Dies Lunae et Dies Martis

Monday: In the morning I go off to court for a malicious wounding case. My client has not been in contact with me for a couple months which is always a little disconcerting when the charge carries a penalty of 5-20 years. When my client pleads not guilty the lack of communication causes some problems because the judge asks him a series of questions and one is whether he has any witnesses he wants in court. He does but never was able to get to my office to give me information to subpoena them and the judge just isn’t having any of that.

So we go forward with the trial. The prosecutor’s first witness is the victim. There is no doubt that my client got mad at something the victim said, pushed him and the victim’s hand went into a bonfire they were next to. Pictures show minor burns; although they look worse than they really were they show up nice and red in the picture. Over numerous objections on my part the prosecutor then introduces evidence of the other kid who jumped on the victim and started beating him with a beer bottle. I’m a little surprised it’s being put into evidence but I deal with it. By the end of the prosecution’s case I think the other kid’s actions have been discounted.

I argue three points. First, I argue that my client isn’t guilty because he didn’t “wound” the defendant. A wound in Virginia has a specific definition; caselaw has long held it to be the parting of the skin. I point out that the indictment contains the boilerplate malicious wounding language and the judge asks me about the “or otherwise injure language” found in the indictment. I point out that malicious injury is a different charge and has to be indicted in a particular manner (the manner of the injury must be included with specificity if there is no breaking of the skin). It’s kind of a ticky-tack objection and I’m just waiting for the prosecutor to move to amend the indictment to correct the deficiencies but he doesn’t. Not that the argument carried much weight with the judge. Still, since there was no amendment and the judge didn’t dismiss I have a built in ground for reversal (assuming that the Virginia Courts Appellate will follow their own precedent). Not that it would do my client much good, I think the correct remedy would be to return the case to the trial court for proceedings under a proper indictment.

Second, I argue that there was no proof of malice. Long, long, loooonnggg established caselaw in Virginia states that a blow with the hand is not enough to establish malice (I stopped tracing it backward in the mid-1800's). As well, there is more modern caselaw which states that malice is not established when someone is hit and the harm is caused by what they fell upon. The judge agrees with that argument and changes my client’s charge from malicious wounding to unlawful wounding (class 6 felony; up to 5 years in prison).

At this point, I make my final argument. I argue that in order to convict someone of unlawful wounding the statute requires conflicting findings. First, the judge must find that the wound was not done with malice. In other words, the judge must find that the wound was caused by recklessness. Nevertheless, the statute also requires that in order to convict someone of unlawful wounding the judge must find that the person had the intent to wound, injure, or kill that person. I ask that the statute be struck as a violation of the 14th Amendment due process rights of my client and that the charge be reduced to a battery. The judge grins at me and overrules the motion without even asking the prosecutor to argue the point.

After that the case is continued until the sentencing hearing.

In the afternoon I go off to a different courthouse. One of my clients has every charge the officer could think of to pile on him because he was stupid and, when he got caught shoplifting ran and scared the daylights out of the officer by pulling Halt! out during the confrontation. “I almost shot him the moment he pulled something out of his pocket. He’s lucky I used to sell that stuff so that I recognized it. Otherwise he’d be dead right now.” During the preliminary hearing I try to get the “release of noxious gas” charge dropped because Halt! is a liquid, not a gas. No luck, the judge certifies everything.

The next client is charged with felony driving as a habitual offender (mandatory year) and possession of marijuana. He’s got bigger problems in another jurisdiction so the prosecutor drops the marijuana charge (didn’t have the lab report) and reduces the felony h/o to a misdemeanor.. Client has to serve 6 months but that’s fine by him and his family as long as it keeps a felony off his record.

Tuesday: Not much going on today. So I fight the paperwork battle.