11 January 2004

Signs That You Are Desperate in a Trial:

I'm putting the finishing touches on a petition which has to go to the Virginia Court of Appeals in tomorrow's mail. A stubborn client decided that he would rather have his trial than accept a generous offer from the Commonwealth. There's a couple of good stories about that but privilege bars me from telling them. Mind you, I love a good trial and this one was pretty hard fought from beginning to end but there was really no doubt as to how it would conclude.

At the motion to strike the prosecution's evidence (after the prosecution completes its case but before I begin my client's) I am scrambling for something, anything to argue. You know you are desperate when you start your argument like this:

MR LAMMERS: Your Honor, I'll have several grounds for motion to strike, first of which, and I don't have this case. I apologize. But the Commonwealth hasn't proven that the structure was permanently affixed to the ground. And I will cite you the case, Your Honor. It is Buie, B-u-i-e vs. the Commonwealth. It's --

THE COURT: Was Buie dealing with a trailer, Mr. Lammers?


THE COURT: Was Buie dealing with a trailer?

MR. LAMMERS: I don't know, Your Honor. It says here, and I quote, "In order for a structure to be the subject of a burglary, it must be permanently affixed to the ground at the time of the unlawful entry."

PROSECUTOR: Your Honor, I believe that Buie was referring to a trailer.

MR. LAMMERS: If it's a trailer, Your Honor, and it's not been proven that this isn't a trailer home, Your Honor. The officer said himself that he, outside in front, he found shells. And that would indicate that it's not a 16-story apartment complex where they live on the top floor, unless they shot into the roof, at which time I think we would probably be seeing ballistic experts right now . . .

- - -

For some reason the judge didn't buy my very persuasive argument. I really hadn't planned to argue that but as I glanced through the annotated code at the end of the prosecutor's case I saw it and realized that no one had said they were even in a building. Still, I'm lucky there were two substantial errors later in the case so I din't have to petition the Virginia Court of Appeals with something that silly.

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