CrimLaw

Blogging Criminally For Over Ten Years

12/02/2004

Day Two

Thursday

I have 6 felony hearings scheduled in Circuit Court. I show up about 8:15 in order to give any of my clients who have not been to see me an opportunity to come talk to me. One client shows up about 10 minutes before court is supposed to start but he's someone I had met with earlier.

Court starts at about 9:15 and I'm first up. The first case called is an embezzlement case. Client walks in just as the judge calls the case, drops her coat, and hustles up to the defense table. Luckily, Client has spoken to me earlier so there is no difficulty. She made two confessions; needless to say, it is a guilty plea. Other than arriving at the last second her plea and questioning by the judge goes well and she is left on bond until the sentencing hearing.

The next case is a client charged with possession of marijuana with intent to distribute and possession of cocaine with intent to distribute. If the client goes to trial the judge in this jurisdiction the judge will require a jury trial - a not too subtle way of forcing a guilty plea because of a mandatory sentence the jury would have to impose the judge would not. Anyway, the prosecutor agrees with me that Client is only guilty of possession of cocaine, not distribution (when deputies raided his girlfriend's house they saw him throw it out the window). Girlfriend, with whom Client was living, was clearly growing and dealing marijuana out of the house and - while perhaps tenuous - I think that the prosecutor can make a case that my client was a principal in the second degree. Before the clerk reads the charge I explain to the judge that the prosecutor and I agree there is only possession of cocaine and therefore Client will plead not guilty to possession with intent but guilty of possession. The prosecutor backs me up and the judge, looking none too happy, states, "Well, Mr. Lammers, I'll hear the evidence and decide if that's appropriate." So Client pleads to possession of marijuana with intent and "not guilty to possession with intent but guilty of possession" of cocaine. The judge questions my client and when it becomes clear that his girlfriend was the one who actually sold the marijuana the judge asks Client if I talked to him about being a principal. Client gives a look to the judge which clearly purveys, "What the heck are you talking about?" So I stand up and tell the judge that we didn't talk about it in those terms. "What words did you use, Mr. Lammers?" "Sir, we talked about assisting and benefiting from an act." The judge doesn't look too happy but he accepts it. Client was allowed to remain on bond until his sentencing hearing.

The next case is continued because my client has gotten himself thrown in jail at the other end of the Commonwealth and the deputies didn't get notice in time to go get him.

Then the judge wants to call my two sentencing hearings. I look around the courtroom and see that one of my sentencing clients has just shown up. I have to ask the judge for a break because I haven't been able to go over the sentencing guidelines with my client yet. So the judge gives me "5 minutes" and I grab my client and head outside. We sit on a porch outside the courthouse and talk; in the meantime he calls the two cases on the docket that aren't mine. After I finish talking to the client outside I run into the courthouse to check to see if my two clients from Beaumont are here yet and talk to them for a couple seconds each. Finishing all that I run back outside¹ and just as I get to the door of the circuit court the deputy steps outside looking for me.

I go in and the client whom I have just talked to about his sentencing guidelines is up. His guideline recommendation is 3-6 months for unlawful wounding. I ask the judge to take judicial notice that the codefendant, who was responsible for the vast majority of the injuries, was found guilty of misdemeanor battery by a jury and sentenced to only a month. The judge allows as how he'll take notice but it won't bind him in this case. The prosecutor gets up and starts arguing the original malicious wounding charge again and asking for a stiff punishment. I point that out and that the judge had rejected that argument in reducing the charge to unlawful wounding. I point to the fact that the codefendant got his charge reduced to a misdemeanor and only got a month in jail while my client is going to be weighed down with a felony conviction for the rest of his life. For a second there I allow myself the conceit that I may have talked the judge into giving my guy straight probation. Then the judge asks my client if he has anything to say before he is sentenced. Client: "I wish it hadn't happened. I wish I hadn't been there." You could just see the judge's face harden. He lectures my client about not accepting responsibility and sentences him to three months.

Next is the BM kid from Beaumont; the kid was found guilty of A&B of a juvenile detention employee with intent to injure and his sentencing guidelines recommend 1 year 9 months to 5 years (midpoint 3 years 5 months). The prosecutor points to the abduction charge which got the kid in Beaumont to begin with, the "over 100" infractions reported in the presentence report, and the fact that the judge found him guilty of attacking a teacher at the detention center; he makes it clear that he thinks that my client should go to prison for a long time. I get up and point out that other than the offense which put him in Beaumont my client's record isn't all that bad. I then state to the judge that while Beaumont may be bad it's nothing like an adult prison and that a taste of real prison might be appropriate but the amount of time recommend is too much. I finish by repeating the judge's own words from the trial - "if this had happened at a regular school it would only be an A&B" - and then ask him to give my kid a year in accordance with that statement. Judge turns to my client and sentences him to 4 years.

This leaves my final Beaumont kid. However, the guard who he's alleged to have hit isn't here today so the judge continues that one over my objection.

All of it is done by about 10:15. I run to talk to the two kids who've been sentenced today. I really, really want to appeal both the cases because there is serious error in each case. The kid who got 4 months is polite but decides not to appeal. The Beaumont BM kid is sitting in a room with three juvenile detention guards and won't even look at me: "I don't want to talk to you, you fat white cracker." One of the guards turns to me with a look half way between laughing and worry tells me not to pay attention to him "he's always like that." I ask him if he wants to appeal and he tells me (and everyone else in the room) in no uncertain terms that he does not.

And that ends my day in circuit court.

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¹ When the county built its court complex it built it onto the back of the existing courthouse. When court's not in session lawyers can use the entrance next to the bench but when court is running you must go in and out the front doors which lead to the outside.

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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
The New Office
FEB07
Different Court Diferent Behavior
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MAR07
Cats
Ma'am I'm the Prosecutor
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I know nothing
23 Felonies
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Cross
Cross II
2d Simplest Explanation
OCT07
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.

12/02/2004

Day Two

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