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In California they are actually going to protect people's rights as they drive down the street. WOW. How do we bring that level of civilization to Virginia? Probable cause before attempting to violate 4th Amendment rights?

Let me be clear here, in Virginia this is a Courts/Legislature problem - not a law-enforcement problem. The police do their job as they are allowed to by the Legislature and Courts; they are told pretty clearly "a traffic-violation arrest ... [will] not be rendered invalid by the fact that it was 'a mere pretext for a . . . search'." Arkansas v. Sullivan, 121 S.Ct. 1876, 1878 (2001). This leads to all sorts of stops based on "reasonable articulable suspicion" that are just garbage. Then some sort of reason is found to search the car, usually permission given by a driver who does not understand that he can say "No" to the man standing next to his car with a gun and badge. The Virginia and federal courts stand strongly behind the disingenuous position that citizens in this position have the right to leave and will do so (and then get a felony eluding charge). California has raised the threshhold for a search such that an officer has to have "probable cause" before he can search. Thus the incentive for the bogus stop lessens because the officer cannot ask for the right to search.
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Prosecutors cannot use writs of mandamus or prohibition as a tool to force judges not to take cases under advisement. Thanks to John McChesney et al. for their efforts in making this clear. In re: Commonwealth's Attorney for the City of Roanoke.

This means that In re Commonwealth's Attorney for Chesterfield County, 229 Va. 159, 163, 326 S.E.2d 695, 698 (1985) cannot take place as of today.
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They're still trying to get the executed guy's DNA tested.

Virginia's position:

"DNA testing is without a doubt a very powerful tool, but it is a tool for the living. Roger Coleman was and is guilty of the rape and murder of Wanda McCoy. All the repeated histrionics by various lawyers won't change that."

Both sides here are disturbing. The anti-death penalty group is trying to get the information for propoganda. And the only reason I can think the Commonwealth would refuse to allow the test is fear of a possible truth.
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Sa'ad's wife will be testifying in federal court against him. The federal court judge ordered Sa'ad not to talk with her about it.

Yeah right!
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A guard had sex with an inmate. Why was he allowed in private with her? Don't they have female guards? I've never been to a jail yet and not seen one.
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Let me get this straight. A pet store sells a fish legally (it isn't dangerous to humans in any way). Then the fish's owner returns it because it got too big for the tank. Virginia makes the fish illegal on 01 January. And on the 3d of January the County of Henrico takes the fish, kills it, and puts a $1,000 fine on the manager (not the owner).

Insert your own snide comments here.

Yep, it's a real story.
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This cite got a mention over at Southern Appeal. Thanks for the recommendation (and I welcome his mother).

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==Off Point==

A search for "bomb Saddam" on google leads to these two cites:

A funny gif animation.

A 4 1/2 minute download. It's well done but it will take time to download (especially if you don't have a high speed connection).

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This came from another blog. Don't know if it's true but it is good.
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FBI agents conducted a raid of a psychiatric hospital in San Diego that was under investigation for medical insurance fraud. After hours of reviewing thousands of medical records, the dozens of agents had worked up quite an appetite. The agent in charge of the investigation called a nearby pizza parlor with delivery service to order a quick dinner for his colleagues. The following telephone conversation took place and was recorded by the FBI because they were taping all conversations at the hospital:

Agent: Hello. I'd like to order 19 large pizzas and 67 cans of soda.

Pizza Man: And where would you like them delivered?

Agent: We're over at the psychiatric hospital.

Pizza Man: The psychiatric hospital?

Agent: That's right. I'm an FBI agent.

Pizza Man: You're an FBI agent?

Agent: That's correct. Just about everybody here is.

Pizza Man: And you're at the psychiatric hospital?

Agent: That's correct. And make sure you don't go through the front doors. We have them locked. You will have to go around to the back to the service entrance to deliver the pizzas.

Pizza Man: And you say you're all FBI agents?

Agent: That's right. How soon can you have them here?

Pizza Man: And everyone at the psychiatric hospital is an FBI agent?

Agent: That's right. We've been here all day and we're starving.

Pizza Man: How are you going to pay for all of this?

Agent: I have my checkbook right here.

Pizza Man: And you're all FBI agents?

Agent: That's right. Everyone here is an FBI agent. Can you remember to bring the pizzas and sodas to the service entrance in the rear? We have the front doors locked.

Pizza Man: I don't think so.
CLICK.

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You ride along with a rap band, you shoot at some fans who trailing your bus and for some reason you get arrested.

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It's hard to believe this kind of stupidity is still going on.

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Former employees are sueing the Attorney General. They'll lose but they're trying.

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The ACLU is threatening to sue if the Governor signs into law the "Choose Life" license plate. The claim is that to put out this plate without a similar plate of the opposing viewpoint (Choose Death?) is unconstitutional viewpoint discrimination.

It's an interesting take on the matter. I have vague memories of the Sons of the Confederacy sueing Virginia because the Commonwealth wouldn't give them a plate and winning. I've actually seen a couple of them; the Sons may be few in number nowadays but they are fervent. As I remember it the rule is that as long as the Commonwealth makes plates which express any viewpoint it cannot deny a particular viewpoint its own plate (although I think a 50 plate minimum can be imposed). Of course specialty plates are not going away (would you lobby your legislator to get rid of this plate?)

I think the ACLU is pursuing the wrong remedy here. The correct action to take would be to go to the legislature and ask for whatever tasteful pro-abortion plate they wish. I do not think they could be refused a plate which said something like "Virginians for Choice." If they were denied then they would have a true constitutional issue to take to court. Even then the remedy would not be to attack the "Choose Life" plate but to force the Commonwealth to offer the "Virginians for Choice" plate under the same conditions as the "Choose Life" plate. Here is a link to the "Choose Life" bill as passed. Note that the "CL" bill does not require a certain number of plates be ordered before shipping; therefore the "VfC" could not either. Thus those who wish to express that viewpoint could do it as soon as the bill passed.

On the other hand, should the Governor cave in to this threat and refuse to sign the "CL" plate into law he clearly leaves the Commonwealth open to a suit by those who want this viewpoint expressed on a license plate.

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Hey! I'm in a newspaper! Go to the bottom of the page.

This is the kid I blawged about earlier this month who was charged with a max 10 year felony.

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NY Times article on the federal supreme court's decision to make the courts of appeals actually have habeus hearings. The issue at first glance appeared to be a Batson issue but this article makes it clear that the issue was actually whether the courts of appeals could merge their decision whether to grant a habeus with the decision on the actual merits of the habeus. They cannot. Apparently the standard for granting a habeus hearing is much lower than the actual standard of proof.

I'm not sure this will actually change many final results but it will open the federal courts to those whom habeus's (habei?) are meant to protect. After all, Lincoln isn't the President anymore.

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And in another shocking development . . . A federal judge has refused to enjoin President Bush from starting combat against Iraq.

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Here's an article wherein the Times Dispatch tells us that the Commonwealth Attorney is actually asserting that Virginia's death penalty passes constitutional muster. I know I'm shocked.

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The federal supreme court sent a habeus back to a district court because somewhat out of date statistical data and anecdotal data indicate that race may have been THE REASON that jurors were excluded by prosecutors. So now the matter must be considered by the district court; but isn't the standard so high that this is just running around in circles?

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As I've said before, when I think that criminal law in Virginia is wierd or tough I just have to look to Texas to put things in perspective. It is an innovative punishement.

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At the end of this article the author suggests a cruel, unusual, and downright evil punishment for the UK brander. Who could suggest such an evil thing as to force association with Louisville?

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"[A]sking prosecutors what we should do about wrongful convictions is like asking Hannibal Lecter what we should do about cannibalism."

That has got to be the quote of the week. Doubt I'll find anything better. This is a NY Times article which bases an anti-death penalty position on the following oral argument:

Judge Stith (Missouri Supreme Court): "Are you suggesting [that] even if we find Mr. Amrine is actually innocent, he should be executed?"

Frank A. Jung, an assistant state attorney general, replied, "That's correct, your honor."

Mr. Jung is to be commended for his frankness. In most cases he may be correct. Finality and the difficulty of reprosecuting and the desire not to bother the victims any further and the fact that most claims are frivolous stacks up pretty heavily on one scale when balanced against the possibility that someone is spending a couple years in prison for a crime he may not have committed on the other. The sheer number of cases and the relatively minor punishment makes reopening difficult to justify in those cases.

However, there comes a point where the punishment becomes so severe that the scales balance and eventually tip toward the convicted. I'm not sure exactly where that point is. I suspect that, since I'm the one who has to stare the convicted client in the face and tell him that - even though he's innocent - he cannot do anything about it because it would inconvenience the system, my balancing point would be low. I suspect a prosecutor, who has to face a rape victim and tell her that the person she identified as her attacker is going free because of DNA evidence, would have a high balancing point. Living in the real world, I expect that the balancing point set by courts and legislatures will be closer to what a prosecutor would prefer.

Nevertheless, executing the actually innocent is beyond the pale.

On the other hand, the prosecutors' point about clemency being the route to go rather than the courts may actually be correct: if the clemency system is somehow made entirely apolitical; if the clemency system provides an office capable of providing serious review and making informed, apolitical recommendations; if clemency can be made to expunge a conviction from the record of someone who is actually innocent. I have doubts about this happening but I've been wrong before. I know if I were governor you'd have to show me some awfully convincing evidence before I committed political suicide by pardoning convicted rapists and murderers or even commuting their sentences. In a political position my threshhold would probably be a lot higher than it is now. And I'm a defense attorney. Most of the people who seem to make the highest office in Virginia are prosecutors.

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Russia is starting to use jury trials. And prosecutors are complaining because they only have an 88% conviction rate. And the government is making excuses to put off implimentation of the jury system.

It is disturbing that the NY Times' headline seems to show disapproval of this change.

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45 years seems light for what this man did.

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The Legislature has voted to take responsibility and pay a man who had years of his life taken away for conviction of a crime he did not commit.

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Allen, Allen, Allen, & Allen backed the Bar down over its commercials. As I understand some attorneys asked for a Bar ruling on the commercial because it uses a comparative superiority over other lawyers (the book is "The Best Lawyers in America"), lawyers are included in the book if they pay to be put in it, and the commercials inferred that all attorneys voted to put the lawyers in it.

I can't really say yea or nay to much of that; I've never even seen that book in any library. I do know that I've never voted to put anyone in it.

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The Feds have found the root of all evil: moonshine. Why are they wasting time on this?

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A man left his child in a locked car. The child died. The jury sentences him to a year. And the judge even suspends that.

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The Feds are taking their shot at Sa'ad El-Amin and his wife. Things will become much less interesting if he is not around to stir the political pot in Richmond.

I wonder exactly what is the basis for the illegal use of a government seal charge.

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The 21 day rule is going to be changed to a 90 day rule.

Unfortunately, this does nothing to solve the problem. For those of you who do not know the rule, in general actual innocence is not a reason for a conviction to be overturned in Virginia. If new evidence, which was not known or available prior to trial is discovered within 21 days it can be brought to the trial court in order to request a new trial. There is a valid reason for the known or available evidence qualifications; it is to keep evidence which was withheld or not sought (usually for tactical reasons) by the defendant from being raised after conviction to give the defendant a second shot.

However, it is much harder to justify the date restriction. It is very hard to convince trial judges and appellate judges that you have actually discovered new evidence within 21 days (or even 90) which was absolutely unavailable just a few days prior. Why? Because common sense tells all of us that is not enough time for anything which is truly new to have developed. Serious evidentiary matters which are not available at time of trial will most often develop long after the arbitrary date when someone else confesses or new means of developing evidence (such as DNA) are developed or refined. But since actual innocence is not a reason to come back to court and the rule keeps new evidence from bringing the case back to court you have no access to the judicial system. Your only hope is a prayer for clemency but even after the governor has commuted your sentence and restored your rights that felony conviction remains on your record.

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A school can expel you on the basis of an unproven accusation.

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This article makes a little too much of a fuss about the fact that the new chief justice in Virginia is black. On the other hand the fact that he is a Harvard Law grad gets no comment. With three of the top law schools in the nation Virginia (ranked 7th), Washington and Lee (ranked 18th), and William and Mary (ranked 32d) one would hope the Commonwealth would be able to promote its own rather than someone from a northeastern school.

Of course, I may be a bit biased (as a graduate of W&L).

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No visible physical scarring, no actual harm and a possible actual reason for a mark. Do you really want to bring this case in Fayette County Circuit Court? I grew up in Lexington-Fayette (the city and county have long been merged) and the University is the center of the universe. Now if the doctor had used Louisville as his marker they might have a case . . .

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Sua Sponte is a fine blog which I highly recommend. In her most recent exposition she raises the natural fear that many have of jury trials. She's not alone. I know that I've spoken to many a lawyer who has been practicing for years and has the same fear. When you are engaged in highly technical, air's awful thin up there, law the thought of 12 citizens deciding the case can be terrifying. A jury might not understand that page 789 of the latest decision handed down from the Fourth Circuit as applied to code sec. 3456 allows the State to take Spot because technically a dog is chattels. They might just apply their collective common sense and return a verdict stating that the dog will remain with the person who's raised and fed it for the last 5 years.**

"You know who's on juries? The mailman. Some college kid. My mother."

Yep, that's what makes them so great. In the criminal defense world wherein I make my (meager) living I know that appellate judges and often trial judges are biased against my client. I've had a couple older trial judges tell me that my client is guilty shortly before a jury comes back with a favorable verdict; younger judges are more careful with their words but will often compliment you in a way which is revealing. If you need verification of appellate bias look to the mess that every single State and the FedGov court has made of 4th Amendment jurisprudence in order to justify some very sketchy things law enforcement has done.

On the other hand, watch a prosecutor try to sell a jury when he has clearly overcharged. For a good example of this go back thru the archives (Feb) and read about the jury where the kid was charged with injuring a guard. Juries will usually apply their common sense and slap down such silliness. They are also good at cutting out charges where the client might be technically guilty but it was just overzealous to charge him. i.e at night, when a client is in a (mutually) drunken fight with his neighbor and they stumble thru the neighbor's door and the prosecutor charges a felony B&E (entry at night with intent of battery; guilty before any judge in Va.).

In front of a jury you are either a Champion of the Oppressed or Guardian of Our Rights, depending on whether the jurisdiciton is inner city or in a more conservative suburb or rural area (actually you're both at all times only the pitch changes). Those same people who looked down on you, ostracized you, and called you whatever your generation's term for "nerd" was when you were a kid will now look up to you as a keeper of the law. Most of them will do their best to listen to you (and your opponent) and sort out the correct result. As sojourners they often take their role in the system more seriously than everyone else present. They can concentrate all their efforts on this one case because they do not have a ton of other cases to worry about like the prosecutor, defense attorney, and judge.

As you can see, I am a True Believer.

Of course, there are still times I hate jury trials too. When a court-appointed client whom the store video-taped stealing the hammer demands a jury trial it is his right to have one. Then you stand in front of the jury and pray that when they learn of his 8 felonies and 15 misdemeanors (all larcenies) they will not apply their collective common sense and give him the 5 year max (when you know he would have gotten 18 months from the judge). Been there, done that. I argue how minor the event was; the prosecutor argues the record. The jury tends to spilt the difference (about 2 1/2 years); the judge refuses to suspend any of the sentence. And then the client blames me for his conviction. Those are fun days.***

Well, I'd like to keep going but court calls . . .


**All code secs. and pages are figments of my imagination. And yes, I do realize this is an extremely silly and unlikely example (at least I hope).
***This is a conglomeration of past experiences and not representative of any single client.

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Wow. A county administrater stole $818,000 over a period of 9 years. And it wasn't anybody in the government who caught him; he got caught because the lady he was paying child support to got suspicious.

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This is original: a plea for clemency based upon possible exposure to nerve agent in Gulf War I.

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The prosecutor withdraws a murder charge before there is even a preliminary hearing. What are the odds that the defendant might disappear before the reports get back from the lab?

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California is probably the most camera friendly State out there. Still, the judges are obstructing the entry of the media into their courts. In Virginia the only place regularly broadcast is Wise County which puts its circuit court cases up on the web.

I've only had a reporter request to tape one of my cases but a co-defendant's attorney called and told her he would oppose camera presence. Apparently the case wasn't important enough to make a fuss over because after that the reporter didn't even show up. I called to see if I could find out why she was so interested (it was a simple petit larceny) but she never returned my call.

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Police can plant false memories during interrogations.

I already knew this but I doubt the general public did (or even does; think the U.S. public reads the Independent?). I'm not speaking from my general bias as a defense attorney but from my experience as an interrogator in the Army. During training police interrogation techniques were held up as the way not to do interrogations. A person under stress tends to say what he feels the person in control (the interrogator) wants him to say; the less intellectual or sophisticated the person being questioned, the more truth attaches to this statement. If asked leading questions, backed by untruthful statements the subject will tend to gravitate toward that which the questioner tells him is truth. i.e:

"We know you were in the house that night Bobby. You just went in to look at the pretty pictures, didn't you? And then you saw Ms. Martin? And you just wanted to talk to her? And then she screamed? And then . . ." lie followed by leading questions

This form of questioning can lead to an extreme abuse when the subject is led thru this sort of questioning several times and then asked to "tell us what you did in your own words." Shock, a drug fog, lack of itellect, desire to please, desire to end the session and/or other factors (depending on the person) combine in some form to lead the subject to agree during the leading questions and to repeat the story fed to him. He may quickly recant the next day after he has slept, the drugs have cleared out of his system, and his girlfriend has reminded him that they were together (alone) out at lover's lane at the time the break-in was supposed to have happened. But it's too late, the police have their confession and it will be given undue weight in the courtroom.

To be fair, there are techniques for testing whether a confession under this situation is truthful. First, one can feed an untruth to the subject and see if he adopts it: "You broke into the house with a crowbar, didn't you?" when the door was just left open and the perpetrator just walked in. Second, you can leave out a fact and ask an open-ended question: "Bobby, you told us you mugged Ms. Martin. What did you hit her with?" when she was hit by something unusual like a ceramic Superman statue. In the open ended question you must pick something unusual because if you ask something like "What did you stab the man in the kitchen with?" the subject will answer "umm . . . ahhh . . . I think it was some sort of kitchen knife." Of course, a smart subject can pick these up and play right into them ("I hit her with my crowbar") so there is a strong incentive to cheat and not ask the control questions - especially if the officer is convinced he has the right person and that this person will lie to save his hide.

I do not believe that officers set out to convict innocent men but I do believe they push the envelope as far as they can to get the ones they believe are guilty. I have had a case where the officer had a client write out his confession 4 times until he finally put in it what the officer wanted - and the language seemed extremely coached. The final confession meant a difference of time of several years in prison. I put the client on the stand so that the judge could see he was barely functional and very open to suggestion. He agreed with everything I asked him and then agreed with everything the prosecutor asked him. Then under questioning he seemed unable to realize there was any conflict. I pointed out the several, evolving confessions and suggestability but the judge saw the final confession and that was the end of the story. He was convicted of the more serious crime and sent to prison for a looooonng time. Sorry this is so vague: attorney-client privilege.

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You know it's a slow news day when this is the biggest story of the day: maltreatment of cattle. I guess they have to be treated well right up to the moment we kill them for food.

There's not even anyone shooting each other in Richmond. Peace on Earth. And all it required was that the whole world get frozen.

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It is a slow day. I guess not much illegal occurs on Sundays in the middle of ice storms and I screwed up and left all the work at the office. I was curious as to how many of my fellow graduates are up on the web so I researched and came up with this list. These are all the people who belong to firms which have put them online (although some websites were a little quirky and did not allow citing to the exact page for that attorney). Click on the name and it will send you to that person's profile.

Albie Armfield*****Chandler Bailey*****Robert Baker
John Bartram*****Matthew Cheek
Aylett Colston*****Allison Driver*****Tom Dunlap
Anne Duprey*****Justin Flamm*****Ken Ford
Beth Formidoni*****Daniel Grubb*****John Hamann
Josh Harmon*****Jennifer Haynes*****Kristy Hazelwood
Robyn Hill*****Kelly Horan*****Mary Katherine Hovious
Matt Huebschman*****William Hutchinson*****Wyndall Ivey
Russell Jessee*****Charles Kemp*****Scott Klein
David Leshner*****Jonathan MacArthur*****Michael Maddren
Mary Martin*****John McChesney*****Brian McNamara
Morgan Meyer*****Darren Moore*****Ken Moore
Mary Naumann*****Matt Nozemack******Melissa Pignatelli
Brett Pisciotta*****Virginia Price******Michael Resch
Gary Seligman*****Mark Sherrill*****Jennifer Shugars
Susan Simpson*****Calvin Smith*****Jim Stoltz
Ellen Wasilausky*****Matthew Young

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The Democratic Lt. Governor is pushing for the government to specifically regulate the behavior of clergy.

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I scratch along, day to day, and one of my fellow law school graduates is out in Nevada getting his picture in the paper.

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Must say that I am impressed by the lawyers in this case. The lady runs her car back and forth over her husband because he is cheating on her and she only gets 20 years. Well defended.

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Darn! We can't carry concealed weapons into bars.

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An oldy but goody told at today's CLE:

The prosecutor calls a grandmotherly lady to the witness stand to testify at trial. In order to start her off slowly he asks her, "Mrs. Maxwell, do you know who I am?" To which she replied, "Yes, I know you. I've known you ever since you were born. You were a spoiled rich kid who stole other children's toys. You grew up to become a self-important snob who thinks he is better than anyone else. You will do anything to advance your political career and I know you've convicted people who were innocent just so you could get your name in the paper."

The prosecutor is staggered and in his shock he can only think of one question: "Mrs. Maxwell, do you know who the defense attorney is?" "Yes, I've known him for 35 years. He was a juvenile delinqent whose father bought his way into law school because his grades were so bad. He was going to be a judge until the newspaper found out that he had been representing hookers and getting paid in sex. "

The entire courtroom sits in shocked silence. Finally, the judge calls both counselors to a side bar. Looking them in the face he says, "If either of you two corrupt bastards ask her if she knows me you're going to jail."

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Today was spent in a CLE for Virginia's criminal bar.

Highlights:

Unfortunately Prof. Bacigal had some sort of attack during his presentation. At the end of the CLE we were told he is doing OK. Hopefully he will be soon well.

Prof. Groot, one of my law school profs, lectured on how reasons other than Miranda can be used to exclude confessions. One, of course, was coercion. The other was confession induced by promise. I've argued that before and gotta say the judge looked at me like I was nuts and shut me down pretty quick.

The rest was interesting (especially the section on handling the press) but not particularly helpful.

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Trying to force the governor to be tougher in denying felons the return of complete citizenship.

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And now the seatbelt bill has failed (again). Quoth the legislator: 'most police officers do the right thing but "you have knuckleheads out there on these police squads and that's who I'm afraid of."'

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A judge gave eight years to both parents in a case where they provided alcohol to a party for their 16 year old and a group of friends. The prosecutor's reccomendation of 90 days was ignored. I fully expect that this to be appealed to the circuit court for a far more reasonable disposition. Gotta wonder how many adults who were in that courtroom had been drinking when they were 16. Do as I say, not as I did.

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A $1 fine for possession of cocaine. And the defendant wants to appeal.

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Murder on the Appalachian Trail, murder of a wife, girlfriend, and girl, murder by a minister, and a Maryland judge throws out a confession of murder.

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Well, the seatbelt bill has passed the House and Senate. A victory for insurance company profits and unwarranted intrusion into the privacy of those driving cars.

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You cannot film a jury's deliberations. Not even in Texas. I'd love to see a jury's deliberation but I don't believe that if they know they are being watched you will hear what normally goes on.

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A breakdown of the murder rates in Richmond. I lived in the 1st precinct for most of last year and I am surpirsed the numbers were so low (gunfire heard often). The evidence seems to tie most of the murders to a crackdown on the drug trade by law enforcement.

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DNA clears someone of rape. Wish that would happen for some of my clients.

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Death in Richmond City Jail. I had the same thing happen to one of my clients in the same jail but they got him to help in time.

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A real, honest-to-God, filibuster in the Senate. Will the Democrats stop Estrada's nomination? Will they drive on suicidally attacking a member of their proclaimed base? Will Senator Schumer's head explode?

Stay tuned for the exciting conclusion: same Bat-Time same Bat-Channel.

This summary is not available. Please click here to view the post.

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A new Chief Justice in Virginia.

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As I sit here checking my e-mail and looking at the news sites my dogs are staring out the window at the snow which began to fall about 15 minutes ago (it was supposed to hit last night but didn't). Big, wet, pretty flakes but I don't think any will stick since it's already 34 degrees.

Just a note: expect no blawging today from me - I have an all day, nasty-looking jury scheduled for tomorrow (what a wonderful way to spend my birthday).

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The Legislature may cause a constitutional confrontation in Virginia by trying to keep the Governor from restoring rights to felons (to vote, hold office, serve on juries). Hard to picture this as more than political hardball. Hard to justify refusing to let someone exercise his right to vote (especially several years after) and how do you get elected after you got a nasty felony (think your opponent will let that go by?). As well, what prosecutor wouldn't strike a convict from the jury during peremptory strikes? Although I do agree that a restitution requirement actually makes sense.

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Republican changes to the judicial appointment and approval process in Virginia. They've actually opened the process to public scrutiny and they ask questions. Shudder.

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A female, black, conservative is being considered for the next Chief Justice of the federal Supreme Court.

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How do I get my local paper to write an article saying that I walk on water (like this)?

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83 years in prison and more than $1,000,000 in fines. And there's no parole in Virginia.

WOW.

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Don't commit low level crimes if you're muslim. The terrorist task force will come a'knockin.

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O.K. It's getting a little scary with the PATRIOT legislation. I'm particularly disturbed by the attempt to remove restrictions placed upon law enforcement SPECIFICALLY BECAUSE the police were violating the law and constitution. As well, being able to take citizenship away is a scary prospect. Can they do it just because I was foolish enough to join a leftist organization while I was in law school (the ABA)? Or does it only apply to those of you out there who belong to a leftist, no wait "liberal," er, no I mean progressive group currently (the Democratic Party)?

Input is welcomed.

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So you ran your husband over 3 times after you caught him cheating. You didn't really mean to do it did you?

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When you steal a 27,000 lb excavator where in the world do you hide it?

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Capital defense attornies please note: Prosecutors cannot compare your clients to O.J.

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A dilemma: ask for the discovery you are entitled to and have your client whisked off to the military tribunal or stay in the dark and not be able to zealously represent your client. Tribunals are probably necessary but they are scary and using them to circumvent due process is worrisome.

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An opinion concerning federal intrusion in State areas, keeping juries in the dark, and "jury nullification" (a term those who are anti-jury use to refer to jurors holding prosecutors to the community standard).

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This is why prosecutions based solely on witness testimony without further evidence are so scary. I know I've stood there sure that the store security guy is lieing. Even worse is when your client's ex-girlfriend, whom he caught cheating and slapped the night before she accused him of [fill in the blank], gets on the stand ready and willing to say anything to convict your client. And the amount of witness collusion is amazing. Unless they slip up so that you can impeach them there's not a whole lot you can do about it.

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The judge refused Malvo privacy in the hiring of experts. It was an interesting motion but I can't imagine the defense thought it would succeed and I can't see it as a powerful appeal matter either. I'm curious as to why they chose to fight this fight.

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Old murders by a mayor, failed suicide in a suicide-murder, attempted murder by arson, and murder of a deputy.

What the heck is going on this week? We got a full moon out there or something?

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The Saudi Council of Muslim Scholars has issued an edict stating that Muslims ought not to kill us.

As an aside, look about half way thru the article and notice that they are having problems with "alcohol smuggling gangs."

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The federal government is prosecuting Tyson. This is the kind of case the federal government should be concerning itself with. The question is whether the federal government can actually stand up to deep pockets and legions of well paid lawyers and PR men. It's not as easy as prosecuting some guy in California who's raising marijuana.

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It looks like the federal government's stance against marijuana might actually be correct.

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Women are more susceptible to the effects of drugs and addiction than men are? Never know it by the number of men I have getting in trouble for drug-related offenses compared to the number of women.

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Malvo's lawyers asking for their indigent client to have the same advantages that the prosecutor and wealthy defendants have in trial.

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Deputy distributing drugs.

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Personally, I am deeply suspicious of "medical marijuana." Just like I'm suspicious of all the other uses for "hemp" which I see put forth by people whom I suspect just might, maybe, perhaps have a motive that just isn't as beneficent as they'd wish us to believe.

NEVERTHELESS, when someone is growing the stuff under color of State law, in that State, for medical use in the same State I have problems with the feds stepping in at all. And I have real problems when the judge orders serious, pertinent evidence be hidden from the jury.

All I can hope is that this leads to serious reform in the amount of stuff that judges and prosecutors are allowed to hide from juries. My personal gripe is the hiding of mandatory sentences from jurors. In Virginia trials are bifurcated and the potential sentence is hidden from the jurors during the guilt phase. Don't believe me? Come watch my jury trial next monday and see 15 mandatory years not be mentioned unless my client is found guilty.

Why are mandatory sentences hidden from jurors? Because often the evidence is flimsy enough that were they to understand the actual gravity of the punishment they might not convict. They would at least put more serious consideration into the matter. I've seen the jurors look absolutely shocked when a judge tells them they must impose a mandatory sentence of 5 years. They might actually render a verdict of not guilty - even in the face of overwhelming evidence - should they believe the punishment unjust. For instance, I had a trial wherein my client was charged as a felon in possession of a firearm. In Virginia that carries a mandatory 2 or 5 year sentence (depending on the severity of the prior felony). He had the pistol in his hand for a minute (without ammunition) while he was considering whether to purchase it. The prosecution was set to go forward on that and a blissfully unaware jury might have convicted him and been forced to sentence him to 5 years. Luckily, I got a rational prosecutor and we had the record checked proving my client didn't actually have a felony record.

The excuse given is always that a jury is the decider of fact, not the interpretor of the law. On one level I agree with this: the jury should not be deciding what a technical term (such as "aggravated malicious wounding") means - it should follow the judge's instruction as to that matter. On another level I think this is purely rationalization of a power grab. Assuming a fair jury pool, the juror is the last true and most perfect visage of pure democracy - it is a guardian against the government whether the government presents itself as unfair laws passed by the sovereign, unfair enforcement of the laws by the sovereign's prosecutors or unfair decisions made by the sovereign's judiciary. As such, given all the facts, it will sometimes do things which favor the people over the sovereign - anyone who has read anything on juries realizes that this is one of its traditional purposes.

And how does the sovereign react to this? It limits this institution as much as possible. Laws are passed which lead to greater punishment if convicted by a jury rather than a judge, thus limiting access to juries. Jurors are not told the kinds of punishments they will be required to impose (even should they be unjust) if they convict. Jurors are only selected from "trustworthy" people; it is amazing the high percentage of property holders who are in the local jury pools (and being a rentor myself I know there are a lot of renters in this area). It's a disgrace.

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A million dollar bond? No problem . . .

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Nothing, if not persistent, the backers of the seatbelt law upgrade are still plugging along.

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Jury trial today. The 18 year old man was charged with felony knowingly and willfully causing an injury to a juvenile detention guard. This is a class 5 felony carrying a maximum penalty of 10 years.

The facts: Client, in a juvenile detention facility, threw a fit and was throwing a phone around. A guard went to grab client and had his hand hit by the phone; the hand had some swelling (this was the injury). The guard testified that he could not tell if client meant to hit him or not.

Both the judge and the prosecutor expressed the opinion that the felony was the same as a misdemeanor battery would be in the normal world. But an instruction for misdemeanor battery was required by caselaw and so it was included.

Thankfully, the jury saw the difference between "knowingly and willfully injuring" and an "unwanted touching." They were out for about 2 hours and came back with a finding of guilty on misdemeanor battery. Then the prosecutor showed them client's 14 priors (including malicious wounding, assault and battery of a police officer, and unlawful wounding). I tried everything I had but there was no overcoming that. The jury was out for maybe 5 minutes and they returned with the maximum penalty of 12 months and $2,500 fine. In reality this means that he should serve 6 months because in Virginia a client only serves half the time sentenced on a misdemeanor.

The guards at the Beaumont Juvenile Detention Facility should appreciate what the Commonwealth Attorney of Powhatan did for them. He is an elected official and could have ensured an easy conviction by making a low offer or charging a lesser offense (thereby making himself look better). A bright man, I'm sure he realized the case was close yet he still pushed forward prosecuting a charge less certain of conviction basically in representation of the interests of the guards.

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Guns and booze. What a wonderful mix.

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The ABA hard at work protecting our monopoly. I've got an idea. Let's define legal work as that done in preparation for and as part of an actual trial - you know barrister stuff. I'd really like to switch from being at the bottom of the legal food chain (as a criminal defense trial attorney) to the top as someone who sees the inside of a courtroom almost every day. It'd be coooolll!!

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An article on the consequences of Virginia's probation system. About the only way to get past this would be to stop hanging suspended time over criminal defendants' heads and I just don't see that happening. Almost every client gets a suspended sentence if it is that person's first offense. What do you do to that guy if suspended sentences are no longer available? Fines don't work; all they accomplish is to get people's driving licenses suspended. Advisement has been under a cloud of doubt ever since the Powell case (even though it was overturned en banc and the new opinion specifically refused to reach that issue) so it might not be an available option.

Hmmm.... Gotta think this one over.

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A breakdown of the results of the Blue Ridge Drug Task Force. These task forces seem to be everywhere nowadays. Yet, all my drug addict clients have no problems getting whatever drugs they want; the reason most of them end up in legal difficulties is that they have to get money to buy the drugs. Note that I am just making an observation, not an argument for legalization. They would still steal or pass bad checks to get the money if hair-on and crank were legal.

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A wrong-minded opinion about seatbelt laws. Making seatbelt infractions a primary offense will not lead to greater usage but it will lead to a greater infringement on your rights if you drive a car (you already have basically have no rights if you are driving a car).

I repeat my blawg when I first heard heard there was an attempt to make this a primary offense back on 20 Jan 03:

"This is bad. Police stops in Virginia are already a joke. Virginia courts refuse to protect citizens from shakedown stops as long as the officer proclaims a "reasonable articulable suspicion" of illegal activity.** This usually translates as police with suspicion of a crime but absolutely no probable cause pulling over a car because of a very minor traffic infraction. The citizen finds himself stopped by a uniformed officer, a street drugs unit, and a K-9 unit just because he didn't signal his turn properly. Most of the time the officers don't even write a citation. If they find something serious the citizen goes to jail; if they don't, the citizen is allowed to leave with a warning.

Don't think the officers will use seatbelts as a reason? I'm sure of it. A judge in Chesterfield County recently ruled that having an air freshener hanging from your rear view mirror is "reasonable articulable suspicion" for a stop despite the fact that the Commonwealth itself hands out things to hang from rearview mirrors (handicap tags).

** Although many States provide a great deal of protection to their citizens thru the States' constitutions, Virginia courts refuse to accord any power to the rights enumerated in the Virginia constitution. They will enforce only the bare minimum standards imposed upon them by the federal constitution thru the federal supreme court."

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An opinion approving the process that Republican legislature is putting judges thru and pointing out Democrat pecksniffery.

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And so it begins.** Damn cannibals. Where the Brits go is not the NY Times soon to follow?

There will always be people who say it's too dangerous. Should we review and see if we can find the cause? Of course. Should we stop the program for months (again) while everyone at NASA who filed CYOB memos point fingers at those who made decisions? Hell no!

Unless we develop anit-gravity drives and float into the stars this will remain a high risk enterprise. People will sacrifice their lives to this endeavor. We should honor their choice to risk all for something they think worth that risk. The next shuttle should launch on schedule.


** With thanks to Drudge.

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Well, the police thought they had a suspect in the panther scare on the Eastern Shore but they were wrong.

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It's always either the lawyers' fault or the doctors' fault. Nobody seems to check out the insurance companies. I would be very interested in knowing if anyone has done a study to see if the downturn of the stock market and the insurance companies investments tracks with the rise in insurance rates.

I would be very interested in seeing what would happen if there was a movement to cap insurance profits.

Actually, I would agree that a cap on punitive damages on professionals would be acceptable as long as it was not extended to companies and corporations. A professional is unlikely to say "if I screw up twice a year, leading to two deaths, and maximum punitive damages are $100,000 each I can only put in five sutures in each patient (instead of 10) and I will earn $250,000 thereby making a greater profit." At least 3 of the four traditional professions (doctors, lawyers, clergy) have ethical (or higher) obligations which are supposed to stop that sort of analysis.** On the other hand, a company is quite capable of making this sort of analysis. Car manufacturers have to make this sort of analysis all the time (they are after all making big blocks of metal which travel at high rates of speed) and I would rather that they could not just factor in the twenty-five times a year that the new wundercar will explode because a left turn signal is on and someone rear-ends the car. I would prefer that they are worried about getting badly burnt by that one case so that they work to limit the risk of their exposure as much as possible (at least until GMC hires me).


** Although a honest man must admit that in the end reality has to be factored in. As lawyer I cannot help anyone if my doors close because I push a single court-appointed case too far and put all my money into that case's experts and investigators.