30 April 2003

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A former congressional representative tries to sue President Bush because "All I ever wanted, and all I want right now, is that this president or any other president cannot preemptively strike another nation." And then there's the Yale professor who advocates two principals before a President can start hostilities:

"The first was the principle of double veto: There could be no major war without the consent of both Congress and the United Nations. The second was the principle of Congress' last say: Only after the UN Security Council established that war was consistent with the UN Charter would Congress decide whether it was in the best interests of the United States."

No way you'd want the leader of the United States (a sovereign nation), responsible for defending it in a world where the second strike can be too late, to have the ability to strike first. And nobody in the U.N. would act in a manner contrary to world interest, choosing to first the interests of their sovereign nations. Chirac est un ver.

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A Congressman writes to defend toughening the straightjacket which Congress has placed on federal judges called mandatory sentencing guidelines:

"Downward departures have climbed steadily every year for the last several years. The rate of such departures has increased 50 percent over the last five years."

You know, maybe there's a reason for this like, ummm, I don't know, perhaps draconian mandatory sentences which consistently over-sentence and allow prosecutors to abuse the system.

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The federal supreme court may send the Richmond trespassing case back to the Virginia Supreme Court.

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Warner has signed the bill into law to keep people under "civil commitment" after they have finished what they have been sentenced to criminally.

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This is orignial. Set up an online auction site. Then keep the money and the product both instead of exchanging them.

How can you think you won't be caught?

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The Iraqi lawyer who helped liberate the U.S. prisoner has been granted asylum in the U.S.

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The federal supreme court has approved holding illegal immigrants withou bond even if they do not fall afoul of the traditional standards for bond.

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29 April 2003

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Patricia Harrington Krueger is the new Clerk of the Virginia Supreme Court. Congratulations.

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The Judge in the Malvo case has put off ruling on the confession's admissablility so that she can look thru the case law on the 4th Amendment. Good luck to her.

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Virginia has passed criminal laws against spamming as well as civil asset seizure laws. It should have national impact since AOL &cetera are based in the Commonwealth. SW Virginia Law Blog has the statute here.

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In Las Vegas the judges don't let that pesky 1st Amendment get in their way.

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Lynchburg has started a trial against someone for using church funds to pay his own bills.

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Governor Warner says he's not interested in running as VP in '04.

Of course he's not. First, unless something really major happens the next candidate from his party will be defeated. Second, even he doesn't have enough money to buy election to that office.

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Finals are in progress up at New Haven.

Ah, law school finals - it takes me back to the halcyon days of finals at W&L Law. Located in the hamlet of Lexington, Virginia, where The General is buried, battle flags just might outnumber people, and the War of Northern Aggression is still seriously remembered as the War of Northern Aggression, Lexington, which makes New Haven look like a booming metropolis, Lexington where I remember thinking, "I eschewed application at Ivy League schools and turned down Vanderbilt for this?" Lexington where a student from NY City asked me in the first week of class if the locals know the War is over and that The General lost (heresy only a Yankee could speak)? Lexington where . . .

O.K. I was ranting a little bit. My main memory of finals is that just as Fall finals began the buzzards would start flying circles around the school (I'm not kidding here). They would keep circling until some time after we all left for Summer break. Then they would re-appear just before finals the next Fall. I always wondered how the Professors arranged it.

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Why is the IRS messing around with the earned income tax credit? Is this actually costing the government billions of dollars?

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The FTC has determined that most Spam e-mails contain false claims. You mean all those products which promise they will draw hundreds of beautiful women to me are false?!? How do I get my money back?

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28 April 2003

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Will it never end? The FBI lab is even more screwed up.

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The prosecutions side of the way they got Malvo to talk (after they got him away from the appointed attorneys by manipulating the system, holding ex parte hearings, and moving him to another State).

I still say the statements should be excluded - I still think they won't.

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The first meeting about the 21 day rule has taken place.

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Crimes rates are rising in California despite the draconian three strike laws.

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What happens when you get out of prison after 19 years for a crime you didn't commit.

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The NYTimes is opposing the choice of Sutton for the 6th Circuit because he has represented parties which took a federalist position. It's all part of the great right-wing conspiracy.

At least this one's on the op-ed page.

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27 April 2003

--------------------------------------------------------
Off Point
--------------------------------------------------------

I've been following the Georgia flag broohaha for a while now. This is partly because I read Southern Appeal at least every other day. Mostly it's because my roomate from law school is from Atlanta (as he puts it "the city-state of Atlanta which just happens to share a physical presence with Georgia"). As a Kentucky boy transplanted to Virginia, I fell obligated to put my two cents in (don't ask me why).

For those of you who haven't been following this matter, (A) Georgia had a flag which had the State seal on the left third and the Confederate bars on the right until 1956.



(B) Then, in reaction to the federal supreme court forcing integration of schools, the Legislature took the bars off and replaced them with the Confederate battle flag.



Any realistic analysis of the replacement has to take into account that the battle flag was long ago appropriated by the Klan and those of its ilk. The replacement was definitely a statement (and not "heritage").

(C) Fast forward to the 90's. Certain trends come into play. First the political climate of the South has changed and African-Americans have become a strong voice. Second, the NAACP runs out of serious issues to address - or more realistically, it runs out of sexy issues to pursue (trying to improve elementary ed. is too long term and hard to get news to cover). It turned its attention to States which used Confederate flags, threatening boycotts and putting pressure on companies to harm the offenders. Some rejected the NAACP's pressure outright: Mississippi held a citizen vote and its flag was overwhelmingly affirmed by its citizens. Some compromised: South Carolina moved the Confederate flag from its capital building to a Confederate memorial in front of the capital. The NAACP maintains its boycotts on these areas. It ignores the will of the people in one case and ignores a compromise which basically gave it what it wanted in the other. It is so bad in S.C. that Democratic candidates are tap dancing about campaigning there (Edwards is pandering).

But Georgia avoided all that and just caved. "[Governor] Barnes furtively and purposefully spent . . . 12 months orchestrating a behind-the-scenes effort to forge a coalition that could move rapidly to effect a flag change before opposition could be mounted to oppose it."
The flag ended up looking like this:



This flag was voted the ugliest flag in America. At least one Georgian sued because the flag violated laws. The Republican candidate in the next gubenatorial election repudiated this change and promised a vote by citizens on whether to go back to the old flag; as a direct result of the flag hijacking the first non-Democratic governor in 134 years was elected, a Republican was voted into the U.S. Senate, the Republicans gained control of 8 of Georgia's 12 House seats, the Republican party got control of the State Senate when four Democratic Senators switched parties, and "State Senate Majority Leader Charles Walker and 28-year House Speaker Tom Murphy, the capo di capi of Georgia Democratic politicians, also both lost."

Then the dance began and after a lot of manuevering the Legislature finally adopted the Confederate national flag:



Actually it adopted this flag:



The only differences are the inclusion of the Georgia seal and "In God we Trust. The Stars on the Confederate national flag increased as new States joined until there were 13 as on the Georgia flag.

Up till the last moment it appeared as though the Confederate battle flag would still be on the State citizen referendum but at the last moment that was snatched away. Nobody on either side is happy but it looks like a compromise which might work.

Still there are already people who are finding fault in the new flag. How dare the flag mention God?

In the end, I think the citizens of Georgia have been very, very poorly treated. They should be given the choice but their government does not trust democracy and therefore will never allow them to choose.

Of course it could be worse; the Legislature could have chosen this Georgian flag:



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_______________________________________________________

Danville has rejected a citizen oversight commitee for its police department.

I think this is a mistake. Citizen oversight keeps a police force honest and avoids problems in the police department. Without citizen oversight the only people who watch the police are themselves. This leads to one of two problems. (1) The police stick together with supervisors not ever finding that an officer is negligent. (2) The supervisors do their job and go after officers who step over the line causing all sorts of disharmony.

Citizen oversight does not solve all the problems. Police will still close ranks and the people appointed to these commitees are not usually those who will hold the police to a very strict standard. Still, it is better than everything being done behind closed doors at the police building.

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26 April 2003

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D.C. is facing challenges because its laws concerning the cameras it has set up at stop lights are putting liabilities on people who didn't break any laws.

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At Wallens Ridge a group of guards did not react quickly enough to stop a prisoner from hanging himself. They were sued. There might have been a valid defense: Wallens Ridge was a super-max and they had to put together a cell extraction team before they could go in. However, they'll never have to put it on because the judge dismissed the case on technicalities.

I like the part at the end about Wallens Ridge no longer being a super-max. I suspect that this was done because Virginia keeps leasing space in it to other States and those States keep sending people who shouldn't go into a super-max. Gotta wonder though if people are really being treated any differently since the change in classification. I suspect little has actually changed.

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_______________________________________________________

Virginia is considering juvenile drug courts.

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Since he hasn't been able to get PATRIOT II passed so that he can take our citizenship away Ashcroft has been forced to concentarate on illegal aliens. He has opined that judges under his auspices can refuse illegal aliens bond for no reason. I really don't have a problem with such detentions but if we hold all the illegals we are going to fill all our jails and prisons in a very short time.

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24 April 2003

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I wonder what was in the pre-sentence report which convinced the judge to reduce the jury's death sentence to life in prison.

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This is interesting: The Libertarians are going to try and take over a State and repeal its laws.

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Well, the judge in the Malvo case has basically said that it is OK for police to leak information which could poison the jury pool.

I figure this was probably done on a procedural basis and it is probably correct but it has the troubling aspect of appearing to give a wink and nod to improper behavior on the enforcement side.

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23 April 2003

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A study in opposites:

An article deriding and disparaging the efforts to attack the gun industry.

An article describing why some companies should be subject to civil suits. Why in the world would you make a gun which has to be off safe in order to unload?

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A police officer commits 20 felonies and only gets 1 year in jail (all suspended as long as she doesn't get in trouble for 5 years). Apparently, she and her partner were creating fake records for fake work so that they could get extra pay. Her partner pled guilty to 399 felonies. He got 20 years; I think that's about .05 years per felony.

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Racial fight which ended in death by mob assault; appropriately enough in Virginia this falls under the anti-lynching statutes. No hate crime charges tough; it looks like the guy who died was the one doing the racial instigating.

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Oh goody, ineffective assistance of counsel is still available as a habeus claim. What habeus would be complete without it?

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Prosecutors in Manassas are fighting to preserve their right to trial by ambush.

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FIRE has filed suit against Shippensburg University, saying the state school's policy on speech is among the most unconstitutionally restrictive in the nation.

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We aren't the only country to have demonstrations.

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The International Criminal Court has its first prosecutor: a gentleman from Argentina.

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Kiss a guy on the forehead, get sentenced to 47 lashes. Iran: the place that even Texans look at and say, "Gee, that punishment's just a little tough."

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22 April 2003

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The sheer audacity of this is something which you just have to admire.

If the IRS is dumb enough to pay reparations in the amount of $500,000 to the lady maybe I can get them to pay me. I am of German heritage (as are about 30% of Americans) and in the last century those of German heritage were forced to give up their culture, language (which used to be much as Spanish is now), and had to fight two wars against the land whence they came. And I should be due some money for the anti-Catholic repressions of the Know-Nothings, the passage of the Blaine Amendments, the under-representation of Catholics in the body-politic (only one president for a 30% portion of the citizenry in 200+ years).

Yeah, I should get some money.

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_______________________________________________________

What is it about officers who work in places called Suffolk? Whether it is in Virginia or in New York some officers seem to abuse their power to get an advantage over the fairer sex.

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Don't bring a skillet to a gun fight. You will lose; the trooper will win. This article has a picture of the skillet.

Of course, getting into a straight up gun fight with police officers isn't all that smart either,

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Three seperate papers from wildly different locales writing to condemn the 21 day rule:

Hampton Roads: Anecdotal story of someone who everyone, including the complaining detective, thinks is innocent but who cannot go back to court because he is outside the 21 day period.

Charlottesville: Making the argument as to why actual innocence should be a reason to be allowed back into court and explaining why the rule might die in commission.

Roanoke:   

"Virginia's General Assembly took up the task of reforming the state's notoriously restrictive 21-day rule last session - and passed legislation to extend the deadline on new evidence of innocence to 90 days. Big deal.

    On Day 91, then, even a 'videotape of someone else committing the crime,' as Richmond lawyer Steve Benjamin puts it, would provide no grounds for the courts to consider whether the people of Virginia might possibly have made a mistake."

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A police chief leaving with the regerets of the citizenry if not his own officers. Another police chief coming into a town in desperate need of some help.

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We often hear the reasons for bringing back parole and eliminating mandatory sentencing: cost, cost, costs, people may change, costs, costs, &cetera.

Here's the case for the other side. Of course it's anecdotal, providing no comparison of the number who actually return to society successfully as opposed to the number who re-offend in such a horrible manner. Still, it's some food for thought.

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WOW. A Virginia locality that decided against more and newer jail space. Never thought I'd see that in the Commonwealth.

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More on the never-ending saga of the judge the Legislature refused to reappoint. Racial accusations, bar complaints - you couldn't write a soap opera this ridiculous.

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Argument against local law enforcement enforcing immigration laws.

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Discussion of the Iraqi legal system as it has been and as some hope it will be.

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CNN stating that Justice Thomas is coming out of his shell and writing a book but is still marginalized due to his views.

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Why is the Washington Post writing about a town in California defying the PATRIOT Act to the best of its ability? I'm shakey on PATRIOT myself but wouldn't it be more pertinent to the Post's readers if this were in the District, Maryland, or Virginia?

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The question of whether police can get exceptions to Miranda is going back before the federal supreme court.

What new exceptions will be created?

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Interesting. I didn't know that churches outside the Catholic had ecclesiastical trials. I wonder if there are lawyers who specialize in Presbyterian doctrine and law.

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Have to agree with this (although not the attack on the Republican party). Insurance for doctors is getting expensive and companies are pulling coverage but it ain't only the doctors' insurance where you see trouble.

I haven't seen huge malpractice suits or settlements against lawyers recently but still the former Bar reccomended company has gone belly up and the current Bar reccomended company just got downgraded by stock advisers because it had to take cost cutting measures. Are evil trial lawyers at fault here too?

.

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NOW opposing a charge of murder for the unborn baby out in California. Heck, even under the common law before abortion was transformed from a State health and morality issue into a constitutional right there were homicide charges available after the quickening.

At least that's what I remember from way back in my law school days.

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Another death penalty case from Texas is going to the federal supreme court.

"The legal issues in his appeal include claims of prosecutorial misconduct and defense incompetence, both of which the court agreed to review."

Could you possibly be more vague than that? This is shoddy reporting by the NYTimes which doesn't even tell us what the actual issue is.

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Why zero tolerance rules in our schools are just plain stupid. I have had more than one client call me when they found out their kid (let's be honest here and say son; these rules are meant to repress male behavior) had transgressed in some minor way. Thankfully, I have found that local principals use common sense in these matters and ignore the required expulsion when kids do something like leaving a butterknife in the bed of their truck after a weekend spent moving things from one apartment to another. They ignore the rule.

This fad will pass someday and common sense will rule once again. It strikes me much as the last anti-male fad when schools were trying to make all the male kids sit down and be quiet by diagnosing them all with ADHD and doping them up. It got so bad that the family doctor felt that he had to warn my parents not to let school officials put my (much) younger brother on ritalin when he entered the first grade. I think that parents and doctors have reacted enough to that fad so we don't see the problem as much anymore.

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DNA brings another murder conviction into question.

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21 April 2003

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The NYTimes is shocked and appalled that Congress might pass a law keeping the same strategy that is being used against the tobacco industry from being used against gun manufacturers.

Of course, the NYTimes probably doesn't see a possible connection with shutting down the manufacture of guns and a denial of 2d Amendment rights.

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Justice O'Connor's self description: "I'm not very self-analytical."

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How quaint. Judges in the Netherlands still believe that a person can change enough that he deserves a second chance to re-enter society (12 - 18 years later).

When will these Euros learn that you just have to write people off, build a gazillion prisons, and write tougher and tougher sentencing into the law in order to satisfy the electorate that they are being tough on crime? Heck, they could just adopt Virginia's system.

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Madonna is taking steps to fight internet piracy.

The real question is: does anyone actually care enough about Madonna's new music to download it?

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I thought that the question of whether the constitution must be applied outside the U.S. had been settled a long time ago (over Justice John Marshall Harlan's dissents).

The answer is: No.

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Jail on a Carribbean Island:

"Mr. Fitzgerald told me they quashed the conviction and there would be no retrial. I just had a sense of relief. I jumped on my stationary bike and did 50 kilometers. I just looked out toward the North Coast and just had a sense of relief that it had finally come to an end."

The murder conviction was thrown out because (1) the trial judge didn't warn the jurors that the jail-house snitch was a known liar and (2) there was very little evidence otherwise. Heck, in Virginia we just call that "harmless error."

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It looks like Richmond isn't the only place which prosecutes its own police officers. Of course in Miami the feds are prosecuting the officers.

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Sadly, I find myself in agreement with the NYTimes. The States do not provide adequate money for adequate defense of the indigent (they never will). MORE IMPORTANTLY: Denying a citizen the right to meet with his lawyer because the branch of government which PROSECUTES says he shouldn't see one and he's only being held in jail but he's not being charged with anything is a blatant violation of the federal constitution.

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20 April 2003

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I am really torn by this: a judge made every anti-war protester post a $1,000 secure bond despite the fact that there is no evidence that they will fail to appear at trial or pose a danger to the community (the two reasons for bond). The judge is way out of bounds but, like I've said earlier, those truly dedicated to their cause must be willing to have some discomfort in the pursuit of that cause. Nevertheless, as good as I am sure this makes many of us feel (just desserts and all) the judge is just so wrong that it is troubling.


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A county in Mississippi is filing suit to get an appropriate amount of money from the State to provide adequate representation for indigent criminal defendants.

Last time something like this happened in Virginia was when a due-process claim was raised because Virginia pays so little for indigent representation - it didn't work.

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Some legislators hid in the Amber Alert legislation new restrictions on federal judges. "Many prosecutors say they agree with the bill's goals." Of course they do. Sentencing guidelines switch control of the courtroom from the judge to the prosecutor. The judge used to decide what happened to you when you came into his courtroom. Now the prosecutor decides what happens to you because he decides what you are charged with and can mold the charges to whatever he chooses in order to get the number of years he desires.

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Ashcroft ignores a court order.

Wish I could say this is surprising.

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The Lamb of God has risen.

Happy Easter everyone.

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18 April 2003



2000+ years ago Hebrew and Roman law was manipulated in order to kill someone who was an irritant to the authorities. His "crime" was posted over his head as he died. The paper read "Jesus of Nazareth King of the Jews" (INRI = Iesus Nazarenus Rex Iudaeorum).

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13 April 2003

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Pretending you're a Rockefeller is fun for a while (I'm sure) but eventually you do have to pay the piper.

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The concept of double jeopardy seems to have passed by the courts in California.

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" [In 2002] China, Iran and the United States accounted for 81 percent of all executions."

It's a little misleading when you figure that China killed (officially) 1,060 people while Iran lags far behind in second place (113) and the U.S. third (71). I'd like to see a list ranking executions per hundred citizens.

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Another article about the lies and debauchery of Liberal Justice William Douglas.

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12 April 2003

++++++++++++++++++
God Bless Our Troops
++++++++++++++++++

This just feels slimy:

Federal judge in Maryland appoints lawyers for federal charges and tells them to handle any State charges as well.

Law enforcement drops the federal charges without his lawyers present, denies the lawyers access to Malvo, and shuttles Malvo over to Virginia.

Malvo is questioned without lawyers in Virginia.



Malvo then said his lawyer told him not to talk to the police until the lawyer arrived.




Malvo signs the rights notification paperwork with an "X" because he does not want to incriminate himself.

Malvo confesses.


Of course, none of the conversation wherein Malvo was convinced to talk was recorded. Only the confession was recorded. And gee, doesn't it sound an awful lot like the language from last year when the Va. Supreme Court said that "Can I speak to my lawyer? I can't even talk to lawyer before I make any kinds of comments or anything?" didn't assert your right to have a lawyer present during questioning? Commonwealth v. Redmond, 264 Va. 321, 568 S.E.2d 695 (2002).

The confession should be suppressed. It won't be, but it should.

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++++++++++++++++++
God Bless Our Troops
++++++++++++++++++

Big Brother slowly creeping into our lives.

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++++++++++++++++++
God Bless Our Troops
++++++++++++++++++

OK. If you're dumb enough to fall for this maybe you deserve to lose your money.

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++++++++++++++++++
God Bless Our Troops
++++++++++++++++++

Whatd'ya'know? A city in Virginia, other than Richmond, where corruption occurs.

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++++++++++++++++++
God Bless Our Troops
++++++++++++++++++

You're a prosecutor. You have a rock solid case wherein the defendant has confessed to killing 4 girls. Then one of the girls turns up alive and has had nothing to do with the defendant. Ouch.

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++++++++++++++++++
God Bless Our Troops
++++++++++++++++++

The press is trying to get access to the Moussaoui trial. More power to them. Trial in secret very much bothers me.

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++++++++++++++++++
God Bless Our Troops
++++++++++++++++++

Here's an original defense: It wasn't me it was the nerve gas that killed those people.

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++++++++++++++++++
God Bless Our Troops
++++++++++++++++++

Scalia is still for a strict-old fashioned reading of the constitution.

Yes, I know, you're shocked.

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++++++++++++++++++
God Bless Our Troops
++++++++++++++++++

The Bar is punishing yet another small practitioner for not being able to keep up with everything.

These things always happen for the same reasons each and every time: "mishandled legal fees, limited access, poor legal advice and failure to file the proper court papers."

Mishandled legal fees: This could mean anything from spending money which should be held in escrow to not keeping your escrow paperwork done exactly in a manner the bar approves.

Limited Access: If you are doing trial work, visiting clients at jail, researching, doing paperwork, talking to prosecutors, talking to opposing attorneys, &cetera (in other words doing your job) then CLIENTS ARE GOING TO HAVE LIMITED ACCESS. This is especially true if you are in a major trial.

Poor Legal Advice: What you are always said to have given when your client loses.

Failure to File Proper Court Papers: Quite a few criminal defense attorneys I know do not file any paperwork. Why? Because most prosecutors basically ignore it. One prosecutor told me he never answers discovery unless the motion is taken in front of a judge and he is ordered to (he knows it is impossible to come to court and argue for discovery for every single case or even the majority of cases). The jurisdiction I primarily practice in rarely turns over anything except my clients' statements. And under Virginia law, filing discovery in Circuit Court requires you to tell the prosecution about elements of your defense.

Now, this guy was taking retained cases and civil matters so there may be something to his complaints. But until the Commonwealth decides that it will pay a decent amount to a court-appointed attorney I suspect that just about every one of us could be disbarred under the elements above (hopefully with the exception of the first).

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++++++++++++++++++
God Bless Our Troops
++++++++++++++++++

Anti-war demonstrators who don't like the fact that there may be consequences for their actions. They were arrested; now they're suing. I wonder if any of them spent more than a couple hours in jail?

Of course, any unconstitutional detention is wrong but if you are not willing to spend a couple hours - or even a night in jail - is your belief real or are you just doing something because that's what people in your crowd do (or your parents' or your professors' crowds)?

As a suspicious person, noting the history of anti-war protests past and present, I suspect that most of the protestors who were arrested were probably doing something wrong and do not foresee this case getting very far.

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++++++++++++++++++
God Bless Our Troops
++++++++++++++++++

As always, when I become worried about the state of affairs in the Commonwealth I can always look to Texas to realize that in some places it is worse.

Houston's forensic lab is under serious attack. The question is whether, when they fix it they actually will fix it or do a sham fix like the FBI did.

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++++++++++++++++++
God Bless Our Troops
++++++++++++++++++

The fedgov prosecutors are putting shaky witnesses on the stand with improbable credibility. I'd like to say I'm shocked, but I'd be lieing.

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"""""""""""""""""""""""""""""
God Bless Our Troops
""""""""""""""""""""""""""""

If you're still young enough to go to wild parties you'd better be ready to go to jail.

Another dumb law on the books which will be ignored until some prosecutor is absolutely desperate to arrest some client who hasn't really done anything proveable and the prosecutor gets creative.

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Egypt: the one true hope in the Middle East.

As I've said before, I believe Egypt is the one country in the Middle East which has a solid chance at really moving forward. They are a long way toward it already. They have a semi-democratic state; they have a sense of being "Egyptian" rather than Sunni, Shia, Christian, Arab, or from some particular clan (and have a sense of pride about it). And now further evidence. Do you think anyone would even think to raise an anti-government sentiment in Syria, Saudia, Lybia, etc.? Much less an attack on the President?

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10 April 2003

This Tuesday at 2:20 a.m. I entered a post answering questions posted on Legal Ramblings (normally I would just cite my prior note so it could be gotten to by clicking but Blog*Spot has decided that function will not work on my blawg anymore - I've sent a note asking that this be fixed but for now you'll just have to scroll down).

In it I stated that the professor had used a red herring. This was probably too harsh; I think I was channeling back to my own days in school at W&L. So I went back and looked thru the case which the professor cited and a couple of other cases which use it as precedent. My impression - and I have not spent overly long studying this - is that the point of this case is to deny the imposition a strict liability repondeant superior standard for criminal law (which would eliminate any intent in a crime). This is a truly strange decision filled with all sorts of civil language. "Vicarious liability?" "Strict liability?" "Respondeat superior?" I would really like to know why the heck they were pursuing agency law in a criminal case. Personally, I think the whole case could have been - should have been - decided thru an analysis of whether due process would allow the boss to be held liable if he was not a principal or an accessory or a co-conspirator to the illegal act (showing no intent/knowledge). But there is probably something I do not know about in Minnesota law which precludes that analysis and required the one put forth.

The proposed criminal strict liability standard is radically different than a standard which holds you responsible when an act containing a reasonably foreseeable / predictable risk of an illegal occurrence bears fruit. The former standard would hold you responsible for trusting your child to your spouse while you are ill and having that spouse do something insane and evil to her which you would not reasonably expect, [U] State v. Ring, No. C4-01-1151 (Minn.App. 04/09/2002), or engaging in a legal act with a co-actor and having the co-actor engage in an illegal activity outside the scope of the planned legal action in concert. Minnesota v. Guminga, 395 N.W.2d 344 (Minn. 1986). The latter would hold you responsible for racing cars toward Dead Man's Curve or passing a pistol back and forth spinning the cylinder and pulling the trigger. In the end, if the law professor meant that you cannot lower the standard in a criminal case to that of tort strict liability I believe he was correct. It is such an obvious principle that I've never seen it argued in court or read any cases like this one. That doesn't mean they aren't out there, just that none of my cases have required me to research in that area. Legislatures and prosecutors will try any theory once (or more likely dozens or hundreds of times until an appeal court agrees to take an on-point case, decides it is properly preserved and before the court, and stops that line of reasoning).

All statutes must, at the very least, include an attempted act and an intent to do something which obviously has potentially illegal consequences.

Except, of course, in Virginia we do have some crimes where the prosecutor doesn't have to prove intent/knowledge (see the last post).


09 April 2003

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An editorial from someone who does not understand the laws of the Commonwealth:

    "Scalia's assault on American freedoms is rather subtler, and so perhaps rather more dangerous. It's OK to assume intent to intimidate, he wrote, if the defense is given a chance to rebut. In other words, guilty until proved innocent."

Although I disagree with Scalia, the Justice is not going out on a limb here. There are all sorts of laws in Virginia which rely on exactly that sort of logic; concealment, bad checks, larceny, and driving suspended spring immediately to mind. It will be interesting to see if this decision will effect the statutes on the books in Virginia outside of the cross-burning statutue.

I've always thought that the presumptions concerning knowledge and intent were unconstitutional burden shifters (they were a little shocking when I came out of law school filled with ideals) but I've never had a case wherein I could raise the constitutional issue.

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More about the ongoing struggle over the PATRIOT Act. We all need to keep an eye on this.

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NYTimes urging that harsh sentencing policies be overturned (nothing too surprising in that). But when Justice Kennedy is talking about the same thing maybe we should take note.

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Talk Left pointing to a NYTimes article which points out that lawyers had to wait a couple of hours to get out after talking to their client.

An inconvenient jail visit. What else is new? This kind of stuff happens all the time when you visit jails. Get over it - learn to overschedule and bring work or reading materials.

Still, I do have to admit that two hours is a long wait. I've waited as long but it has always been pre-visit not post. The article leaves me wondering whether they might have been there during shift change or head count (or in a more extreme example a lock down).

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---Off Point---

This is just an incredibly bad idea.

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An article urging pursuit of criminals rather than firearms manufacturers.

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08 April 2003

Lawyers of the world unite!


So what happens if collective bargaining doesn't work? Do they picket the lawfirm? What good will that do if the firm's business is phone related (hard to drive customers away)?

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Steven Wu asks a couple of interesting questions over at Legal Ramblings:

WARNING:
All answers strongly influenced by the fact that I practice in very conservative counties, in a very conservative Commonwealth, in the 4th Circuit.

(1) "[I]f I inflict a non-mortal wound on you, and you don't have to go to a doctor, but you go anyway and receive negligent care due to which you die [have I committed homicide]? Would this be governed by some sort of "reasonable person" standard: regardless of the necessity for medical care, if a reasonable person would go to a doctor, will medical malpractice not break the chain of causation?"

The theoretical answer here is that you have not committed homicide. You've probably guilty of Battery, Felony Battery, Attempted Murder, or Mayhem but not homicide. The pragmatic answer (at least in the courts wherein I practice) is that it had better be obvious that your action caused an injury which would not normally lead to death and is not the actual cause in this case: "Your Honor, Mr. Wu dislocating Mr. Jones' pinky did not cause the doctor to inject atropine into the heart of Mr. Jones when he fell asleep in the waiting room." Of course, cases are never actually that obvious. In most cases the prosecutor will probably charge some form of murder or at least manslaughter. Then arguments will proceed about intent, recklessness, and foreseeability.

(2) a. "[I]s all this stretching about causation due simply to statutory gaps?"

Yes. There is a real world dynamic which causes these stretches and eliminates "statutory gaps" no matter how clearly defined the law is. Anyone who practices for a period of time realizes there is a strong bias against the defendants in criminal proceedings. The trial judge is loathe to let someone who has participated in a perceived great wrong "get away with it." Therefore, unless the defense attorney can point to explicit, binding, same-State, appellate case authority - which neither the judge nor the prosecutor can distinguish on even the flimsiest of grounds - the judge will allow the prosecution's theory of the case to go forward (as long as it is remotely possible under the language of the statute). On appeal the appellate courts give a great amount of deference to the trial court's findings. They might give a nod to the rule of lenity or to the fact that they are supposed to decide certain constitutional issues de novo but they will bend over backward to uphold the trial court (because they don't want someone to "get away with it"). This is, of course, a very cynical view of how things work; unfortunately, I think it is realistic. The law will be bent to punish those who deserve punishment and thereafter precedent will be set so that the law doesn't mean what its plain language is; it means what the courts have decided it will mean.

b. "Can a state pass a law saying, "If you engage in drag racing or Russian roulette, you will be criminally liable for any and all deaths that result, even if you did not 'cause' the deaths by traditional criminal law or common law standards"? The professor at first said yes. Then he said there might be a problem due to State v. Guminga, 395 N.W.2d 344 (Minn. 1986), which held that criminal sanctions should not be given for vicarious liability. There might also be problems with mens rea and the doctrine of complicity (which we haven't covered yet)."

Yes. The language in it would have to be tightened up but it could be written into law; in fact, most States probably have a manslaughter statute which already covers such activity. Your professor's argument is a red herring. It reflects an error in perspective. Judges are myopic and generally could care less what another sovereignty has to say on a subject unless it is a question of first instance in a their State; even then they usually prefer closely related types of decisions from their sovereignty. This is particularly true in matters which are almost exclusively under State law such as criminal matters. Virginia courts care about precedent from Virginia courts, US constitutional decisions imposed by the federal supreme court, and perhaps 4th Circuit cases. A case from Minn. would probably carry as much weight as a case from the 9th Circuit does around here. All of which is to say, generalizing from a single State decision is faulty reasoning; your question would have to be answered according to the laws of each particular State.

Here's the rational for upholding the statute as I believe Virginia law would state it: "This statute only affects a defendant who acted in concert with a decedent in a reckless activity which had as a very forseeable consequence death. By participating in the activity a defendant is at the very least a principal in the second degree and shares entirely the responsibility for a decedent's untimely demise."

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07 April 2003

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I have to agree with this guy's assertion that it is bothersome when magistrates file charges when citizens come in and make accusations without further evidence. Of course, I am suspicious that he has had a number of charges filed (smoke, fire) because he only asserted his right to throw people out of where they are living.

And the assertion that the system is set up so that lawyers can enrich themselves is laughable. I usually see two groups of people filing charges with magistrates. One is store owners who do things so as to invite crime so often that officers have told them they are on their own (one of our local stores would cash a $1,000 check written to Sadam Hussein and signed by Ariel Sharon). The other is people who have claims which the officers don't want to come to court for (such as a fight the officer did not see wherein no one was harmed) so they get sent to the magistrate themselves. Defendants in these cases are almost all court appointed and anyone who knows anything about Virginia's court appointed system knows that it is darn near impossible to get rich getting appointed in these sorts of cases.

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CNN and NYTimes discuss the fedgov supreme court's decision upholding cross burning statutes but find that the presumed prima facie evidence is unconstitutional. I'll have to look further into this. It could have all sorts of implications to the numerous Virginia statutes which hide an assumption of guilt behind a prima facie "presumption."

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More fun and games in Richmond. The entire city government will eventually turn on itself and leave one giant glowing pile of rubble (it's not far from there now).

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Proof that the British judicial system is more civilized than ours: they overturned a jailhouse snitch-based conviction.

Proof (in the same article) that the British judicial system is less civilized than ours:

"The judges also ruled that Alexander Benedetto, a 37-year-old New York publisher, had been properly acquitted of murder. They set aside an order by the Eastern Caribbean Court of Appeal that Benedetto should be tried again on the charge."

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Connecticut's citizens aren't all that thrilled that their prisoners are being sent to Virginia's prisons. But if they don't fill all those slots and keep the citizens of Virginia employed who will? You can only fill so many cells by arresting your own citizens and Virginia's got to be pretty close to that point.

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The FBI is trying to find new ways to invade our privacy.

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And the US now has over 2 million people in jail.

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Russian criminals are selling WWII weapons to their mafia. What would a criminal do to with a german trench mortar?

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Corporate attorneys are having trouble getting and keeping jobs.

I thought about faking some sympathy here but as a guy who went into incredible debt to go to a "top 20" law school and then had to start his own law practice and is still struggling just trying to get his head above water . . .

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06 April 2003

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It just keeps getting worse for Malvo's lawyers.

Perhaps the only ray of hope is the resources that VC3 can throw in.

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Lawyers, pitbulls . . . Gotta love the 1st Amendment.

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A law firm represents a judge for years without taking a fee. Then it tries cases in front of him. And when the other party finds out the judge refuses to recuse himself. But at least the Mississippi Supreme Court stopped the silliness.

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At least the Israelis have kangaroo courts for people they claim are terrorists (3 witnesses you know won't testify and the rest in camera). In the US we seem to have decided that it's just fine to hold someone forever without any proof they did anything. Maybe this guy is a "material witness" but - if so - you'd think they'd talk to him.

Of course, he did give money to a Moslem charity which the government believes to have terrorist ties. This places him square in the path of one of the Justice Department's new tactics. "Part of the appeal for prosecutors is that they do not have to prove that the defendants actually supported terrorist attacks, only that they helped a group tied to terrorism." Funny, I don't remember this statute being used to prosecute people who donated to Sinn Fein.

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05 April 2003

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If you are being held for a crime and you can escape without violence it is just a misdemeanor.

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What the fedgov prosecutors can do and what they are trying to get away with both are just plain scary.

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As always, when I get upset about Virginia I look to Texas:

An officer who lied so often and so grievously that numerous lawyers from numerous States got together - pro bono publico - to rip him up.

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The prosecutor didn't prove that you killed him but you were in the car the shot came from so you get 30 years.

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South leads nation in locking people up, study finds.

Is anybody shocked by this?

"Louisiana's incarceration rate is 800 per 100,000 residents. The rate for the South is 526 per 100,000 -- higher than that of 63 percent of countries in the world, according to the report generated for the group by the Justice Policy Institute in Washington, D.C. The West is a distant second at 408 per 100,000."

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04 April 2003

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The jury is deliberating in the police shooting case and police show up at a juror's house just by chance. This leads to a mistrial asked for by the defense. Hmmmm . . .

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No alibi for Malvo. Did anyone actually think there would be an alibi offense?

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Sorority sisters getting all sorts of punishment for hazing.

Hazing laws are just wrong. They are created and enforced against a particular group. No matter how much people will try to tell you these laws reach everyone when's the last time you saw them enforced against someone other than a fraternity or sorority? (yes, I know it happens once in a blue moon)

Two questions:

Why don't we just cover these sort of cases with assault & battery charges?

If hazing is allowed at military schools (i.e. VMI) because it is a positive good why is it an evil elsewhere?

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Gasp! A massage parlor turned out to actually be a house of ill repute. I know I'm shocked.

Good to know it gave student discounts.

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03 April 2003

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A kid in Henrico has been charged with threatening to kill his teachers.

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02 April 2003

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-=Off Point=- But very important

Read this.
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I listened to the Michigan racial preference cases last night (from C-Span). I was working on prepping a jury trial at the time so I'm sure I missed some minutiae but three strong themes stick out in my mind:

(1) Ginsberg scored some powerful points at the beginning of the argument when she committed "hijack by amicus" (from Slate; see last entry). The anti-preference attornies appeared totally unprepared to discuss the military brief and the implications for the military (figure the odds - there were only amici briefs filed by every organization under the sun). I did not hear what I consider to be a satisfactory answer from anyone. Perhaps it was misplaced because the military academies don't fall under the 14th Amendment like Michigan but it was a powerful moment.

(2) When Justices tried to get a number for "critical mass" the pro-preference attorney fired back but never answered the question. There is obviously an absolute minimum number at which critical mass must be presumed to occur. To state otherwise is disengenuous.

(3) When Justices put forth the question, "if the problem is that not enough minority students qualify under the standards you've set, why don't you lower the standards for everyone until there are enough qualified minorities?" the pro-preference attorney blustered but never actually answered satisfactorily. Points were scored; the question is whether this is the type of solution which might bring O'Connor to the anti-preference side.

(4) Collaterally, the information came out that Boalt Hall has raised the number of minority admissions back to the level where they were prior to the abolition of the use of race as a factor in California. My question is whether this has been done honestly and the admissions are all held to the same standard or whether Boalt is redlining (proxy of location in place of race).

In any event, from the questioning alone I see three solid anti-pref votes (Scalia, Rhenquist, Thomas), one probable anti-pref vote (Kennedy), two likely but not ones I'd bet on (O'Connor & Stevens). I foresee and opinion written by O'Connor or Stevens for a fractured court. Hopefully Stevens will write it because it will waffle less and be an intelligently written decision. But politically it will probably make more sense to assign the opinion to O'Connor to keep her onboard.

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01 April 2003

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Breakdown of the argument today on Michigan's schools' use of racial preference for admissions.

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The Richmond police shooting case went to jury today.

Facts as they apparently came out in court.

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That was quick! The NYTimes has already spun today's argument on Michigan's preference system. And you'll never guess who the signs and portents favor . . .

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"The coalition, which is working with the state Crime Commission on proposals to reform the system, suggested that Virginia should develop Standards of Justice, along the lines of its educational Standards of Quality and Standards of Learning.

SOJs could introduce statewide oversight and accountability where there is neither, and set qualification and performance standards for court-appointed defense lawyers. And the state could, and should, increase their compensation, along with the pay of salaried public defenders where they exist.

Virginia needs to set standards. Being Virginia, it will not want to pay to actually meet them. But, being Virginia, it might be shamed into making an effort to fall not too far below fair."

SOJ is a silly idea. What are they going to do test my knowledge of all the possible means by which a person can be convicted of grand larceny? True/False - stealing a mixed breed dog from its abusive owner is a felony in Virginia? The abilities which matter most are research and oral argument. Damn near impossible to test research abilities: computers, books, service subscriptions - what quailifies? What do you test? And if you start grading in-court performance you will run into politics so fast it will be amazing. Let me be as vague as I can be here - my experience is that in some jurisdictions you are a good lawyer if you belong to certain firms - no matter how well you actually perform in court. Competency has nothing to do with being a "good lawyer," favored by the court and bar**. Anyone who practices in these jurisdictions for a period of time sees this.

I do like the increased compensation idea (and this article is correct in the payments allowed). Virginia is just pitiful in this. At a CLE I attended the Chief Justice of Virginia's Supreme Court justified the rates because, even though we complain, he has never seen a court-appointed lawyer in front of his court not strive to do his best. Which, of course, misses the point because the place where the harm is done is when the lawyer in General District Court or Circuit Court has to balance 60 ongoing cases and cannot do adequate, individualized discovery or argue matters in courtroom motions or do sufficient pre-trial investigation or . . . or . . . or . . .


** To be fair these places usually also have a few "very good lawyers" who are both politically well connected and good at their profession.

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"Normally, warrants require "probable cause" to believe that a crime is being planned or committed. But FISA warrants do not. They require only that the FBI show probable cause to believe that "the target of the electronic surveillance is a foreign power or an agent of a foreign power."

Prior to the advent of the USA Patriot Act, the law also specified that "the purpose" of a secret warrant must be counterintelligence (basically, spy-versus-spy activity). Now, however, intelligence gathering need not be "the purpose," but rather only "a significant purpose" of the warrant.

The "significant purpose" language opens the way for FISA secret warrants to be used for dual purposes -- one of which is simply normal criminal law enforcement. Indeed, the Bush Administration has defended, and the FISA Court of Appeals has upheld, this very practice.

And that, in turn, raises the specter of a possible end run around the Fourth Amendment. Spurious or ill-founded "counterintelligence" purposes might be used as a pretext to get warrants to spy, in a regular law enforcement context, even when probable cause of a crime is lacking."

As a criminal defense attorney this worries me. As a citizen it scares the crud out of me. Taking away the ability of the citizenry to have some sort of oversight - independent of government agents (whether they be judicial or law enforcement) - is dangerous and will eventually lead to abuse. We eschew dual use now but someone will get away with it (if reviewed at all the excuse will be good faith). Then it will (slowly) become a standard procedure available to law enforcement.

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Remember how the PATRIOT Act was supposed to help us root out terrorists?

I bet you didn't know Paypal was engaging in terrorism. They certainly didn't.

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It is unconstitutional to make a law ex post facto (after the fact). California and a number of States have extended statute of limitations so that they can reach really bad criminals after the limitation had run. The other States all struck the extensions down in the State courts. California's didn't.

"The fact" is the running of the statute of limitation. "After" is self explanatory. Still, "rather than engaging in this very simple analysis the court is trying to make the case fit under a 1798 precedent, Calder v. Bull. I forsee one of those almost-useless, fractured, 60 page supreme court decisions. How will it turn out? I know how it should turn out, but who can tell what the decision will actually be?

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Gasp! Shock! The NY Times is editorializing and it's actually doing it ON THE OP-ED PAGE. The NYTimes is slipping; it should have worked all this into an article on the front page.

Oh, by the way, it it's pro reverse discrimination. (I know - you're stunned)

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