31 December 2003

The Year in Review - The Blawg:

By glancing thru the blawg I realized that the image one would probably get of me is that I was an Army interrogator who was taught Arabic during my enlistment. Since leaving the Army I have apparently become a cross between Aquinas and Rehnquist with shades of Ming the Merciless. And, to top it all off, I have problems convincing my dogs that the couch is actually mine. There's probably more to me than that but nothing important comes to mind.

Other matters which have made it onto my blawg:

There have been a couple discussions as to the ethical duties of defense attorneys here and here.

Attempts have been made here to show how a courtroom actually works including a list of the rules which govern the entire system, how clients will often react even if they are innocent, how a rural court works, and the unofficial rules of federal practice in Virginia.

Certain issues have made it onto this blawg with strong reaction (politicians striving to send working class men to jail to gain favor with prohibitionists), others have just amazed me (no mens rea required in Virginia - if the police knock on your door you better sprint to open it - the (re)creation of an old form of contempt to get around the statute - the assumption of a non-existent statute so that a trial court can be upheld), at least one issue lends itself to a simmering contempt for a system which is willing to live the lie (although I offer a solution here), and this just disturbed me.

And of course, the Kringle Affair continues . . .
It sure is annoying when one of those pesky juries refuses to affirm your predisposition.
My first reaction to this was a string of curses. These people are scum.

And they're weird too.

Pointed out by Lex Communis.


Look, everyone is entitled to their opinion but that is beyond the pale. These are soldiers who have gone off and put their lives in danger by the direction of your Republic. If you want to make an ass of yourself go photoshop a picture of Bush, Rumsfield, Daschle, Gephardt or some other politician who bears responsibility:
B: [F]or we know enough, if we know we are the kings subjects: if his cause be wrong, our obedience to the king wipes the crime of it out of us.

W: But if the cause be not good, the king himself hath a heavy reckoning to make, when all those legs and arms and heads, chopped off in battle, shall join together at the latter day and cry all 'We died at such a place;' some swearing, some crying for a surgeon, some upon their wives left poor behind them, some upon the debts they owe, some upon their children rawly left. I am afeard there are few die well that die in a battle; for how can they charitably dispose of any thing, when blood is their argument? Now, if these men do not die well, it will be a black matter for the king that led them to it; whom to disobey were against all proportion of subjection.
Any nominations for which blawg entry I might submit for this?
This one's for you -

Pursuant to content request from a certain individual, I still won't directly link to those sorts of pictures, however, here's a blog discussing a legal issue and linking to some very interesting evidence.
If you admit to your cellmate that you killed "a girl" it doesn't mean you killed the girl the prosecution wants to convict you of killing.
In Uzbekistan the government is trying to eliminate the death penalty for aggression and genocide. The Muslim press comments:
In our opinion by removing two articles from criminal code Uzbek government purposes two objects. Firstly, those ones who govern today's ruthless Uzbeki regime are going to win the respect of international community claiming "we do our best to introduce a moratorium". Secondly and in the main, Karimov-led herd of lawbreakers realize that one day they might be sentenced to death and consequently they are highly concerned about escapement at any price. In spite of the fact that Islam Karimov had time to murder some hundred Uzbeki Muslims today the world is already aware of continued genocide and violence committed at the head of Uzbek president.
And then follow the Suras and comparisons to Pharaoh.
Will the Governator stop offering rewards for them there bad guys?
The death penalty - It's a Southern thing, you wouldn't understand.
Using software to age a picture in order to catch to catch a suspect from 1989.

30 December 2003

Death Cases:

(1) In Georgia the availability of life without parole is perceived as the reason for the decline of death sentences.

(2) Rochester, New York has had a spike in murders.

(3) Whether the drugs which are administered to kill convicts hide the pain of the person as his heart seizes has become one of the latest attacks on the death penalty.

(4) In China it just doesn't pay to be a corrupt government official anymore:
"In the face of irrefutable evidence, he indulged in sophistry in every possible way and refused to admit guilt," Xinhua News Agency quoted the court as saying. "His attitude was disgusting and he was severely punished in accordance with the law."
Whatdoyaknow - Being arrested and booked is not a life-affirming, ego boosting, enjoyable experience. And prisons don't smell good. And handcuffs are put on tight enough to bruise.
Citizens Step Up

That most pesky of democratic institutions stands up to Russia's top intelligence agency and finds a professor not guilty of espionage.

29 December 2003

You like me, you really like me!

(or at least you like my blawg)


Another Greedy Clerk ranks this blawg in his top 5 (5th place). But, lest my ego grow too large, this gentleperson places not my blawg in the best of the best.
What do you do if you forgot you had your pocket knife with you when you walked into the courthouse? Here are the solutions for Roanoke, Virginia: throw it away or hide it outside the courthouse.
If you kill seven women you'd better be really dumb.
O.K. this is not what anti-terrorism statutes are meant to protect us from. This guy should be buried under a hefty stack of charges but terrorism just ain't one of 'em.
???? Convicting Two People of the Same Act is Legal ????
For prosecutors to seek and win convictions against two defendants in a crime, knowing only one of them can be guilty, is dismaying, dishonorable and maybe "outright deplorable.''

But it's not illegal, at least not according to the Ninth U.S. Circuit Court of Appeals in San Francisco.

In a 2-1 ruling Monday, the court upheld a 16-month increase in Jonathan Shaw's prison sentence for a 1995 restaurant robbery in Fairfield, based on the jury's conclusion that he held a gun to the restaurant manager's head.

In a separate trial more than two years later, prosecuted by the same Solano County district attorney's office, another jury found that a second participant in the robbery, Mango Watts, was the one who held the gun to the manager's head, a finding that added 10 years to Watts' sentence. That jury was unaware of Shaw's verdict.

Like other courts that have reviewed the case, the appeals court said only one of the two men could have wielded the gun, but no law prohibits prosecutors from making inconsistent arguments to different juries, as long as they don't falsify the evidence.
The same prosecutor makes deliberately inconsistent arguments to two different juries in order to achieve a purposefully conflicting result and that's not a clear violation of somebody's due process? Personally, I'd prefer to be the guy appealing the second Defendant's case because it would seem impossible to prove beyond a reasonable doubt that one Defendant did something which another Defendant had been found guilty of beyond a reasonable doubt and for which only one Defendant could be held responsible1.

1 I don't see any indications of arguments about principles or accessories being made here - must not be viable under California law.
Kinda strange -

In California the Union and the Dept. of Corrections are in conflict over whether prisoners can be taught while in their cells or whether they must wait until they get to a facility which has classrooms. And it's the teachers who want to delay teaching.

28 December 2003

In the U.S. organized crime deals with drugs, prostitution, theft, etc. In Israel it deals with hotdog vending.

Dang, those must be some hellacious hotdogs.
You like me, you really like me!

(or at least you like my blawg)

Over at the Greedy Clerks Board this blawg has been listed as 3d favorite blawg and 4th favorite blawg. Wow, somebody is really reading my random musings.

Thanks to SA for the pointer.
In the Florida wrestling death, the prosecutors have offered a plea which will let the kid out of detention after a few more months. Bad press over sending a 12 year old to prison for life can have an amazing effect.
Death - Trends:

(1) Here's an article arguing that support for the death penalty has dropped in the U.S. to somewhere between 50-64%:
If you are going to commit a murder, you might want to pick your spots. "The practice of the death penalty became more isolated in 2003," the report says. "Only three states outside of the South conducted executions in 2003: Indiana, Missouri and Ohio. Three states in the South, Texas, Oklahoma and North Carolina, accounted for 69 percent of the executions in 2003. All together, the South was responsible for 89 percent of the executions this year."

(2) Despite being opined incompetent by two psychologists and a psychiatrist a man is allowed to waive the appeal after he has been sentenced to death. The author urges abolition as the only way to stop such injustices. And here's a knee jerk letter to the editor in reply.

(3) Meanwhile, in Maryland legislators plan to increase the breadth of the death penalty statutes.

(4) Meanwhile, in Massachusetts (a State with no death penalty statute), a man is sentenced to death in the federal court.

(5) Judge John Gleeson, pro-prosecution judge, fires a broadside at Ashcroft's policy of forcing prosecutors to pursue the death penalty after they have recommended against it.

(6) New York's SUpreme Court refuses to allow people to killed by the State.

(7) Illinois is willing to pay $300,000 per in order to be able to kill Defendants. How dare those evil Defense attorneys actually spend money in trying to defend someone the State is trying to kill.

(8) Are people becoming skeptical about the death penalty?

(9) An lawyer-author and and policeman-author both address the death penalty.
Death - The Green River Killer:

(1) The prosecutor's office is being challenged in lesser cases wherein it chose to ask for the death penalty because of the fundamental unfairness of letting the Green River serial murderer live while trying to kill someone else for a single murder.

This is interesting:
King County prosecutors responded with their own motion Friday and said the Ridgway decision has little bearing on the Champion case. They argued the Superior Court does not have the legal authority to address the fairness issue. It should be a matter for the state Supreme Court to decide, they said.
Ummm . . . the trial judge doesn't have the authority to decide a legal issue bearing on the trial? Since when? As I understand the way most court systems work the trial judge decides and the appellate judges / justices review. Of course, I guess the Supreme Court of Washington could have original jurisdiction but it seems unlikely.

(2) And the prosecutor again offers not to try to kill the Green River murderer if he confesses to some more murders.
Faith Based Prisons?

There's been a lot of talk about this on various blawgs (see Crescat Sententia and Southern Appeal - they link to the others).

Hmmm . . .

Well, religious scamming is a full time sport among a lot of prisoners. I suspect this will probably be the most scammed program in the prison system.

In Nevada a jury can use information not in evidence as long as a juror had the information when he walked in the courthouse and didn't look it up during the trial.

27 December 2003

Lammers Law Office Bulletin
Kris Kringle Arrested

Yesterday, in the County of Arrestafield, Virginia Detective Bluemart and a crack squad of Arrestafield officers swore out a warrant and arrested a man suspected of breaking and entering numerous dwelling houses of others, at night, with the intent to commit a felony therein. Apparently, the man had been under suspicion for a number of years but this is the first year that a "credible" witness has stepped forward.

The witness is a minor so we at the Lammers Law Office will not reveal her name. However, upon being appointed as counsel we have investigated her story and found enough incongruities that we believe the arrest unfounded in fact and law.

Initial news reports indicated that pressure from Homeland Security was a major factor in this arrest as the Accused is not an American citizen. However, the head of Homeland Security's new Yuletide Defense Section, Ben Scrooge, denied this calling it a bunch of "Humbug."

(stock photo from Mr. Scrooge's corporation - no government photo available)

Arrestafield police released this artist rendering of the method by which they allege Mr. Kringle entered houses. When reporters confronted him with the obvious impossibilities of a man of Mr. Kringle's girth entering houses via fireplaces Detective Bluemart insisted that Mr. Kringle is a very dangerous fellow: "Mr. Kringle is an accomplished second story man who has managed to enter houses of all sorts throughout many years without a trace of how he has entered. The only confirmed method is the one depicted. Furthermore, Mr. Kringle is an international operator. We have traced his activities in multiple countries; this has not been easy because he has numerous AKA's depending upon which part of the world he is in: Kris Kringle, Santa Claus, Papa Noel, Saint Nicholas, Father Christmas, etc. As well, when questioned Mr. Kringle freely admitted to entering almost all the houses in Arrestafield County on the night in question. When I drove him around we couldn't go 50 feet without him pointing out another house he had entered. He also showed a disturbing amount of knowledge about the children of the County and was even able to list off all the children who had been involved in criminal activities in the last year."

We Need Your Help

Our investigation has uncovered some interesting facts which we believe law enforcement is sitting on. We believe that whoever the actual culprit is he acted with one co-defendant (pictured left). Be very, very careful if you spot this creature as we suspect it might be a jackelope and could turn out to be extremely dangerous if cornered. Your best course of action would probably be to send us an e-mail and track him until we arrive.

After having investigated the description of the actual perpetrator, we at the Lammers Law Office are very interested in speaking to this individual. He is almost an exact match of the description and (as you can see) he fits easily into tubes such as a garbage can (or a chimney). Known primarily by the moniker, "The Grouch," we believe it may have been the goal of this person to steal Christmas. We have a partial address but have not been able to go further than a street name. If anyone knows what city or State this "Grouch Who Stole Christmas" lives in we would be extremely grateful for your assistance in this matter.

As always, we at the Lammers Law Office look forward to the complete exoneration of our client and will make every effort in the defense of this wonderful man.
Dang! Another list of top blogs I didn't make.

26 December 2003

Very Strange. I got spam from Bolivia today telling me that Bush had resigned?!?

If he has Fox and CNN are keeping awful quiet about it.

24 December 2003

Look, I bring you news of great joy, a joy to be shared by the whole people.

Today in the town of David a Saviour has been born to you;

He is Christ the Lord.

Happy Christmas everyone. I'm down until 28 December 2003 anno Domini.

The Yin Blog and The Curmudgeonly Clerk both have had recent posts on procedural "technicalities."

Generally, I agree with everything they have stated. However, they have inspired me to go off on my own tangent.

I must point out that - at least from my Virginian Defense attorney perspective - that "technicalities" almost always favor the prosecution and no one is upset when that occurs. If you don't believe it go and read any local legal publication which summarizes the decisions of your court of appeals. Invariably there are cases decided in the prosecution's favor because of procedural issues. Most often it seems the procedural error relied upon by the appellate court is that the error was not properly preserved - put another way, the argument in the court of appeals does not mirror the argument made in the trial court.

Example 1: Virginia Code secs. 19.2-11.01 and 19.2-265.01 purport to give a victim the "right" to stay in the courtroom even if witnesses are excluded "unless the court determines, in its discretion, the presence of the victim would impair the conduct of a fair trial." 19.2-265.01. Now, as I read that it means if a victim is not to be called as a witness he can stay in the courtroom; it could also possibly mean that if the victim is going to testify as to what happened on Monday and all the other witnesses are going to testify to entirely unrelated matters which occurred on Thursday then the victim can remain. However, some trial courts have read these statutes to mean that short of an affirmative showing of impairment by the Defense (an impossible standard to show pretrial) the victim stays in the courtroom. Anyone with a drop of sense can see how that interpretation is dead in the water as soon as it runs up against that pesky old federal constitution. The statute is darn near undefendable under the 14th Amendment due process right and the 6th Amendment right to a confrontation which is untainted.

And you know what? Our Court of Appeals has more than a drop of sense. This statute has been challenged twice. Both times, rather than address the unconstitutional application of the statute the court found a way to deny the appeal based upon procedural technicality. The first time the challenge was turned away because
At trial, appellant argued that until the evidence established that a person was a victim, the alleged victim stood in the same position as any other witness in the case and should be excluded from the courtroom. Appellant never argued that his due process right was violated. The Court of Appeals will not consider an argument on appeal which was not presented to the trial court.
[U] Hague v. Commonwealth, (No. 1274-99-2, 23 May 2000)(citations omitted).
The second time the challenge was turned away because
On appeal, the defendant contends the trial court erred in failing to exclude Chesnut from the courtroom pursuant to Code § 19.2-265.1. He argues the statute requires the exclusion of all witnesses, including victim witnesses, and that the victims' rights statute, Code § 19.2-265.01, is inapplicable. This argument is different from, and actually conflicts with, the argument he raised at trial: that Chesnut should be excluded under Code § 19.2-265.01, the victims' rights statute, because his presence would impair the trial. Nothing in the defendant's argument at trial indicated that he thought the general statute, Code § 19.2-265.1, controlled rather than the specific statute, Code § 19.2-265.01, dealing with victims.

Though taking the same general position as in the trial court, an appellant may not rely on reasons which could have been but were not raised for the benefit of the lower court. We will not consider an argument on appeal which was not presented to the trial court.
[U] Woodell v. Commonwealth, (No. 2241-00-3, 05 Mar 2002)(citations omitted).
Example 2:

First: NCIC records are spit out by machines in the prosecutors' office (and I assume the police station). They are not kept in the clerk's office and can in no way be certified by the clerk as "judicial records" under the hearsay exception provided by Va Code sec. 8.01-389.

: NCIC records are hearsay and notoriously subject to inaccuracies. I have sat in a prosecutor's office reading a record which says my client - arrested two weeks before the meeting - had been found guilty of murder and locked away for life ten years prior. I've had police go to the wrong part of the Commonwealth to arrest someone who shared the same name as my client because they thought that person was the one the NCIC applied to. I've had a client accused of being a felon in possession of a firearm because NCIC showed him as having committed a felony when the Navy had him deployed overseas. And any number of times I've had the NCIC show a disposition for a case which, when we got ahold of the actual court records, had been dismissed or reduced to a lesser offense.

Third: There is no statute allowing NCIC reports to prove a Defendant's record - at least none I know of.

Fourth: To prove a felony petit larceny in Virginia the prosecution must prove that two prior larceny (or similar) convictions have been entered against the Defendant.

During a trial for felony petit larceny the prosecution attempts to enter the NCIC report into evidence to prove the prior convictions:
At trial, Investigator Kristie Siron of the Staunton Police Department testified that the felony theft charges were based on Argenbright's record of prior convictions for similar offenses. When shown a copy of a computer printout of Argenbright's NCIC record by the Commonwealth, Investigator Siron identified the printout as appellant's criminal record. The Commonwealth then offered the printout into evidence. Argenbright objected and the following exchange took place:
MR. BOBBITT [Defense Attorney]: Your Honor, I'm going to object to the--this printout, I mean I would think that there ought to be copies of the--of the-- certified copies of the conviction if they are going to establish that he was convicted.
MR. ROBERTSON [Commonwealth's Attorney]: Judge, there is a statute that allows the record to come in.
JUDGE: Isn't that true Mr. Bobbitt?
MR. BOBBITT: I think he's probably right, but I'm not sure about that so I'm--I'm going to object to it.
JUDGE: I'm going to admit it, it's Commonwealth's One.

The trial court relied on the information contained in the NCIC record to prove the prior convictions required under Code § 18.2-104 to convict Argenbright on thirteen out of eighteen felony charges of obtaining money by false pretenses under Code § 18.2-178. The court subsequently sentenced him to the penitentiary for ten years, with seven years suspended. Argenbright appeals the thirteen convictions elevated to felonies pursuant to Code § 18.2-104.


The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion.

Both at trial and on appeal, Argenbright argued that only certified copies of court records of his previous convictions were admissible to prove the prior convictions necessary to convict him pursuant to Code § 18.2-104. While he objected when the Commonwealth sought to admit the printout of the NCIC report, his sole argument was that only certified copies of the convictions were admissible for that purpose.

Argenbright argues for the first time on appeal that the trial court erred by admitting the printout without proper certification pursuant to the Code § 8.01-389, the judicial records exception to the hearsay rule. We will not review on appeal a specific argument not raised before the trial court absent a showing of good cause or as necessary to attain the ends of justice.

. . .

When Argenbright objected to the offer of the printout of the NCIC report into evidence, the Commonwealth asserted that there was "a statute" that permits the NCIC report to be admitted into evidence. In response, the court stated that it also thought a statute permitted the admissibility of the NCIC report as evidence, and asked if Argenbright agreed. He responded that he agreed that the Commonwealth was "probably right but I'm not sure about that so I'm--I'm going to object to it." Argenbright articulated no other grounds to the trial court as to why the NCIC report should not have been admitted into evidence. Neither the trial court nor the Commonwealth's attorney identified the statute "that allows the record to come in." On appeal we will not speculate on which statute the court may have relied.

Absent clear evidence to the contrary in the record, the judgment of a trial court comes to us on appeal with a presumption that the judge knew and correctly applied the law. Argenbright argued that the evidence was inadmissible solely because the NCIC printout was not a certified copy of the court record of his prior convictions. He did not object that the NCIC report was not accurate or that it contained erroneous information. Finally, Argenbright did not object to the NCIC report as inadmissible hearsay or that it had not been properly authenticated. Neither did he object on the grounds of lack of adequate foundation. His failure to raise these objections to the trial court constituted a waiver of these objections. We will not consider them for the first time on appeal.
Argenbright v. Commonwealth, (3282-02-3, 25 Nov 2003)(citations omitted)(emphasis added)
While inartfully argued, the practical reality is that the only records which can be introduced are certified copies of prior convictions. NCIC records are hearsay and cannot be certified as judicial records since they are not in the clerk's office. The Defense attorney clearly has an objection that the convictions are not being proven by the one truly possible manner. The prosecutor and judge try to push him off of that objection; he bends but doesn't break - he maintains his objection. And still, his argument is found technically inadequate. The Court of Appeals has to go pretty far to find it technically inadequate but they do (when's the last time you've seen an appellate court assume a fictitious statute in order to make its decision make sense?).

Why? Why, you ask, do the Defense attorneys not make rock solid, coherent, cogent arguments to preserve their objection? Well, it's because the arguments are made off the cuff. Often it's an argument on a statute / rule which both the prosecutor and judge are disagreeing with you about, with no notice that you are going to have to argue about that particular legal point, and you must make sure you do it well enough that an appellate judge and his clerk with as much time as they wish to take cannot find some angle to throw it out. It's dang near impossible to preserve an error mid- trial if the appellate court really wants to throw it out on procedural grounds.

23 December 2003

Tony, over at Oriental Redneck, pointed this article out to me.

Patrick was a 14 year old honor student, who had no prior record. Along with an "of age" kid, he broke into a boatyard to steal a radio. When they saw a video camera the kids made a mistake of gargantuan proportions. In an attempt to destroy evidence they burnt the boatyard down. And the feds brought the wrath of God down on the kid's head.

Why? Because a boat engine at the shipyard belonged to 41. There are statements about the case being undertaken in federal court because the evidence looked weak when the State "asked" the feds to step in and devote their more considerable resources to it and because arson is a crime of violence. However, the article makes it pretty clear that all the substantial evidence was already in hand when the case was "given" to the feds. And, hmmm . . . I know I've never heard a juvenile court judge whine, "I just can't handle this case because there's violence involved."

The State and feds seem to have concurrent jurisdiction here if I remember my conlaw correctly (navigable water=connection to interstate commerce) but it seems to me that this is a case where the proper exercise of prosecutorial discretion would have been to allow the fully developed State juvenile system handle the situation. Instead:
He was given the maximum sentence allowed: 30 months incarceration, followed by 27 months of probation. He was then sent to a maximum security juvenile facility in Pennsylvania on the order of the federal Bureau of Prisons.
. . .
Patrick is being kept at the Cresson Secure Treatment Center in the central part of [Pennsylvania].

Cresson is for the most serious juvenile offenders in Pennsylvania who have proved disruptive in other facilities. Patrick is now housed in a wing where the other inmates are all mentally ill or mentally retarded.
. . .
[T]he education he is receiving . . consists of Patrick's volunteering to tutor the other boys in reading or arithmetic.

Federal law requires that juveniles convicted in federal court be provided with proper education, and that "whenever possible" they should be kept in a facility "located in or near" their home. Cresson is 570 miles from his home.
Personal observation: This case brings to mind an article in a recent edition of the Virginia Lawyers Weekly. Written by a federal judge, it basically said the worm has turned and urged Defense attorneys to fight their cases through. The logic seems to be that the obnoxious guidelines combined with the fact that more and more trivial criminal matters are being brought in federal court has brought disfavor upon the prosecutors1. Personally, I cannot confirm or deny this because these pieces were already in play when I started watching the federal courts but I can say that prosecutors seem to get far more deference in the State courts wherein I practice.

This matter seems to be a case study in exactly the kind of case which shouldn't have been brought in federal court. Putting a 14 year old in a detention home should be a last resort (although, in this case a couple months over a summer might have scared some sense into the kid) and 30 months is basically writing the kid off. He may be a honor student now but, even if he's put in a good juvenile facility, by the time he gets out his education will be far behind those of his age. And if he remains in the place he's at now he will have spent almost three years learning to survive among the youths with whom your worst nightmares are populated. Chances of recovering from this are almost nil (and I say almost because there is always hope for some miracle). How does this serve either society or the youth?

Also check out the post on this issue at Is That Legal?

1 Caution - it's been a while since I read the article so I'm paraphrasing as best I can remember. Some of this may have come from discussing the article with other Defense attorneys.
Martha Inc:

Six days to screen jurors? Typically, I get about 15 minutes. I'm not even sure exactly what I could do with six days.

Day one, hour one: Read the available information.

Hours two thru three: Meet with my overpaid jury consultants (good gracious how I'd love to have overpaid jury consultants).

Hour four: Shoo the overpaid jury consultants out of my office - or better yet, go to lunch with the head jury consultant so that lunch at Chez Expensive gets charged to Martha Inc.

Hour five: Talk with co-counsel (or if desperate associates) about the jurors and recommendations from overpaid jury consultants.

Hour six: Mark all the people off the jury that I don't want on it (probably the same ones I would have done in 15 minutes).

Hour seven: review to make sure I didn't make any mistakes.

I can almost stretch it out to a whole day if I try real hard. Of course, I come from the realm of flat fees so I've not perfected the skill of hourly billing. If I worked at mega-downtown firm maybe I could stretch over a few days so that I could increase my billable hours.
Found at Stop the Bleating! is a forward to an article about a Brooklyn officer who thought he could confess to malfeasance on the internet and remain anonymous:
In railing against an unspoken traffic ticket quota he says that officers must meet -- 10 tickets per week, he contends -- he writes: "The new commanding officer of the precinct is pressuring us to write more and more tickets. We were officially told NOT to write anymore tickets for headlights and taillights. Most people fix the problem within 24 hours and the ticket would be admonished therefore the City of New York makes no money in the end.

"So I have come up with a better way of writing tickets. I just write down the plates of the cars that cut me off the the (sic) parkways and I send them a bogus parking ticket in the mail. The person will then have to deal with the Parking Violations Bureau and not me. Problem quickly resolved. So, in other words, be careful who you cut off on the road. They might be an off duty cop and they could write your plates down and write you a $150 parking ticket. Have a nice day."

A police source said Internal Affairs investigators are reviewing all tickets written by the officer.
No, really, they're checking on an officer who admitted to illegal activity?
Malvo Sentenced to Life
When the jury came back at 4 p.m., the foreman handed the judge only the verdict on the terrorism charge. Circuit Judge Jane Marum Roush sent jurors back to the jury room to fill out the other form. But they had not circled the verdict on the form, and the jurors were sent back to the jury room for a second time. Seconds later, they returned with the verdict. The jury then came back at 4:10 p.m. and handed the second verdict form to Roush.

The sentence is a stunning win for Malvo's defense team, which focused its efforts throughout the trial on saving the teen-ager's life rather than proving his innocence.
The prosecution is giving his reasons for the verdict:
Prosecutor Robert F. Horan Jr. said afterward that Malvo was ``very lucky that he looks a lot younger than he is.'' And he suggested the timing of the deliberations just days before Christmas affected the jury.

``We used to have a theory when I was a very young prosecutor that whatever you do, don't try one on Christmas week,'' Horan said.
I guess sometimes - even when you choose the most likely jurisdiction, in the most likely State - little glitches occur in your attempt to make sure someone gets killed. General Ashcroft, on behalf of the Bar of the Commonwealth of Virginia, I'd like to introduce you to Mr. Craig Cooley.

(2) Malvo's parents express gratitude to the jury.

(3) Family members and victims reacted:
Victoria Buchanan Snyder, brother of Sonny Buchanan, one of the 10 dead, said "I cannot say I am not disappointed, because I am disappointed." "There cannot be another case more deserving of the death penalty," she went on, but concluded: "I respect the jury's decision."

Paul Laruffa who was wounded by a bullet shot said failure to give Malvo the death penalty "minimizes what this man did." "Was Malvo less guilty than Muhammed? I don't think so. They did exactly the same thing. That is why we are expressing our disappointment."

Vijay Walekar, the brother of taxi driver Premkumar Walekar, who was shot dead as he put petrol in his vehicle, said: "I am not happy with the verdict" and highlighted the risk that Malvo could escape and reoffend
(4) A reporter describes the courtroom as the sentence is revealed.

(5) A Richmond attorney, Steven Benjamin, discusses the sentence.
Malvo - Closing Arguments:

The prosecutor:
The faces of nine slain shooting victims flashed on the large courtroom screen, smiling at the jury that began considering the fate of sniper Lee Boyd Malvo on Monday.

One by one, Fairfax County Commonwealth's Attorney Robert F. Horan Jr. demanded justice. "We want justice for Sonny Buchanan," the veteran prosecutor gravely intoned. "We want justice for Premkumar Walekar. We want justice for Sarah Ramos. We want justice for Lori Lewis-Rivera . . . . "

He proceeded through a list of nine of the 10 people killed in three terror-filled weeks in the Washington area in fall 2002. "They have one thing in common," Horan said. "They're all dead, and they're all dead at the hands of this defendant. . . . There are prodigies among children. We see them in music, we see them in academics, we see them in athletics. And unfortunately, we also see prodigies in evil."

Horan argued that Malvo, 18, was the gunman not only in the shooting of FBI analyst Linda Franklin, with which he was convicted last week, but also in the five shootings that occurred on Oct. 3, 2002, the second day of the sniper rampage. "They started out by killing innocent people before they even told the government why they were doing it," Horan said of Malvo and John Allen Muhammad, who was convicted last month of masterminding the sniper killings. "If there is such a thing as vileness, that is vileness."

. . .

"Is the behavior of this defendant so outrageous that the penalty of death is called for? Is the behavior so outrageous?" Horan asked. "We submit, based on the evidence that is already before you, that the penalty of death is the appropriate verdict at this stage."
Mr. Cooley:
Defense lawyer Craig Cooley said in his closing that Malvo is not inherently evil but was shaped by those around him, particularly Muhammad.

"There's no such thing as a self-made man," Cooley said. "Lee was uniquely susceptible to becoming attached to a father figure in the charismatic personage of John Muhammad."

Cooley said Malvo was susceptible to Muhammad because of his father's absences and because his mother beat him and moved him constantly.

"Children are not born evil. When they commit evil acts, you can almost always trace the acts to the evil that has been performed against them," Cooley said.


"We live in a society that force-feeds violence on our children, on television and in movies and in video games," Mr. Cooley said. "We glorify vengeance and we glorify violent responses to violence."
. . .
Mr. Cooley asked jurors to consider their individual responsibility for imposing the death penalty, recalling that "in ancient times execution was a participatory activity." Jurors back then, he said, would stone the defendant to death and then retrieve their bloody weapons.

He walked to the counsel table and picked up a heavy stone, weighing it in his hand.

"Each of you must actively participate or, worse, acquiesce in that decision," Mr. Cooley said of the death penalty.

Mr. Cooley ended by standing over Mr. Malvo, placing a hand on his shoulder.

. . .

Mr. Cooley concluded his emotional closing argument with a plea for Mr. Malvo's life. "It's a test of our humanity to condemn the acts but love the child," he said. "The choice here for you today is not death or freedom. The choice here is whether to take a human life or to send this child to a lifetime in prison.

"Don't be swayed by the voices of vengeance and retribution," he added. "Hold on to your compassion."
The prosecution (always given the last word) rebutted:
Fairfax County Commonwealth’s Attorney Robert Horan Jr. told jurors their decision is not about retribution. “It’s not vengeance we’re asking for,’’ Horan said. “It’s justice. We want justice for a lot of people. We want justice for Sonny Buchanan. We want justice for Premkumar Walekar. We want justice for Sarah Ramos. We want justice for Lori Lewis-Rivera. We want justice for Pascal Charlot. We want justice for Dean Meyers, Kenneth Bridges, Linda Franklin, Conrad Johnson.

“They have one thing in common. All those people, they are dead. And they’re all dead at the hands of this defendant,’’ Horan said, pointing to Malvo.

(2) More analysis of why the insanity defense was attempted.
Republicans with a Heart: All you have to do to get a pardon is promise to leave the country and go where someone might shoot at you.

And all you Left of Center folks laughed at the idea of compassionate conservatives.
Y'know, this is just silly. The school should've handled this entirley in house.
Richmond police found 151 pounds of marijuana in two barrels: "Officers from the city's firearms and drug enforcement team arrested Danievan Jackson, 57, of New York on charges of possession of marijuana with intent to distribute."

Ya' think?

22 December 2003

Are the recent decisions of the courts about prisoners a sign that both liberal and conservative judges have become wary of the Bush administration?

(1) On Friday the prosecution called some effective witnesses in an attempt to emotionally bias the jury:
Lee Malvo's trial had been mostly devoid of emotional moments, but it turned gut-wrenching last week when the sentencing phase began. Jurors wept during testimony by relatives of some of the victims.

Vijay Walekar, who lost his brother, Premkumar Walekar, said his sister-in-law still cries every time he calls her.

"I have to keep reminding myself that my brother is no longer with us," Mr. Walekar said quietly.

Ms. Franklin's daughter, Katrina Hannum, said she "lost my whole family the day I lost my mother."

Myrtha Cinada, whose father, Pascal Charlot, was killed, avoided looking at Mr. Malvo until the end of her testimony.

Then, she turned toward him and told him: "You are evil. You're insane because you took my father's life. Because of you, he didn't have a chance to see his great-grandchild. That's insane of you to do. You're evil."
(2) The Defense called a couple witnesses for some minor rebuttal:
The vice principal of . . . York Castle High School in Jamaica, dissolved in tears on the stand as she described [Malvo's] nomadic childhood.

"We are all hurting so much for Lee ... because here was a brilliant mind. We were certain that Lee would have achieved excellence," said Esmie McLeod, who added that Malvo was moved several times by his family.

. . .

Jamaican pastor Lorenzo King, who baptized Malvo into the Seventh-day Adventist Church in 1999 at the age 14, testified that Malvo "appeared to be lonely. And he seemed to be searching for belonging. You could sense that in him."

"I have no doubt about the quality of his commitment. He was fully committed to the beliefs of the Seventh-day Adventist Church," King said. "On the evening he was baptized he walked approximately two miles bringing his clothes with him."
(3) Today Malvo's real father is going to come to the stand and beg for his son's life.

(4) An op-ed piece calling for Malvo's life to be spared.
Supercat saves the day.
Death - Trends:

While crime in general is declining, murder is rising somewhat both in the nation and in New York City.
Death - Texas:

Be Careful What You Wish For

Remember last week when Kevin Lee Zimmerman complained because the federal supreme court had stayed his death sentence?

The court lifted the stay.
Death - Illinois:

What will be the effect of Governor Ryan's charges on his actions with regard to the death penalty?
Death - New Jersey:

A bill calling for the re-examination of the death penalty has passed both the Senate and the Assembly by an overwhelming margin.
Death - Georgia:

The mother of a convicted killer urges the death penalty for her son.
Death - International:

(1) India's cabinet has decided that the death penalty is appropriate for the manufacture of fake drugs. Next the proposal goes to the parliament.

(2) Britain: After serving 23 years two men's sentences are overturned because the snitch was not reliable. Heck, if we started applying that standard in the States there's no telling how many prisoners we'd have to free.

(3) Mexico has taken the U.S. to the World Court over the death penalty being applied to Mexicans in the U.S.

(4) A letter to the editor in Bangladesh urging the retention of the death penalty.

(5) China: The Supreme People's Court has overruled a two year stay by the Liaoning Higher People's Court in a corruption case: "After a retrial of the Liu Yong case, the sentence is immediate death."

21 December 2003

Line of Fire: The FBI v. the Mob in Richmond

I watched Line of Fire for the first time last week. I took the time to watch it because it is supposed to be taking place in Richmond. Things I noticed:

Nobody in the show speaks with a Virginia accent. One person speaks with a mountain accent but nobody sounds Virginian (hint to the producers - the key is in the way native Virginians pronounce their O's).

All crime is run by a syndicate in the Fan. Hmmm . . . Well, I guess it's possible . . . But why not set up in Bon Air, or Midlothian, or Brandermill, or the West End. Well, I guess you could run into honest police out in Chesterfield County or Henrico County (the show makes it very clear that Richmond's police are not so upstanding). So you could set up in Windsor Farms. It's in the city and you could run the syndicate out of one of the mansions during the week and on weekends hop over the river and hit a few balls at Willow Oaks.

Everybody's white. Yes, you read that correctly, Richmond has suddenly has suddenly had a massive change in demographics. There is nary a black face to be seen. Where did everybody go? Or maybe if you're a crime boss in Richmond you don't have to deal with Church Hill, Mosby Court, Broadrock, &cetera?

And I don't know what building it was but the building which was supposed to be Richmond's juvenile & domestic court was not the echo chamber which Richmond built on top of a trash dump and almost had to abandon because of the fumes.

And it goes on and on. Outside of all the things I noted because of the proximity to my locale, the storyline is typical and the show is adequate but not spectacular. I'll probably watch for a couple more weeks trying to see if I recognize anything Richmondlike about the show (it is obviously being filmed somewhere else). But I cannot recommend it to you fine people.

Police in the News:

(1) In Australia I guess voluntary intoxication is a defense. Senior Constable Francis Susan Hetherington was found not guilty of perverting the course of justice in a matter where she was too drunk to remember what she did.

(2) It looks like a grand jury investigation of Dallas County Sheriff Jim Bowles will go on at least until after the primary election.

(3) In the U.K. a policeman, Richard Jasper, took the stand to describe his confusion and anguish over being charged with rape; the jury found him not guilty.

(4) Somehow, I think being found not guilty probably didn't ease the pain of having been shot driving away from the officers.

(5) Horseback patrols around the perimeter of an airport.

(6) This is the reason that most officers (or just people who work in the courts in general) like to eat where they can see the food being made.
More flower police.
Chronicle of a fight to get someone charged with manslaughter for purposeful non-compliance which caused a young man's death.
This has got to wreak havoc on your political hopes. But, then again every politician has to have his Billy, doesn't he?
The Most Important Political Matter of Our Time

The Department of Transportation has cleared Santa Claus to travel through our airspace on the night of 24-25 December. Apparently, Norad has been tracking him for 40 years and perhaps with the heightened security the right jolly old elf thought he should be on the safe side this year. Of course, this is not the first time the U.S. government has worked hand in hand with Mr. Kringle. After all, who can forget the foiling of the 1974 plot by the Group of the Martyr Ebenezer Scrooge?

My only worry is that when I initially heard this announcement on the radio Transportation Secretary Norman Mineta stated that Santa was cleared to go from house to house to deliver toys (sorry can't find anyone on the web who directly quoted his speech). However, as I remember it there is a fair amount of coal involved here too. What happens if an AWAC spots a low flying craft with a large amount of combustible material nearing D.C.?1 Will some rocket jockey fly his F-16 down from the CAP and try to take Santa out? While I suspect that a vehicle which flies to millions upon millions of households in one night - including delivery and refueling times (milk and cookies) - has the speed and manueverability to make an F-16 look foolish I really don't want to take the chance that somebody gets off a lucky shot. I urge you all to write Secretary Mineta and urge him to amend his order immediately. Don't wait. There only a few precious days to get him to fix this.

1 I mean, think about it, where else could all the coal be going? If I was good enough to get the presents Santa left me as a kid you'd have to be pretty rotten to get coal. It's gotta be going to politicians. And I've even found proof:
Apparently, jurors are too nice for prosecutors during the Christmas season. On the other hand, there's always the possibility that some jurors who might have held out will convict so they can get out of the courthouse and back to shopping, baking, cleaning up before the relatives visit, etc.

20 December 2003

Hunting Big Game:

Prosecutors are trying hard to get Rush Limbaugh's medical records. If his name was Bob Smith and he was a mid-level manager at IBM would this investigation be going on? Nope.

In the spirit of full disclosure, I must say that I am a fan. The local talk radio station carries 4 hosts whom I listen to as I drive around during the day. Rush is my favorite of the four. I don't always agree with him but he has a good show which is always interesting to listen to and usually attempts to reason things through.

Of the others I find Glenn Beck to be hit or miss but peppered with enough humor to keep it interesting. If you can find it his "Merry Christmas from the Nation Bar Association" bit is hilarious. I'm too cheap to subscribe to his site just to download it but it truly brightened my morning as I drove to court this week (the people in the car next to me must have thought I was a madman I was laughing so hard).

Michael Graham keeps me interested because he follows the local Richmond politics where there is plenty to pick at (what does it mean if the FBI hasn't arrested someone in the City government this week? The agents were on their Christmas break.). The only thing I don't care for is that sometimes he feels like he's taking a contrary position just to get an argument from callers.

And then there's Michael Savage. I only hear Savage while I'm driving home from the office at night (he comes on at 7 p.m.) and usually the channel gets switched to sports radio after 5-10 minutes. I just can't take it. The weird thing is that quite often he is advocating things which I believe in and he still manages to make me so mad that I can't listen any longer. That's hard to do.

If only people paid attention:

Today the winningest program in college football squared off against the winningest coach in college footbal for a national championship. And I'd bet good money that most people don't even know.

Last Saturday the Mount Union Raiders won their 55th game since their last loss and set the national record. The record it broke was 54 games set by the Mt. Union Raiders immediately prior to its last loss (that's a 109-1 record). It is a football machine which has won 6 of the last 7 national championships.

During this season the St. John Johnnies coach, John Gagliardi, won his 409th game and passed Coach Robinson to become the winningest coach in collegiate history. And he's done it in a manner which most coaches would think is absolutely insane: "He's outlawed methods that he detested while he was a player. There are no spring practices, no compulsory weightlifting program and no whistles used. Players call him John - the term "coach" has been banned. Practices are held to 90 minutes or less, and there are no blocking sleds or dummies, no tackling in practice and no pads at practice (players wear shorts or sweats). In Collegeville, Minnesota, they call his approach 'Winning with Nos.'"

The two teams played for the national championship in 2000 with the Raiders winning 10-7 on a field goal with one second on the clock.

Today these two teams met without a lot of hoopla and settled it on the field. Why didn't you hear about it? Because they are both Division III teams. In case you don't know, that means the kids play without athletic scholarships. They have to actually meet the school's criteria to get in, they have go to class, and they will go on to graduate school or jobs after they finish college - not the NFL.1

They met in Salem, Virginia, played an exciting game, left it all on the field and the winner was . . .

1 How does football balance against academics at a Div. III school? Here's a blurb from my undergrad: "[Centre College s]enior strong safety John Ortega was invited to the Aztec Bowl in Cancun, Mexico, an all-star game for NCAA Division III standouts, on Dec. 13 but declined to concentrate on his academics during finals week."

19 December 2003

Southern Appeal has a new look. As a graduate of W&L Law I must voice my approval of the arrival of

Malvo Convicted

Just in case someone out there has had their head in the sand, Malvo was convicted yesterday. Not that it wasn't expected. Some of the jury undoubtedly did not find the Defense's theory credible and even those who did had little incentive to find the young man not guilty. I've heard the reason for this explained a couple different ways. One of the best was by a lawyer warning about the dangers of doing a death case in rural areas. He said that what you have to worry about is the "farmer mentality." If something goes wrong with one of your cows you get rid of it to save the others. You don't ask if it's the cows fault; you could care less about its mens rea. But, you say, Chesapeake is not exactly Iowa. Well, O.K., then look at it this way: animals who group together will often expel members who cause trouble for the pack/herd/tribe. We are not above this. How many lepers have been expelled from societies over the centuries? How many serfs thrown off the thane's land for not raising enough grain to pay his tribute? Or put in more modern terms, if Bob can't or won't keep up at the plant's assembly line how long before he is shunted into some meaningless side job or fired? Removal is an instinctive reaction meant to save the group as a whole. And, even assuming that the jurors knew that a finding of insanity means commitment, I think it's a safe assumption that someone probably heard about Hinckley running around unsupervised nowadays. The question now is whether the jury will excise the failed/dangerous member of society thru banishment or death.

Well, enough of my rambling here's some other Malvo stories:

(1) Reactions of victims' family members.

(2) Conjecture that the insanity defense will have set the stage for the Defense to keep the jury from approving the killing of Malvo.

(3) Malvo's doodling throughout the trial was constant. Now comes news that he was using a stab proof pencil. You know, we could have used a few of those in elementary school. Every kid I knew got stabbed by a pencil at least once. Of course we used to play "sword fight" with them so maybe we deserved what we got.

(4) A timeline of the shootings.
Here's What Happens When the Government Can't Keep "Enemy of the State" Cases in the 4th Circuit.

In a case which is decided properly, the 2d Circuit finds that a citizen cannot be designated an "enemy combatant" so that he can be held indefinitely and denied constitutionally recognized rights including access to an attorney and all the due process protections. Here's the majority opinion and here's the dissenting opinion.

In a case which just screams "I AM WRONG - OVERTURN ME!!!" the 9th Circuit rules that enemy prisoners of war have the same rights:
"We cannot simply accept the government's position," Reinhardt continued, "that the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included, on territory under the sole jurisdiction and control of the United States, without permitting such prisoners recourse of any kind to any judicial forum, or even access to counsel, regardless of the length or manner of their confinement."
As this is directly in conflict with a D.C. Circuit opinion it is ripe for the overturning.
Is That Legal hails the publication of a new law journal dedicated to criminal law.
Beware the Flower Police.
Proof positive that Canadians don't always live up to the stereotype of being inoffensive, nice-guys.
Governor George Ryan, famous (or infamous) render of death penalty laws, has been indicted for graft.

The Legal Reader has links.

18 December 2003

CrimLaw Online:

Got a hit from this last night. I think it is someone's college project. Interesting.

Of course, I also got a hit from Yahoo on a search for (+"des moines" +"male escort" -gay) so my ego can't grow too large.

And over at Begging The Question my exploits have been cited as an example of why some folks have made good career choices.
Manslaughter & DUI:

When I finished my case today I stuck around to watch a trial on a misdemeanor DUI and a preliminary hearing for DUI Manslaughter.

The prosecutor was the only one to put on any evidence and it was basically this: The Officer testifies that he was told by Defendant that he and his Best Friend get off work early in the morning and go to get breakfast. They split a pitcher of beer over breakfast, then they hang out until lunch and split another pitcher of beer over lunch. Driving back from lunch Best Friend stands up in the Jeep and hangs on to the roll bar. Defendant has to hit his brakes because of the car in front of him and Best Friend is thrown forward out of the Jeep. Statements are allowed in despite the fact that the Defendant was being held in a police car when this particular Officer arrived on the scene, the Officer testified that Defendant was not free to leave, and the Officer never read the Defendant Miranda. The Officer testified that the Defendant was upset over the death of his friend when the Officer administered 4 sobriety tests. The first administered was the "heel to toe walk a line" test. Defendant tries to start two times and the Officer stops him to keep him from doing the test before he receives the complete instructions. Defendant then walks 9 steps forward and turns and walks six steps back. One of the first nine steps is not in a straight line but the rest of the test is perfect. Defendant then passed the hand dexterity test. Defendant then passed a number counting test. Defendant then passed an alphabet test. At this point, the Officer reads him the statement of implied consent and takes him to the station for a breath test. The test was a .08 BAC.1 The BAC analysis is admitted over Defense argument that there was no probable cause as is needed to require citizens to submit to the BAC test.

Another prosecution witness - driving in the car behind - says she saw Best Friend doing things to mess with Defendant as he is driving; then she sees Best Friend stand up in the Jeep, holding onto the roll bar. She allows her car to fall back some from the car because of what Best Friend is doing. Then she sees Best Friend disappear and the car brake and swerve to the right. She pulls over and tries to call 911 but police arrive before she can. She sees the Defendant sitting in the street cradling Best Friend (now dead) in his arms. On cross she testifies that Defendant was driving correctly, no swerving, no dodging in and out of traffic, not even speeding.

The prosecutor looked like he was in pain. It was obvious that someone higher up the food chain had handed him this dog to try and his own witnesses were making the Defendant look sober. The only true evidence of intoxication was one step out of 15 in the line walk. But he need not have worried. The judge found the Defendant guilty of DUI and certified the DUI-Manslaughter to the grand jury. How? I have no idea.

During the sentencing phase for the DUI, Best Friend's parents both testified that they did not want this case brought against Defendant and that he had suffered along with the family and they did not want him punished further. The judge gave the Defendant 30 days in jail.

All I kept thinking, throughout the entire hearing, was: Why in the world would the prosecution go forward on a case like this?

1 If you've done any work at all with DUI's you realize very quickly that no matter what the law says almost no one is inebriated at .08. Still it is the level at which you are presumed guilty under the law and the Commonwealth no longer has to prove its case beyond a reasonable doubt. I have read the sophistry and apologetics in the decisions of various courts appellate; please don't write me telling me I'm wrong about the burden shifting. If it walks like a duck and quacks like a duck, it's a duck.

17 December 2003


The jury spent a day deliberating without any conclusion but it did have some requests:
The jurors asked several questions at the end of the day, including a request to again see the Chevrolet Caprice that Malvo and Muhammad allegedly used during last year's deadly shooting spree in the Washington, D.C., area. The car had a modified back seat that could lift up and allow access to the trunk.

Circuit Judge Jane Marum Roush denied the request, saying "we really don't want the jurors pawing through" the car.

The jury also asked for help with the definition of malice, a necessary element to a murder conviction. The definition provided in the jury instructions is "an intentional doing of a wrongful act ... at a time when the mind of the actor is under control of reason." The note said they have specific trouble with the phrase "under the control of reason."

Prosecutor Robert F. Horan Jr. said he is concerned that the jury is unnecessarily confusing the malice issue with the insanity issue and wanted to clarify that. But the defense lawyers argued that sanity is a legitimate issue when debating whether Malvo's actions amounted to malice.

"Malice is a state-of-mind issue and it's affected by sanity," Malvo lawyer Craig Cooley said.

Roush ruled that the jurors will have to use the common-sense definitions of "control of reason" and she can provide no further guidance.
Personally, reading about the case from afar, I think there is about a 70-80% probability of conviction. At the beginning of the trial the prosecution started out with a 99% chance of conviction but the Defense has chipped away. The Defense has offered better testimony and a sympathetic theory which sells much better than the prosecution theory that this was all part of a scheme - which Malvo was an equal partner in cooking up - to extort money from the government. I think that at the end of the trial the probability of conviction had sunk somewhere between 50-60%. However, the prosecution seems to have done a far better job in its closing argument than the Defense and I think that hurt the Defense badly.

Not that any of this matters all that much. If the kid isn't sentenced to death in this trial they can just que up one after another until one of them returns the desired verdict.

The two sides presented closing arguments yesterday. The judge refused to allow an instruction on irresistible impulse. As always the argument for not allowing the instruction is that there is no evidence to support such a finding - which one would think ought to be the jury's decision.

The arguments went back and forth over whether Malvo was a shadow, unable to separate himself from Muhammad, or the two were peas in a pod. The prosecutor used a slick, multi-media presentation to close his case:
Commonwealth's Attorney Robert F. Horan Jr. used a multimedia presentation of crime scene photos and Malvo's tape-recorded confession to argue that Malvo was the triggerman in many of the shootings. Malvo "described [them] in a way only the killer could describe," Horan said, with Malvo's voice resounding through the still courtroom. The recording had an eerie cockiness, punctuated by odd chuckles, as the defendant said of the shootings, "They're all easy; they're not hard."

At one point, as Malvo's voice described the collapse of sniper victim Pascal Charlot in the District on Oct. 3, 2002, a transcript of his words was posted on a large screen. Fairfax homicide detective June Boyle asked him where Charlot was hit, and Malvo responded, "Chest shot." As he did, a larger-than-life autopsy photo of Charlot's fatal chest wound appeared beneath Malvo's words on the screen.

At first, Malvo listened to Horan's argument with his head bowed as photos of the sniper victims flashed above him. But soon, he returned to his habit of sketching furiously on a legal pad and ignoring the proceedings, as he has done for long stretches of the trial.
The Defense countered with an argument that Malvo couldn't have possibly made the shot he is accused of taking and that he was completely under Muhammad's control the entire time.Apparently, the Defense attorney was losing his voice during his argument:
Defense attorney Michael S. Arif began his closing argument walking back and forth in front of the jury box, both hands in his pants pockets. His voice raspy and weak from a cold, Arif told the jury that he didn't deny that Malvo was with Muhammad when Franklin was killed, but he said Muhammad took the shot that killed her.

He said that the defense does not dispute that Malvo was involved in the shootings, but argued that killing Malvo would serve no purpose.

"Adding another life to that pile of death does not solve anything," Arif said. "It does not bring anyone back. It is just revenge. There is an old adage; if you are going to kill for revenge bring two shovels."

While Arif spoke, Malvo watched him from the defense table, his right hand resting on his chin. Horan fiddled with a pile of papers in front of him, appearing not to listen to Arif.
The prosecutor exercised the huge advantage he is given during trial of having the last word:
He stood and waved three handwritten letters Malvo sent to a fellow inmate in the Fairfax County jail in late summer and early fall this year.

"If you fight them all the time they will always be looking at you," Horan, reading from Malvo's letter, said to the jury. "But if you never resist, when you do resist -- they will be caught by surprise, never expected it, wouldn't even dream you were capable of such cruelty, hatred, brains."
Now it's in the hands of the jury.

Here are transcribed portions of the closing arguments.

16 December 2003


In the spirit of full disclosure I think you should all know where I'm coming from so I took this quiz and here are the 8 philosophers I most resemble:

1. Aquinas (100%)
2. St. Augustine (88%)
3. Kant (81%)
4. Plato (81%)
5. Ockham (78%)
6. John Stuart Mill (76%)
7. Prescriptivism (73%)
8. Aristotle (69%)

The list goes to 19, concluding with Hobbes at 0%. However, I only list the top 8 because I have serious philosophical differences with "9" and below.

The second expert called by the prosecutor "suggested that the defense team may have brainwashed Malvo during his year in the Fairfax jail, using the same techniques of isolation and information control they allege Muhammad used on Malvo."

Yeah, because we all know Defense counsel can maintain complete control of how the guards treat a Defendant the 95% of the time we are not with him in the jail.
The Federal Supreme Court has Approved Shakedown Arrests

In Maryland v. Pringle an officer arrests all three people in a car after finding drugs in the back seat. The owner of the car was driving and there was a man in the front passenger seat and a man in the back; none admit possession at the scene. Later, under interrogation, the front seat passenger admits that the drugs were his. The Court said there was probable cause to arrest all people in the car.

This raises an important question: exactly how many people are police allowed to arrest in order to shake them down in an attempt to get a confession? If officers stop a bus rented by members of the same organization (let's say the SSDP) and find a bag with 5 pounds of heroin can they arrest all 40 people in the bus? If someone is shot dead in a bar almost exclusively frequented by the Outlaws can officers arrest all 100 people in the club? Since the Court has put its imprimatur on rounding up the usual suspects, will it allow police to round up twice the usual suspects in really serious cases?

The prosecution only called psychologists in its rebuttal case. The man who seems to be the primary witness is Dr. Stanton Samenow:
Psychologist Stanton Samenow testified that Malvo's mother had instilled a strong sense of right and wrong in him, although through abusive means at times. Samenow also said Malvo expressed strong opinions about right and wrong in terms of how black people were treated in America.

Prosecutors tried to contradict Malvo's attorneys' assertion that their client was an easily-led child susceptible to brainwashing.

In interviews with Malvo, Samenow said the teenager described himself as strong-willed and emotionless. Samenow said he agrees and didn't see any evidence of mental illness.
This guy has written a book:
Samenow, who lives in Alexandria, is author of the landmark and controversial 1984 book "Inside the Criminal Mind," based on six years of clinical work and research at St. Elizabeth's Hospital in Washington. In the book, Samenow argues that most crime is caused by willful decisions of criminals. Psychological or sociological factors don't matter, he contends, nor do personal or socio-economic backgrounds. He argues that criminal offenders have a "criminal personality" present from early childhood.

"Criminals cause crime," he writes in the book. "Not bad neighborhoods, inadequate parents, television, schools, drugs, or unemployment. Crime resides within the minds of human beings and is not caused by social conditions."
So basically - you are just a criminal if you do a bad act and there are no other relevant factors.

Samenow's web site is filled with little tidbits like this:

When a person commits a crime that seems totally alien to his personality and background, people are puzzled and shocked. In my experience, a crime only appears to be "out of character." If you develop a thorough understanding of the perpetrator's mental makeup, you will learn that there is precedent if not in behavior, then in thinking for the crime to occur. The quiet man who murders his wife in the heat of an argument may not have planned the homicide in terms of a specific date, time, and place. However, in his mind, he had killed her many times during previous conflicts. This is a person who, instead of coping with the adversity, fantasized numerous times destroying the adversity. Thus the occasion in which the actual crime occurs truly reveals the perpetrator. It is within character if one only knows his or her true character.
And, amazingly, this man has never seen a Defendant who wasn't guilty:
On cross-examination, Samenow acknowledged that in more than 30 years of experience, he has never come across a criminal he believed was incapable of knowing right from wrong.
We don't really know what went on in the good doctor's interviews with Malvo:
Though little is known about Malvo's sessions with Samenow, they apparently have been stormy. Malvo's lawyers have described their client as cooperative. But they add that Malvo is frustrated by the repetitive nature of Samenow's inquiries.
But what we do know is that he didn't do any psychological tests:
Samenow also said he administered no psychiatric tests to Malvo, largely because he believes a patient can feign mental illness.
Wow. And I thought the Defense witnesses were going to look biased - he makes them look positively middle of the road.

If you are the prosecutor why do you do this to your case? Why not go to a simple middle of the road psychological expert who will almost certainly come to the conclusion that Malvo is legally sane? This guy is like shooting yourself in the foot; all he does is make the Defense look better because you were so desperate that you went out and got a witness who (from his writings and history) seems incapable of admitting that anyone might be legally insane.

15 December 2003

Scott Peterson:

The Defense wants to change the venue because publicity could keep Peterson from getting a fair trial. I don't know where they think it could be moved. Perhaps to a county where only Amish live? Do they have those in California?
A Week in the Life of a Defense Attorney:

05 December 2003 ~ Friday

Go to General District Court in Powhatan County for a return which is not called because my client has successfully completed his obligations and didn't have to come back to court. At 11:00 leave and drive to Richmond to go to Federal Court for a detention hearing. After a hour plus I arrive in Richmond and meet with the client in the Marshal's office. Then I go down to the courtroom and meet his family prior to court. They go into shock when they find out that the mandatory minimum for the 21 counts is 60 years (and probably more). The AUSA comes to the courtroom and makes the normal noises about how guilty the client is but otherwise seems pretty straight-forward. After the detention hearing the judge sets an arraignment time for 9 a.m. on 12 December 2003 and I have to agree to the date blindly because they took my PDA from me when I came in the courthouse and therefore did not have my calender. When I get back to my office and pick up the file to enter the date in my calender I find out that there are already two cases scheduled for that date but it's too late to do anything about it that day.

08 December 2003 ~ Monday

No court scheduled so I spend the day trying to catch up on paperwork. I download a PDF of the federal sentencing guidelines and put one of my computers to work printing the thing out. It only takes about 6 hours and when finished it looks like this:

left is Va. guidelines - right is federal (twice as big unbound)

09 December 2003 ~ Tuesday

Go to court in the city of Colonial Heights for a felony domestic assault. Meet with the new Assistant Commonwealth Attorney who seems like a decent guy. A prosecutorial witness isn't there so the prosecution is prepared to ask for a continuance but my client decides to plead guilty so he can get his case over as quickly as possible.

Go to court in Chesterfield County for a preliminary hearing on cocaine possession. Case continued because the prosecution does not have its lab in proving that the stuff actually was cocaine.

10 December 2003 ~ Wednesday

Go to the office at 5 a.m. in the morning to try and get paperwork and things done before court. Fax motions for continuances to Powhatan County prosecutor and clerk offices because I have not been able to get the federal court date / time changed.

Go to court in the morning for a really nasty case wherein my client is charged with battery for choking a woman. Prosecutor calls three witnesses during the sentencing hearing telling how he ran up and choked her. My client explains in his testimony that his action came as a reaction to someone attacking him in her name. The entire case is basically a trainwreck during which I can't do much more than stand by and watch. The highlight of the case was probably when I tried to get the judge to put my client into anger management in lieu of some of the jail time - the judge refused and basically said my client was too angry to go to anger management. Client gets the max: 12 months.

Run down to Colonial Heights for a quick motion. The prosecutor is going to move for nolle prosequi (that's a dismissal without prejudice for those of you who work in jurisdictions that use English). The whole thing should take 5 minutes. Of course, the case is not called until I've been there about a hour and half. The client leaves happy but I'm running late.

I jump in my car and head out to Orange County to meet with my federal client. The feds seem to have some unwritten rule that they must keep prisoners at least a hour and thirty minutes away from the location of the courthouse in Richmond. Driving as fast as I can (while of course, never breaking the speeding laws of Virginia), I arrive at the jail at 4:15 p.m. and am denied entrance because the jail shuts down between 4-7 p.m. I'm told to come back at 7. I leave and go look for something, anything to do to kill three hours. At this I fail miserably because the entire Town of Orange shuts down somewhere between 4:30 and 5 p.m. I think they roll up the sidewalks at 6 p.m.

So I end up at the local Hardees. I order a combo meal, set up a mini-office in the non-smoking section, and eat real slow as I go over the facts and laws and sentencing guidelines for my client. At about 20 minutes to 7p.m. I go back to the jail and can get in to see my client. The meeting is a little strange. I leave and enjoy a 2 hour drive home in a pouring rain which is about 1 degree from freezing. And one of my headlights goes out on the way home. Get home a little before 10 p.m.

Miss about 3-4 Christmas parties which various firms / Bars / Courts are having this night.

11 December 2003 ~ Thursday

Go to Chesterfield court at 8:30 a.m. and find out that the case is actually at 1 p.m. Stick around the courthouse for the morning catching up with other lawyers and deputies and officers.

Show up for 1p.m docket expecting two clients to be on the list and there are three. This is not good. I scramble around trying to figure out who the third is and finally figure out that he is a show cause on a case where another attorney had been hired about 6-8 months back and my name is on the list because of a computer error. That deals with one.

The second client is easy. The client is being released from custody in order to enter the Dual Treatment Track program which helps deal with mental problems and addictions.

The third client ain't good. He's charged with concealing a firearm and brandishing a firearm. He decides that he wants to plead not guilty. We go up and plead. The prosecutor puts on his primary witness who is a little creepy. He testifies that he sees Client waving his hand tailgating him and then realizes that Client has a gun. He testifies on cross that he can see the gun clearly despite the windows of Client's truck being tinted. He testifies with confidence that Client's gun is a silver barreled gun with a black handle. He testifies that after he calls 911 to tell them he has been threatened by someone with a gun, the dispatcher tells him to follow the person who threatened him with a gun and he proceeds to follow Client's truck thru hell and high water as Client does all sorts of lane shifts to try and shake him.

Prosecutor calls the officer who responded. Officer shows a gun which was sitting on the passenger side seat and it is an entirely black gun. Then officer shows the gun which was concealed in the back of the extended cab, in a sack, in a pouch on the wall of the cab behind the client. This gun, which could not have possibly been used by Client, matches the victim's description exactly. Hmmm . . .

I call my client. In previous discussions Client has been a little slow but lucid. When called he turns into mush. He can't string three words together. Finally, with a little bit of indulgence from the judge and prosecutor I am able to lead him thru his testimony. He says he passes a car and it starts tailgating him all thru the area. He pulls out his pistol and places it on the seat next to him because he is scared. Finally, he thinks he has lost the car and goes to his ATM machine to withdraw money to make his truck payment - and is swarmed by police.

I know Client's lost the concealment but I think the witness' suspicious statements and ID'ing a gun which could not possibly been in use have at least placed the brandishing very much in play. The judge discusses the concealment charge for a few seconds before finding guilt and then just baldly finds guilt in the brandishing without addressing any of the "interesting" parts of the witness' testimony. I'm not happy with the verdict but I bite my tongue.

Then comes the fatal question: "Tell me something about your client." This judge does that to me every so often and I think I have something of worth to tell him about 1 out of every 4-5 times. Sometimes I've nothing because my client has just gotten out of a couple of months in jail, is unemployed, and lives at a motel we all know is a drug hangout. More often, it is because the client never comes to see me (despite my weekly open office hours from 2-5 on Fridays) and I only get the information from him on the fly when we come to court on his trial date. Most often the excuse for not having come to see me is work. So, I turn to the Client and ask him where he works. "I used to work at . . ." And it just went downhill from there. I knew my client's criminal record so the judge asks me what is on his traffic record (even though it is inappropriate to ask a Defense counsel about his client's record because counsel is not supposed to reveal what his conversations with his client might have revealed and Defense counsel does not have easy access to official records as prosecutors do). The judge sends the prosecutor to go get the official record and the three speeding convictions are introduced. The judge calls the guy's mother out of the gallery and asks her questions which basically reveal what is obvious to all in the court: the Defendant is slow but not mentally deficient in any way which would effect competence or legal sanity.

By the time I leave the court I am ready to spit nails. I kept my mouth shut and bit down pretty hard on my tongue but I'm afraid it did not do much good. I'm light skinned and when I become upset I turn red, when I become very upset my ears turn red too and I can feel them burning. My ears started burning from about the moment that the judge pronounced guilt and kept going until I walked with my client back to the holding area so he could start serving the 6 months the judge sentenced him to serve. The case is now being appealed to the Circuit Court.

When I arrive back at the office there are messages. I put out a couple fires and then the very last message is one from another attorney who has been hired by the family of my federal client to take my place (because it's always better to pay $10,000 to get the same result with a "paid" lawyer). By the time I calm down and get everything finished for the day it's after 9 p.m. and I realize that I have missed another Christmas party a firm was having that night.

12 December 2003 ~ Friday

In office at 5 a.m. Realizing that I have not received a fax copy of the judge signing an Order continuing my State court cases I send a fax to the clerk's office in Powhatan County telling them that if they have not continued the cases to please hold them because I expect the substitution in federal court to be quick and I will probably be able to make it to Powhatan by 10:30 to handle my cases.

I leave for federal court about a hour early because I expect to get caught in commuter traffic. Of course, there is none and I get to the courthouse 35 minutes early. I go to the cafeteria and drink a cup of coffee. Then, when I go back to the courtroom I realize I've gone to the wrong one and, with the help of a Marshal, I figure out which court I'm supposed to be in and rush over there. I get substituted out and watch the whole 5 minute arraignment wherein the Defendant pleads not guilty to all charges and then his new attorney sets a disposition date about 3 weeks out (meaning that the Defendant is probably going to plead guilty).

Then I burn rubber for Powhatan County (once again never exceeding the posted speed limit). I get there about 10:20 and realize that one of my clients was not shipped while the client who was on bond is present. After I've been sitting there for about 10 minutes, the judge stops in the middle of his docket and tells me that my cases were continued so I don't have to stay.

I return to my office and spend a glorious afternoon cleaning because I must be in the office between 2-5 p.m. for open office hours. Nobody showed up but I was there.