CrimLaw

Blogging Criminally For Over Ten Years

10/13/2004

Wednesday

Wednesday: In the morning my client is charged with malicious wounding. The prosecution offers to drop it from malicious to unlawful wounding which will change it from a 5-20 years to 0-5. I don't think that the facts are appropriate for a malicious wounding but they are bad enough they could support all sorts of other charges (including, possibly, attempted murder) so Client decides to take the plea agreement.

In the afternoon I have two cases. The first is an Indian guy who is charged with sexual battery. My client's English is terrible so a buddy of his has come to court to translate for him. The complaining witness testifies that she came into a store cashed in a couple lottery tickets, my client told her she was beautiful, came out from behind the counter, and squeezed her breast. Next comes my client's tortured testimony. Part of the problem was that my client has some English and tries to answer some questions before they are translated even though he doesn't fully understand them. Eventually Client testifies that he looked at the woman like a motherly figure and hugged her in congratulations but didn't squeeze her breast. I point out to the judge that neither witness had been impeached, no third party witness, and no way that it rises to above a reasonable doubt. The judge starts to talk and won't look at me. He locks in on the prosecutor and won't even look over at me. He explains how if this woman were going to lie he expects that she would have come up with a better story than that and that lends more credibility to her story. He then sentences my client to 60 days but suspends it all. Standing there a little peeved, I scribble across the folder LBG conviction¹ and ask for bond to carry over for the appeal. The judge grants it and I leave quickly with my clients before I say or do something stupid. My client, not coming into the process with a whole lot of confidence, decides to stand pat rather than appeal.

Then I go down the hall for the next client. It's a kid who got pulled over for the DUI and managed to multiply it into underage possession, refusal of a breath test, and obstruction. The officer tells me that the kid spat at him but I don't believe it. This officer is a walking example of why Defense attorneys should be given copies of the police report. I know from previous experience that he will hmmm . . . ah . . . (how to put this delicately?) . . . "exaggerate" when he talks to the defense attorney but tell the truth when in front of the judge². The prosecutor will drop the refusal but nothing else. She agrees to 30 days on the obstruction and 4 days on the DUI (a total of 17 actual days in jail); all of this can be done on work release and I will ask the judge to give my client a few days before he has to report to jail to set up work release. Client agrees to take the deal. So we go up, plead guilty, and things start going wrong. First the judge asks the officer the purely pro forma question, "Was there anything unusual about this case?" Of course, we all know there is something unusual about this case; officers don't file obstruction charges unless the Defendant did something to tick them off. Still, most officers have the grace - once a deal is reached - to give a perfunctory statement and move on. This officer - Nope: "Yes, your honor, this was very aggravated . . ." And he's off to the races talking about all sorts of stuff which is not actually pertinent to any of the charges - all of which shows my client was acting like a jerk that night. Finally, after this show of bad form, the judge finds my client guilty. Before sentencing the judge asks my client the purely pro forma question, "Would you like to say anything before I sentence you?" Then my client is off to the races: "Judge, can I please have weekend time? I mean the officer caught me on a bad day. And it didn't happen like he said. He was rude . . " At this point I break in and whisper something to Client who shuts up. I then tell the judge that my client is standing before him accepting full responsibility for his actions, ask him to accept the deal, and ask for my client to have until the beginning of the next week to report to the jail so he can arrange for work release and keep his job. The first words out of the judge's mouth are, "Despite Mr. Lammers' assertions, I don't think you are accepting responsibility for your actions . . ." And the lecture continues from there. Client tries to interrupt the judge - I stop him. Client again tries to interrupt the judge and the judge fusses at him about it. In the end (and in a minor miracle) the judge upholds the deal with a minor tweak (a little more suspended time) but he won't let my client delay reporting to the jail (which, in effect, means no work release). I walk Client back to the holding cell and, in front of the deputy, he starts yelling at me about how he could have done a better job if he'd represented himself.

¹ Which, after a couple days reflection is unfair. If I'd have been the judge and the story had unfolded like it did in the courtroom I might have reached the same result. Unfortunately, I think most of the damage is done well before court. If my client had had enough of a grasp of English to understand exactly what he was charged with and say, "I DID WHAT?!?" when the officer came to talk to him; if there wasn't the stereotype that all of "them" come from those evil take advantage of women societies; if everybody wasn't watching "them" because "they" are all potential terrorists; if . . . if . . . if . . .

² To be fair, I was talking to another Defense attorney today and asked him about this and he disagreed with me. As well, he's not one of the "most watched" that everybody talks about. Maybe it's just me.

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Ambush in Bartlette
Chapters 1 - 13

Law & Theory

LAWS
Va.'s Versions of Mayhem (malicious wounding et al): 4 In One Statute ~ Graphic
Aggravated Malicious Wounding
The Moped Exception
Rape by Lie: 1 ~ 2 ~ 3
No Intent Needed
Arresting in a House
Common Law Trespass
Certificate of Analysis Introduction
Probable Cause: Car Passengers
Obstruction of Justice Limited
Stealing Electronic Items
Stolen Value: Price Tags
Stolen Value: No Price Tags
Stolen Value: Electronic Items
No Weekend Jail on Felonies
Obstruction of Justice Limited
No Trifurcation
No More Beer at the Barbeque
Respondeat Superior
DUI & Reckless Driving
Can You Steal From the Dead?
Outlawry Outlawed
Felony 2d Degree Murder
Banishment
Computer Fraud
Insta-Deputy
PROCEDURE
Using Statements Made During Plea Negotiations: 1 ~ 2a ~ 2b ~ 2c
Invoking Right to Attorney in Virginia
Who Prosecutes Misdemeanors?
Expungement
Surrebuttal
Virginia's Reasonable Doubt
Reasonable Doubt II
Instruction: Right to Arm
Virginia Castle Doctrine1 ~ 2 ~ 3 ~
Dismissed with Prejudice
SENTENCING
I. Limitations on Right of Judge to Alter a Sentence
II. Limitations on Right of Judge to Alter a Sentence
III. Limitations on Right of Judge to Alter a Sentence
Probation & Suspended Time
Advisement in Virginia
Jury v. Judge (sentencing roles)
Limits on Evidence Presentable to a Jury
Jury Sentencing Possibilities
&CETERA
Witnesses & Writ of Actual Innocence
Domestic Battery & Firearm Possession
Domestic Battery & Testimony I
Domestic Battery & Testimony II
Domestic Battery & Testimony III
Domestic Battery & Testimony IV
Shall Doesn't Mean Shall
Just Following Orders
Lycurgus Not Welcome in Virginia

Practice Tips

Opening Statements
Advice for New Prosecutor1 ~ 2a ~ 2b ~ 2c ~ 2d

Specific Cases

Legal Theory

Back When I was a Defense Attorney

Client Communication
~~~~~~~~~~~~~~~

CYA Letter: Felony Client
CYA Letter: Appeal

-----

Dear Mr. Jailhouse Lawyer
Conversation between Inmates about Lawyers
Innocent Client Pleads Guilty
Client Parents

Time as a Prosecutor

JAN07
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I know nothing
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Cross
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2d Simplest Explanation
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Jury
FEB08
CrimLaw Prosecutorial Corollary #1
MAY08
Paranoia
JUN08
Why Not Drop?
JUL09
Buy Me Dinner First
AUG09
Jury Sentencing Argument
SEP09
Is Litter Patrol Jail?
OCT09
Paperwork Closing Argument
APR10
Bubonic Bob & the Creative Judge
JUL10
Finding the Perfect Witness
APR12
Small Town Cop : Big City Lawyer
JUN12
Maturity Ain't Orange

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In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.

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Everything herein is copyrighted by Kenneth Frank Patrick Lammers Junior. License for use of particular posts is granted so long as this site is linked to and credited. Serial republishing of all or the majority of posts on a separate website from CrimLaw is forbidden.

10/13/2004

Wednesday

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