30 September 2004

While the Cat's Away . . .

All the way from Macondo Law to Virginia, by invitation, but it wasn't just a come and blog while I'm away invitation --at least not in my case. I was instructed to just blog on legal stuff, and leave polictics out. So, given those conditions, I will not comment about tonight's little gathering at the University of Miami, or any similar stuff.

Since Ken was so nice to invite me to keep this thing running while he's having a good time in Kentucky, maybe I should refer some clients to him in reciprocity. They may not be in Virginia, but I already know he gets around, so what the heck.

Two ladies contacted me (they're still on the run) after they had a small problem at a supermarket with a clerk who would not retrieve jugs of lemonade and iced tea for one of them. Dumb Clerk! Once Ken gets back home, he should rush to Harrisburg, PA. (Ken, if you are still in that lonely courthouse library in Kentucky, give me a call so I can refer this lady to you).

And this case will take you to Oklahoma, assuming the police decide to charge the guy. If they pass the case to the feds I think he could be charged with one of those terrorist offenses, or conspiracy to terrorize. But he's got a good defense: Just wanted to show my wife I was a hero!

And then there's this other case in Ark. of a guy whose wife definitely does not think of him as a hero. Damn those hot pants!

I think 3 cases for a blogging invite is more than fair pay. Oh! Ken, either you're on vacation or you're not. Get out of that courthouse in Kentucky!

In Kentucky - But writing About Va.

Well, I'm sitting in a law library in the Circuit Court of Fayette County Kentucky where there is apparently no trial activity at all today (never seen a courthouse so empty).

I got an e-mail from DM asking what a direct indictment is:

In Virginia there are two possible ways that you can be brought to trial.

First, you can have a warrant or summons issued against you by an officer and magistrate. Then you go to the general district court and have your trial (if a misdemeanor) or preliminary hearing (if a felony). After that you have the absolute right to appeal any misdemeanor conviction (even if you pled guilty). At a felony preliminary hearing the judge decides if there is probable cause; if there is PC the case is sent to the grand jury and on to Circuit Court for trial (grand jury indictments are an assumed).

Second, the prosecutor can take the case directly to the grand jury and get an indictment without going through any of the hassle of general district court hearings. He can also take a case to the grand jury even if the general district court judge dismissed it in the preliminary hearing. This is a direct indictment.

Most cases are handled by the first method. However, should a prosecutor wish to game the system or disagree with the general district court judge's dismissal he can use the second method.

I find this is usually used when there is some mistake during the prelim and the prosecutor doesn't have needed witnesses or botches some necessary element of the crime. Sometimes it is done because the prosecutor thinks he will get a friendlier judge in the circuit court. The worst is when it is done to hide weaknesses in a case. Virginia is a very, very limited discovery State. While not true across the board, some prosecutors are stingy with what evidence they will provide. Therefore, although Virginia's courts appellate say over and over again that the purpose of a prelim is not discovery that's not true and everyone in Virginia knows it. This is the place where the defense attorney gets his opportunity to actually question the officer or complaining witness and find out something about the prosecutor's case. There are times when it would be in the interest of a not-so-standup prosecutor to skip this step.

For example: Let's say a prosecutor knows that the stop and detention of the car (which yielded 20 lbs of cocaine) is pretty shakey. So he moves for a nolle prosequi (dismissal without prejudice) in general district court. The law of Virginia requires that constitutional issues be argued at least three days pretrial. If the Defense doesn't find out about the unconstitutional search pretrial he loses that issue. And, although I must admit not having researched this recently, most likely the trial court will not entertain, and the courts appellate will not overturn because of, a motion made during the trial to suppress (after all the Defendant was there - he should have told his lawyer this had happened - it's a nice theory anyway).

To be fair, I don't see this used often in the courts wherein I practice. However, you always hear horror stories about the jurisdiction over the horizon where there is all-out, no-holds-barred war and tactics such as this are common. I just don't practice in them.

29 September 2004

Another guest, this time from out West

Skelly here, posting from a wind-swept, high desert public defenders office on the cracked rim of the Great Basin. Ken invited a few of us to crash here at Crim Law while he's out of town, but we have to be nice and pick up after ourselves before he gets back. Thank you, Ken.

My contribution seems to be to highlight the foibles and misadventures of my brother and sister p.d.'s. You know all about p.d.s failing to stress to a death penalty jury in the penalty phase that their client is mentally retarded, or simply sleeping on the job. At the moment, the most notorious (ex) public defender has to be Theresa Olson, the attorney who is in the process of having her bar license suspended for having sex with her murder client in the attorney visiting room of the jail. This week a hearing officer determined that an August 10, 2002 tryst between Olson and triple convicted murderer Glen Sebastian Burns was in fact not a "hug gone bad, but "inappropriate, intimate physical contact, including sexual relations, with her client."

Her attorney, doing the good defense attorney thing, pointed out that the hearing examiner had not specifically found that Olson had had "sexual intercourse" but merely "sexual relations" with Burns and that Olson's character and reputation as an attorney were good.

Earlier, King County Public Defender Anne Harper testified that the incident between Olson and Burns "trashed" the reputation of all public defenders. Harper said she feels strongly about the public defense system and its constitutional importance, and that the incident between Olson and Burns especially hurt the reputation of female public defenders.

I guess I come down harder on the individual p.d.'s who make all of us p.d.'s collectively look bad, than on the prosecutors or D.A.'s who play stupid human tricks on our clients. I expect better, and 99.9% of my colleagues do too.

Guest Blogging

Ken asked me to guest blog for him while he's on vacation. Flattered to be asked, I naturally accepted. Besides, how could I turn down the opportunity to post at the web's first criminal law blog?

This is my first time guest blogging, so I am a little nervous. I normally blog at Crime & Federalism, and I'm a bit edgier than Ken, whose more the distinguished Southern gentleman.

Anyhow, I hope you enjoy my posts. Email can be directed here.

Bizarro World

Kobe Bryant's defense team sought to seal the record in Colorado v. Bryant. The prosecution demurred:

[Mark Hurlbert] recently said evidence and documents in the case should be released, saying the public's interest in reviewing actions and decisions by prosecutors and the judge outweighed Bryant's privacy concerns.
Isn't it ironic that now the defense wants to hide the record, while the prosecution moves for full disclosure? Where now are the prosecution's cries to protect the accuser's privacy?

I also saw that the prosecution's spokeswoman, Krista Flannigan, is still on the state's payroll. Newsflash, guys. The criminal case is over. Do the fiscally responsible thing and trim the fat. Or, was the Kobe Bryant prosecution more about the egos of a few DA's, and less about public trust and responsibility?

Related post: The cost of the Kobe Bryant prosecution.

Indecent Exposure

Sometimes ya just can't out do the headline: "Naked Attorney Gives New Meaning to 'Legal Exposure'"

27 September 2004

BTW ~ Kentucky

If anyone is reading this from the Lexington-Fayette County area I will probably be poking around the courts in Lexington on Thursday (if I get into town early enough) and Friday to check out what the legal system is like. Any suggestions? lammersk@yahoo.com


Ladies and gentlemen, I leave you all so that I may go on vacation. I'm not actually leaving until after my last case Wednesday but I've got a ton of stuff to do tomorrow so I've invited a number of other practitioners with blogs to step in until I return next Tuesday. I leave you in their capable hands.


One of my fellow 1999 graduates of Washington & Lee Law, Daniel Grubb, has grabbed life by the horns and is living an exciting post law school life, co-founding his own law firm and then going off to Afghanistan to serve the common good.

26 September 2004

Around the Web

1. He didn't try to supress the color of the officer's eyes? Slacker.

2. I respectfully dissent points to an article criticizing the felony murder rule and some of the silly laws which could cause its invocation.

3. In Green Bay they apparently don't forget about old crimes.

4. "On the other hand, we have defense lawyers, who are...um...defense lawyers." Hmmm . . . That feels a lot like saying, "on the other hand there are the Yankees, who are . . . um . . . Yankees." Everyone in the South knows what modifying adjective is missing here . . .

25 September 2004

Beauty Show

Go to Columbian prison - participate in a Beauty Pageant.

The story is shockingly lacking in photographic proof.

Burglary / Robbery

1. When you go to burgle a car it isn't very prudent to take a nap in the back seat.

2. The Japanese truly are different - A man goes looking for a policeman to admit to a failed robbery.

3. I did all the other robberies except not that one; but I'll plead guilty to it anyway since you found me with the credit card.

4. Answering the eternal question: When the police question and release you on one robbery is it a good idea to go right out and commit another one?

5. Need money so you can go to the mall? Burgle your neighbors' houses. 'Cuz, you know you'll never get caught.

6. If you're going to take advantage of the fact that the ATM isn't being filmed you should at least get in and take the money.


EU's capital for both crime and drugs.


1. A Korean ladt convicted in federal court for being a madame.

2. A Korean man convicted in federal court for being a pimp.

3. Maybe they're here because Korea is cracking down?

4. The U.S. military is going to start handing out a lot more court martials.

5. Ah, okay, I understand now - she became a prostitute in order to pay off her law student loans.

6. Naw, 38 "massage parlors" doesn't mean there is any brothel problem in your jurisdiction.

7. No, really? An escort service which is about prostitution?

8. California to legalize prostitution?


1. "A Malawian man believed to be high on marijuana beheaded two women with an axe on Friday."

2. "A Southeast Portland man who was shot and wounded Monday morning by at least two men was apparently targeted for his medical marijuana."

3. Marijuana Destroyed:

a. Tulare, California - $185,200,000 / 46,412 plants.

b. Amador, California - $500,000 / 9,449 plants / 700 pounds.

c. Palo Verde Valley, California - 163 pounds.

d. Tuolumne, California - $45,000,000 / 11,308 plants.

e. Milam, Texas - $1,000,000 / 200 pounds.

f. Malibu, California - $7,000,000 / 7,000 plants.

g. New Jersey - $26,000 / 13 plants (must not grow well in chemical dumps).

4. Growing it in a cemetery almost works.

5. Sing along with me: Blame it on Canada . . .


1. Addicted to heroin from birth.

2. Richmond - the latest councilman in court: "Syringes were relics from addiction era, ex-councilman says."

3. Grandparents, babysitting, and heroin.

4. The lesson here? Don't yell at the court clerk.

5. Using meth to stay awake at work.

6. Older addicts.

7. Government plans to let more doctors prescribe pure heroin were abandoned.

Crime Trends

1. South Carolina: Violent crime down; nonviolent crime up.

2. Malden, Massachusetts: Assaults and larcenies down. Robberies up.

3. Hamilton (Canada - Ontario?): Break-ins, car thefts, murders, and robberies all down.

4. San Diego: Crime down 1.9% but murder up 14.3%.

5. Ventura County, California: Down: homicide, rape, arson. Up: robbery, auto theft, petty theft, grand theft, burglary.

Authorities in the News

1. In Scotland they are trying a new technique: Divine Intervention.

2. A prison guard gives an inmate meth laced cigarettes.

3. A probation officer who gives information to the local drug dealers.

4. A DPS officer dealing drugs.

5. A police Detective helps steal $250,000 from drug dealers and loses his job as the consequence.

23 September 2004

How to Impress Clients

Around the Web

1. Heck, if she was billing $650 a hour why did she even bother to get a legal degree?

2. I think it's mandatory that each law student discovers Mayo v. Satan and His Staff.

3. The 2d Circuit holds that bans on the use of computers aren't ripe for appeal until after the prison sentence has been served.

4. The Socratic method, a good way to cram a year's worth of education into three years.

5. Is the Fighting Fourth using en banc hearings in order to get particular results rather than following the law?

6. Answering law students' questions concerning intent.

7. If you can't find a crime here export the problem to Saudi Arabia.

8. Levi advertising during kidnappings?

9. Bite him in the neck and knee him in the OUCH.

10. Cop Talk: Do you know what an unloaded gun is? A paperweight.

11. Holy Cow!!!! There's a liberal at the Fighting Fourth?!?!?

12. Is mailing fake anthrax a "communication containing any threat to injure the person of the addressee"?

13. Screaming Bean adresses the most important matter in the 3L year: women with skirts that are too short and are commando. I may have gone to the wrong law school.

14. Who cares if the jurors are using cocaine and selling drugs during the trial?

15. What type of memory?

16. I'm safe. But wait a sec . . . I don't own a horse. Maybe I can hook my dogs up to a small cart and let them pull me home?

22 September 2004

Aquinas in the Courtroom

Just finished Aquinas in the Courtroom: Lawyers, Judges, and Judicial Conduct.

It's actually more like a series of essays rather than a coherent book and therefore it is somewhat repetitive. The general idea that is behind Aquinas' teachings on the law is:
Human law is law only by virtue of its accordance with right reason, and 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.
Summa Theologica, Pt I-II,Question 93, Article 3
This point is repeated over and over with depth and nuances. The post which follow are portions I found interesting.

The Goal of Justice - Aquinas

The commutative quality of Thomistic justice is also evident in the advocacy of the death penalty. Of primary concern to Thomas are the needs and wants of those other than the executed. By slaying the wicked, we enhance the safety of the virtuous. It may even be praiseworthy and good to inflict execution to assure communal tranquility. Retaliation, the vengeful fomenting of the harmed and injured party, is at times properly within the province of commutative justice. To retaliate is to parlay passion for passion. But Thomas warns that passion for passion is not the same equation as act for act. Equality of an act heavily depends upon a theory of proportionality. One cannot retaliate with the death penalty for a theft of food, or, as Thomas remarks, one's stolen chattel repossessed under a theory of retaliation. Thomas insists that the retaliator, in order to be just, equalize both passions and corresponding acts of retaliation. Passions of the inordinate variety are beyond the horizon envisioned in commutative justice. Passion need "be equal to the action." Proportionality assures justice; disproportionality fosters injustice.

Thomas's inquiry into vengeance continues this logical line of reasoning. Obviously, vengeance for ulterior or hateful motives nurtures not justice, but hatred in the avenger. Vengeance is compatible with justice if directed toward some good, or for the reformation of the sinner, "for instance that the sinner may amend, or at least that he may be restrained and others be not disturbed, that justice may be upheld, and God honored." But vengeance has no place for those acting in ignorance or by accident, mistake, or other involuntary means. Early on Thomas evaluates intentionality as the criteria for exerting commutative justice and tolerates it only when the party whose aim it focuses upon acts with pure, unaffected will. That party "suffers something that is contrary to his will;" namely vengeance, because reciprocity, sees vengeance as the agency necessary for equilibrium. Those sinning by will may be punished by those willing vengefully.

Commutative justice fosters individual tranquility and peace and is an indispensable condition of social existence. Complementing commutation, that relation of the individual to the state, distributive justice is allocative and proportionally determinative.

[comment] There are those who cite Aquinas for the proposition that the death penalty is acceptable. It is but some tend to forget the fact that it is to be used to enhance the safety of the community. As the Church has concluded, in most modern societies it is not necessary to kill someone in order to render her harmless to society.
p. 81

The Role of a Judge - Aquinas

The true judge avoids sentimentality, personal preference, and opinion, and is unafraid of carrying out both the unpopular and popular purposes of the law. The responsible judge is the equalizer, the bearer of proportionality, and the restorer of equilibrium. Judging is lawful only when consistent with the ends of justice itself, and to be proper its root power rests in the "sovereign as a master-virtue, commanding and prescribing what is just."

Judges, when delivering judicial sentences such as death, imprisonment, or restitution, sin not against the person upon whom it is imposed, nor is its imposition, if varied according to circumstance, a sin against the respect of person. Punishment responds to the sin itself. To the misfortune of the incarcerated or charged party, judges should focus on not only the individual dilemma but the need for a restoration of personal or communal equality. A judge's judgment is just if it is restorative to the individual harmed or beneficial to the common good." Then, too, a judge may determine, according to the distributive philosophy of justice . . . that certain cases or situations are to be decided differently relative to circumstance, parties, or other mitigating factors. In this circumstance, Thomas urges jurists to weigh and evaluate cases on more than the pertinent statute or code, on more than the written language of the law, in order to avoid becoming wholly dependent on punishment as the sole basis for the judicial process. St. Thomas issues sound advice. "As stated above, judgment is an act of justice, in as much as the judge restores to the equality of justice, those things which may cause an opposite inequality. Now respect of persons involves a certain inequality, in so far as something is allotted to a person out of that proportion to him in which the equality of justice consists."

This inequality entails neither an intentional injustice or harm, nor the wilful disregard for what is in equilibrium, but is a reflection of life's varying stations and degrees. For those empowered by money, political power, or social class, the quality of justice may differ from those less fortunate.
p. 129-30

Mandatory and Over-Punishment - Aquinas

Mandatory prison terms for driving under the influence and drug-possession cases, habitual-offender statutes, and the extraordinarily harsh terms of imprisonment for domestic violence would not be favored by St. Thomas. The term of imprisonment must correlate to the severity of the act. Novel or faddish criminalities, and of recent note, hate crimes, tend to exaggerate their seriousness, and as a result, oversell the punishment. Proportionality, that union of act and reaction, is always relevant in a penal context.
p. 171

21 September 2004


1. . . . as a family.

2. . . . as a housewife.

3. . . . with a shopping list.


What the heck is a yob?


For some reason you cannot bring your sword with you into court.

Why, oh Why?

Why does anyone schedule CLE's in October? Don't you people have homecomings?

My 20 year High School reunion (Bryan Station; Lexington, Kentucky) is the first weekend of October. Naturally, the Virginia Association of Criminal Defense Lawyers1 is having its Fall CLE that Friday. I really enjoy the VACDL CLE's but I'm going Kentucky - gotta see how everyone has fared over the years.

As well, a mandatory CLE for those who want to receive court appointments in the Richmond federal district courts has been scheduled 22-23 October. Be there or be shut out. Of course, those are the exact days Centre College's homecoming. And my fraternity's dinner is scheduled to have Senator McConnell speak (you know, the majority whip). This is a tough call. I haven't had a federal clerk calling to ask me to take a case for a while. Once I got on the list I got just enough cases to sorta get a feel for what I was doing and then . . . nothing. And there are all sorts of people who have been in federal practice much longer than I who feel they are being frozen out since the PD's office was put in place. It's a tough call. I really, really want to go to homecoming but the feds pay well enough that I can actually pay my bills if I catch a few cases. Aaaaarrrrggggg!!!!!!

1 Gack!#! What a name. Well, ya'll can't blame me. I voted to keep the far classier Virginia College of Criminal Defense Attorneys. After all, isn't it better to be collegiate rather than merely associated? Apparently not (I was badly outvoted).

20 September 2004

Out & About

1. Giving lawyers a bad name.

2. The mafia runs a fair in NY - yeah, I know, you're shocked and astounded.

3. Comments on Blakely from someone who actually gets paid to write (I think).

4. It's free speech when protesters march down your street messing things up, making noise, and generally making a nuisance of themselves. But if you do one little thing to express your feelings on the matter . . .

5. Workin' 9 to 5, what a way to make a living . . .

6. "The moral of the story is clear: Do not work for the DA. If you do, you might have your bar license revoked."

7. We may be seeing some faint rays of light which could lead us out of the dark days of federal sentencing guidelines which the Legislature can meddle with (it ain't in the judicial branch if the Legislature can directly effect it with a Feeney amendment). Unfortunately, dusk is beginning on the other side of the pond. Lv UKCrimLaw

8. It's not terrorism but it's still a crime.

19 September 2004

Constitutional Considerations and Blakely

Over at SL&P Professor Berman discusses whether the same rationale which the dissenters in Blakely put forth would also call for the elimination of counsel during sentencing and whether the position adopted by those who oppose the application of Blakely to the federal guidelines are anti-democratic.

Around the Web

1. Lex Communis has the same reaction I had when I heard Rather saying "the papers may be phony but it's OK because the story we used them to verify wasn't": just how far could you get with that in court?

2. SoCalLawBlog has links to transcripts of Kobe's interview.

3. Gestz Crim? Hmmm . . . Well it is the language my great-great-great-grandfather spoke.

4. You know, I've only had a couple clients where this could have become an issue but neither of them were corporations.

5. Mr. DA outlines a rough day in appellate court.

6. Three Sheets to the Wind points to an interesting case of spousal abuse.

18 September 2004

Trial Tax

Pieman comments on this post about "jury taxes":
Although I understand the argument that defense counsel and judges make that increasing what we ask for in terms of sentences after trial amounts to a "jury tax," the fact is that it is in the interest of reducing our case loads, relieving clogged court dockets, and encouraging defendants to simply accept the consequences for their actions and move on with life that causes us prosecutors to make substantially better sentencing recommendations in exchange for a guilty plea. It does not serve the best interests of the justice system to give someone who refuses to acknowledge guilt and forces the court to allocate precious resources to their case (even in the many trials where it was just a matter of not liking my offer in the face of overwhelming evidence) to sentence the defendant to a deal equal to or better (for them) than the deal I offered. As a prosecutor, I'm duty-bound to treat like individuals similarly. It is shocking to see judges who will give out light sentences (especially post-trial) often, as it appears, on a whim, and in the process undermining my ability to manage case loads and court dockets by negotiation, as the incentive for plea disappears when judges will not take into account the fact that initial plea offers do consist of a "non-jury discount" from what we'd really like to impose as a sentence...
Now, this isn't really an issue in Virginia because of jury sentencing (our jury system has more severe problems than this). However, in Virginia it can arise in bench trials; in this case it is more of a tax on the exercise of the right to plead not guilty.

My belief as to the prosecution's request for a greater sentence because a trial took place depends upon exactly what we are talking about.

For the purposes of this discussion assume a Defendant charged with robbery and sentencing guidelines which tell everyone he is presumed to receive a 13-17 year sentence; 98% of all similar Defendants get 15 years. It's a run of the mill case with no great passion, journalistic interest, or aggravating factors involved.

Scenario A: I go talk to the prosecutor and she offers my client 13 years if he pleads guilty. My client declines and, after trial, is found guilty. At the sentencing hearing the prosecutor pushes for the 17 years.

Scenario B: I go to the prosecutor and she insists on 15 years or a bald plea. My client declines and, after trial, is found guilty. At the sentencing hearing the prosecutor pushes for the 17 years.

I would have far less of a problem with A. The prosecutor has offered the Defendant something in exchange for keeping the dockets from clogging and reducing the prosecution workload. The Defendant has neither reason nor right to expect that after going through the difficulties of getting his case together the prosecutor should act in a lenient manner.1

In B the prosecutor has offered nothing except trial or a guilty plea. She has neither reason nor right to expect anything other than a full blown trial from the Defendant and if she then stands up in the sentencing hearing asking for a greater sentence she's not justified in that act. By not offering anything she is at least partially responsible for the trial and the request for a greater sentence loses its rational aspect and looks very much like a vindictive act meant only to punish the exercise of the right to put the prosecution to its proof.

[caveat] Yes, I understand that there all sorts of variations on these scenarios which can vary the analysis. This is like the analyses in your Econ 101 class: simplistic to get a point across but subject to an infinite number of variables if applied in the real world.

1 However, the judge should have a different standard. He shouldn't accept the prosecution's motion to sentence above the normal 15 years (assuming no aggravating factors other than just the fact it went to trial).

17 September 2004

Out & About

1. The collateral effects of stealing the fence from a hippo's cage.

2. Some *^%&^$ gets his baby daughter drunk.

3. This is just brazen.

4. Who needs work-study? There are easier ways to make money: you can write your own tickets.

5. NGRI - it's not murder if you believed you were battling Satan.

6. You really shouldn't fall asleep in the middle of your burglary.

7. Escape for 15 hours get 6 years. Not exactly the Shawshank Redemption.

8. Naw, it's not an irrational neo-prohibitionist movement that our legislature caves into more and more each year:
Candy Lightner, MADD's founder, says she disassociated herself from the movement in 1985 because she believed the organization was headed in the wrong direction. 'It has become far more neo-prohibitionist than I had ever wanted or envisioned,' said Mrs. Lightner, who founded MADD after her daughter was killed by a drunk driver. 'I didn't start MADD to deal with alcohol. I started MADD to deal with the issue of drunk driving.'

Back With a Smile on My Face

Actually, I made it about 80% of the way to the local Hooters when some common sense kicked in and I realized that if I drank every time a client, family member, judge, prosecutor, or any of the other various bogeymen who exist in the lives of defense attorneys managed to make me angry/upset there was a good chance I'd crawl into the bottle and never come out. So I went and indulged in my one true addiction (technogeekism), bought a new computer, and fiddled around with it the whole night.

So, having spent an entire night without giving any thought to criminal law, I now re-enter the fray - smile and all.

16 September 2004

Outa Here

Client gets 20+ years from federal court (low end of guidelines).

Aunt calls to ask what happened in the sentencing hearing.

Aunt, the family legal expert, has been the source of a great deal of problems in the case: "If you show accomodation he can't be found not guilty of conspiracy to distribute." Client is getting at least 10 more years from a superceding indictment which her meddling caused.

So what's her reaction when she hears the sentence? She screams at me: I'm a terrible lawyer. I'm nothing more than just another prosecutor. I should have told him to take a "grand jury." It's my fault that he's going to prison. I suck. The system sucks. It ain't fair. I suck. I'm a terrible lawyer. If I knew what I was doing none of this would have happened. God will make "all of you" pay for this. I suck.

Well, I'm going to go drink beer now. Lots and lots of beer.

15 September 2004

PD's back

After making us all wait with baited breath, I'm a PD has posted yet another interesting view of the courtroom battleground.

Hilliard v. Commonwealth

And yet another video blog entry to inflict upon you all.

The case in question is Hilliard v. Commonwealth and it concerns interrogation of a detained suspect.

You'll notice that I was fooling around with the title features in this one. It's still out of sync somewhat and I think I'm going to buy a specific line to run audio from my recorder to the computer and see if that does anything to fix the problem.

As to the content, it's rough, about 5 minutes too long and overly verbose (I'm a rambling man . . .). I think I may have to limit these entries to weekends when I have more time to do retakes and edit. It's been a while since I worked at my A/V department in college (in case none of you have figured it out, I'm a geek) and I'd forgotten how long it actually takes to get things right.

Hopefully, as I continue to inflict these things upon ya'll they will tend to improve in quality and content. In the meantime enjoy making fun of my mistakes and misstatements.

Right to Bear Arms

Darn! When's the sunset on that ban?

Out & About

1. You know that the DUI laws are out of control when the Cato Institute tells you thing have gone overboard.

2. Does anybody really believe that Laura Bush sold drugs? She just doesn't seem to have the killer instinct to run a criminal enterprise. Now the Silver Fox on the other hand . . .

3. No, you cannot have a bond to go get some.

4. Police officers aren't allowed to make their kids hit themselves. I thought only older brothers did this?

5. In some cases it might just be easier to give the waitress a tip.

6. Stealing a toupee?

7. Nothing to do with law: this is strange.

Around the Blawgosphere

1. Waddling Thunder gets kicked off a jury. As to why? Hmmm . . . Probably the side which struck didn't want somebody who would stick too tightly to the law (instead of deciding things based on perceived equity).

2. Singing Loudly decries the abuses of the pretext stops.

3. For some reason the 8th Circuit thinks police shouldn't be able to cuff someone to a chair and interrogate him for 90 minutes while screaming at him and kicking his chair. Even if they read him Miranda rights afterward. Next thing you know they'll be ruling out thumbscrews.

4. Should the federal courts pay the appointed attorney for the 50 calls from the Defendant's mom?

5. Blonde Justice just has one request: "Please know your attorney's name!"

6. Well, we know what the people trying to hire Bryan Gates are looking for in a lawyer. BTW, if you are going to show hot women in their bras those of us with glasses need bigger pictures.

7. For some reason Public Defender Dude thinks a baseball player might get a break in court. It's the American League - who cares? Outside of watching to see what new and creative ways Boston can self destruct is there any reason to pay attention to a league which would stoop to using "designated hitters?"

14 September 2004

Waters v. Commonwealth 24 AUG 04

Sorry the last couple days have been noteless. I actually wrote up a long entry for the two latest Va. Court of Appeals criminal decisions but when I tried to transfer it from my PDA to the computer something went kaplooie and I lost it. So then I thought I'd try to do them as a video entry.

Well, it took a while to get done but here's the one for Waters. It's more off the cuff than it would be if I had written an entry so don't take any of it as gospel. If you think there might be something worthwhile in the case you should read it yourself. In other words, always remember THIS AIN'T LEGAL ADVICE.

Be Advised: I haven't figured out how to fix the problem of the the sound not syncing with the picture. It may not distract ya'll as much as it does me. I just keep expecting to see me stop in the middle of the video and point to the sky hollering, "Gozirra!"

[addendum] You know, it would probably be a little helpful if I actually linked to the decision.

Waters v. Commonwealth

Indigent Denial

[In Virginia there is a pretrial hearing to make sure the Defendant knows what he is charged with, what he is going to do for an attorney (and if he is eligible for a court appointed attorney), and to set bond.]

Virginia Pretrial hearing . . .

Pretrial investigator: Your Honor, Mr. Smith was out on bond for distribution of cocaine when he was arrested for this charge of distributing cocaine. There is a presumption against the setting of a bond.

Judge: Okay, no bond. Mr. Smith, you're asking for a court appointed attorney?

Smith: Yes sir.

Judge: How long's it been since you've had a job?

Smith: 3 years.

Judge: How have you been supporting yourself for the last three years?

[comment] At this point everyone in the room looks around out at each other. We're all pretty sure how this guy's been supporting himself.

Smith: ~pause~ I've been living with my girlfriend . . .

Judge: I find that you are not indigent. You have not sought employment for the last three years. This is a choice. You are not trying to support yourself; you are not indigent. You do not get court appointed counsel.

[comment] Never seen that happen before.

12 September 2004

Modern Traffic Enforcement

Monkey Prison

Proof positive that humans aren't the only villians in the world. Do monkeys get good time?

Drugs in the News

1. Farmers turn meth users pink.

2. And here's a shocking news item: A homeless guy uses the money he begs to buy drugs. Whodathunkit. But at least his panhandling was legal:
Officers also found a city-issued solicitation permit on Farr that allowed him to legally collect money on medians in Durham.
3. Perth is getting inundated with cocaine.

4. NE Scotland is getting hit with an influx of crack, but "they're winning the drugs war."

5. A mother whose baby died while she "cruised the city, trying to sell sex and buy crack cocaine" gets 8 years in prison.

6. "A woman has pleaded guilty to delivery of cocaine to a minor: the child in her womb."

7. Crack makes a guy whack.

8. Putting the heroin in your shoes doesn't shield it from the airport's x-ray machine.

9. Trying to treat a gambling addiction with the same drug as heroin addicts get?


A guy broke into an apartment and, while the resident was sleeping, fixed a sandwich, ate some pizza, and started piling up all the electronic equipment outside the door. Luckily a neighbor came by, caught him in the apartment, grabbed him, and hustled him next door so that the cops could be called (all while the resident slept).

Then, while being held in a room at the police station, the burglar broke the door and tried to escape.
In response to that alleged act, the officers again handcuffed Vessell to a pole in the area that serves the courtroom for municipal court and as a meeting room for the city council. He was then kept under constant supervision until transported to the County Jail at Farmington.

News Out and About

1. An anti-crime group really isn't buying a report commissioned by Rosemont, Illinois which says Rosemont has no Mafia ties:
Call me a cynic I guess, (but) it's not a surprise that your own paid investigators would give you a clean bill of health.
Aw, c'mon. Would the Mafia lie about being the Mafia just to get its fingers into a gambling enterprise? Never happen.

2. If nothing else, it looks like we may have cornered one export market:
The number of felons deported each year to Tijuana and Mexicali has grown – from 6,300 in 1995 to 9,500 in 2003.
3. Which may help to explain why our crime rate is down:
The 2003 violent crime rate — assault, sexual assault and armed robbery — stood at 22.6 victims for every 1,000 people age 12 and older. That amounts to about one violent crime victim for every 44 U.S. residents.

By comparison, there were 23 violent crime victims per 1,000 people in 2002. In 1993, the violent crime rate was 50 per 1,000 people, or about one in every 20 people.
4. Think the anit-gun folks will be happy once they have taken all our guns from us? Think again.

5. Boston in the Summer: Crime and Rats.

6. The number of people who are being caught driving without a license in Australia is growing by leaps and bounds. It makes me wonder if they have the same sort of laws we have here in Virginia which basically force the poor to break the law (drive) in order to do things like get to work.

7. Having your identity stolen two or three times has got to suck.

8. Is Canada turning too soft on criminals?

9. When the Sheriff lets you escape during a smoke break you'd best figure out a way to get the cuffs off or you'll probably get caught again.

10. And walking away from your work detail probably isn't going to make the remainder of your prison stay easier to endure.

11 September 2004

Around the Web

1. Mr. District Attorney has completed his week.

2. KEMPLOG discusses the extra punishment of those who dare clog dockets with an actual jury trial.

3. Stop the Bleating on the false results out of FBI labs as to the matching of metallurgical elements in bullets.

4. For some reason you aren't allowed to swing your pet alligator at your girlfriend. Go figure . . .

5. Manifest Destiny mapped out. It's not got anything to do with criminal law but it's neat.

My Law Firm Site

Sorry not much has gotten up here the last two days. I was spending the time getting my law office website up and running. It's far from perfect but it is now functional:

Lammers Law

As anyone who has read this blog for a while realizes, I like to go back and fiddle around using my meager HTML skills until I get a site the way I like it. I figure the site will eventually evolve into something more impressive (God willing) but the objective at this point was to finally get it up.


I was going through the trackers I use and these are the current results:

CrimLaw is the top Google hit for both Criminal Law Blog & Catholic "Public Defender" Blog. However, it's not even on the first two pages for Lawyer Blogs Criminal.

And, BTW, whoever came to my site via Google trying to figure out a way of "dodging traffic court," go pay your citation.

Hits from usdoj and uscourts continue but not with quite the numbers they came in when I was blogging more often about Blakely.

In the last 24 hours I have had visits from Fairmont State, Mississippi State, the University of Michigan, and the University of Chicago.

The top ten countries whence come visitors are: U.S., U.K., Canada, Puerto Rico, Australia, New Zealand, France, Japan, Netherlands, and the Philippines.

Most of my US hits come from the Eastern Time Zone. Usually it's about twice the other three contiguous US zones combined.

The top ten sites which have sent visitors this way are: Sentencing Law & Policy, Volokh, Crime and Federalism, Southern Appeal, Blonde Justice, How Appealing, SW Va Law, Waddling Thunder, Texas Law, and Begging the Question.

Top ten search terms: law, Virginia, Blakely, sentencing, blog, court, crim, guidelines, DUI, and felony.

09 September 2004

In the News

1. You know, the authorities never seem to have trouble finding a jail cell for my clients. Of course, none of them are named Martha.

2. Marijuana is still the top illegal drug.

3. Counties are opting out of the indigent defense system Georgia set up.

4. Marrying the woman who tried to have you killed?

5. Apparently the indigent defenders are being pressed back into service in Massachusetts.

6. If you are going to rob a bank don't write the note for the teller on an inspection report for your car.

7. Okay, I'm torn here. Kitten killers should at least get a conviction on their record. On the other hand appealing the disposition of a case by the prosecutor grates.

8. If you are going to steal a car, you'd best make damn sure that the father's child ain't in it.

9. No matter how many times they are told not to, inmates will always talk about stupid things over the phone. Not that I am complaining about this result - who plots to kill a kid?

10. In Connecticut it is unconstitutional to strip search minors who have been out of the control of the correctional facility (in court, new transfers, etc.) It's an interesting position to take. I understand the philosophy behind it but I'm not sure it tracks with the realities of some of the juvenile facilities I've been in.

11. Didn't they used to hang people for cattle russlin'?

12. An attorney is not supposed to steal his client's funds. Or at least you'd think he wouldn't be stupid about it. You take the money instead of paying the mortgage and someone will notice.

13. Police supervisors think it prudent to suspend an officer wanted in connection with the murder of two tourists.

14. Police are upset but the politicians aren't going to renew the ban on assault weapons during an election year: the right to bear arms being just a little too popular in the heart and hinter lands (you know - the "swing states").

08 September 2004

What Cops Know

I just finished reading What Cops Know. It's basically a collection of anecdotes as told by Chicago policemen and a lot of it rings true. I went through and marked a bunch of passages I wanted to post but realized that I'd probably spend the next week posting it (and get myself in a little trouble with Pocket Books). So the following five posts are five selections which I find interesting and worthy of comment.

Nice Guy Cops

I learned this when I was on the street. If you're gonna lock somebody up, there's no reason you gotta be an asshole. I mean, if the guys an asshole, fine. If he's not - don't treat him like an asshole. I've had people when I was a patrolman tell me, "Officer, you just ruined my stereotype of police officers." Because they expect to get beat, they expect to get kicked around, and when you sit and joke with them while you're doing the paperwork, they can't understand it. They actually say, "Hey, I don't mind going to jail. You can lock me up anytime." Some of these habitual people, they get locked up three times a month or so; they'd rather get locked up by a guy that's gonna have some fun with them than somebody who's gonna kick them in their cojones.
p. 18

[comment] The best officers I know are able to work the street like this. This officer knows the frequent flyers by name and has a friendly relationship with most of them. Some of his fellow officers are playing hardass and stalking the neighborhood trying to spring warrants on people. This officer will stop by the trailer of Joe's baby's momma and give her his card, telling her Joe needs to call him again. And Joe, even knowing he has a warrant, will call and arrange to meet with the officer because the officer was always friendly and joking the last three time he arrested Joe. Joe feels a little bit of an obligation toward the officer: kind of a weird we're all in this together comradery.

You can spot officers in the courthouse who are really good at this. They are the ones the Defendant walks up to and thanks in the hallway after he's been convicted.
Officer: "Well, Joe, you know I didn't want to do it. You need to be out there for your girl and her baby."

Def: "I know officer Smitty, you ain't never going to have to come round again."
The next week Officer Smith is knocking on Joe's baby's momma's door with yet another misdemeanor warrant.

Confessions to Police

It's very hard for people to understand why anybody would confess. Lawyers can't understand it. They think it must have been under duress.

But the killing of another human being is such an incredible experience - it's a very emotional experience to take the life of another human being. For most people it's a haunting, frightening experience. Fortunately, the killer wants to tell somebody. If he doesn't go to the cops, he'll tell a friend, a relative, and maybe that friend or relative will go to the cops. If the murderer hasn't told anybody else, if he's kept it inside, once we get them, they're exploding inside. They don't know if ghosts will start appearing, if they'll get the chair, if they'll go to prison and get beaten on and raped by convicts . . .
p. 86

[comment] I can't answer for other attorneys, but I definitely understand this. Of course, I spent 6 years in the Army as a professional interrogator. I think the officer here has got it a little wrong. What he's applying to murders is true in almost all aspects of life. People feel an overwhelming need to tell others what they have done or what has happened to them (some of them even inflict entire weeks of their professional lives on others). They will talk to others to brag or commiserate or just to pass time. If some pressure is added and the conversation is directed, the vast majority will tell you whatever you want to know. Interrogating someone in an atmosphere where he feels that he is in under your control (say in a police station) is actually a pretty easy task which doesn't often require anything more than the situational duress of having a secret and having an authority figure ask/demand that you reveal it.

Weird Understandings of the Law

Rapists never view themselves as rapists. They all have a rationalization.

There was this guy we arrested for rape; he was a serial rapist. And he had been arrested before. And we were talking about his prior, and he said he didn't do it. And he'd already been convicted and been in jail for this. I said, "Why?" He said, "I couldn't possibly be a rapist because she took her clothes off. And if a woman takes her clothes off, it's not rape." Well, in all cases, he made the victims take their clothes off. But in his mind, even if you're pointing a knife or gun at somebody and they take their clothes off, it's because they want to have sex with you.
p. 138

[comment] And, after he's confessed, yet again, to this crime he gets pissed at me because I won't argue his perfect defense to the judge during the trial.

If I had a dime for every time one of my clients had some offbeat legal theory which wouldn't pass the red face test . . .

Druggies as Dealers

If you use, you deal. That's an automatic. But a dealer doesn't necessarily use.

Anyone who has a cocaine habit is also likely to be a dealer, because he or she is looking for any way in the world to support their habit. If they know they can build up a clientele to where they can pick up an ounce for $800 to $1,200 and then make $200 or $300 on that ounce, they're paying for their own habit.

Or they'll fall behind in payments to their dealer. Then the dealer makes them a dealer, has them sell around to their friends, maybe, as a way to pay off the debt.
p. 200

[comment] And you know who is constantly getting caught and prosecuted for distribution? It ain't the major dealer who's bringing it all into the area. It's these little guys who ain't much more than users.

The Law of Unintended Consequences

[The mafia] used to break your thumbs or break a kneecap with a baseball bat if you were behind in your juice payments.

They don't do that anymore. You have to pay or you die.

Bosses don't want to be in and out of federal court with threatening people, and going back, and by then the guy's wearing a wire. If you've got him wound up so tight that there's nowhere else for him to go but the government, he's gonna go, and he's gonna wear a wire. If he owes and he won't pay, you want to set an example, you just kill him.
p. 303

[comment] I've discussed in previous punishment posts that if punishments increased the police would be placed in greater danger as those accused chose to resist rather than endure long prison terms. I must admit, I never thought of this. However, acting to prevent others from placing one in a position to receive a harsh sentence is a rational act - or at least as rational as any murder can be.

07 September 2004

Around the Blogs

1. The Year and a Day Rule rears its head.

2. Mr. District Attorney has made it to Thursday.

3. A policeman's view of how to deal with drug problems. (prisoners in the UK get their own suite and a room service button?)

4. Texas' first public defender retires after 30 years.

Blakely Briefs: Give 'em Hell

Over at SL&P, Professor Berman is shredding the briefs filed by the government and its amici:
When did Judge Martin enter the Bizarro World?

Great brief, wrong case: the three Senators' brief

Pulp Fiction
As you all will have surely noticed, since this post I really haven't been posting all that much about Blakely. All of what I have posted can be read by clicking "Blakley Roundup" under punishment in the right column.

Part of the reason I have stopped is that there is no way I can keep up with all the Blakely happenings and filings as well as SL&P while I spend my days in court, try to get my firm webpage up and running, and fiddle around with things like trying to get video blogging to work. Part of it is just disgust. A government which proclaims one position in briefing Blakely and now argues exactly the opposite; judges who put the "rights" of the prosecutor over the rights of the Accused; appellate courts doing their best to quash it all and ignore Blakely; courts and the government appearing to attempt manipulation of the choice so it's all or nothing; &cetera.

I've been thinking about the anti-Blakely (aB) positions for the last couple days since Professor Berman started his posts. Something about the arguments has been plucking at my brain - the form just seems so familiar. Then it hit me this morning. What the aB arguments remind me of are the anti-Exclusionary Rule (aE) arguments. More specifically, the aB arguments remind me of the options the anti-Exclusionists offer in stead of exclusion (police boards, suing officers, slight sentence reductions). Both aB and aE arguments make theoretical sense but lack any concept as to how things work in the real world. The purpose of both is to give theoretical cover to acts which in practice violate the constitution. It's asking the court to accept Plessy style reasoning in a Brown world.

Gypsies, Christ, & Crime

I don't vouch for the truth of this; but it is interesting:
One of the worst days in the police department is Good Friday. An awful lot of Gypsies steal on Good Friday. What's taught to the young Gypsy kids is that when Christ was put up on the cross, they had four nails to nail him to the cross. A Gypsy kid came by and stole one of the nails. That's why, on the crucifix, Christ's feet are nailed with one nail and the other two are in the hands.

That's passed down from generation to generation. So, according to Gypsy lore, Christ on the cross is supposed to have said, "From now and forevermore, Gypsies can steal and it's not a sin."

Good Friday's a big day for them. When I was working he Gypsies, we worked them for ten years, we would never take Good Friday because it was the day we'd have to get up early and be on the run with them because they would be everywhere.
What Cops Know, Connie Fletcher, p. 246

06 September 2004

Weeks in the Life of a Criminal Defense Attorney

Selected days of the last two weeks:

Monday: When I get to court Client is already sitting there. After I touch base with the prosecutor, I go out in the hall with my client. When Client starts to talk to me an odor reaches out and slaps me in the face. As his attorney, I'm sure it was only mouthwash. Anyway, within a minute Client is yelling at me. I calm him down and send him outside to get his witness.

Meanwhile, I talk to the prosecutor and she agrees to drop the charges because of an evidentiary issue we had talked about previously. Client comes back, still unhappy. I walk him into court and the prosecutor called the case and moved "nolle prosequi." After the charge had been dropped he became the happiest guy in the world. Back out in the hall he is so happy he's bouncing and he rushes over and hugs me. Then he leaves with a spring in his step.

: In the afternoon I drive out to Beaumont Juvenile Correctional Facility to visit a client. When I get there they take one look in my wallet and tell me that I have too much money and it's got to go back out to my car. I jokingly comment that I don't intend to give it to my client and the guard looks at me stone-cold and intones, "You've still got to take it out to your car." He also has me take a bag of change I have in my pocket out. Then when I come back I have to check keys in before I can go in. However, they let me take the 4 pens in my pocket and the stylus in my PDA, all of which are devastating puncture weapons (and the stylus would hide easily). The meeting takes all of 15 minutes and despite the worries of the guards no money or weapons pass hands. In fact, the most interesting occurrence was getting interrupted a couple of times as the kids in the infirmary waiting room next door shouted because of the video game they were playing.

Friday: I arrive at court for a girl charged with embezzling, grand larceny, and possession of marijuana. She has brought her father along to talk to me about her charges. I tell her father that she has confessed (twice) and he turns to her and says, "What? Do you want to go to prison?" We go into court and the marijuana gets taken under advisement and the larceny gets dropped but the embezzlement gets certified to the grand jury.

Then I represent the kid I went to see in Beaumont the night before. He's charged with exposing his privates to a female employee. She agrees to talk to me before the trial and tells me that the kid has flashed on numerous occasions and she just wants him into "sex offender" counseling and to stop doing it. Well, the prosecutor ain't going there (not sure it can be ordered) and offers my client a couple months jail time. Client literally jumps up off his bench when I tell him the offer and accepts

Monday: I go to court to represent a woman charged with felony failure to appear in court. She had been charged with possession of cocaine but not come to court. Eventually, the drug charge was dropped because the analysis never came back from the lab. But she's still going to get her first felony because she didn't come to court until they arrested her and held her for court. I move for immediate sentencing and that she be sentenced to the two months she spent in jail waiting for court. The judge agrees, lectures her, and limits her active time to that which she has already served.

Then I have a sentencing hearing for another client who was locked up because he didn't come to court on his last court date. His charge is felony eluding. He got pulled over and while the officer was standing next to his car (asking for a driver's license) Client shifted car into drive and, ignoring the officer's yell "Don't do it!" drove off. The police follow and, after Client has hit another car, catch him after he bailed and hid in an apartment. I point out to the judge that the reason my client fled was because he had a suspended license (a misdemeanor) and give the "mountain out of a molehill" speech. The judge sentences him to a year in jail.

Thursday: In the morning I go to court for a client who is accused of grand larceny. He took a lawnmower and was even kind enough to admit to the officer that he sold it for $20 in order to buy drugs. I'm dubious as to value of a push lawnmower being more than $200 but it never becomes an issue because the prosecutor agrees to drop the charge to petit larceny and recommend time served

In the afternoon I have two cases in circuit court and one in general district court. I go to circuit court first. Luckily, both clients are in the same courtroom; one is a plea agreement and the other is show cause.

The first client is charged with possession of cocaine and conspiracy to possess; the plea agreement will require him to serve 3 months on each charge. When I walk in the prosecutor shows me that my client had already filed a motion for a reduced sentence. It takes me a few moments but I figure out that this is actually motion for the six months he had been sentenced to on a felony petit larceny three months prior wherein he was represented by Attorney Smith. When the judge hits the bench the prosecutor explains this to the judge who then tells us all that my client has written the court once in each of the last two months asking that I be replaced by Attorney Smith. She asks the client if he still wants Mr. Smith to replace me and, without the least look of chagrin, he tells her that he's happy with the work I've done for him. So the judge accepts the plea.

Then my second client is called out. He is there for a show cause why he shouldn't be imprisoned because he violated probation. A year prior was convicted of B&E and grand larceny and got all suspended time; in February of this year he was brought back before the court on a show cause and all his time was suspended again on condition that he go to a drug treatment program. He's now back in front of the judge for having absconded from the drug program and having picked up new felony and misdemeanor charges in three other jurisdictions. Doing a show cause in a case like this is a lot like watching a train wreck. There's usually not much you can do but watch it happen. I talk about my client's addiction and try to get the judge to order him into a lock in treatment program in lieu of some of the prison time. In the end the judge sentences him to a year in prison.

Then I go down to the general district court. It turns out that they had a very light docket and they're all waiting for me. My client comes forward and pleads not guilty to trespass on 15 February and not guilty to petit larceny on 17 February but guilty of trespass on that date. I'd previously talked to the store manager and knew that on the the 15th they'd ordered him out of the store. On the 17th they'd chased him out of the store with "lumps" under his clothes and then called the police to file a complaint. The officer filed the complaint 3 days later and my client was picked up June. The officer confirmed all of this. Today the officer's not here because he isn't a witness to the facts. The store manager gets up and starts testifying about how they caught my client with meat packets spilling out of his coat and held him until the police arrived and arrested him. I figure out pretty quickly that he's testifying about a previous event in December when my client was arrested but the charge got dropped because the store manager did not show up for court. I confront him with paperwork from that event and he, I and the judge go around in circles for a few minutes looking at all the paperwork and comparing how his story doesn't match the current event. Then I call my client who testifies as to one fact only: when the prior charge was dismissed he thought that he was no longer banned from the store (at least until they told him on the 15th that he was not to come back again). The judge looks down and tells him, “It's an excuse – not a good excuse – but it's an excuse.” In the end the judge finds him not guilty of the things of which he pled not guilty and then sentences him to 30 days (15 days to serve) on the trespass of which he pled guilty. I go in the back with Client and he is pissed about the fact he's going to jail.

Friday: I go off to the county next door for three cases. In an unusual occurrence, I arrive early enough that I can go across the street and get breakfast at the local restaurant. The fact that I am early is, of course, a harbinger of bad things. I get to the courtroom 15 minutes early and try to persuade the prosecutor that my client's .08 DUI (2d) should be reduced but he's not having any of it. As we are up at the bench talking the courtroom fills up. By the time court starts there are so many people in the courtroom that the walls are lined and there are people out in the hallway. Pre-trial hearings are from 9-9:30 and then the traffic docket is supposed to go from 9:30-11:00; there's no way the court is getting through all those people by 11:00 and we all know it. As I'm sitting there waiting the deputy in my DUI case waves to me and we go outside of the courtroom to talk. He makes sure that I know that the DUI is a second within 10 years and then pitches me the idea that this could be reduced to a reckless driving. I tell him that I'm right there with him but that I've already been shot down by the prosecutor. He tells me that he will talk to the prosecutor himself. Sadly, he must not have been any more persuasive than I was because the prosecutor sticks to his guns. So, when my client's case is called somewhen around noon he pleads guilty and gets 20 days in jail (10 to serve).

I'm not exactly sure when the judge got to the 11:00 a.m. criminal docket but I think it was actually sometime after 1:00 p.m. My client's case is called and he waives his preliminary hearing. Then I sit around waiting for my show cause to get called. It's called sometime after 2:00 p.m. and I go up and ask for a continuance. My client is unemployed and owes money on old fines. She is slowing finding ways to pay it all off in dribs and drabs so the judge gives her a continuance until the next month.

I'm not sure when I finally left the courthouse. I stopped and ate a gyro at a restaurant across the street and finally left there a little after 3:00 so I must have left the courthouse around 2:30. Gotta admit the judge impressed me when she fought all the way through the criminal and traffic dockets before she took her break. In her shoes I'd at least have taken a break for lunch. I finally get back to my office and sit through what little remains of my office hours and meet with one client.

Thus end a couple more weeks.

05 September 2004

Interesting News

1. 95% of all criminals need public defenders. Now, I know you're all a little skeptical that the majority of people who break the law and/or have it enforced against them are poor. Nevertheless, I think there may be some truth to it.

2. A law in Australia does not allow accused to cross examine complaining witnesses unless they have an attorney to do it for them. In a case where two men chose to represent themselves it looks likely to cause the overturning of a conviction.

3. In Virginia you can still be convicted of criminal adultery. How sparse has your docket got to be to pursue this type of charge? I'd think it had to do with the fact that the wife is the Clerk but the prosecutor states this is not the first of these charges he's gone forward on.

4. A 14 year old runs out of money and tries to rob a bank.

5. The reason that picking up a prostitute is not a good thing: "20 nabbed in prostitution sting -- 15 men dressed as women."

6. "Since 2001, more than 50 people have died in the United States after being shocked by a [police] Taser."

7. As demand for heroin has been going up, the price of heroin has been going down.

8. If you are on the drug task force you cannot trade sex for leniency. It's frowned upon.

Don't Mess With the Jurors

Why would you feel it necessary to convict a 64 year old woman who told a juror, in a case she was not involved in and which never actually went to a jury, "Just remember, the district attorney lies"?


04 September 2004

Video Blogging Part 2

The video blog entry in the next post has been changed.

I found some new software to convert files so that the motion isn't choppy and portions aren't cut out (and no label). I couldn't fix the out of sync sound track in the portions at the beginning, even when I reshot one portion. At first I thought this was a function of not having a microphone but I got one of those and it is still out of sync. Now, I think it is a byproduct of the download program which comes with the Samsung camera. The next step will probably be trying to find a better program for that.

03 September 2004

Video Blog Entry

Here, ladies and gentlemen, is my first attempt at a video blog entry.

I apologize for the words emblazoned across the video. I have to convert the .asf files which my video recorder creates into a more workable format and this is the program I am trying out. I assume if I buy it the statement will go away. Not sure I will buy it though, as you see in the beginning the conversion of motion did not work very well.

However, I am impressed so far with windows movie maker. I'm sure there are more advanced programs out there but for the moment it seems to do everything I need.

My video camera is a Samsung SCD107. It's a nice, basic camera and I'm still learning to use it. You'll notice that the auto white balance did not work too well at least in one section. Since filming this I've discovered that white balance can be done manually but I've yet to try it.

As well there are certain filming tricks I'm going to have to relearn so that sections don't start too early or cut off parts but hopefully that will all get more polished as I go along (assuming I try this again).

Hopefully it's not too painful.

02 September 2004

Should Kobe Have Stood on Principle?

In a comment to a post labeled Rich Rapist Goes Free Uncivil Litigator posits that " if [Kobe] believed in his innocence, he would allow a jury to review the case against him and acquit him."

I'm cannot say that I'm of a like mind. The scenario seems to have been that Kobe's Defense team was getting a solid upper hand on the prosecution. The prosecution offers to move for a dismissal, with prejudice, if Kobe apologizes. He is not required to actually admit anything; in fact, he can state "I truly believe this encounter between us was consensual." As well, the complaining witness agrees that nothing in the statement can be used in a civil suit.

On the one hand this is a guaranty that there will be no conviction and no prison time.

On the other hand, let's assume that there is an 80% probability of victory at trial, or even better a 90% probability of a not guilty finding. That means there is a 10% chance that your client could be convicted of a major felony (sexual assault). As best I can tell that means he would face a presumptive range of 8-16 years. That's a 10% chance that his career will be destroyed. A 10% chance that his life will be ruined.

This choice is a no brainer.

Uncivil Litigator characterizes a recommendation that a client accept this as telling a client to lie in order to make a plea agreement. I don't see it that way. I don't read anything in the statement which is a lie. Do I believe that the statement was heartfelt? No. Were points finessed? Yes. Did the statement bury Kobe as far as the civil case? Most definitely. Would I have recommended the deal? In a hot second.

When you are dealing with your client's life you must be pragmatic. Of course, you don't break the law, perpetrate a fraud on the court, or act in contradiction of legal ethics. Outside of that, if the prosecution comes to you and tells you that it will guaranty your client will not be prosecuted if . . . you are pretty much obligated take that deal to your client. It's not the time to be overly idealistic.

Here's a good summation of the case.

Public Defender Dude registers his complete lack of surprise at the outcome and his reasons for the lack of shock.

It'd Be Nice

You'd hope that the prison might contact the next of kin if someone in it died.

Still, three months might not be too unreasonable if the DOC can show that it was making efforts. It's possible that the inmate did not give a proper name or address for next of kin (I assume they are asked when processed) or gave a wrong address. In such a case there might be difficulties locating family. It might take three months if you didn't know where to start looking.

Of course, those who visited him and/or sent him letters and had the same last name might be people you'd check pretty quickly . . .

Thanks to FMF.

Court Refuses

The Montana Supreme Court decided it did not have jurisdiction to order an investigation of the cases of a former director of the Montana State Crime Lab despite evidence that he had acted to convict innocent people.

Prisoner Advice

Spending time in prison writing a booklet about how not to get burglarized.

01 September 2004

Who Knew?

I'm now an excuse to not pay attention while the property professor drones on about the effect of adverse possession on a coparceny under the common law of 17th century England.

Open and Notorious

Yesterday, I go to the Barnes and Noble to find something to read. I find a book and scoot out the door because I want to get back in time to watch the world series of poker.

As I exit the building, I notice that a (maybe 18 year old) male is standing on one side of the doorway looking chastised while an even younger looking girl is standing on the other side of the door yelling at him. I have to walk between them to exit the store and hear this snippet of their conversation:

Girl: . . . You're going straight? I don't believe it!

Guy (contrite): I have to give up marijuana anyway. . .

Girl: Yeah, but alcohol?

Guy: Alcohol always leads to me using marijuana . . .

Girl: That's no fun, you can't do that . . .

At this point I had gotten far enough away that discernible words faded. Still, I was able to hear her voice berating him until I got into my car.

I leave the social commentary to ya'll.