Did the threat of a death penalty force a man to plead guilty to murder?

And found in this article is the most humorous statement of the week:

Garfield County Attorney Wallace Lee, who led the prosecution against Barnes, said he often hears complaints that prosecutors "stack" charges against defendants as a way to coerce them into accepting plea agreements.

"I honestly don't think that's a valid claim," Lee said. "The prosecutors that I know and have dealt with would charge the maximum that they think they could prove, but I don't think they would charge it just as a means of getting a plea bargain."

Naw, there's not a courtroom in the country where people walk in with 6 felony charges and go away with 2 or 3. That just couldn't happen almost every day in almost every courtroom, in every county, in every State, could it?

Politics and the Death Penalty

(1) Cities and localities in Alabama - that's right, ALABAMA - are passing resolutions against the use of the death penalty.

(2) Gov. Mike Rounds (S.D.) on the use of the death penalty:

"You have to be able to make sure that some individuals who would do others great harm are taken out of that position," he says. "Until such time as society can ensure that these people, who have proven their capabilities to kill and maim and rape others, won't try to kill guards, hospital staff, other inmates and so forth, I will continue to support the death penalty."

(3) New Jersey's Legislature is considering a study of the death penalty but it is opposed by the governor:

The governor has not seen the need for a commission or a moratorium because the courts have been aggressive in making sure capital punishment is administered fairly," spokesman Micah Rasmussen said.

(4) Maryland:

Early on in his term, [Lt. Gov.] Michael Steele voiced religious and moral opposition to the death penalty and vowed to create a task force to study issues of racial bias in capital sentencing.

But death penalty opponents tell the Washington Post, Steele's office now rarely returns their phone calls, the task force is nowhere on the horizon, and the racial disparity noted in other death penalty studies isn't being addressed.

(5) Pro-death penalty advocates in NY are upset that no one has been killed by the State yet:

Eight years after the statute went into effect, only seven convicted killers have been condemned to death. And on the automatic appeals of the first two of those men to the state's highest court, the court has set aside those death sentences.
. . .
"We have some Court of Appeals justices that are now involved in technically 'nit-picking' New York's death penalty to death," [State Senator Dale] Volker said. "Justice continues to be delayed and justice continues to be denied."

The NYTimes breaks down the NY appellate court on the issue:

On Tuesday, the Court of Appeals overturned a death sentence for the second time, in the case of a Syracuse-area man convicted of killing his wife.
. . .
[T]he bitterly worded 4-2 decision did begin to reveal how the divided judges line up on the issue, one of the most volatile the court has faced in years. Two judges, some death penalty lawyers said, appear committed to capital punishment. Two seem troubled by the law. And two may be willing to let the issue play itself out over many years with case-by-case rulings.

Reminds you of California before the citizens voted the Justices out of office.

Death Cases: Philippines:

(1) 87 charges of raping his daughter are dismissed but for the 1 conviction a man is sentenced to death.

But he may never be killed because -

(2) The President of the Philippines has ordered a moratorium on the death penalty.

(a) She seemed to show some possibility of lifting it for kidnappers and drug lords.

(b) Then, "[o]n Tuesday President Arroyo closed the book on the possibility of lifting the moratorium on the death penalty, saying executions do not guarantee a reduction in crime rates."

(c) There was apparently a clamor and then the President's spokesman issued a statement: "The President has made her position clear on this issue and while we respect the position of well meaning sectors pressing for the resumption of executions, we also ask for understanding of the moral reasons of the President to let the moratorium stay in the meantime."

(d) Not buying it, "[m]embers of the Philippine Chamber of Commerce and Industry (PCCI) asked the President, in a manifesto, to lift the moratorium on death penalty following the rash of kidnappings and robberies in the country.

They stressed that concerns on peace and order have lately affected business and the economy, as signaled by the drop in the peso's exchange value against the American dollar."

(e) "President Arroyo is reportedly seeking the guidance of the Catholic Church before acting on clamors to lift the moratorium on the death penalty.
. . .
Upon her ascension to power in January 2001, Mrs. Arroyo promised the Catholic hierarchy in the Vatican that she will halt executions of death-row convicts."

Now that's a pretty slick way to pass the buck. We all know that the Church will err on the side of life. Why ask? You may be informed by the Church's position but you don't need to confer with it to know what its position is on this matter.

Death Cases: The U.K.:

(1) Glasgow becomes the place where the most people are killed.

Scotland's soaring murder rate is blamed on a "booze and blade" culture among the young. According to the statistics, there were 127 homicide victims in Scotland in 2002, 11 more than in 2001 and the highest annual total since 1996. In more than half of those murders a sharp instrument was used and in at least 44 per cent of cases the accused was drunk. In 10 per cent of cases, the accused was on drugs and in 15 per cent of cases, drunk and on drugs.
. . .
Groups of youngsters, with names such as the Young Southside Cumbie and the Royston Shamrock, wander the city centre at night armed with knives and heavy leather belts, often high on drink or drugs.

The gangs also trade insults in cyberspace, because each group has a website boasting of violent exploits and glorifying the gang culture. They then head into the city centre, looking for fights.

(2) A Tory, David Davies, has called for the return of the death penalty.

Death Cases: Canada:

12 years later, it is disclosed that the prosecutor withheld information that the two primary witnesses were given deals and that one of them was paid to testify.

Death Cases Vietnam:

A former Vietnamese official is facing the death penalty for corruption. One wonders what the outcome might be. Perhaps the official Vietnamese newsmedia can give us a clue:

La Thi Kim Oanh, a notorious embezzler of public funds, will face a firing squad if the Ha Noi People's Court, which is trying her and her accomplices, honours the death penalty request made by the city's People's Procuracy.

Death Cases: China:

(1) Two serial killers sentenced to death. Nothing too surprising about that. Defendants: Ma Yong & Duan Zhiqun

(2) But here's something a little different: Five officials were fired for not having caught on that a serial murderer was operating in their area. Defendant: Huang Yong

Death Cases: South Africa:

(1) Seeing red and acting in an emotional storm does not excuse slitting your wife's throat. Defendant: Zukisani Makalima

(2) "A man found guilty of murdering a Pretoria fashion designer should count himself lucky that the court could not impose the death penalty, a high court judge told a Danville man on Tuesday." Defendant: Jan Prinsloo

U.S. Death Cases:

(1) It's hard to defend a case wherein your client is filmed admitting the murders. But here's the attempt. Defendants: Sebastian Burns & Atif Rafay

(2) Despite a confession you might get a new trial if new evidence shows that teeth marks on the body don't match you and the bite marks were the prosecutor professed that the bite marks were the strongest part of the case. Defendants: Harold Hill & Dan Young Jr.

(3) It took a lawsuit which cost the feds $1.1 million to get this case looked at again:

After Trentadue's body was found, with his face bloodied and bruised and his throat cut, prison officials concluded he hanged himself. The local medical examiner openly questioned the conclusion.

Numerous internal probes by the government reaffirmed the suicide ruling but found Justice employees had lied during the case and that evidence was lost or mishandled, including a bloody sheet that was stuffed in an FBI car and putrefied, destroying its value as evidence. The cell was cleaned before forensic analysis and the noose that prison officials claimed had been cut down with the body was found intact.
. . .
An FBI agent divulged in court that he found two different types of blood stains on the mattress, one belonging to Trentadue and another from an unidentified person. But the second blood spot wasn't tested because there were no suspects and the mattress had been used by several prisoners over the years, officials said.

Dead Man: Kenneth Michael Trentadue

(4) If they wait too long the feds cannot seek the death penalty. Defendant: Charles Hatten

Death Cases in the Appellate Court:

(1) Grounds of the Skakel appeal. The most effective might be that "the state exceeded the five-year statute of limitations, in effect in the 1970s, for felonies not subject to the death penalty."

(2) Excerpts from a NY opinion overturning a death penalty because the law only allows the State to kill a man if he breaks into a house to steal but not if he breaks into the house to kill.

Police in the News:

(1) An off duty officer stops a bank robbery.

(2) Milwaukee get a woman as its top cop.

(3) An officer was accused of participating in a scam by confidential informants wherein evidence was planted/fabricated to get money for information. The informants testified for the prosecution and the federal prosecutor summed up by saying, "Either all the victims are lying, or the defendant lied."

The jury decided that all the victims lied and found the officer not guilty on all counts. Apparently, this was followed by loud protestations by Hispanic rights groups who claimed it was a decision which chose the officer over an ethnic group. Of course, one suspects that Officer De La Paz might, just maybe, perhaps be a member of that same ethnic group.

(4) Tired of police coming into your neighborhood and arresting people for DIP? Well, you could always engage in the Guatemalan solution: burn the police station down.

Maybe that's why my local police force is in a concrete building.

(5) Four officers accused of stealing $3,500 from citizens during a routine stop.

(6) Nevada police chief arrested for witness tampering.

Juries in the News:

(1) In California a jury pool is found unconstitutional because it does not have enough Hispanics.

(2) In Florida localities are being discouraged from calling an adequate number of potential jurors because of financial concerns:

The memo suggests administrators call in no more than 50 jurors for death penalty cases and no more than 30 for life felony trials. . . [D]eath penalty cases normally require more than 100 jurors and life felony trials commonly use 60 jurors.

(3) In Alabama, where jury expenses are "$3 million of the [judicial] system's more than $140 budget," the government is trying to make up its budget shortfall by cutting $1 million from juries and $11 million from the rest of the system. That's a 33% cut from the jury system and a 8% cut for the rest of the system. Does this disturb anyone other than me?

(4) You just simply cannot send your jury summons back to the judge with an expletive scrawled across it.

Well, as anyone who has been reading this blawg for a while knows, if I have a day with nothing to do the blawg tends to get rewritten. I switched from black to white because I'm not sure the black worked well on some LCD monitors. Unfortunately, the Blantons masthead just didn't fit so I went back to a simpler header.

Everything has been checked on Opera, Netscape, Mozilla Firebird, and Explorer and it all seems to work (it looks different in each but works). The only problem I noticed was that Explorer refused to show one of the pictures of my office in Tuesday's post. If anyone is truly interested it does show up in each of the other three browsers mentioned above.

As always, I encourage anyone to comment.

A citizen's reaction to jury duty.

Robbing a bank in Liverpool is a dangerous proposition:

As the two robbers ran out the bank's door, "a brave pensioner tackled two bank robbers with her shopping trolley, snatching back most of the stolen cash."

An interesting (if short) discussion of jury tampering by prosecutors, Defendants, and even jury members.

How to screw up a robbery:

(1) Let the people you're robbing find out that you are using a pellet gun.

(2) Your mom finds out.

Marijuana and the Feds:

(1) Despite the usual slew of federal witnesses willing to say anything to keep from spending a gazillion years in jail and a notation that "Sc" was working at the marijuana farm, a jury finds David "Scott" Miller not guilty.

Perhaps this was because "Defense attorney, David Guarnieri, had Scott Miller's coon hunting partner testify that he had been on out-of-town hunts on some of the days the tally sheet indicated he stripped marijuana."

(2) "Three men who pleaded guilty to distributing medical marijuana to seriously ill patients received probation instead of a federal prison term after a judge expressed admiration for their work and called the prosecution 'badly misguided.'"

Found guilty of running a LSD lab - get either 30 years or life in prison.

Happy Thanksgiving everyone.

found here

found here

Don't miss this Dilbert.

And remember, I'm thinking of you all as I write this blawg.

A man was locked in jail for two weeks because of a bad ID. Now a federal jury has given him $750,000. I think that will probably provide an incentive to change the fact that "[t]he Cook County sheriff's office has no procedures to check out a claim of misidentification." I guess they don't fingerprint?

Sniper: Malvo:

(1) Monday the prosecution played its last tape and finished its case in chief.

(2) Trial Snippets:

Malvo's real father:

He cried, sniffled and took long pauses as he recounted how he taught Lee to ride a bicycle and play catch. He said he would buy him ice cream practically every night because the boy loved it so much.

The Defense Wins Another Legal Argument:

Defense attorneys had a handful for photographs from Malvo's youth they wanted the jury to see.

But Fairfax Commonwealth's Attorney Robert F. Horan Jr. objected, saying pictures of Malvo as a young boy had no relevancy to whether he was guilty of the murder of Linda Franklin.

Judge Jane Marum Roush ruled that the defense could pick three photographs to show the jury.

And the photos they showed:

During his testimony, defense attorneys showed jurors photos of the suspect being christened and of a young Lee with his mother and with his father.

Testimony of how Malvo's mother treated him:

Semone Powell, a second cousin, testified that James beat Malvo even though he was an obedient child. She would get upset if she asked Malvo to bring her a basket and she thought the boy moved too slowly, Powell said.

"She would hit him, hit him randomly all over his body with her hand," Powell testified, adding that James also threw shoes at Malvo, pulled his hair and yelled at him.

How Malvo behaved as a child:

Lloyd Barrett of Kingston, Jamaica, testified for the defense Tuesday that he saw Malvo regularly until the boy was about 6 years old and that "he was always a loving kid."
AND
"He was dependable and hardworking, and whenever he was given a task he would pursue it to the end," said Beryl Spencejack, Malvo's sixth-grade teacher in Jamaica.

Malvo's Aunt and Uncle:

He arrived on a plane from St. Martin, Lawrence said, and lived on their farm with her, her husband and two daughters for nearly two years. Malvo was about 9 years old and “very obedient,” she testified.

Only rarely did she have to whip him with a strap, Lawrence testified. "He tried to obey, because I don't joke."

. . .

After her testimony, Lawrence paused as she left the courtroom, breaking into tears as she passed Malvo.

. . .

Her husband, John Lawrence, also testified. He described his relationship with Malvo as being like that of a father and son.

"The thing is this, with Lee around, he loves to ask questions," said John Lawrence, who testified through a translator.

A military friend of Muhammad:

He said he first met Malvo in the spring of 2002 and that Muhammad and Malvo would sometimes stay with him for periods ranging from a few days to two weeks.

Malvo was a quiet and well-behaved child, Holmes testified. He said that Malvo and Muhammad were on a regular program of running and weight lifting at the local YMCA.

Sniper: Muhammad:

(1) As we all know by now Muhammad's jury has said that he should be killed. This article talks about the reasoning applied by various jurors in reaching this decision. After the case the prosecutor made a perfunctory defense of the terrorism charge:

"I think it's part of the war on terrorism," Mr Ebert said. "This type of conduct and the attempt to intimidate the government cannot be tolerated here or abroad, so I think from that standpoint on that point the jury got the message and they decided accordingly."

I think that is ill-conceived reasoning. Clearly, this case is beyond what the legislative intent of the statute; this was not part of the war on terrorism. Nothing which occurs in this case is going to effect the actions of the various terrorist groups which operate around the globe. I'm not saying the law is not applicable, just that it isn't in any way a part of the war on terrorism. He should be talking about how this case falls clearly within the bounds of the statute and is a triumph of the legislatures foresight in writing a statute which can be properly applied in all situations which call for its application (hopefully - being a politician - he could say it in a way that makes for a better soundbite).

(2) An outline of Virginia and the death penalty:

One of the biggest mistakes of convicted sniper John Allen Muhammad might have been extending his killing spree to Virginia, the only state in which death sentences are carried out more often than not.
. . .
From 1977 through 2002, Virginia executed 64 percent of the 137 people sentenced to death in the state, according to the U.S. Bureau of Justice Statistics. Missouri was a distant second at 35 percent, followed by Texas at 31 percent.
. . .
Critics of Virginia's system also note that the Virginia Supreme Court and the Richmond-based 4th U.S. Circuit Court of Appeals virtually always deny relief to death row appellants, often because of procedural issues like missed deadlines or failure to raise a claim at trial.

Ah, now that's a confidence builder - if a paper is filed a day late the guy will be killed even if he is absolutely innocent.

(3) The experts weigh in. Here's a Richmond lawyer's take on matters and here is CNN's expert.

(4) Apparently, the death sentence is not reducing the desire of prosecutors in other jurisdictions to kill Muhammad. Much of this is probably just posturing anyway. Virginia will kill him before giving him up to other jurisdictions. And how many of them can actually justify the cost of a trial for someone who is going to be killed somewhere else anyway?

(5) Here are probable grounds for the appeal.

(6) Reactions of D.C. area residents as reported in South Africa and in the Washington Times.

Steve, over at S.W. Va. Law, got elected President of his local bar group. Sucker . . . Oops, errr, I mean, uh, congratulations.

Accusing someone of rape when he is off at a job interview with his mom.

At the office today and started messing around with my digital camera. So now you all have to suffer thru pictures of the office.

What my clients see as they walk in.

What they see after they sit down.

And this is what I look at most of the time. On rare occasions clients even show up and sit in the chairs.

We've all seen what happens when an American celebrity is charged with rape - here's the French version.

In the U.S. Muslim women cannot wear headcoverings in their driver's license photo - in France they cannot wear them and serve on a jury.

Arizona's governor reported for jury duty. And boy wouldn't I want "a former federal prosecutor and one-time state attorney general" to be sitting in judgement on my client.

Well, if this isn't an appeal to your basic American reverse-snobbery I don't know what is.

Interesting: In Alaska you can be found guilty of jury tampering even if you didn't intend to influence a particular case. All you have to do is tell them about their right to nullify.

The prosecutors and the press are fighting over whether filings will be made public.

Now here's a screwed up law: In Australia, you cannot cross examine someone who has accused you of rape.

"AN EASTERN Cape town dealt with its crime problem by forcing its thugs into a rugby team after giving them a whipping in a local hall."

Now that's the way to deal with your local kid-gangs. We need to try it here in the States.

Pretty soon they won't just be using fingerprints but the whole palm.

42 years in a Thai prison for molesting boys.

The reason I hate the DUI laws - they are not subject to reason.

This guy did the right thing. Rather than driving home drunk (and most likely not getting caught), he went to sleep in his car and for that rational act the State of New Hampshire found him guilty of driving under the influence. And before anyone out there starts thinking to himself, "That can't happen in my State," I suggest that you check out your State's laws because it most likely already does. These laws and their enforcement in this manner are more a witch hunt than anything else - they constantly try to make the use of less and less alcohol more and more illegal (even in absolutely ridiculous cases such as this).

If you are going to take on the IRS you had best make sure they cannot get you back in the country.

Robbing old men with a fake gun - how low can you get?

Just remember, if you try to stay in shape while you are in jail, just don't hurt yourself or you might not be eligible for alternative dispositions.

Sorry, no posting until later today. Ill last night and early court today.

It's fixed.

I finally got around to fixing the problem which has plagued this site for a while now. The links to individual posts are working. All I had to do was change out the entire blogger code, remove bstats, and take out all the blogmatrix stuff. But it works now (at least on my machine).

Sniper - Malvo:

(1) Tapes:

Whether the braggadocio of a teenager, the fatalism of a captured suspect who allegedly left heaps of forensic evidence in his wake, or simply the unvarnished truth as spoken by a pathological and unapologetic killer, Malvo's own words came back to damn him here yesterday.

And everyone in the courtroom visibly recoiled.

Partial transcripts are found here and here.

(2) Insanity: The Seattle Times discusses the theory while the NYTimes describes the way it is playing out.

(3) The evidence is being presented thru photos rather than its actual presence.

Sniper - Muhammad:

(1) Looks like I might have been wrong. The jury seems concerned that it might not reach the unanimous verdict needed to allow the government to kill Muhammad. It's interesting that one of the jurors wanted to do her own research. I wonder what she is curious about.

(2) If the snipers don't get killed by Virginia other States are lining up to try their hands.

(3) Reaction of an Alabama victim's family to the Virginia jury's deliberation.

An Absolutely Unbelievable and Unsupportable Decision
If the crime did not exist in the common law you are strictly liable for it even if you had absolutely no intent.

Esteban v. Commonwealth, No. 022524 (Va. 2003) ~~ Va. Code sec. 18.2-308.1(B).

Those of you who have been reading this blawg for a while will remember me confidently posting that this sort of thing could not happen under our system of law (4:15 a.m. 10 April 03 if the link doesn't take you to the exact post). Up to this case I believed it a basic part of due process under the 14th Amendment to require mens rea. And, at a gut level without researching actual case law, I still do. The Court's claim (1) that strict liability could be brought into all criminal charges which are codified by statute and (2) that it does not exist in those criminal laws which did not exist under the common law unless the Legislature specifically includes it is an anathema under our moral system and damn well ought to be under our jurisprudence.

This decision leads to absolutely insane consequences. Ordinarily one has to go pretty far to list a parade of horribles but in this case we need do little more than slightly alter the facts in the case at bar.

In this case the claim was that the lady forgot she had a gun in her bag when she brought it to school leading to her conviction as a felon. It is not too difficult a thing to imagine. It's bad enough that she becomes a felon for forgetting that she had a firearm in her bag but at least she should have known she had it. Under a sort of recklessness theory one still might find grounds for conviction (much as in manslaughter cases). However, as the Justice interpreted it, the gravamen of this statute is not any kind of mental state - not knowledge, nor intent, nor even implied knowledge.

The gravamen of this offense is mere possession. One can foresee the case wherein a student who is scared during a locker inspection or just pissed at the teacher sticks a pistol in her bag when she is not looking. She carries her bag down the hall and opens it in the cafeteria to get money for lunch and there's a pistol sitting in it for the whole world to see. Even if you can prove the student's bad act, that teacher is still 100% guilty under this interpretation.

Stretching further, under this interpretation even necessity is not a defense. Let's suppose the teacher realized she had her pistol with her and locked it in the trunk of her car (which she parked off campus). Then two kids come into the school, shooting other kids, and looking for her. The teacher runs out to her car and in the ensuing gun battle takes cover in the school parking lot so she can hide behind the cars. She had a gun drawn on campus, ("displaying it in a threatening manner") with the intent to defend herself from mortal danger and under the statute that would require a 5 year mandatory prison sentence. Her intent to save her life is totally irrelevant.

But, you say, these cases would never go to trial because the prosecutor would exercise his discretion to not prosecute. To which I reply, in an adversarial system we should never have to rely on the benevolence of one adversary to ensure that the system operates correctly. Not that I think the prosecutors go out of their way to be unfair but they are human too, as capable of flaws and failings as the rest of us. Hopefully, prosecutors would not pursue a case in the scenarios above. However, lest we forget, under the facts as explained in the decision some prosecutor had to decide that it was a good idea to prosecute a teacher for forgetting about the gun and bringing it to school by accident.

Let's go back to the planted gun scenario. What happens if the prosecutor is up for election for three months from now, is in a tight race, and heavy political pressure is being put upon him to prosecute by a local church leader who is all over him for taking the side of a Catholic teacher over a Lutheran student (and 45% of his county are devout Lutherans)? What happens if the prosecutor is still holding a grudge from when the teacher's boyfriend beat him up in high school for asking her out? What happens if the prosecutor knows that this teacher's father and uncle are big time drug distributors and assumes the gun is hers because she must be in the business too (no matter what the kid - a small time dealer with ties to her uncle himself - says). Heck, what happens if the prosecutor just doesn't know whether the teacher had the gun planted on her or not and thinks he should prosecute if he is unsure?

What happens? She is convicted. Period. The Virginia Supreme Court has basically said she cannot defend herself once possession is shown. She has a permanent stain on her life for something she did not purposefully do and had no knowledge of doing. We are all (theoretically) stained for allowing such a thing to happen to her and we are all (already) stained for allowing such an interpretation under our system of "justice."

[U] Johnson v. Commonwealth, No. 2870-02-2 (VaApp 2003):

You are arrested on a misdemeanor and know there are felony warrants out for you. If you escape before the officer figures it out and serves the papers on you it is not a felony escape.

Somebody dropped by from this site. Very classy. Unfortunately, they ain't got a crimlaw section so I don't think I can get hired.

Virginia does not pay an adequate amount of money for the defense of indigent defendants.

Duh. No kidding.

I agree with this: "The problem starts with the shamefully low fees the state pays lawyers appointed to defend the accused who cannot afford an attorney."

I strongly disagree with this: "The low fees offer sparse incentive for lawyers to launch a thorough defense, and they may be inclined to encourage a client who is presumed innocent to plead guilty."

I earn the majority of my money from court appointed Defendants. I don't make enough money to keep a full time secretary (I'm in the process of looking for a part time) which means that there is almost never an actual person at my office and that my contacts with my clients and their families are minimal. Often they are not happy about this and I cannot blame them¹.

I have never, ever made a decision about how to proceed on a case based on a concern that I will not make money if my client pleads not guilty. I have tried a number of jury trials where my client is charged with a single felony so that the entire fee is capped at $395 and spent well over 10 hours (at a theoretical State mandated rate of $90 a hour) on the case. And I've also tried at least one misdeameanor jury trial which, if I remember right, was capped at $148.

Now, with that said, I have to admit that if the majority of my clients decided to fight their cases - despite whatever evidence or deal offered by the prosecutor - I would go broke very quickly. I'd also probably start spending a lot of time in jail on contempt charges as the 2 to 5 cases I have on most days I go to court started overlapping and causing me to miss cases.

What is never addressed, and won't be on this go round either, is the shamefully low amount of money paid for court appointed lawyers on appeals. This can be an incredibly time intensive process and the caps are amazingly low. If I only worked the amount of time allotted by payment for writing the petition alone ($400 for court of appeals; $200 for the supreme court) many of my petitions would not even make it to paper; they would stop before research was completed. Heck, I don't know that I could really write a decent Ander's brief in the amount of time that is allotted for the supreme court.



¹ Actually, since I sit in my office each and every Friday from 2-5 pm for the open office hours I tell all my clients about (and announce on my answering machine message) and get about one client every three weeks dropping in, I guess I could. Still, I'm certain that someone actually scheduling appointments for me would work better.

Over at Legal Ramblings, Steven Wu discusses "guilty but insane" as proposed over at NRO.

At a theoretical level I agree with his comments but I must point out that this sort of finding is already available in some State legal systems.

Personally, the only way I think a "guilty but insane" finding might be correct is if it is a sort of reverse "voluntary intoxication" theory. If it can be proven that you were previously diagnosed and treated for whatever condition but did not continue treatment (something that happens with a number of my clients) then you could be held responsible for your actions. But other than that I just can't see it.

Michael Jackson's regular attorney accuses the prosecutor of unethical conduct.

Death Cases - Judicial Decisions:

(1) A federal judge rules that a murder was to avenge the honor of a girlfriend and not to further a criminal enterprise and therefore, no death penalty.

(2) A judge decides a man isn't retarded enough to avoid the death penalty.

(3) Police can trick you into providing evidence against yourself even if they pretend to be lawyers. I guess the reasonable expectation of privacy doesn't attach.

Death Cases - Outside the States:

(1) The Mexican Army sentenced a man to death for killing his commander but the President commuted the sentence.

(2) India: "[T]the divison bench comprising of Justice B Sethna and Justice J Vora ordered that the convict should not be shown any form of sympathy else, it will be a misplacement of justice."

(3) "Death penalty would not be abolished in Nigeria, 'we cannot do without capital punishment,' the minister of Internal Affairs has said."

(4) South Africa: "Rapists infected with HIV and Aids, who know they are infected, can expect to face charges of attempted murder or even murder."

(5) Indonesia:

The speaker of Indonesia's top legislative body on Thursday urged the death penalty for convicted terrorists and said such sentences should not be subject to appeal.

"This is no ordinary crime," Amien Rais told a group of foreign reporters in Jakarta. "Once it is proven that terrorists committed the crime, we have to banish them from the earth and the sooner the better."

(6) Japanese prosecutors want to prosecute a 19 year old and a 16 year old for murder.

Prosecutors said . . . that the university student's acts had been driven by anger toward his mother, who had advised him on how to deal with his insomnia, an act that he felt to be patronizing.

(7) "Bai Dezhen, a female drug addict from Beijing, was executed Friday for robbing a 78-year-old grandmother who refused to give her drug money, who she then killed."

(8) Morocco has jailed 9 men for being involved in the murder of a Jewish shopkeeper.

(9) Trinidad & Tobago: How the Privy Council interacts with Commonwealth countries as to the death penalty.

(10) The President of the Phillipines will allow the death penalty for kidnappers and drug lords.

Death Cases - Reactions in Court:

(1) The parents of a murdered teenager blurted out an emphatic “Yes!” on Wednesday as a judge read a jury's recommendation that their daughter's killer die by lethal injection.

(2) As his DNA sample was discussed, in relation to the road rage incident he was charged with, his anger boiled over as he shouted: "Your police boys framed me for that s***." At that point Waite's mother Iona stood up and started yelling at her son to be quiet.

Mr Justice Hughes agreed with Mrs Waite's sentiment, but not the way she had expressed herself so vocally, and demanded order in the court.

By this time Waite's family and friends were finding it difficult to remain quiet and were virtually having a conversation with the murderer who sat weeping in the dock.

As he left for a life behind bars Waite shouted one last outburst to the court: "The lot of you will suffer."

As his family left the court room, under police supervision, Waite's brother Lincoln shouted abuse at the jury before Mrs Waite pointed at and harangued Rita Dixon.

(3) The judge should have declared a mistrial in this case:

Mack’s sister, Luviser “Tweety” Thomas, yelled, kicked and screamed after watching video footage of the crime scene, where her brother and Johnson were filmed on the ground covered with yellow tarps.

Tweety Thomas yelled, “Oh my God, oh my God,” as two bailiffs quickly carried her out of the courtroom.

(4) The defendant's mother, Helen Smith, collapsed moments after the verdict was read. "No, no, no," she moaned.

Other relatives left the courtroom in tears.

Deputies helped Helen Smith to her feet and were escorting her from the courtroom when she began yelling.

"Missy, you know Danyel took care of that baby better than you!" she bellowed. Missy is the nickname of Marsha Collins, the child's mother. Helen Smith then yelled a threat to Collins, and was surrounded by deputies.

Death Cases - Jury:

(1) Stab someone 30 times and the jury might think that you just meant to kill him, not rob him and then kill him. Therefore, under the law they cannot sentence you to death.

(2) If you rap about killing your wife while you are on the run the jury will reccomend a life sentence.

(3) However, if you admit guilt because you are hoping to get into a better prison facility the jury might sentence you to death.

Death Cases - Miscellaneous:

(1) Illinois has passed its new death penalty laws after emasculating the provision to punish officers who commit perjury.

(2) The murder of a family member causes a woman to redouble her efforts to stop the reasons for violence.

(3) Who keeps a bar receipt for two cocktails from three years ago?

(4) Eric Rudolph's lawyers are going to meet with a Justice Department panel to try to convince the government not to seek the death penalty.

(5) 16 years later a man is released because of DNA evidence.

(6) WOW. In California there is no finality in your sentence if you are convicted. Apparently, if you plot murders and the prosecutor doesn't like the sentence you get he can appeal a legal matter and - if he wins - get you a more severe sentence. Yeah, I know the feds do that too but this is the first State I've seen play ping-pong with people like this until it gets the "correct" sentence.

Law Enforcement and the Law:

(1) When a woman has made two accusations of rape (neither carried to trial) is addicted to alcohol and prescription drugs, has a borderline personality disorder, and you are a married officer assigned to chaperone her - perhaps it would be better if you did not have sex with her.

(2) Of course, it's worse if you are an officer engaging in racketeering, arson, extortion, etc as the enforcement wing of drug syndicate.

(3) The lessen here? If you are an officer, don't take a long lunch break or you could get convicted of a crime.

This is ridiculous, especially since they traced his work day twice and the second time there was no problem. This is the kind of thing you dock somebody's pay over, not send them to jail and ruin their career.

(4) $33 million decision against the LA police and Budget for damaging a surgeon's hands during a stop which never should have happened.

(5) We've all heard the statement of fact that "The prosecutor can indict a ham sandwich." However, there is apparently an addendum to that "unless it's a police officer." A grand jury declines to indict despite multiple witnesses. Another declines to indict despite the fact that "[t]he officers were caught on videotape forcing Walton to the bed, putting a gun to his head and telling him 'We can kill you right here.'" The second case is particularly disturbing because the prosecutor put an "expert" on the stand to say that officers should act like this. (if it just refers you to my blawg the post is 7:17 a.m. on Thursday 20 November)

(6) Apparently, Roanoke is using artificially lowered performance evaluations to keep the police force payroll down:

Sgt. Brent Asbury was evaluated earlier this year and received just below the maximum score of 100, . . . but a supervisor said the score was too high and "arbitrarily reduced it" by about 10 points, saying it had to fall within a lower range.

A score of 100 on the evaluation translates into a 4.25 percent raise, but an 85 drops an employee down to less than 3 percent and an 80, which . . . is supposed to earn an average, cost-of-living raise, gets the employee a 2.25 percent raise.

Asbury filed a grievance. The complaint was determined ungrievable, so [his attorney] filed a petition with the Circuit Court and was given his high score back. Asbury could not be reached for comment Monday.

(7) Lest ye think that things only go wrong with law enforcement here in the States - a former Japanese officer attempts a particularly horrendous crime but only succeeds in setting himself on fire and getting caught.

Arresting people who are protesting the arresting of people.

Here's the court I'm off to today (or at least the Circuit Court section - I'm actually off to District Court). If I remember correctly the Circuit Court was built in the 1890's. The mound topped with a monument to the left side of the picture is the tribute to those who died in the War of Northern Aggression. And no, I've never heard the bell rung for any reason.

Aesthetically, this is one of the best courthouses around. It doesn't have that rustic feel that a lot of county courthouses have. I really like the way it's laid out inside too but unfortunately, I don't have any pictures.

Sniper: Malvo:

(1) An FBI expert identified Malvo's fingerprints on some trash found at one of the shooting scenes and a former police cadet testified about finding a shell casing.

(2) "Lee Boyd Malvo calmly told a Baltimore jail guard that he and his "father" had left "21 bodies across the United States," and he took responsibility for killing "the lady at the Home Depot" -- FBI analyst Linda Franklin -- the guard testified Thursday."

(3) The prosecution also called victim witnesses and introduced the note stating: "Your children are not safe anywhere at anytime."

The day ended with the following exchange:

After the jurors left the courtroom, prosecutor Robert F. Horan Jr. told Judge Jane Marum Roush that a prosecution mental-health expert planned to interview and evaluate Malvo on Friday afternoon. Roush had scheduled a short, three-hour session for that day.

Craig S. Cooley, the lead defense lawyer, asked whether the court day could be extended a few hours so he could begin putting on a case for which witnesses are flying in from far-off places.

Horan, who earlier said the prosecution case may wind up Friday morning, responded heatedly that evaluating Malvo's mental state would take time. He said the defense had supplied him this week with a new, 40-page mental evaluation that differed in some ways from an earlier defense report on Malvo's psychology.

Cooley said outside the courtroom that he disagrees.

"There are no dramatic differences whatsoever," Cooley said. "It is simply a more detailed report."

(4) A discussion of the juvenile death penalty and the possibility of it being found unconstitutional.

Sniper: Muhammad:

A picture of Muhammad from 13 WVEC.

(2) Muhammad's attorneys seem to be trying to save his life by humanizing him thru letters from his children and home videos of him with his children before his divorce.

The various attempts and excuses given by the government in the U.K. in its effort to take away jury rights.

Reforms to the California parole system.

For those of you from Virginia "parole" is this thing they have in other States defined as "a conditional release of a prisoner serving an indeterminate or unexpired sentence." There's a rumor out there that we used to have it too but it was supposed to be back in the Stone Age before I started practicing law.

Grand jury shenanigans in Brooklyn.

Trying to replace drug sniffing dogs with a piece of equipment.

Some people deserve to be caught.

This can't be to comforting for the Defendant: A prosecutor drops the charges so that the feds can prosecute first and then the State can come back and take its shot.

This is almost too weird to believe. A probation officer was writing to rapists describing to them violent sexual fantasies involving her family. Apparently she didn't mean it though.

British Juries:

Not sure I understand this exactly but apparently the Brit parliment has voted to give up jury trials in fraud cases if both houses of parliment pass a bill allowing the giving up of jury trials in fraud cases. ??????

Sniper: Malvo:

(1) The daughter of a victim testifies.

(2) The car is placed at the scenes.

(3) Two survivors testify.

(4) Prosecutors are showing the obligatory gruesome pictures in the normal attempt to overcome rational thought with the sheer emotional disgust most of us have with a crime of this nature.

(5) Differences in the Muhammad - Malvo trials.

Sniper: Muhammad:

Muhammad Will Be Sentenced to Death

The prosecution negated the entire purpose of moving the trial down to Virginia Beach by showing that their area was targeted as well:

[W]hen FBI Special Agent John Hair took the stand and specifically mentioned Newport News, Hampton and Norfolk, the jurors, all Virginia Beach residents, reacted visibly. Some appeared stunned, gasped or looked at each other.

(2) As well Muhammad's ex-wife testified that he told her, "Just know this. You have become my enemy and as my enemy I will kill you."

(3) Reaction of Muhammad's biological son.

(4) A Navy sailor bought the gun for Muhammad.

Multiple personality defense. This must have been a very interesting trial.

Interesting. You know, if this guy is right and all they have is his confession - and nothing more - he would be not guilty under Virginia law because it's not enough to provide the corpus delicti.

"Two Manteca police officers used reasonable force when they threw a handcuffed Ripon man onto his bed, unholstered his gun and threatened to kill him, an expert in police practices told a grand jury Tuesday."

Huh? This and the claptrap which follows it read like pure coverup that it is. Who calls a witness like this to a "public" grand jury unless he is trying to make excuses to the public for not prosecuting the officers?

Manteca Officers Steve Harris and Sam Gallego . . . burst into a Ripon residence without a warrant, handcuffed resident James Walton and, after he made a sarcastic comment, threw him on his bed and threatened: "We could kill you right here."

"[N]umbers are . . . unreliable because victims may choose to not report at all, according to the U.S. Bureau of Justice, which estimates that 64 percent of all female rape victims do not report to the police."

Statements like that drive me nuts. How do you get a statistic like that? There is no way that I can think of to accurately gather that statistic with self reporting and the actual legal definition of rape (not the stuff they were pushing at us when I was in college). It sounds like something law enforcement and interest groups put forth to win a point and don't really worry too much about its accuracy.

And yes - before the nasty e-mails flow in - I do realize that rape is perhaps the most awful crime out there (maybe second only to murder). I'm not arguing that. There is a difference between arguing a crime itself and arguing things said which do not relate to a specific crime but are broad generalizations.

Japan is sending its first minor to adult prison.

O.K. this is just weird. The jury system which developed to protect the people from the nobles/elite is under attack by the government in England and the Nobles are protecting it. The home secretary was not happy and the Prime Minister made the same claim that all government types make when they try to take rights away: you need to let us take away just these few little rights so that we can catch the evil, bad guys.

Sniper: Malvo:

(1) A picture of Malvo used in the Sun:

(2) The prosecution plays one of its strongest cards, a taped statement of Malvo talking about techniques and the killing of Dean Meyers. However, the tapes may not be as damning as a simple reading might lead one to believe. Jurors "were given transcripts because the sound was poor and Malvo's voice was soft." Not having heard the tapes myself, I don't know how to interpret that; softness of voice could indicate hesitancy, fear, regret, lack of knowledge, etc. And that could become especially relevant because "[u]nder cross-examination by Malvo's attorney, Walker admitted that Malvo got many facts of the Meyers shooting wrong. Meyers was shot in the shoulder, not in the head, and Malvo gave a wrong description of Meyers' car."

(3) From Hampton Roads Channel 13, a picture of the victim who was talked about the most on the tape:

(4) Even if the Defense could get ahold of her it does not appear as though Malvo's mother would be allowed into the country to testify now that no prosecutor needs her:

Malvo's attorney had to ask the lead prosecutor, Fairfax Commonwealth's Attorney Robert F. Horan Jr., to support an application for a new parole for James. Horan declined.

Sources close to the case said that on Nov. 10, the opening day of Malvo's trial, defense attorneys presented Horan with a letter to Homeland Security requesting another parole for James. The sources said Horan told Malvo's attorneys that they should take the matter up with the federal government.

Because, we all know how interested "Homeland Security" is in helping a Defendant. And, BTW, way to seek justice.

(5) In what's basically a comment without elaboration, we know that Malvo knows what has happened to Muhammad.

Sniper: Muhammad:

A litany of witnesses were called in the case, including people whom the Defense attorneys have been able to impeach because they are getting paid off for their testimony:

Defense attorney Jonathan Shapiro called Dancy a "liar" under cross-examination, saying he repeatedly lied to authorities on the gun purchase. And he questioned whether Dancy had a plea agreement with prosecutors to avoid being charged with firearms violations.

"I haven't seen the paperwork," Dancy said in response.

Why? Why do prosecutors do this to their own cases? Over and over again in cases where they just don't need to they will call terribly self interested witnesses who have been bought off by lessened sentences or dropped charges or whatever and the guy will harm their case. I doubt it will change the result here too much but I've seen it devastate closer cases.

BTW, the article above also describes the escape attempt (which was more than just flooding the cell).

Here's a description of Muhammad's attempt to get a weapon modified by a gun dealer out west.

And the governor pitched in his two cents on the verdict.

Martha, Inc's lawyers asked the judge to throw out charges but were turned away.

Concerns about locking sexual offenders in mental facilities after they have finished their prison terms:

Five years later, only a handful have been released, and critics of the commitment process — psychiatrists, civil-liberties advocates and even some early supporters of the law — are concerned that it is merely an exercise rigged to keep sex offenders locked up for a lifetime.

Naw? Really? Anybody who doesn't already know that is delusional enough that they should probably be seeking some psychiatric help themselves.

Are the feds going to reprosecute or not?

They said they were going to retry the National D-Day Memorial fraud case but now they don't seem so eager.

You know, when your kids are giving ou $500,000 a year it becomes somewhat difficult to deny knowledge that they are doing something illicit (or at least it is going to be darn near impossible to convince a judge you didn't know).

A civil case which is being filed using the sniper cases as an excuse to attack the gun seller and the gun manufacturer.

Sniper - Malvo:

Testimony yesterday included the victim's husband, the FBI agent who dealt with Malvo in the beginning, and the man who found the two men and turned them into the police. Then the prosecutor tried to introduce the 911 tape of the victim's husband calling immediately after his wife was shot but Mr. Cooley got it excluded because it had little value towards proving the charge and was mainly intended to prejudice the jury:

"I do think it's prejudicial," [judge] Roush said after hearing the tape. "Whatever probative value it has is outweighed by the prejudicial impact."

And, the primary question remains: Will the prosecutor be able to get the jury agree to kill Malvo?

Sniper- Muhammad:

In a quick decision, the jury found Muhammad guilty on all counts. This makes him the first person convicted of being a terrorist under Virginian law. The jury then began to hear testimony in order to make its decision whether to kill him or not. Apparently, the prosecution intends to produce evidence that Muhammad flooded his cell in an attempt to escape.

Prosecutors refused to divulge details of the incident, but said "the words of the defendant himself" would support their argument, and said he was placed in solitary confinement as a result of the attempted escape.

You've got to be kidding! Anybody who knows anything about jails/prisons knows that prisoners do two things when they are bored/upset: they burn things or try to flood their cell. Nobody has any kind of actual expectation that this will accomplish anything (except getting them thrown in solitary confinement).

A quick synopsis of the important information of Muhammad's life.

Sniper:

Links to filed papers in both cases.

Martial Law Reimposed in Richmond

The City of Richmond is starting to declare parts of city streets off limits again. Basically, it's a dodgey way of declaring a form of martial law in areas of the city. You'll remember that the first time this was challenged the Virginia Supreme Court declared it unconstitutional but the federal supreme court overruled it. I think the first challenge was actually somewhat weak and I expect better challenges very shortly.

Well, if you have to hack somebody while wearing a black hat it might as well be Al-Jazeera (at least you'll only get community service).

Sniper - Malvo:

(1) The fact that jury selection went so quickly is causing trouble with the evidence: the judge in the Muhammad case is wary of releasing it to the Malvo prosecutors while his case is still with the jury. Nonetheless, the prosecutor will begin to present his evidence today even without the physical evidence.

(2) A British observation of the case which will be made by Malvo's attorneys (reads much the same as American versions).

(3) Discussion of the clothing of Malvo and a comparison of Cooley and Horan. I find it humorous that the judge is worried that Cooley's Southern accent might throw people in Virginia. One might think she would be more worried about people understanding Mr. Arif if he refers to Malvo as a "yout."

(4) Security is on high alert during the trial. Not sure exactly why. It's not as though Malvo was in Al-Qaida and might have people around who want to free him or (more likely) make martyrs of themselves during his trial.

Sniper - Muhammad:

Here's another discussion of the fact that the prosecutor did not disclose certain Brady evidence (which it probably didn't know about). I discussed this some previously here. I have to take issue with this statement:

Richard Friedman, a University of Michigan law professor who is an expert on evidence, said the Brady doctrine "is not based on the idea that prosecutors should be doing the defense's job. I don't think anybody else in the government would have the responsibility to communicate what they knew about this witness. . . . It's a big government."

That's not a proper reply to non-disclosure of Brady material. As I stated in my last post, one of the obvious purposes of punishing the prosecution for non-disclosure is to prevent willful blindness on the part of the prosecutor. However, I don't think that is the only evil which must be addressed in enforcing Brady. There is also the ever present danger that police will just not tell the prosecutor everything. Like I said in my last post, who thinks that a witness (or his supervisors) will come to the prosecutor and tell him that he has been accused of being a racist who skews evidence and keeps a lab so messy that it screws up results? If there is no reason to disclose they won't.

Now, in cases such as this where the Defense probably has an investigator or two and is able to find this information it may not matter too much (although the article is not clear over whether this was found by the Defense or was a late disclosure by the prosecution). However, in the vast majority of the cases out there the only "investigator" is an overworked defense attorney and there is no way that Brady material will be discovered unless both the officers and the prosecution act in good faith and hand it over. Most of the time I'm sure they do and I'm sure that even when Brady material is not disclosed it is usually because they don't realize it. However, the only way to ensure that it is handed over is to punish the prosecution in those very few cases where it can be proven they did not.

Will it happen in this case? I'd bet good money that upon appeal it will be found to be "harmless error" by the appellate court. And it very well may be in this case but if its not punished here when will it be punished? The most likely answer is never.

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Addendum
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Actually, thinking this over, it might be extremely useful to the Defense to call this guy up during sentencing (if the judge will allow it) and expose all this. It might be a way to keep Muhammad from being killed.

Sniper Miscellaneous:

Various human interest stories in connection with the Sniper trials:

(1) The Virginia Beach community police officer assigned to shepherd family members during the trial is the survivor of a vicious attack.

(2) Chesapeake has set up a special room in the courthouse where family members can watch the trial via T.V.

(3) How family members dealt with one of the murders.

(4) A look at why sequestering isn't used often and isn't being used in the current cases.

Like him or hate him - Rush is back today.

You know, I don't really agree with the sentiments but I gotta admit I laughed:

found here.

As a life long Bengals fan, it took me a little while to figure out what those W's that the newspaper kept putting down as part of this year's Bengals' record meant. Now they have beaten the formerly undefeated Chiefs and sit atop the AFC North.

What, you ask, does that have to do with criminal law? Absolutely nothing but it's the first time I've been able to even admit I am a Bengals fan for years. So, you'll just have to live with it for a couple seconds.

Death Cases:

(1) Argument over the killing of people by the State:

(a) Voices from both the Left and Right calling for Virginia's use of the death penalty to be stopped:

Sentencing disparities based on geography and race, prosecutorial misconduct, inadequate representation by defense attorneys, and an appeals system that ignores evidence of innocence are some of the problems listed in a report by the American Civil Liberties Union of Virginia.

While critics denounced the study as nothing new from a predictable source, the ACLU found an unlikely ally this year in its call for a moratorium - the Rutherford Institute, a conservative-leaning civil liberties group based in Charlottesville.

"Human life is too sacred to be taken away in a system as flawed as the commonwealth of Virginia's," Rutherford Institute Director John Whitehead said at a capital news conference.

"Whatever one's views of the merits of capital punishment may be, no one supports the execution of an innocent person."

(b) George Will has apparently broken from the orthodoxy and begun to wonder whether the system can be fair enough to justify the use of capital punishment.

(c) An editorial noting the inequity in the application of the death penalty across the U.S.

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(2) A serial killer caught in spite of the task force set up to catch him.

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(3) The U.S., the Democratic Republic of Congo, Iran, Nigeria, Pakistan, Saudi Arabia and Yemen are the countries on record as having executed minors since 1990 and the U.S. leads the pack with 17. And, of course, Texas leads the way.

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(4) Diary of a girl who killed. The excerpts are disturbing/fascinating.

Law Enforcement in the News:

(1) The former police chief of Portland, Oregon has gone to Liberia to try his hand at putting a police force together there.

(2) The head of police in Columbia resigns because his officers "dined in the most exclusive restaurants in Colombia's notorious center of drug trafficking, bought expensive jewelry and staged lavish parties while packing guns."

(3) A judge has allowed women victimized by a Trooper to sue his superiors. Because, I'm sure all his supervisors were encouraging him to go out and commit sex crimes while on the clock . . .

(4) Why would officers engage in a wide ranging, complicated insurance fraud scam for almost no money?

Out in the Blogosphere:

(1) If you are interested in the Lubbock plague trial Sleepless in Midland is providing coverage here.

(2) SW Virginia Law points to a story about the outlaw tradition in Eastern Tennessee.

(3) This posting over at I respectfully dissent talks about the contempt power inherent in the judiciary. This caught my eye because I am currently working on an appeal of a contempt charge from Juvenile and Domestic Court to the Circuit Court (everything in Virginian courts not of record can be appealed to a Circuit Court). My client was sentenced to 10 days in jail (the max summary contempt punishment in Virginia) and appealed. I must admit this was the first time I have dealt with one of these so I had to hit the books. I knew that the judge could not be called to testify under the laws of Virginia so I was wondering how they would prove it. I quickly learned that under the laws of Virginia all the proof required is for the lower court judge to write a letter to the higher court judge saying why she convicted the Defendant of contempt - so much for the right to cross examine the complaining witness. Who cares about that musty old Constitution anyway? But WAIT, there's more . . . You are also forbidden a jury trial. See Baugh v. Commonwealth. Because, who would want a jury to intervene when one judge is given a letter by a colleague in the same circuit and is expected to weigh that against the word of the Defendant? Arrrgggg!!!

(4) Curmudgeonly Clerk was guest blogging over at Crescat Sententia and had a couple of posts which caught my eye primarily because I spent 6 years as an interrogator in the U.S. Army. Not going to comment on the charges because I haven't been following the story he's commenting on so I don't know all the facts but you can check it out here and also here.

(5) Hey, somebody dared to ticket a blawger.

(6) What's the lesson of this post over at The Legal Reader? If you are going to break the law make dang sure that you are the worst of all the bad guys and that you have lots and lots of underlings whom you can offer up as sacrifices to the federal prosecutor. That way you can get a sweetheart deal and avoid the punishment you deserve by transferring it to people who deserve it less than you do.

A motion of nolle prosequi in a murder charge brings this review of the Franklin County prosecutor's problem cases.

Disturbing search of the day:

Someone came to my blawg via a search for "How to kill someone without a trace." That's just wrong.

Good News: You'll remember when I went off on a rant because of what I viewed as the improper actions of a State court judge forcing her to desert or lose her children.

Well, at least the Army is showing some compassion and common sense (it tends to do that when there is a lot of media attention) and choosing not to prosecute.

A suggestion on how to better handle non-violent crimes because States are rupturing money doing it the way we are now.

Hate crimes are down 25%.

Pollard keeps trying and trying and trying. However, as he's been convicted of being a traitor, he's not finding a lot of sympathy in the courts.

This week's strangest burglary.

Although, I guess that technically, under the common law definition¹, it's not a burglary but a B&E and a grand larceny.


¹ Breaking and entering the dwelling place of another at night with the intent to commit a felony therein. I want to thank Prof. Groot at W&L for making sure all his Criminal Law students memorized the common law definition of various crimes. I wasn't in his class - my Criminal Law professor spent almost the entire semester on homocide and the model penal code (which is oh so useful when I'm actually in a criminal court) - however, my roommate (Brandon Marzo, who's now working for Big Brother in Atlanta) did and he would say the definitions over and over and over again so that even someone as dull-witted as me eventually remembered a few of them.

So, if you are falsley accused of a felony in Minnesota and you are indigent the State will charge you $200 for the attorney you need to defend yourself. What a wonderful system. Minnesota is hoping to shake down its poor for $10.2 million over a period of two years.

In Virginia fees are assessed against indigent defendants if they lose their cases. While that does infringe somewhat on their right to counsel at least it puts in place an equitable shifting of the burden of the cost to the accuser if he cannot (or chooses not to) prove the charge which has been brought.

Something's really fishy when you tell the police that someone attacked you, tied you up and left you under the floor boards of his apartment for more than a day before you escaped and the prosecutor finds you so incredible that he will not take the case to trial.

Attempt to start a set of events during which you plan "to hijack a vehicle, execute three classmates and go off on a shooting spree targeting random people in Oaklyn, a Philadelphia suburb" and you will get 4 years in juvenile detention.

Sniper: Malvo:

Opening salvos were exchanged in the case as both sides laid out thier cases in opening arguments. Prosecutor Horan talked about how Malvo was the shooter in a sniper team and a "smart, clever killer." Craig Cooley countered:

Cooley showed jurors a photo of a 15-year-old Malvo holding a Bible in his hand.

"That's the child that John Muhammad started with," Cooley said as he pointed at the photo. "What Mr. Horan told you today is the child that John Muhammad ended with."

Mr. Cooley also spoke of how Muhammad had Malvo convinced that after he got his children back (from a planned murder of his ex-wife) they were going to Canada to form some sort of Utopian settlement.

As this article points out, the prosecution seems to be relying on an assertion that it was all about extorting $10 million thru terror while Mr. Cooley is telling the more understandable story of a young man under the control of a manipulative older man and acting in a manner meant to please him. And, from the various news reports, Mr. Cooley seems to be telling his story better. Still, the case is so stacked in the prosecution's favor that the prosecutor has a fairly large margin for error. If Mr. Cooley saves this kid's life it will the achievement of a lifetime.

Miscellanous:

(1) The father of the victim.

(2) The Defense is subpoenaing folks from Jamaica.

Sniper: Muhammad:

Here's a transcript of the prosecution's closing argument.

Defense attorney Peter Greenspun, meanwhile, told the jury that the commonwealth had presented a case based on speculation, suspicion and innuendo. There was no evidence that anyone saw from where the fatal shots came, Greenspun said

Instead, he suggested, prosecutors built their case around a theory - "a theme" suggested by a British sniper expert - and then tried to find ways to support it. Greenspun said the evidence really pointed to Malvo, who is on trial in Chesapeake.

Meanwhile a potential Brady violation comes to light (WARNING- inappropriate language):

The part of the Inspector General's investigation dealing with Bender [the prosecution's ATF expert] followed up on a 1991-1992 FBI probe of Bender and his co-worker at the FBI lab, agent Terry Rudolph. Both investigations stemmed from allegations made by FBI agent Frederic Whitehurst, who succeeded Rudolph at the lab. Whitehurst accused Rudolph and Bender of being racists whose biases negatively affected their work product.

According to FBI documents obtained by CNN, Whitehurst told investigators in 1990 that "both Rudolph and Bender continually and loudly expressed strong racial prejudice using such words as 'jungle bunnies' and 'niggers' repeatedly" in his presence.

You assume the prosecutor didn't know but that's not enough to absolve him from responsibility; prosecutors are held to a higher standard of assumed "knowledge" when it comes to their agents to discourage willful blindness. Often it's not the prosecutor's fault (how many experts or agents are going to pull the prosecutor aside and say "Just thought you should know, I'm a racist jerk"?) but it is a habeus waiting to happen.

As an aside, "U.S Rep. Ed Schrock, R-Virginia Beach, said he feels confident that he can get federal and state funds to reimburse the city for part of the trial’s expenses." That would be a neat trick. One suspects that local revenue went up significantly as news people and others thronged to the site of the trial filling hotels and restaurants and buying all sorts of sundry items. Now if he can just get the feds to pay for it all.

Here's the courthouse I'm off to today. Now, that's a fine county courthouse: nice solid doric columns and a brick facade. Before Amelia got hit by a group of tornadoes this year it had a beautiful park out front with antebellum trees and the ubiquitous monument to those killed in the War of Northern Aggression. Now there are a couple of the older trees left out front and a lot of space where the old trees were uprooted has been filled in and covered with straw to encourage grass to grow. New trees have been planted too but they're sapplings so they're basically useless for the next 10-20 years. Still, it kinda gives you the feeling that Amelia is saying that it'll be around for the long run.

Sniper Malvo:

Today opening arguments will take place in the Malvo case. Unfortunately for it, the prosecution will not be able to scare/impress/anger the jurors by waving the rifle in front of them during opening statements.

In opening statements tomorrow in Malvo's trial, prosecution and defense teams are likely to lay out road maps of sorts of the cases they intend to present to jurors.

Fairfax County chief prosecutor Robert F. Horan is expected to portray Malvo as a willing killer who laughed and bragged as he told police investigators about his role in the sniper attacks.

Defense attorney Craig S. Cooley, meanwhile, said he will tell jurors that Malvo is not guilty by reason of insanity because he had been brainwashed by the older Muhammad.

Even though it is CrimLaw 101 that the prosecution does not have to prove motive, Malvo's lawyers are expected to concentrate on the question of "Why" in order to show Malvo was under Muhammad's sway. Many do not believe this will work (at least in the guilt/innocence phase):

It's the longest of long shots but it is a strategy that makes perfect sense given that Malvo's lawyers cannot tell jurors with a straight face that their client had nothing to do with Franklin's death. Rather than deny the obvious, then, Malvo's attorneys will instead try an insanity defense designed to paint their client as — almost literally — a killing machine programmed by Muhammad for death and destruction. Problem is, insanity defenses almost never work, especially when the period of alleged "insanity" lasted for weeks, which is what Malvo's attorneys will have to argue given the duration of last fall's sniper attacks. It's not just a temporal issue, either. There is plenty of evidence from the Muhammad trial that the pair meticulously planned their attacks — something Malvo's prosecutors surely will note when they talk about whether Malvo knew right from wrong.

Malvo's attorneys are talking insanity, then, not to gain an acquittal but to better their chances of avoiding a death sentence for their client. By raising the defense, Malvo's lawyers can hammer away on jurors from the start of the trial that Malvo would never have done what he is accused of doing without the intense and effective influence of Muhammad. Over and over again, we are likely to hear Malvo's attorneys say that their client didn't just snap like the typical insanity defendant but instead was manipulated by the older suspect over a long period of time into thinking that killing was OK if it made Muhammad happy. The idea is that this concept will be plausible enough given Malvo's tortured background to convince at least one juror to give the kid a break during sentencing.

And, just in case you were wondering, the Toronto Star has figured out why Malvo is being tried here:

They kill teenagers in Virginia, by law — three juveniles sent to death row since 1976. It is for this reason — Virginia's aggressive prosecution of young people on capital charges, its disinclination toward mercy even for juveniles — that prosecutors from two states and the District of Columbia agreed to have Malvo tried here first for one specific killing, the murder of 47-year-old FBI analyst Linda Franklin on Oct. 14, 2002.