Is the rape shield law applicable if the defense is that "she is a prostitute who accused me because I stiffed her"?
Monk is doomed.
Our review of the common law of indecent exposure and the language of the statute itself compels the conclusion that the words "display" and "exposure" as used in [this statute] are synonymous and that the statute applies only when the body part in question was clearly visible without clothing or was exposed without clothing and likely to be seen."The dissent comes back with a common law argument of its own with a definition of lewdness that would include the activity in question. As well, the dissent strikes back with a stronger argument that the words of a statute should be interpreted as to not render a portion superfluous. Therefore, display and exposure should have different meanings. The dissent then goes on to point out that "display" as construed under the use of a firearm in a felony statutes does not require the gun to have been seen. This is offered as the definition of display which should be followed and allow the convictions to stand.
Court - The court revokes the two years that were suspended.[comment] Unfortunately for the Defendant, I think the decision tracks with the controlling standard in Virginia's law. Judge Benton keeps trying to get the Court to maybe consider that the "ends of justice" exception could be invoked merely because an unjust thing might have happened in a trial but the court, as a whole, won't go there
. . .
Attorney: Does she receive credit for the 12 months she pulled as well?
Court - No, because I gave her a two year sentence suspended on the condition that she serve 12 months and she served that and there's still two years left.
. . .
Attorney: I understand.
Court - You can check it.
Attorney: I'm not sure that's how it works, but . . .
Court - All right, go ahead.
Attorney: Thank you.
I simply don’t get to chase people any more. By the time a call comes in and is routed to the nearest unit, the offender is long gone and I turn up with my briefcase and take a statement. We usually know who we’re looking for, in cases of domestic violence or when the victim and offender know each other, so there isn’t really the incentive to go charging through broken windows and over fences, with the attendant risk of injury.Cop Talk:
Having said that I still get the chance to go running after someone and the other night I did just that. Never found him of course, only really caught a glimpse at the end of the garden. But it was good fun calling out to him to give himself up and shining the dragon light in peoples back gardens and jumping over fences. If you get the chance to chase anyone it’s funny how any common sense leaves you and the only thing left is the “hunting” instinct. Makes me realised why I joined all those years ago. Nowadays though I have to carry so much equipment the villain gets an even better headstart.
having missed him I'll have to change tactics: I think I’ll just pester his girlfriend into giving him up. I’ll knock on the front door loudly at 8:00 am every morning when I’m on dayshift and 9:45 pm when I’m on nights. You may be wondering why I don’t just go round at 5:30 am or 11:45 pm and really inconvenience them.
You won’t be surprised to know that it’s against force policy to do this. Routine arrests can only be arranged between 8:00am and 10:00pm. You probably won’t be surprised when I tell you that my force has determined that arresting people outside these times contravenes their human rights (Article 8 Right to a Private Life)
Despite the obstacles to me arresting him, most of them imposed by senior police officers, I’ll give him a week to give himself up then call his employer and tell him I want to speak to him during working hours – he either talks to me next week or loses his job. I don’t suppose I’m allowed to do this either (Article 11 Freedom of Assembly and Association), probably.
It doesn't happen too often, thank goodness, but every so often officers end up arresting other officers or police department employees. I spent 9 months in 1990 on an investigation involving one of our narcotics investigators. He was using someone as a confidential informant who was on probation. A really big no no in Iowa. The guy was making narcotics purchases for the investigator, then the investigator would put in his paperwork that someone else made the purchase. In short, he committed perjury by not correctly identifying the informant. Myself and two other detectives arrested him at the end of the investigation. It was an unpleasant 9 months and at the end I was consuming large amounts of Maalox.Interesting stuff.
Last week it was noticed that some money was missing from the department. People who have their vehicles impounded pay a $20 fee to the police department to get their cars back. This money is collected at the front desk, which is where civilian employees work. In short order the culprit was identified and he was arrested. I just can't fathom the stupidity of the young man who did it. He was in our Police Cadet program, just 20 years old, preparing to become a police officer. The city was paying him $29,000 a year in that position. If he'd been hired as an officer next year he would have started at $41,000 a year. So he's pocketing money at $20 a pop. What an idiot! It was determined that he took approximately $3,200. I hope it was worth it!
18. If you wanted to design a system to produce the least amount of product while consumed the maximum effort, you would design our court system. The last serious reform was abandonment of legal size paper. There are still feelings of resentment about that one.[comment] We're still having difficulties with this one in Virginia. Everybody still uses the monster size legal paper files and there are still many who use legal paper itself. I think the problem may be that Jefferson never approved the switch to 8 1/2 X 11 (everything in Virginia must have had Mr. Jefferson's tacit approval). Still, Mr. Jefferson never expressly decried such a switch either so I think things are slowly getting there. Next up: Computers a C-64 for everyone!
Now, it's clear that the way someone dresses to come to court is not always the same as they dress outside of court, the prosecutor told you this when he told you Mr. Smith is cleaned up today, but in the real world he was a predator. However, let's not be mistaken - the prosecutor didn't have his witness come to court wearing short-shorts and a skin-tight tube top either. He had her come to court wearing a nice, conservative dress. He called Mr. Smith a predator but I can't call Miss Jones anything like that. There's no evidence to that effect and I am forbidden, by law, to ask those sorts of questions.
I would just add that while most people I represent are guilty, many aren't charged with what they actually did or are sentenced to terms much more harsh than they deserve. Trying to limit that damage for the guilty, and maybe preserving some hope for rehabilitation in the future, is as important a function of my job as anything else.
"There are areas of the law where some type of gang activity are terrorism because you are terrorizing the public," Stripling said.Does anyone out there actually believe the purpose of this statute was to allow government officials to exclude the citizenry while discussing ordinary - or in this case hypothetical - criminal matters?
§ 2.2-3711. Closed meetings authorized for certain limited purposes.So, the booming metropolis of Staunton, Virginia thinks a gang may move into town and start committing murders, robberies, malicious assaults, etc. with the intent of intimidating the civilian population at large. If you really stretch what a gang does you can get there. A criminal gang may very well act to keep people from testifying or cooperating with the police. Of course, it doesn't have the terrorist intent of a proactive attack against a governmental, religious, or social structure with the ultimate goal of destruction or subjugation.
A. Public bodies may hold closed meetings only for the following purposes:
20. Discussion of plans to protect public safety as it relates to terrorist activity and briefings by staff members, legal counsel, or law-enforcement or emergency service officials concerning actions taken to respond to such activity or a related threat to public safety.
§ 57-48. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Terrorists and terrorist organizations" means any person, organization, group or conspiracy who assists or has assisted terrorist organizations, as provided in 18 U.S.C. § 2339 B or who commits or attempts to commit acts of terrorism, as defined in § 18.2-46.4.
§ 18.2-46.4. Definitions.
As used in this article unless the context requires otherwise or it is otherwise provided:
"Act of terrorism" means an act of violence as defined in clause (i) of subdivision A of § 19.2-297.1 committed with the intent to (i) intimidate the civilian population at large; or (ii) influence the conduct or activities of the government of the United States, a state or locality through intimidation.
§ 19.2-297.1. . . . For the purposes of this section, "act of violence" means (i) any one of the following violations of Chapter 4 (§ 18.2-30 et seq.) of Title 18.2:
a. First and second degree murder and voluntary manslaughter;
b. Mob-related felonies;
c. Any kidnapping or abduction felony;
d. Any malicious felonious assault or malicious bodily wounding;
e. Robbery and carjacking;
f. Criminal sexual assault punishable as a felony; or
g. Arson when the structure burned was occupied or a Class 3 felony violation of § 18.2-79.
(ii) conspiracy to commit any of the violations enumerated in clause (i) of this section; and (iii) violations as a principal in the second degree or accessory before the fact of the provisions enumerated in clause (i) of this section.
On Friday, White filed court papers pleading for help. "I am swimming upstream right now," he wrote, saying he has no training in defending juveniles or experience with DNA. Admitting he lacks the experience to make crucial decisions in this case, he asked that Michele Shaw, an experienced Seattle attorney, be allowed to assist him.Macondo Law reprints an article which pretty much accuses various US Attorneys of "astro-turfing." If so, it strikes me as a rather inept way of doing it. If you are going to fake a grass roots movement you could do better than send two letters to Tennessee papers and one to Guam (unless there are a number of others and the author just didn't think it relevant to at least give us an estimated number). More likely, I think that "the brief" on this issue came down from the mount and the various USA's took it upon themselves to address the issue. Not wanting to cause future problems they cleaved to the revealed word and it shows. Either way it is humorous.
White's current co-counsel wants to call it quits. De Young filed a motion last week asking to withdraw from the case, saying the county wasn't paying him promptly, causing financial hardship. He also said the county had poisoned the pool of available experts by stalling payment for their work in prior cases.
Without more financial help, De Young said, he feared being found incompetent, and held liable.
"Do you believe in the 'adversary system'--that the most effective way to get at the truth is to have advocates for each side fight it out? Or would you prefer a system where the entire court is devoted to the truth first and foremost?Yes, I favor the adversary system over inquisitional systems. I think that the theory of the inquisitional system is alluring the same way the theory of communism is alluring. It's a great theory but I do not trust the reality of it.
. . .
I've never been convinced that the adversary system is really the way to go. Maybe it's one of those things that in practice is better than the alternatives (worst form except for all the others). What do you think?
It is a terrible business to mark a man out for the vengeance of men. But it is a thing to which a man can grow accustomed, as he can to other terrible things; he can even grow accustomed to the sun. And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.2In an adversarial system there is a person whose role is to keep reminding the judge that the person before him is not just another of the great unwashed masses to be dealt with just as the last 50 were: the Defense attorney. His job is to make the judge realize that the facts (or lack thereof) in this case distinguish this particular person from all the others who have come before and been found guilty. It's his job to keep the system from sinking to the point that all that is seen is "the usual man in the usual place."
If I choose to defend only the Righteous,The statement has something of a double meaning. One interpretation is that if I don't practice except in the rare ocassions when there is someone I am certain is innocent, I shan't develop the skills to be able to defend that clearly innocent person when such skills are desperately needed. The second is that I must fight on in an attempt to preserve those rights and protections which exist for all citizens. Should these rights and protections slip away in the process of making sure "the guilty" go to prison when the truly innocent are brought to trial there will be nothing left to keep them from just being pushed through the system toward an unjust conviction. Thus, the evil of not performing the duty of defense is greater in the long run than the evil of defending those who probably committed the crime.
When the Rigtheous are accused,
What tools shall I have to defend them?
(1) To harm another person is a sin.The cornerstone of this is that harming another, no matter whom you harm or how slight the harm is sinful. You could make the same argument that I make below by making some sort of "moral imperative" rationale but that just doesn't work for me. Personally, absent the argument of moral requirement, I do not find persuasive non-theistic arguments for moral behavior. Frankly, without a requiring agent nothing is actually necessitated beyond that which leads to an ordered society. An ordered society does not necessarily worry that a certain percentage of its populace is harmed as long as society continues to function.
(2) It is impossible to live life without harming other persons.
(3) It is our duty to sin as little as possible.
(4) As members of a democratic republic we are responsible for every act of our government.
Human law is lawReason calls us to limit that amount of harm which our agents do in order to keep the attribution of that extra harm from ourselves. At any time the government steps beyond the necessary harm required by reason it is committing a violent act for which we are responsible. It is no answer that the sovereign is the actor for we are the sovereign as long as we have the franchise.
Only by virtue of its accordance with right reason,
By this means it is clear that it flows from Eternal Law.
In so far as it deviates from right reason
It is called an unjust law; and in such a case,
It is no law at all, but rather an assertion of violence.
The foreign court will execute a letter rogatory in accordance with the laws and regulations of the foreign country. In obtaining evidence, for example, in most cases an American attorney will not be permitted to participate in such a proceeding. Occasionally a local, foreign attorney may be permitted to attend such a proceeding and even to put forth additional questions to the witness. Not all foreign countries utilize the services of court reporters or routinely provide verbatim transcripts. Sometimes the presiding judge will dictate his recollection of the witness's responses.This raises all sorts of constitutional issues about the right to counsel, the right to confront, the right to compel witnesses to appear in the courtroom (where a jury can judge their demeanor), etc. These three spring immediately to mind; I'm sure there are other problems with this process.
The dispute between the "striking" Bar Advocates and the Governor is heating up. Like Reagan with PATCO, Romney is threatening to "fire" them all.* I'm pleased. Sure, they're not paid enough. But their work stoppage is threatening public safety because without enough lawyers, courts are letting criminals out of jail.I addressed the issue of actually getting paid for your work in this prior post. To elaborate further, IMHO if the pay is so low that you are losing money or taking a very substantial hit when you take any court appointments it discourages people from concentrating their practice in that area. Those who serve the indigent (outside of PD's) will then generally fall into two groups: (1) Those who take appointments as a political matter, and (2) young lawyers who don't have anything else on their platter yet. The first group can actually be well established, very capable attorneys but, make no mistake, one of the reasons they are in court is to show their faces to the judges and garner favor among those in power in the courthouse (you know, the clerks). I see this in numerous counties wherein I practice but I also notice a lack of it in some smaller counties and in larger cities. Even where I see it, I doubt there are sufficient numbers willing to take a large enough case load to handle all cases. The second group is dangerous. They come into the courthouse for a cycle or two - because their firm wants "to give back" or they want to get some courtroom experience or they just don't have enough business to crowd out the criminal work yet - and then they disappear. This is not to say they are dumb or not good lawyers; I just mean they don't have the experience gained over time. Usually, they don't understand the procedure (cuz it ain't the procedure we were taught in law school) and often they don't have a feel for the way things work informally around the courthouse. Usually, most are bright enough to ask more seasoned attorneys for assistance. Still, there are those days when a brand spanking new kid from an all civil firm stands up and tries to do it the way he thinks it should be done without any help - those days are painful.
A few quick points:
1. Bar Advocates should be paid more than their (lowest in the nation) current rates.
2. Bar Advocacy is about more than just money, and it is unprincipled to turn it into a labor issue.
3. Because having no lawyer is a get-out-of-jail free card, for the first time in American history it is better to be a poor defendant than a rich one.
*Why all the quotation marks? Because they aren't striking, really. They're just refusing new cases. And the Governor can't fire them because they don't work for him. He is threatening to prohibit them from getting any new cases, ever.
The pay rate for public defenders is $30 an hour for district court, $39 an hour for superior court and $54 an hour for murder cases. The $30 rate is the lowest by statute of any state in the nation. Legislators responded recently by approving an hourly increase of $7.50.However, the Legislature "has yet to pass a supplemental spending bill to fund it." Needless to say, this has not brought private attorneys back to indigent defense.
Last week, the state Supreme Judicial Court ordered that jailed defendants eligible for public defenders be freed after seven days if an attorney cannot be provided them. The court also ruled that criminal charges against bar advocate-eligible defendants be dismissed "without prejudice" after 45 days if no lawyer will tackle the cases.And the local judges have been following through:
On Monday, a judge ordered the release of three suspected drug dealers because the state had failed to provide them with legal representation.and there are further releases pending:
a Superior Court judge [is] consider[ing] whether to release 14 more accused criminals who were denied access to a lawyerLocal law enforcement and prosecutors are squawking:
"Someone is going to be murdered, raped, or robbed, and what are we going to say to the victim's family?" Hamden district attorney William Bennett said at a news conference in Springfield.The State Attorney General decried the SJC's ruling and offered that instead of releasing people from jail their cases should be shunted to the PD's offices:
"Armed predators are being released right back into the neighborhoods," said Springfield Police Chief Paula Meara, one of 14 police chiefs who appeared with Bennett. "Babies and children are going to get caught in the crossfire. This is poor public policy."
Saying that prosecutors routinely handle twice as many cases as public defenders, Reilly said that the court should have ordered lawyers for the committee to take a heavier caseload before taking the "extraordinary step" of ordering lawyerless defendants to be released without bail after seven days.In the same article, this is rebutted:
Public defenders are limited to 30 cases at a time under their own rules.
"You can't just walk away from your responsibilities," Reilly said.
William Leahy, chief counsel for the Committee on Public Counsel Services, defended the caseload levels yesterday, saying that public defenders have much less office and investigative support than prosecutors. In Springfield, he said, 10 public defenders share two secretaries and one part-time investigator.Now the governor has gotten involved and is trying to get indigent defense taken away from the judicial branch and placed in the hands of the executive branch (because we all know there's no conflict when the same branch accuses and defends). On top of that he's threatening to ban those who won't take underpaid work permanently from ever being assigned underpaid work:
"It's apples and oranges," he said. "To suggest that the function of a prosecutor supported by a whole law enforcement network is in any way comparable to the work of a public defender is absurd."
In general, Leahy asserted, Reilly's office has been "completely unhelpful" in efforts to resolve the state's public defender crisis, despite being a defendant in the Hampden County lawsuit.
"They have had nothing but criticism," Leahy said. "For them to be involved in Monday morning quarterbacking after being in the Sunday game is profoundly disappointing."
Leahy also pointed out that his office never requested that the SJC release defendants, but instead asked the high court to order higher pay for court-appointed lawyers, which the justices declined to do.
If given oversight of the Committee for Public Counsel Services by the Democrat-controlled Legislature, Romney said, he would force lawyers to choose between accepting new cases at current rates or be banned from doing such work in Massachusetts.The silliness of that position was quickly pointed out:
William J. Leahy, chief counsel for the committee, dismissed Romney's vow to blackball court-appointed lawyers who refuse cases.The governor likens the fact that attorneys are refusing to take work at substandard pay to a police strike - "a strike against public safety."
"The threat to bar lawyers who are already leaving the program in droves is not likely to be the solution," he said. "That would have the effect of making a bad situation worse."
The study of Louisiana’s system by David Carroll of the National Legal Aid and Defenders Association of Washington basically broke Louisiana’s problems into two areas — lack of proper funding and the fact that judges name the indigent defenders. The study maintains the judge’s goal of clearing dockets is in conflict with a defendant’s right to a fair trial.Other articles compare the funding within the State (a recent Caddo Parish study found the public defenders' office had one-third the resources that prosecutors had) and compared to other States (both Kentucky and Louisiana each spend about $30 million a year on public defenders, the number of cases in Kentucky is 116,000 a year, while Louisiana public defenders handle an estimated 400,000 cases annually).
“It’s not simply the money but also the structure of the indigent system,” Carroll said.
The lack of funding causes local public defenders to have “crushing caseloads,” and public defenders often do not see their clients, Carroll said.
Tucked into a tiny office in a far corner of the second floor of the Liberty County Courthouse since assuming his new job July 1, he has a desk, a filing cabinet- and that's about it.Of course, there are problems. There are concerns that the offices need to worry about diversity and at least one case where a rejected applicant is suing on allegations of racial discrimination:
Wright said he and attorneys Alonza Whitaker, the Democrat nominee for circuit district attorney, and Dorothy Williams were the only black applicants for the local post.However, it would seem that there might be other reasons for the rejection (at least for Mr. Wright):
"Both of these other lawyers have a lot more experience in criminal law and indigent defense than the appointee," Wright said. "And I've spent 27 years practicing criminal law, including 12 years in indigent defense and three years as a Recorder's Court judge -- but they didn't even grant me the courtesy of an interview.
"It has to be racism. I can think of no other reason," he said.
"On the one hand you've got a lawyer with over 20 years of experience who distinguished himself in combat, or somebody who won't pay his taxes," Hyles said. "That's an easy choice, isn't it?"
The panel chairman said Wright's well-publicized position that he shouldn't have to pay taxes was a factor in his evaluation.
"It's not right to give someone a government position with tax revenues when he will not pay his taxes," Hyles said. "In my mind, that disqualified him up front."
Wright has had a long-running dispute with the U.S. Internal Revenue Service over tax issues. In May, he filed suit in U.S. District Court challenging the constitutionality of the income tax law as applied against African-Americans. He contends in the suit that African-Americans have been denied key citizenship rights over the years, which exempts them from application of the income tax law and entitles him to a refund of about $25,000 he's paid in income taxes from 1964-95.
The report by The National Legal Aid & Defender Association in Washington, D.C., says the Montana system is unconstitutional in many respects, among them inadequate funding.North Dakota
That results in inadequate services, particularly compared to what's available to prosecutors, the report says. It notes that in Missoula County, nine defenders are assisted by one investigator, one paralegal and three secretaries, but the prosecutor's office has the resources of police and sheriff's departments, plus three paralegals and seven secretaries.
There is lack of independence between indigent defense attorneys and the court system in North Dakota because typically judges negotiate contracts with attorneys.Texas
The Legislature provides inadequate funding for the system.
The caseloads of indigent defense attorneys in North Dakota are too high.
Indigent defense attorneys are not adequately compensated.
There are administrative and quality control problems in the system.
The flat-fee contract system discourages attorneys from [working].
There is an incentive for contract attorneys to encourage clients to plead cases, instead of going to trial.
Hazel Blears, a Home Office minister, said it was important to intervene early because currently 65 per cent of children with a father in jail get imprisoned themselves.
• Create a list of potential witnesses. Supply complete addresses, phone numbers, and background information about each individual, with good notes about what the witness can say on your behalf.[comment] Get this list to your attorney at least three weeks prior to trial. If you get me the list the week of trial, or tell me about the people 15 minutes before trial, I'm not going to be able to get them subpoenaed. And, if they're not subpoenaed the judge isn't going to delay the trial because they aren't in court.
• Make a time-line of what happened, with dates and times of day, as appropriate.[comment] If you do this step, don't lie. If you cannot do this step without lying, don't do it.
• Draw diagrams of the scene of the incident, with actual measurements, if possible.[comment] This can be very helpful. When a lawyer has a large caseload he does not have time to actually visit many scenes. But use some common sense. If you are charged with reckless driving-speeding 20mph over the limit and you were the only car on I-95 at 4 am, a diagram of a straight road probably isn't going to be very helpful.
• Set up an appointment to sit down with your lawyer and go over the police report page by page, looking for contradictions and lies.[comment] Well, in Virginia they don't have to give us the police report (though several do). I primarily want to meet with you to get the information in the first three bullets.