judge stood at the dais and told how he and a large number of judges found the guidelines unconstitutional when they were first imposed and how he still believes they are unconstitutional even though he must follow the contrary ruling from the federal supreme court.
(C) A well respected local trial attorney laid out the rules for playing the "Federal Defense Game" in E.D. Va:
The Federal Defense Game (as played in the Eastern District of Virginia):
Rules:
(1) Prosecutor you can charge whatever you want; Defense, your client must plead to the greatest charge
(2) Prosecutor, you can take as long as you like to prepare your case - you can take as long as 20 years if you like; Defendant, you have between 30-70 days to be ready for trial.
(3) Prosecutor, you can bribe witnesses by giving them their freedom: you can give them a 5k1, you can decide not to prosecute them at all, you can decide what to prosecute them on, and you have all the discretion as to how much time you take off or recommend to the court they take off; Defendant, if you so much as speak kindly to a witness it will be suggested that you have influenced them in some way.
(4) Defendant, if you go to trial you lose "acceptance of responsibility" and if you do not plead guilty 10 days prior the prosecutor will oppose you getting the 1 extra point award-able for "acceptance of responsibility."
(5) Prosecutor, you get to set out plea agreements in which you get all the discretion; Defendant you get no discretion and must cooperate as much as the prosecutor desires. These plea agreements will keep the Defendant from appealing any upward departures but allow the prosecutor to appeal any downward departures.
(6) If you go to trial, Defense, we will never, ever let your client cooperate (thus no lesser sentence) even if he can solve the Kennedy assassination.
(General Overarching Rule, by which all others must be interpreted) Not only shouldn't you play, but if you decide to play you better agree to lose and you better agree to lose early or we take our 5k and go home.
(7) And as a final bonus, if you do go to trial, lose and have a salient and powerful appeal point which should vindicate your client - you get to go to the 4th Circuit.
Lovely. When I first set out to begin practice in the federal courts I was drawn by the higher pay and the prestige associated with such a practice. Now I find myself wondering whether I want to associate with anything which is so obviously unconscionable.
Addendum:
Well, I just reread that last statement this morning and I think I probably need to get over myself. As much as anything, I think my hesitancy to practice in the federal courts is probably based on the fact that I don't want to go back to being a "baby" lawyer again. I've been working in the Virginia system long enough that I know most all the rules and don't make too many stupid mistakes anymore. I really do not look forward to going into court once again as the guy who's going to do something stupid because I don't know the system well enough. However, I cannot justify not entering federal practice because of that so I suspect sometime in the near future you'll all being reading about my adventures in the Richmond division of the Eastern District.
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An unfair trial. Witnesses deported and refused visas to re-enter for trial. Jury members reporting that other jurors are biased. etc.
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Intra-Prison punishment so bad that prisoners are trying to kill themselves rather than be there. Gotta love Virginia prisons.
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129 people charged with DUI. The judge reduces 82 of these to reckless driving. In 77 cases the driver does not reoffend.
This means that in 94% of the cases the judge is correct that the driver is someone caught in the draconian DUI laws who can be salvaged.
Of course, all the Pilot sees is the 6% who reoffended. The rest of us, who aren't prohibitionists, will hopefully see a judge taking his responsibilities seriously rather than trashing people's lives needlessly.
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17 August 2003
16 August 2003
In the 10th Circuit you can tell people you are violating constitutional rights and if they react in a manner which reflects an expectation that they are going to have their rights violated then you can arrest them for their actions.
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This Week and the Death Cases:
(1) Despite saying that there is evidence that innocent people have been killed by the government a judge refused to find the death penalty unconstitutional.
(2) Which may be the reason that Mexico refuses to cooperate with us anymore:
"Extradition [from Mexico] is now routinely denied in more than 40 categories of serious crime that are punishable by possible life terms under California law, including murder, rape, child molestation, kidnapping for ransom and train wrecking, among others."
. . .
"I have a list of 246 names of cases where we know the fugitive has fled to Mexico," Maurizi said. "Most of them are from Los Angeles, and probably 95 percent are murders."
(3) Puerto Rican prosecutors are considering whether to retry the men found not guilty in the federal death penalty case. The general thought is that one of the reasons - if not THE REASON - for the verdict is that the jury reacted to the Justice Department's treading upon Puerto Rico's sovereignty and it's populace's strongly held anti-death penalty feelings.
(4) Once you snitch on a gang you cannot go back.
(5) If you throw the body of a white woman off a bridge in Korea - in front of the police - you will get caught.
(6) Kaczynski wants his bombs back "for the sake of posterity." And just exactly why do I want my grandkids to have even a shadow of a memory of this man?
(7) In the NC Peterson case a gay prostitute (of whom there is no evidence the wife even knew existed) testifies as to the e-mails between him and Michael Peterson, the fact that he stood up Peterson, and the fact that Peterson spoke well of his wife and relationship in the e-mails.
(8) Exculpatory evidence withheld in a murder trial by prosecutors who are now judges. Not really a confidence builder for those of us who do Defense work.
(9) Killing someone over a parking space?
(10) Baby Milk Murders
(a) A mother accused of homicide for overdosing her child with methamphetamines thru her breast milk.
(b) A grandmother who killed her grandkid by spiking his milk with a massive amount of salt.
(11) We don't have enough money to pay for an adequate Defense - therefore, you are doing a great job representing your client in his multiple murder charges. In other words: you took the case now decide between whether if you are going to do an appropriate job in defending him by paying out of your own pocket and going broke or if you are going to let the trial be a sham so that you can keep paying your employees and your mortgage. No wonder the attorney has already tried to remove this judge.
(12) Scott Peterson's experts examined the bodies of his wife and son last Monday. Later in the week the judge decided that Scott Peterson's preliminary hearing will not be closed to the public.
~
Federal Sentencing Guidelines:
(1) An article decrying Ashcroft and attempts to stop downward departures.
(2) An article describing the unhappiness (and resignations) of conservative judges over how draconian the guidleines are.
(3) An article describing how prosecutors are attempting to invalidate statutes of limitations by filing "John Doe" indictments without knowing who the suspect even is (they are filing it by using an item of evidence and claiming it for identification: DNA). Just imagine getting a client 20 years later on a cold DNA hit and trying to put together evidence. It's a nightmare. Of course, since we don't have felony statutes of limitations in Virginia it's a nightmare every attorney faces here once in a while (although the furthest back I've had has been 8 years).
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15 August 2003
Someone please do this and come to me to defend you. You'll go to jail but I'll have a great war story (and I won't even charge a fee for the court appearance).
Woman: Is there a problem, Officer?
Officer: Ma'am, you were speeding.
Woman: Oh, I see.
Officer: Can I see your license please?
Woman: I'd give it to you but I don't have one.
Officer: Don't have one?
Woman: Lost it 4 times for drunk driving.
Officer: I see...Can I see your vehicle registration papers please.
Woman: I can't do that.
Officer: Why not?
Woman: I stole this car.
Officer: Stole it?
Woman: Yes, and I killed and hacked up the owner.
Officer: You what?
Woman: His body parts are in plastic bags in the trunk if you want to see.
The Officer looks at the woman and slowly backs away to his car and calls for back up. Within minutes 5 police cars circle the car. A senior officer slowly approaches the car, clasping his half drawn gun.
Officer2: Ma'am, could you step out of your vehicle please!
The woman steps out of her vehicle.
Woman: Is there a problem sir?
Officer2: One of my officers told me that you have stolen this car and murdered the owner.
Woman: Murdered the owner?
Officer2: Yes, could you please open the trunk of your car, please.
The woman opens the trunk, revealing nothing but an empty trunk.
Officer2: Is this your car, ma'am?
Woman: Yes, here are the registration papers.
The officer is quite stunned.
Officer2: One of my officers claims that you do not have a driving license.
The woman digs into her handbag and pulls out a clutch purse and hands it to the officer. The officer snaps opens the clutch purse and examines the license. He looks quite puzzled.
Officer2: Thank you ma'am, one of my officers told me you didn't have a license, that you stole this car, and that you murdered and hacked up the owner.
Woman: Bet you the lying skunk told you I was speeding, too.
---------------------------------------------------
found here
~
Prosecutors in the Hot Seat:
(1) In Alexandria a federal prosecutor's office looks to be in trouble - evidence which had been excluded made it into the jury room and was dispositive to the outcome of the case. No one seems to know how. It would be ridiculous to suggest that the Defense somehow planted the evidence which condemned its own client and "accident" just doesn't seem to pass the red-face test. And the judge is not happy.
(2) A prosecutor in Iowa has adopted the Allstate method in negotiating pleas. Nothing necessarily illegal or unconstitutional about that although this statement is "disingenuous":
"[The prosecutor] dismissed complaints that the plea policy prohibits defense attorneys from properly investigating cases. Good lawyers can learn what they need to learn by talking to the defendant, he said. It doesn't take months of depositions or courtroom debates.Yeah, I know what the circumstances are. I know that I'm not going to know what the putative reason for the pretext stop was in a majority of the cases until I have a preliminary hearing and tape it or I get discovery telling me on paper the reason. I know my client isn't going to have a clue as to what's on the affidavit or search warrant or what all was taken out of his house after he had been arrested. I know that I don't know how citizens are going to testify at trial: they may not be able - or willing - to identify my client.
"If they're going into court representing people and they don't know what the circumstances are, then I think they need to get out of the business," [the prosecutor] said.
Early deals swing both ways. Unless the prosecutor has been involved in the investigation personally he doesn't know if the evidence will shake out the way it appears in the police report; usually it will but I'm sure that all you prosecutors out there can remember a nasty surprise or two. On the other hand, the Defense attorney often starts out with little more knowledge than the mandatory sentence and how much less time would be served thru the offer. I cannot recount the number of clients who've said something to the effect of: "Man, I was so messed up that night that I don't remember anything but the cop hitting me with his baton on the side of the road. How'd I get in Chesterfield County, anyway?" (like I'd know) So both sides are stumbling around in the dark prior to anything going forward. Deals at this point are mainly guesses.
I find it interesting that the Bar in Iowa refused to consider whether this prosecutor's actions would be unethical. Perhaps someone out there should refer this to ethicalEsq? for further analysis.
~
In Iowa you can tell the judge that you are going to break the law in exactly the same way you did before, tell him you are willing to go to jail, and still only get a $200 fine.
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Police and the Law:
(1) The officers who taped the anti-war marches in San Fran are going to get a slap on the wrist. Why, exactly, is it wrong to tape people walking down a public street with no expectation of privacy? I understand if it's in a building or maybe even a couple guys huddled in an alley but as people march down the street?
(2) The police in Hooper Bay, Alaska want to carry guns - the town council says NO. As a quick note - the case which is cited as a reason for carrying pistols can just as easily be seen in this light: Officer arrives, citizen attacks and chokes officer to unconciousness, citizen takes gun and becomes 100 times more dangerous. This is not a good case to cite if you are trying to give a good reason for carrying pistols.
(3) If you are detained because you opened your (paid for) product before you left Wal-Mart you can sue the company and the police.
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14 August 2003
Yes, CLE's are pesky and, in general, really don't help your practice as much as actually being in court does. However, if you don't go your license will be taken away - even if you are out there fighting the good fight.
Just out of curiosity, if anyone out there is from L.A., is the courthouse in this article actually in an airport?
~
Found thru The Legal Reader:
An attorney has been turned away from the federal penetentiary numerous times because she wears clothes that are too provocative. The article describes her latest outfit as an almost knee length dress which buttons up the middle. Since that's a little vague and I'm not an expert on women's fashions, I'm not sure how close we are to Ally McBeal here. However, I disagree with the assertion that dress codes, searches, etc. should be different for attorneys than regular visitors1.
From the prison's spokesperson:
"If you came and observed some of the women who come through here ... ," she added, her voice trailing off, "I don't even have to say anything. Sometimes I say to myself, 'Oh, my God, that woman, can she breath?' "Been there, seen that. Visitation time at a jail is an amazing thing. Women show up dressed in some of the most revealing clothes you've ever seen (outside Victoria's Secret). Most jails seem to deal with this by having a female guard at the front desk sending them away if they don't make the dress code (and it's amazing how many of them actually have a change of clothes out in the car when they are rejected). The smarter visitors show up in clothes which comply with the dress code but are skin tight and they seem to get away with that more often. Being the evil, male chauvinist pig that I am, I haven't noticed if there are similar trends among male visitors.
1 Yes, I know they are all annoying but I'm sure those of us who practice day-in-and -day-out have all heard tales from our clients about how an attorney is breaking the rules for the client's cellmate because they are romantically involved.
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Police and the Law:
(1) If someone grabs an officer's gun, kills him with it, and is subsequently shot by other officers- why do you even need a prosecutor to opine as to whether the officers should be prosecuted?
(2) The case of the officer who threw the handcuffed kid on the car is going back to court.
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Florida is appealing the federal court ruling that it cannot prosecute the two pilots who showed up to work with alcohol in their systems.
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If you make $3.7 million from prostitution at the only strip club in the State the police will most likely catch you.
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How can you, when arrested, not tell the immigrations officials, as they impound the van, that there is a 12 year old girl hidden in a compartment in the van?
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Training hair stylists to look for domestic abuse. On one hand I think these people probably do hear more about that kind of stuff than many others; on the other hand, I'm not too thrilled by anyone being trained to be a snitch.
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Further info on the allegations against the man who was supposed to be bringing missiles into the U.S.
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If you falsify documents to keep the SEC from investigating your client you may get a $12 million dollar bonus but you will also get criminal charges.
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13 August 2003
Good News! If you write the IRS and ask why you have to pay taxes and it doesn't send you a reply you can be found not to be criminally liable when you don't pay your taxes.
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Now that's a burrito: "The recipe included one bottle of red Irish beer, 1 1/2 cups of tequila and three-quarters of a bottle of dark ale." No wonder the guy blew hot on the breath test.
~
I've recieved mention in two blogs. The Sleaze Report notes my recent citation by a Society of a College of Cambridge. And then starts talking about Klingons and flies and rolled up papers . .
A new blog, Scadenfreude, has permalinked me. WARNING: There is a picture of someone flipping you off as you open the site (the warning alone should be good enough to get him a few hits).
~
When the Defendant is an actor and the main witness is a manipulative ex-con (a madame, no less), who do you believe?
Prosecution argument.
A more Defense oriented article.
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Terrorism:
(1) A man caught trying to sell an anti-aircraft missile to terrorists in the U.S.
(2) As a Pakistani is changed from "material witness" to terrorist he is denied bail.
(3) The ABA wants the military tribunals to become more like criminal proceedings.
(4) The PATRIOT Act has become so unpopular that Ashcroft is going to go on a tour supporting it. Can't imagine why people would be upset about the government monitoring to make sure they are reading acceptable materials from bookstores or libraries. And why would people become upset about hidden warrants and sneak and peeks? I mean, come on folks, aren't you willing to give up your "essential liberty for temporary security?"
(5) As a Muslim faced with "3,066 counts of accessory to murder and membership in a terrorist organization" what can you do? Hire a female, Jewish attorney. As an interesting note: participating in the murder of over 3,000 people carries a MAXIMUM of 15 years imprisonment in Germany.
(6) Don't like a particular type of firearm? Well you could always try to get around that pesky 2d Amendment by claiming that U.S. citizens in your county can't have it because "terrorists" might use this type of weapon. Can there be a more bogus argument for taking firearms away from citizens?
~
Police in the Law:
(1) Police engage in a gunfight with a former officer and rescue a kidnapped doctor.
(2) SWAT brings in a whacko who stabbed two officers in San Fran.
(3) The Virginia State Troopers have spiffy Camaros which go from 0 to 100 mph in 13 seconds. Being a consumate professional, I'm sure the trooper figured this out in a training atmosphere and he wasn't in the one that blew past me a couple days ago like I was standing still (with no lights or siren).
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Sadly, I must report that it isn't just Democrats and/or members of the Richmond City Council who break the law.
~
Trying to pass a noise ordinance to make a race track illegal. Seems like there might be an ex post facto problem here.
~
Random Juries Around the Country:
(1) When the Defendant has a massive record between 15 years of age and 20 years it is nearly impossible to keep a jury from doing something like this.
(2) A federal jury splits the baby.
(3) However, if you engage in corporate malfeasance the jury will hit you with a full broadside.
~
How long will it be before the federal government prosecutes one of us for not turning on our clients?
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12 August 2003
Beggars:
(1) I'm SHOCKED!! Shocked, I say! I would have never thought that the homeless guy begging on the corner would eat where free food is handed out and spend the money given him by the saps, er. . . I mean kind people, on drugs. Never in a thousand years.
(2) Stories of a homeless guy including such weapons as knives, guns, and jelly jars.
~
On the Sentencing Guidelines:
(1) A paper convinced that Ashcroft is trying to intimidate the members of the federal judiciary.
(2) An editorial which is not happy at all with Justice Kennedy's denouncing of the guidelines.
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The ABA has decided that you "may" break attorney-client privilige and report a client to keep them from committing fraud if you believe (not KNOW) the fraud will occur.
In other words, if you work in the corporate sphere you better turn on your client pretty quickly or you can face lawsuits from stockholders because you didn't.
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Why are the feds wasting time on this woman. All they are doing is giving her free publicity and possibly making her into the martyr she wants to be.
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Local Corruption
(1) You know what this guy would be called - assuming arguendo that he is guilty of what he's charged - in Richmond? HONEST.
(2) L.A. is cracking down. If you commit fraud on the city it is finally going to fire you.
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10 August 2003
Roused from his sleep by the sound of gunfire about 4:30 a.m. Friday, the 67-year-old Gates took up his 12-gauge Browning automatic shotgun, stepped out onto his front porch and fired three blasts at men he said were drug dealers having a shootout in his front yard.I first heard about this on Michael Graham and later got an e-mail from Matt pointing to his note on it at Stop the Bleating!1
. . .
Gates said he heard his wife yell and fall to the floor.
"I thought they shot my wife," he said. "I went and got my gun and fired three shots."
Matt's note covered it pretty well. My only comment is that I'm not at all convinced that the man will ever see his guns again. My experience has been that when police take guns from people they are not returned. Even if the charge or potential charge is much weaker than this one, a condition of the charge not going forward is abandonment of the guns by their owner.
However, I suspect that Mr. Gates has probably already bought a new firearm:
[Mr. Gates] vows that he will be ready if friends of the three men try to retaliate, and he smiled as he said he planned to acquire a gun to protect himself.Y'know, if we had more of this happening (without prosecution of the citizen) I bet the crime rate would drop dramatically.
"They better make sure they get me if they come back, because if they don't get me, I'm going to kill all of them," Gates said. "I'm 67 and don't have that long to live anyway."
1 Sorry I took a while to reply - this week's been a little nuts and work takes priority (no one goes to jail if I don't post or answer e-mail for a couple days).
~
Joke Passed to Me by a Fellow Lawyer:
A very successful lawyer parked his brand new BMW in front of the office, ready to show it off to his colleagues. As he got out, a truck came along, too close to the curb, and completely tore off the driver's door of the BMW.
He immediately grabbed his mobile phone, dialed 911, and it wasn't more than 5 minutes before a policeman pulled up.
Before the cop had a chance to ask any questions, the lawyer started screaming hysterically telling the officer that his BMW, which he had just picked up the day before, was now completely ruined and would never be the same, no matter how the body shop tried to make it new again.
After the lawyer finally wound down from his rant, the cop shook his head in disgust and disbelief. "I can't believe how materialistic you lawyers are,"he said. "You are so focused on your possessions that you neglect the most important things in life."
"How can you say such a thing?" asked the lawyer.
The cop replied, "Good Grief, don't you even realize that your left arm is missing? It got ripped off when the truck hit you!!!"
"Oh No!" screamed the lawyer.
"Where's my Rolex?"
~
More Death Cases:
(1) In the Scott Peterson case the Defense's expert will examine the bodies on Monday.
(2) The prosecution in the NC Peterson case has won a massive evidentiary victory. It is going to be allowed to enter electronic evidence which will show that Michael Peterson was looking at gay porn and was corresponding electronically with a gay hooker.
What, you ask, does that have to do with the accusation of murder? The prosecution is going to try and sell the jury on the idea that the wife found the stuff on the computer and then confronted her husband and then he killed her. The problem is that it appears as though there is absolutely no evidence that the wife ever knew about any of this stuff. Sounds like built in grounds for winning an appeal to me.
~
Terrorism Update
Reid sent a letter to Moussaoui offering to testify in his trial but the government won't let Moussaoui read it or reply due to fears that coded messages might be passed.
Because, as we all know, there's so much that you can do if get a coded message while you are in jail.
~
Death Cases:
(1) The lawyers who will represent the man accused of killing Officer Wendel will be represented by John Boatwright, Thomas L. Johnson Jr., and Matt Geary. Hard to get better representantion than that.
(2) In Norfolk they are charging a 55 year old woman with murder because her 78 year old father (with whom she did not live) died of starvation/dehydration. Basically, from what I can tell from the article the accusation is that she should have been monitoring him despite the fact that they were both adults.
(3) Gotta wonder what the legal theory is behind keeping a Defendant from selling his property in order to hire a lawyer (I understand the emotional reason for doing it). In Virginia if you had the amount of property which this guy appears to have you probably couldn't get a court appointed attorney.
(4) Tire maker not responsible for murder which happened after a flat tire.
(5) Kids (17 to 20) in England get less than 2 years for killing a man.
(6) The Defendant paid $1.2 million and the lawyers want more. The Defendant decided he wanted a new attorney.
~
Why is he noting an article about college funding for Religion majors?
Because, immediately after I declared that one of my two undergraduate majors was Religion the Commonwealth of Kentucky yanked all State funding from my education (yes, Kentucky has a Blaine amendment). So, while I was translating passages from the Quran and the Hebrew Testament and comparing the common basis of Islam and Judaism in Abraham (all the while remaining CATHOLIC) the State refused me any funds because I was being religious. Luckily, my school picked up the slack thru private funds.
These laws can almost all be traced back to the Blaine amendments and are blatantly unconstitutional. Note how, at the end of the article, it points out that the ACLU's local chapter thinks it's just fine to single out religion for non-funding despite that pesky first amendment. How would it react if the State refused to fund anyone announcing a Women's Studies, African-American Studies, or Lesbian, Gay, and Bisexual Studies major? I think we all know the answer to that question.
~
Lee Pickton, charged with kidnapping, told a jury that if he and his mates had been beating somebody up "they would be dead". He went on to admit he had nine previous convictions for burglary, theft, drink driving, assault and harassment. On each occasion he had pleaded guilty, and he said that therefore he would have "owned up" had he been responsible for the attack on Nicholas Wilsonham.Apparently, they scalped the guy and tried to get a pitbull to attack his leg but no one tried to actually kill him.
Every defense lawyer hears the words "I've always admitted to the crimes I did and if I did this one I'd admit to it." Sometimes the client is even speaking the truth. But it's not something that you expect to put in front of a jury. The argument "I was guilty the last eight times but this time I'm innocent just doesn't sit well with your average citizen."
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Minors and the Law:
(1) What kind of jerk strangles a 3 year old girl?
(2) Rape two teenage girls = get convicted of 39 felonies. Probably go to jail for life as well.
(3) Another female teacher accused of rape of a minor boy (12 years old).
(4) A teachers pleads guilty to shoving a girl in a locker and hitting a boy on his hands and arms with a ruler.
(5) It's not child endangerment to breastfeed your baby while you drive. At least not if your husband has ordered you to do so.
~
If you're going to scam you can work pretty hard at it and make about $10,000 a month or you can claim to be a Rockefeller, hob-nob with the rich, and get $100,000 at a pop.
Think I'd choose scenario number 2.
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20 years for the Marine who betrayed his fellow Marines by cutting the strings on their parachutes. And he deserves every last second of it.
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Federal Judiciary and the Guidelines Straight Jacket:
(1) Judges in the Western District of Virginia react to Ashcroft's move to make sure judges use less discretion.
(2) Justice Kennedy speaks out against the guidlines.
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Well, this gives a new definition to the term "jail house lawyer." Or maybe it should be "post-jail house lawyer."
~
The proposed change to the 21 day rule will allow those who are actually innocent and pled not guilty to submit to the appeals court proof of innocence.
Gotta agree with the editorial that not allowing those who are actually innocent but who pled guilty or "nolo contendere" to submit to the court of appeals is a terrible idea.
~
Your in the United States and you are French. This means your people have a reputation for being rude and haughty. It also means that most Americans are still pissed at your country for the games played before the invasion of Iraq.
Do you really think you ought to be cracking jokes about bombs at the airport?
~
Police in the News
(1) The Good
(a) Police can shoot at balloons to free chickens.
(b) In Lynchburg they are making efforts to improve the training and gear of police officers.
(2) The Bad
(a) When someone who is crazy stabs you twice it is probably O.K. to shoot him but I'm not sure how solid your footing is if you shoot the head of the Chamber of Commerce (except, of course, in this case).
(b) In South Africa police are robbed at gunpoint - in their own station.
(c) In Miami they are attempting to slam some corrupt officers.
(d) A jury did not believe an officer's explanation for shooting a man in the back.
(e) In Philadelphia the warden gets prison time for prisoner beatings and it looks like prisoners might have been beaten in Chicago.
(f) A federal judge increases federal oversight of the NYPD because it asked some strange questions of arrested anti-war demonstrators.
~
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