31 December 2004

The Year in Retrospect



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I went back through the Blog and my personal memories trying to remember what the significant events of the past year have been in my criminal practice. Looking back it hasn't been the greatest year I've ever had; most of the memorable moments have been distressing. Still, here it is (in timeline order):

May 04 - The first thing that really sticks in my memory happened in May. My client was charged with malicious wounding but most of the damage had been done by his co-defendant. Client pushed the complaining witness, who fell forward and burnt his hands slightly on the edge of a bonfire. Co-defendant then jumped the complaining witness and beat him over the head with a beer bottle causing a number of cuts, lots of blood and a trip to the hospital. Both co-defendants were charged with malicious wounding (5-20 years).

Co-defendant's attorney asked for a jury trial. On the day of his trial my client was there for a continuance and the attorney for the co-defendant tried to talk me into taking my client to the jury with his. Realizing that a finding of guilt by the jury would have meant a sentence of five years minimum (juries cannot suspend time and judges rarely do after a jury trial) and that most of the really bad stuff would come in against the co-defendant, I decline. The next day I call the court on another matter and ask how co-defendant's trial turned out. The jury reduced it to a misdemeanor battery and sentenced him to a month (15 days to actually serve).

Later in the year my client had his charge reduced in his bench trial from malicious wounding to unlawful wounding but that was still a felony; he was sentenced to served three months. What seemed like a correct tactical decision led to the worse of the two offenders getting a lesser punishment.

May 04 - I win my first appellate case. It was an appeal by the prosecutor of evidence suppressed which the Virginia Court of Appeals dismissed out-of-hand, without even an oral argument.

August 04 - For the very first time I am quoted in a news article in the MSM. It's a comment about Blakely. Unfortunately, the article is no longer available but my explanation is here.

September 04 - A client gets 20+ years in federal court. The case has been a trainwreck from the beginning (up to and including the superceding indictment) and a few days after the trial a member of the family gives me an earful about how terrible a lawyer I am.

December 04 - After spending several months trying to get the prosecutor to drop the charge of releasing a noxious gas in public we end up arguing it at trial. For the life of me I still do not know why the prosecutor clung to this charge so tenaciously. It was about "Halt! Dog Repellent" and he even agreed to stipulate that it boiled at 212 Centigrade and released pungent fumes at 175 Fahrenheit. For goodness sake, the stuff sprays in a 12 foot stream. Anyway, by the end of the argument I had the judge solidly on my side.

Of course, it was a pyrrhic victory since Client was convicted of spraying this stuff at the officer (felony A&B; up to five years). The judge's comment at the end was, "Mr. Smith, what you did was despicable but it was not a violation of this statute." We are waiting for the sentencing hearing.

December 04 - A judge finds my client guilty of not returning a rented car when my client was in jail and could not return the rented car.

21 December 2004 - After practicing for almost five years I get my first ever letter from the Bar labeled "Personal and Confidential." I spend the next week digging through 2+ year old files and trying to remember (too many cases which all start to blur after a while). On 29 December 2004 I send my reply; now I wait.


And those are the highlights and lowpoints of the year behind me. Next year I'm going to win all my cases. Next year all my clients will be satisfied. Next year I will convince all the prosecutors to be forgiving rather than vengeful. Next year I will sway each and every single judge with my amazingly cogent arguments. Next year . . .

Terrorist Attack in Rural Virginia

Not likely but that doesn't stop the feds from pooring all sorts of money into different areas. Some have used it to buy things to improve police and fire prostections. Others have bought gas masks. The question is whether the masks are readily available because - if the training I got in the Army was accurate - there will only be seconds for those in an effected area to react. If the masks are stored in a wharehouse or they are locked in the trunk of the police car (I've not seen officers with them strapped to their waists) they aren't going to help with anything.

30 December 2004

My Post @ C&F

I'm guest hosting over at C&F for the next couple months so that Fed84 can study for the bar. I expect to put a post in over there every couple days and just added my first major post about the law in Virginia as it applies to abductions. I doubt all my posts over there will be that long (I do have to work after all) but hopefully my contribution will allow him to study a little more.

As I think most of you may know C&F is on TypePad. Getting used to the interface has been interesting. Yesterday it ate the post I put up over there this evening because I back-clicked. Much like Blogger's interface it doesn't work well with my browser of choice, Opera. It semi-functioned when I tried Firefox. However, to get all the functions I had to use Explorer - just like I have to with Blogger. The only function I've seen so far which I really like is the ability to choose which posts can have comments. Other than that my decision to remain with Blogger is looking good to me so far.


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HEADLINES


Appellate Law

1) Do a bad job as a judge in the Philippines - lose everything.

2) Upholding 17 counts of filing false tax returns.

3) Remember, if thou be of larcenous bent, the Alabama Supreme Court said that if you can fake 'em out for three years the statute of limitations will run.

4) The Maryland Supreme court rules that 3 strikes means three strikes in Maryland.


The Windy City

1) The police told the Chicago Trib that crime is down.

2) They also told NPR.


DrugLaw

1) Bringing marijuana into a juvenile detention facility - on Christmas.

2) India and Pakistan have found something to agree on: drugs.

3) 83.6 pounds of cocaine.


DeathLaw

1) Will Kansas fix its death penalty or scrap it?

2) "Massachusetts, Gov. Mitt Romney is preparing to file [an error proof] death penalty bill early next year."

3) The first of many books about the Peterson trial.


DUILaw

1) Infinite Creativity: Using an air compressor to defeat ignition interlock.

2) You might talk an officer out of an arrest but how do you convince the video tape?


Miscellaneous

1) Australia is now happy to be a land of criminals.

2) Big Brother: computers, computers, computers.

3) Is a 9-11 call of and by itself exigent circumstances?

4) Poker Champ turned to crusading crime fighter.

5) From OK and 3Sheets: If you are going to fake a hate crime don't carve a word into your head backwards.

6) Stupidest Crimes of the Year - LvCrimProf

7) Should Scott Peterson have testified?

8) Disparate and arbitrary - the difference between small time offenders in the State and federal systems.

29 December 2004



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HEADLINES


1) A Virginia judge banned from presiding over criminal cases.

DeathLaw

1) Competent - so now we can kill you.

2) Ohio will not enforce a death penalty for someone who did not kill anyone in its jurisdiction.

3) Should the UN General Assembly vote against the death penalty?

4) Junior seer questioned in a murder. (Somebody please explain this one to me)

Miscellaneous

1) No guns? Then you take care of the knife problems.

2) The Supreme Court and parents in Washington State.

3) Settling the great bare-hand catfishing controversy once and for all time.

4) Shock probation?

5) Victim's Rights advocates versus the criminal lawyers.

6) Misdemeanor refusing to leave church.

7) Is withholding tithes stealing?

8) Getting people into jail for non-jailable offenses (the UK way).

9) 247 page "brief" from the government in the Martha case.

10) A new criminal code for Illinois.

11) Inmates stop a jail break. BTW - a 74 year old guard?

12) A jury badly deadlocked is solved when the prosecutor finds out some jurors have been previously convicted.

13) "Defendants who fail to turn up at court in Coventry could be arrested at work or even in the pub, police have warned." What used to happen? Was the accused murderer who did not show up for his trial verbally reprimanded when he ran into a member of the constabulary? "Joe, you need to show up at your next trial so we can send you to prison for 30 years. Now, hurry home with you; and make sure you're in the courthouse Thursday after next."

14) "Horizontal Gaze Nystagmus" - Sounds like something evil from The Lord of the Rings.

DrugLaw

1) Do drugs cause the pleasure center of the brain to shrink or are those pulled to drugs equipped with a smaller pleasure center?

2) Kentucky's success with alternative drug treatments.

3) Big drug bust in Philly.

4) Infinite creativity - Heroin hidden in oranges.

5) Will marijuana become a ticketable offense in Texas?

GangLaw

1) Female gangs on the grow.

2) Square Peg meet Round Hole - Charging gang members as "terrorists."

28 December 2004



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HEADLINES


DeathLaw

1) Virginia to Banish Juvenile Death?

2) Prince Charles and the Islamic Death Penalty.

3) $230,000 not to kill a man.

4) Don't commit bigamy in China.

5) Is the snitch only believable when he testifies for the FBI? Or can he still be believed when he testifies against it?

6) Incompetent to be interviewed?

7) Killers against the death penalty.

DrugLaw

1) 8 tons of drugs defended by rocket launchers.

2) Is having a bank safe door in your house probable cause?

3) Smuggling drugs in chocolate cars.

Miscellaneous

1) Nolte sued for a rape when he wasn't even there.

2) Prosecutors: You cannot comment on "taking the 5th".

3) New York to have negative crime numbers.

4) Use a getaway car that runs.

5) Cool, the Intoxilyzer 8000 - sure to have just as many problems and errors as the 5000. Not that it will make much difference since most defendants won't have the money to hire experts to fight it.

Appellate Courts

1) Skakel to the Connecticut Supreme Court.

2) Ginsberg removed by the Minnesota Supreme Court.

3) In Kentucky the defendant must have all the ingredients before he can be convicted of cooking meth.

27 December 2004

CrimLaw Radio



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HEADLINES


1) LA starts using iffy facial recognition technology. LvLaPorte

2) Bond in the Bush.

3) It's legal to put you on the website; it's just illegal for you to look at the website.

4) Top ten sentencing stories of the year.

5) Friday starts the Michael trial.

6) Walking miles to get to Mom's house - with a bullet in his head.

7) It's a sin.

8) Thanks to Mark Symms.

26 December 2004

It's a Wonderful Bunny Life

It's a Wonderful Life Done in 30 seconds by bunnies.

Sorry, Harvey is not in this one. And anyway, he's not really a bunny he's a pooka.

LvProCent

Around the Web

1) CrimLaw Radio Style

2) Hey, I got linked in German. (twice)

3) I won't believe that the MSM is truly interested in blogs until I'm mentioned in the NYTimes, Washington Post, and Guardian.

4) Anonymous rape complaints.

5) To name change or not to name change, that is the question.

6) Prosecutorial misconduct from a PD's perspective.

7) Is the deck stacked in DUI cases?

8) Peremptory challenges.

9) Feds investigate a traffic court.

10) How are you supposed to take a shower without breaking the law?

11) Exploitation at strip clubs? Say it ain't so . . .

12) A federal judge stops a plea agreement and orders the prosecutors to prove it anyway. LvLaporte.

23 December 2004

Pardon? What Pardon?

Yesterday's theme of the day around the blawgosphere was how President Bush fails to use the pardon power in an effective and just manner:

Bush's stingy pardon practice

I Beg Your Pardon

80% of Recent Bush Pardons Were Convicted of White Collar Offenses

Bush the Grinch Pardons Few

Bush and the Pardon Power

Pardon Me, But Why?

MORE ON BUSH'S STINGINESS REGARDING PARDONS

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I really don't think we are going to effect this administration's stand on this issue. To be sure, I see the reason that Presidential pardons should be used to balance out an unfair federal system where you can be sentenced for things you were found not guilty of, where long-standing doctrines like the "exculpatory no" have been abrogated so that even if the prosecution cannot get together enough evidence to accuse a defendant of the crime it was investigating it can comb through its records and if it finds an untruth charge the defendant with lying to a federal agent (see Martha Stewart), and where a person who is a lower level conspiree can get more time than a higher level conspiree because the lower level guy doesn't have information to sell in order to get less time. However, I don't see any administration wading into the criminal justice system and expending the time and political capital it would take to use the pardon power to correct these sort of systematic problems.

Given this, pardons strike me as always being entirely arbitrary. Can an arbitrary system ever be fair? No. Short of wholesale pardons there will always be those among the convicted who deserve a break. Political necessity will keep any president from giving too many pardons, whether they are deserved or not. The test is probably that the number of pardons will always be kept at a number low enough to fly below the media's radar (and thus avoiding the attention of the citizenry).

Whether it is arbitrary at 30+ pardons or 100+ doesn't really change anything. If it's not going to be used to fix the flaws in the system it's purely an exercise in emotions and/or politics. In other words, there will be "feel good" pardons (probably strategically announced around Christmas or Yom Kippur or Eid al-Adha) and pardons as an effect of being a member of the monied class. I would be very interested if anyone out there has a breakdown of how many of each of these two types there were in the Clinton administration and how many in Bush the Younger's administration.

I think Bush probably thinks he is on the right path. He shows contentment in his convictions (I'd say courage but you need serious opposition for courage) and seems to have an abiding trust-belief that systems work, whether they be legislative or judicial or administrative; how often have we seen him step up after a decision has been made by any organ of the government and oppose it? Therefore, it's not all that surprising that he's not disturbing judicial decisions made by others.

Would I like to see the current administration give out more pardons? Yes. The application of an arbitrary method to reach equity in some cases does justice for at least those few souls.

But it ain't gonna happen.

Mystery Solved

Okay, the mystery of the quiz is now solved. The young woman in the photo is Ashlee Simpson (thanks to Anon for the tip). She's clearly of age so there is no problem here.

How, you ask could I have not recognized a pop star of such renown? Of course I knew who she is. Who hasn't heard about the SNL lipsyncing fiasco? It got its own parody site and reactions from famous stars. It even got her an offer to come back to SNL and try again.

Still, the hair color change led me astray. She changed from a pretty blonde to a not so pretty Joan Jett imitator. I assume she is paying royalties to Ms. Jett for infringing on the look; now if she could only get a loan of the talent (of course I haven't heard Joan Jett in about 10 years - I am assuming there is still talent).

  

People's Opinion of Lawyers

I spend Tuesday night and Wednesday morning trying to find the correct form for a habeas corpus ad subjiciendum for Virginia. I am all over the web and through all my books but all I can find are forms from other States and the federal system. Finally, I give up and go to the courthouse to check the law library.

I'm dressed in a dark blue-gray sweatshirt and an old pair of jeans which are about 5" too long and scrunch up down by the shoes (I had had no intention of going to the courthouse that day). As I come in the deputy razzes me, telling me that I "look like a defendant." I joke a little with him but think nothing of it and head to the library.

After another 45 minutes I am absolutely frustrated. I can find copies of the federal form and West Virginia's form but all I can find which is Virginia specific is a book which has a small section talking - in vague terms - about Virginia habeas. The librarian comes out and asks what I'm looking for. I tell her and she offers to help but I decline saying that I've pretty much looked everywhere from WestLaw to the internet to all the books I can find. After she goes back to her office I pull another book off the shelf and start looking through it.

At this point a lady who was sitting at the next table walks up: "You gotta keep looking. I know what it's like to be frustrated. I get frustrated when I can't find things too but I sit and think up another way and then I find stuff. I always look up things myself - you can't trust the shysters."

22 December 2004

Statutory Rape

It has been suggested that the quiz I had taken and posted here was evil and tried to take advantage of my male nature by directing me to a 13 year old girl - Jamie Lynn (Spears). Here are the two side by side:

  


I don't think they're the same person but I might be wrong.

[BTW (and totally off topic) Ladies, if you want to absolutely mesmerize fools like me wear the contacts which make your eyes bright blue like this (or the green ones). I stare like an idiot and pretty much agree with anything the lady asks of me. (at least in the short term)]

Anyway, with Mister DA talking about statutory rape laws it reminded of an unusual event in my life:

It all began while I was studying for the Bar exam. I was self-studying (which I do not recommend) using MicroMash. For some reason the MBE section kept going back to statutory rape over and over. The section kept speaking about it in general terms - not Virginia specific. However, being in Bar study mode I freaked and looked up all the pertinent Virginia statutes.

So the Bar comes. On the evening of the last day a group of W&L law grads meet in Lexington and sit around in the local bar getting soused (as everyone must after the exam). At one point the conversation turns to kidding one of the guys about something to do with younger women. My brain contained the knowledge but my sense of propriety had been killed by the combination of relief that it was over and a healthy dose of beer. I blurt out, "Hey, don't worry about it man. It's only rape if she's under 13. 13-15 it's carnal knowledge and if you're charged all you have to do is marry the girl and the charge will go away."

The woman sitting at our table looked at me as if I'd grown a horn on my head: "How do you know that?" At this point the booze chose to shut down my ability to answer questions quickly and I sat there dumbfounded and kinda shrugged my shoulders. She moved off to another table with a strange look the whole way. Of course, it didn't even register with the guys at the table; they all acted as if I had just stated something that was common knowledge. Still, to this day I'm convinced that if I accomplished nothing else in law school, I managed to convince one fellow student that I was a perv. Not a goal when I got to the school but I think it was probably one of my more memorable accomplishments.

Martha & Prison

Apparently Martha doesn't cotton to the food at Alderson.

Hating Virginia

Here's someone who really doesn't like the criminal justice system in Virginia.

21 December 2004

A Funny Thing Happened on the Way To the Jail

Sometimes weird things just happen:

I walk into the front door of the local jail. The deputy looks up and hits the door button, the door buzzes open, and I walk into the front office of the jail. As I walk into the office the deputy is on the phone. Suddenly the deputy says, "OK", slams the phone down, grabs his keys, runs past me, lets himself out of the office by key, and runs full tilt out the front door of the jail. I'm left standing all by my lonesome in the front office of the jail for at least 10 minutes.

An older lady walks up to the office's front window and hits the button on the speaker box, trying to talk to me. She doesn't realize the button is just there as a buzzer to let someone know there's a person at the window and that I can't hear a word she's saying as long as she holds the button down because it is causing a constant, loud buzzing. I try to wave at her to get her to take her finger off the button but it doesn't work. Finally, after a minute or so of watching her lips move while this annoying buzzing continues, I walk up to the window and yell at her to take her finger off the button. As soon as she does that we can even hear each other without the intercom and I tell her I 'm waiting for the deputy just like she is.

A few minutes later a major in the sheriff's department comes up to the outside door. He can't get in because he doesn't have the key. So he motions to me and after a couple tries I get the button to open the door. The he asks me if I was helped before the deputy left. I tell him "no" and he looks at the computer and log books. I think he's trying to figure out exactly what he's supposed to do to get me in to my clients.

At that moment the deputy comes walking back in huffing and puffing. The major asks, "Was that him?" The deputy replies, "Yes." Then the major leaves and the deputy processes me in. He won't tell me what was going on and I didn't see anything in the news about any jailbreaks - I'm still clueless about what was happening.

Still, for about ten minutes yesterday I was the person who was sitting in the office which controls the front door of the jail. Me, all by my self - a Defense attorney in control of the front door of the jail.

20 December 2004

Criminal Intent in Virginia

Jack, of CrimProfBlog, asks - in relation to my Worst Attorney post - the following questions:
1. Doesn't larceny in your jurisdiction require mens rea of intent to steal or the like?
"[B]ecause Code § 18.2-117 is a statutory, not a common law crime, proof of intent to permanently deprive is not an element necessary to sustain a conviction for its violation." Ketchum v. Commonwealth, 12 Va App 258, 262 (1991). This is the prevailing interpretation in Virginia and in order to get there the Virginia Court of Appeals had to ignore two (non-binding) cases from the 4th Federal Circuit and construe a 1985 case from its own court, Molash v. Commonwealth, 3 Va. App. 243 (1986), in a strained manner. Still, it's the law.
2. Doesn't the fact that failure to return within five days is only prima facie evidence of larceny make clear that failure to return is not conclusive evidence?
So I had thought. However, a realistic interpretation of these prima facie assumption statutes is that they shift the burden entirely to the Defendant to prove his innocence; I know appellate courts will offer some sophistic difference here and claim the burden still lies with the prosecutor but that's just not the reality in the courtroom. Still, I thought a I had an affirmative defense that would prove my client's actual innocence (impossibility of performance).
3. Doesn't your criminal code have a catch-all requirement of mens rea in it somewhere?
Criminal code? What be this criminal code?

Virginia's criminal law is a hodge-podge of basic crimes which are defined by common law and various statutory patches which have been put in place over the years by the Legislature. For instance this is the basic grand larceny statute:
Any person who (i) commits larceny from the person of another of money or other thing of value of $5 or more, (ii) commits simple larceny not from the person of another of goods and chattels of the value of $200 or more, or (iii) commits simple larceny not from the person of another of any firearm, regardless of the firearm's value, shall be guilty of grand larceny, punishable by imprisonment in a state correctional facility for not less than one nor more than twenty years or, in the discretion of the jury or court trying the case without a jury, be confined in jail for a period not exceeding twelve months or fined not more than $2,500, either or both.
Notice that it doesn't define larceny. There's a lot of this sort of thing in Virginia's statutes.

As to a statutory requirement of mens rea? If you can find one you would become an immensely popular person among Virginia's Defense bar. The Virginia Supreme Court has flatly stated that felony criminal statutes are strict liability statutes if they did not exist at common law and the Legislature included no intent in the statute. (see this post)

Happy Season!



I got my Happy Season! card from my law school.

If you're not going to recognize what the season is, why send the card?

At least it's not as bad as the local TV ad I saw wherein the employees wished us all "a Happy Christmas, Hanukkah, Kwanza, or Ramadan - whichever holiday you celebrate." I about hit the ceiling. If you are going to be Uber-PC at least make sure that you know of what you speak.

First, Ramadan is a floating season and this year it wasn't in December; this year it started on 16 October and ended with Eid al-Fitr on 14 November. And technically it's not a holiday, it's a fast (although if you've seen the nightly parties in Middle Eastern countries during Ramadan you might wonder).

Second, if you are trying to hit major religious seasons such as Christmas and Ramadan you might want to substitute Yom Kippur for Hanukkah. Of course, it was on September 25 this year so it probably wouldn't fit.

Third, Kwanza. As best I can make it out Kwanza is a philosophical-societal-historical bonding holiday. As such it could fit with the others in a manner. But it's not a religious holiday so why mention it with them unless there is an underlying assertion that the three religious holidays mentioned are of faiths which exclude those who celebrate Kwanza? It is a disturbing undercurrent.

Yeah, I know, I shouldn't let these things worry at me but they do. I guess I am flawed. (in case you hadn't already noticed)

But at least I didn't get this upset.

A Haiku

f/k/a has dedicated a haiku to yours truly:
for Ken Lammers at CrimLaw

bitter cold
the bell ringer --
peppermint breath

Tom Painting,
The Heron's Nest V:12
Thanks.

Now I can spend the next six months trying to figure it out. A shame it wasn't a Tanka so I could get a couple of lines analysis on the first three. Not that they ever really helped this guy's poor moribund western mind. Strange, I can wrap my mind around things like Sufi poetry but the Japanese always stump me . . .

[addendum] My brother comments:
Think about it. You've got a stinging sharp wit, and you expose only too much with ruthless efficiency - thus the first two lines. The third line just sums it up in a kawai (cute) way. I think you got pegged! ^_^
Ummm . . . er . . . Thanks?

LEX TALIONIS

But with the lex talionis as available to the trigger finger as it is, I wouldn't be surprised if Christians didn't offer their best witness by mourning, as Jesus did, the consequences of justice, which lead to punishment, sometimes even to death.

With Thanks to Blonde Justice

I took some random quiz I saw up over at Blonde Justice and got this result:

Would anyone want to bang you? by phobia
Name:
Favorite Food:
Wants to Bang you:
This many times:161
Quiz created with MemeGen!


Not sure who she is but I think I can live with the result.

18 December 2004

Binge Drinking

Remember when "binge drinking" actually meant binge drinking? You know, back before the neo-prohibs, insurance companies, colleges, &cetera began to cheat in their definitions in order to make drinking 4-5 beers sound like a bad thing.

Here's a page which talks about the difference.

Don't Rob 90 Year Olds in Cincinnatti

Or they will follow you, berate you, get the purse back, and then turn you into the police.

17 December 2004

Name that Crime

Pretend you are a prosecutor: What crime do you charge?
Pretend you are a Defense attorney: What defense to that crime?

(I expect plenty of comments from law students here. You all should be able to do this in your sleep having just finished finals.)

Facts:

A husband and wife are traveling by car from Key West to Boston. After almost twenty-four hours on the road, they're too tired to continue, and they decide to stop for a rest. They stop at a nice hotel and take a room, but they only plan to sleep for four hours and then get back on the road.

When they check out four hours later, the desk clerk hands them a bill for $350.

The man explodes and demands to know why the charge is so high. He tells the clerk although it's a nice hotel, the rooms certainly aren't worth $350.

When the clerk tells him $350 is the standard rate, the man insists on speaking to the Manager.

The Manager appears, listens to the man, and then explains that the hotel has an Olympic-sized pool and a huge conference center that were available for the husband and wife to use.

"But we didn't use them," the man complains.

"Well, they are here, and you could have," explains the Manager. He goes on to explain they could have taken in one of the shows for which the hotel is famous. "The best entertainers from New York, Hollywood, and Las Vegas perform here," the Manager declares.

"But we didn't go to any of those shows," complains the man again.

"Well, we have them, and you could have," the Manager replies.

No matter what facility the Manager mentions, the man replies, "But we didn't use it!"

The Manager remains unmoved, and eventually the man gives up and agrees to pay. He writes a check and gives it to the Manager.

The Manager is surprised when he looks at the check. "But sir," he says, "this check is only made out for $50."

"That's right," says the man. "I charged you $300 for sleeping with my wife."

"But I didn't!" exclaims the Manager.

"Well," the man replies, "she was here, and you could have."

Needs a Good Personal Injury Lawyer

I suspect that Mr. Kringle will need a good PI attorney:



Contact at:
Kris Kringle
P.O. Box 1
North Pole

16 December 2004

Around the Web

1) Inventions from prisoners - I'm doubtful about a number of these but it is interesting.

2) Okay, if you're gay and you choose to come to the law school which is probably the most conservative in the top 25, at a University which basically shares a campus with the Virginia Military Institute, a University named after General Lee, a University in a small rural Southern town, a law school which always has a number of military veterans enrolled, and then you start posting fliers around the law school attacking the military while troops are in the field risking their lives - do you expect your quality of life to be great? This guy files suit in Virginia and he will be crushed so fast . . .

Look, there was an openly gay male at W&L Law while I was there. We all knew it and I never saw him get the kind of treatment described in the article. I suspect there was a lot more provocation than the article presents.

3) Everything you ever wanted to know about the Lindbergh kidnapping.

4) Air Marshals and the "Kill Me First" dress code.

5) PD's are trying desperately to intervene in a case where an inmate has fired them and hired a private attorney to press for his execution.

6) Is having to urinate a valid reason to not testify?

7) How does the head of your local law enforcement agency stack up? Is he catching drug dealers in his own front yard? Or perhaps, is he rescuing hamsters from rodent-nappers?

Top 12 Homicides

I have no idea if this is real or fake but it's an interesting read:

FBI Homicide Investigations Unit's Top 12 Homicides of 2003.

15 December 2004

The World's Worst Attorney

How could I not win this case?

On the 7th of October my client rented an automobile. The automobile was to be returned on the 9th of October at 12:30 p.m.

Client was arrested on the morning of the 9th. The capias was actually served on him at 9:05 a.m. which means he had already been in custody for some time prior to that. Obviously, the car didn't get returned and Client was charged under this statute:
18.2-117: If any person comes into the possession as bailee of any animal, aircraft, vehicle, boat or vessel, and fail to return the same to the bailor, in accordance with the bailment agreement, he shall be deemed guilty of larceny thereof and receive the same punishment, according to the value of the thing stolen, prescribed for the punishment of the larceny of goods and chattels. The failure to return to the bailor such animal, aircraft, vehicle, boat or vessel, within five days from the time the bailee has agreed in writing to return the same shall be prima facie evidence of larceny by such bailee of such animal, aircraft, vehicle, boat or vessel.
The prosecutor had the owner of the rental agency come up and testify to the fact that the car was rented and not returned. I introduce the capias paperwork showing the 9:05 a.m. arrest. Client has been in jail on the other charge since the capias was served.

I stand up and argue (1) that it was impossible for my client to return the car and (2) because my client was arrested prior to the time of return it is impossible to show an intent not to return the car.

The judge and I then engage in a discussion over whether or not the statute requires specific intent. The judge asserts that the fact the words "willfully or wantonly refuse to return" are not included in the statute the prosecutor doesn't have to show specific intent. I counter by saying there has been no showing of intent at all, not even the most generalized intent to do something bad. The judge is not with me so I move on to the other argument.

I point out it is impossible for my client to have returned the vehicle. The prosecutor gets up and quotes a case which states that while legal impossibility is a defense, factual impossibility is not. The judge agrees that this case is not a legal impossibility but a factual one. I point out to the judge that the case the prosecutor is citing is a conspiracy case which basically says if the police intervene to keep the conspiracy from reaching fruition it does not mean someone is not guilty of conspiracy and that the case is not appropriately applied.

The judge listens politely and then finds my client guilty.

How? I have no idea.

Confronted

So, I'm leaving my office yesterday to go to court. I close the office door and turn to go down the stairs. When I'm half-way down the psychiatrist who has the office at the bottom of the stairs steps out of her office and stands at the bottom of the stairs, facing me.

"Do you represent prostitutes?"

"Ummmm . . . no."

"Well these two [pause] women came by your office a couple days ago looking for you and they were dressed . . . [look of slight horror]"

"That was my client's mother and girlfriend."

"Really? Because they were dressed very provocatively. One of them had nothing on from here to here." [motioning from about where low-cut jeans would end to where a high halter top would start]

"Yes, that's them. Hopefully they won't dress like that for court."

"You're sure they weren't prostitutes?"

"Yes, I've represented that kind of client before and generally she'll be broke and won't be able to get hold of a car to come here."

The psychiatrist looks none too pleased with that answer and gives me a strange look before heading up the stairs to parts unknown.

And then I leave for court.

Admitting that Police Harass

AHA!!! Finally, I have proof - PROOF I SAY - that police really are out there harassing people for no good reason.

Can CBS be Trusted for Anything?

Victim of identity fraud (ID probably taken at CBS):

"So for all I know Dan Rather could be buying cars as we speak."

LvOK@VC

14 December 2004

Around the Web

1) The Supreme Court needs to make a decision soon before Professor Berman explodes.

2) Can an officer tall a drunk guy to get in his car and then charge him with DUI?

3) "[W]hy should the defense lawyer, and no one else, be the one to take a pay cut when a [capital] case costs too much?"

4) "Last week, surveillance cameras caught a man exposing himself to shoppers in the Value City store in Latonia.

Police say they've identified the flasher, but Kentucky law says they can't charge him with the misdemeanor because no officer saw him do it and there are very few exceptions to that law.
"

5) Mugged by two pregnant ladies?

6) A libertarian in favor of more criminal laws.

7) "The 8-to-0 decision . . . overturned a ruling by the Florida Supreme Court that a lawyer who concedes a defendant's guilt, for whatever reason, in the absence of explicit authorization, has deprived the client of the effective assistance of counsel." LvBashman

8) C&F seems shocked that everything is illegal (at least under federal law).

9) I'm a PD's plan for the next time an officer accuses her of DUI.

10) Charging Greenpeace with attempting to board a ship under sail and solicit sailors to go to a brothel.

11) Should the death penalty be abandoned because procedural errors guarantee an innocent will be (and probably has been) killed by the State?

12) Imagine having to explain this one to your Defense attorney or telling it to your cellmate:
"[A] group of men attempted to burglarize [a] home, pointing a gun at the kids.

The children happened to be playing a video game called Grand Theft Auto at the time. The game has dozens of random police scanner messages, which blare out calls such as "This is the police! You’re surrounded!" . . . [T]he burglars heard that message and thought police were outside the door waiting for them.

Galveston County Asst DA Michael Elliott explained, "The police in the game were staying, 'Stop, we have you surrounded. This is the police.’ The burglar, unknowingly, thought this was the actual police and panicked ... being apprehended by Playstation.
"
They ran off and were caught later. LvLaporte

13 December 2004

Devenpeck - Just Plain Bad Reasoning

You know, I'm not a member of the Cult of Scalia but I'm usually impressed by his opinions when I read them. Not this time.

Devenpeck v. Alford is a badly reasoned expansion of Whren's doctrine that courts will look the other way in clear violations of the constitutional guarantee against searches and seizures as long as an officer has reasonable articulable suspicion that there has been some vanishingly minor infringement upon some law.

The 9th Circuit tried to hold the officers in a case to their stated reason for arresting someone:
In this case, the Court of Appeals held that the probable-cause inquiry is further confined to the known facts bearing upon the offense actually invoked at the time of arrest, and that (in addition) the offense supported by these known facts must be "closely related" to the offense that the officer invoked.
Altogether, a quite logical position. However, it endangers Whren because it could mean that an officer making a stop because the air freshener dangling from the rearview mirror would be held to the parameters of the reason given for the stop. This would completely void the reason for allowing Whren stops because it could keep the officer from expanding the parameters into zones which would otherwise be unconstitutional without cover from Whren. OMG!!!

Cleaving hard to this mighty cornerstone of constitutional interpretation
[the] subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause
the Court goes on to explain:
[The Circuit Court's] rule makes the lawfulness of an arrest turn upon the motivation of the arresting officer--eliminating, as validating probable cause, facts that played no part in the officer's expressed subjective reason for making the arrest, and offenses that are not "closely related" to that subjective reason.
Because, as we all know, it would be terrible for police to arrest people on the basis of crimes the officers actually claim have been committed.

The parade of horribles is actually kind of humorous. (1) Under the Circuit Court's standard the constitutionality of each arrest will be based upon the facts of that case. (2) We must rescue rookie officers from the humongous errors they will make in charging suspects (gotta be humongous errors because minor errors would be under the "closely related" part of the standard). (3) Officers will stop telling people what they are being arrested for. (4) Officers will start telling people they are being arrested for everything under the sun. I'm not even going to comment about how silly most of that is.

The new words which are carved in stone and descend from the mount are:
Subjective intent of the arresting officer, however it is determined, is simply no basis for invalidating an arrest.
So now we've moved beyond the Whren doctrine that a ridiculously minor infraction can be used to stop a car in order to shake down its occupants. Now we have a doctrine which states that even if the officer arrests someone on murder and rape charges, for which he doesn't even have reasonable articulable suspicion, the arrest is fine as long as a tail light was out on the car.

Hmmm . . . There's a statement which needs explaining. Am I actually saying that if an officer pulled me over and charged me with 12 charges of manslaughter, 8 murders, and jaywalking that it would be a legitimate arrest because I have a 1X1" sticker on the front window of my Jeep (to remind me when to change oil) and could get a citation for "obstruction of view." Yes, I am.

First, here's the statute I would be violating (in pertinent part):
§ 46.2-1052 (A) Except as otherwise provided in this article or permitted by federal law, it shall be unlawful for any person to operate any motor vehicle on a highway with any sign, poster, colored or tinted film, sun-shading material, or other colored material on the windshield, front or rear side windows, or rear windows of such motor vehicle.
Ah! You say: that's merely a citation!

Nope. In Virginia we don't have a separate classification for "citations." "'Citation' means any summons, ticket, or other official document issued by a police officer for a traffic violation containing an order which requires the motorist to respond." (§ 46.2-944) The default punishment is a class 4 misdemeanor carrying no jail and a maximum $250 fine. (§ 46.2-113).

Well, if it carries no jail time surely I can't get arrested for it? Of course I can. In fact, the statute telling officers how to deal with my violation seems to refer to me as being under arrest.
§ 46.2-936: Whenever any person is detained by or in the custody of an arresting officer, including an arrest on a warrant, for a violation of any provision of this title punishable as a misdemeanor, the arresting officer shall, except as otherwise provided in § 46.2-940, take the name and address of such person and the license number of his motor vehicle and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Such time shall be at least five days after such arrest unless the person arrested demands an earlier hearing.
But even if my reading of that statute is a little strained, worry not, having committed a misdemeanor in front of the officer (driving with the inability to see around that massive sticker) I am subject to arrest:
§ 19.2-81: [O]fficers may arrest, without a warrant, any person who commits any crime in the presence of the officer.
And going even further, let's assume that my analysis of that section is incorrect - that "crime" is interpreted in a restrictive manner limited to such offenses as existed at common law (not a realistic way to expect it to be interpreted).

Well, then the courts can always fall back on good, old Atwater. Under Atwater it isn't unconstitutional for me to be arrested for a very minor violation which carries no jail sentence. Without that constitutional burden I have no protection against violations of the law. There are no protections for citizens under the Virginia constitution. To say that in a more technically accurate manner:
Our courts have consistently held that the protections afforded under the Virginia Constitution are co-extensive with those in the United States Constitution.
21 Va.App. 729
And you can bet that if the constitution of Virginia goes absolutely not one jot further than what is forced upon our courts by the federal constitution nothing so minor as a law would get in the way. My rights end at the edge of the federal constitution; Atwater renders the statutory arrest limitations dead letter law.

So, you see, if an officer pulled me over and charged me with 12 charges of manslaughter, 8 murders, and jaywalking that it would be a legitimate arrest because I have a 1X1" sticker on the front window of my Jeep.

Peterson Verdict

Scott Peterson was sentenced to be killed by the State of California. The crowd outside did not cheer or react badly (at least not from Court TV's camera). Most seemed more concerned with waving at the camera as it panned past. 3-4 guys at one place were slapping hands but they were surrounded by cameras and it looked like they were doing it to get attention focused upon themselves.

DeathLaw - U.S.

1) 3 years for killing someone wounded on a battlefield.

2) 5 inmates in Marion, Indiana have been released because of overcrowding at the jail and committed murder.

3) Bidding on a house where people were killed.

4) How many times can you get your death sentence overturned before the State gives up?

5) Sometimes the law cannot be fixed quickly enough to get a death sentence.

DeathLaw - World

1) Libya is lifting 6 death penalties and will restrict those crimes which are eligible.

2) Murder by cricket.

3) The Philippines pays blood money to keep some of its workers from being killed in Saudia.

4) Senegal gets rid of the death penalty and Italy is happy about it.

5) "Daso Adamu was acquitted by the Upper Sharia court in Ningi on Thursday after the judge, Yusuf Suleiman, ruled that her being pregnant was not enough evidence to warrant a sentence that she be stoned to death.
“The court faulted the lower court’s judgement, saying that since Daso became pregnant within two years of her divorce it was wrong to assume the pregnancy was illegal because there is the possibility that the pregnancy was from her former husband”, defence counsel Abdulkadir Suleiman said.
" Something wrong with the biology there but I'm not telling (and you'd best hold your tongue as well).

12 December 2004

Cocaine

1) "Police said they found 2 kilograms of cocaine in the trunk of Polania's 1993 Toyota Camry after he was arrested Thursday for driving without a license in the vicinity of Maple Avenue and West Post Road in White Plains."

And how exactly does a misdemeanor arrest give officers the right to search the trunk? Although, if my clients' behavior is the norm, he probably gave permission.

2) There might be a reason this guy is a "former police officer."

3) Cocaine coconuts.

Heroin

1) Big Momma gets 10 years for selling fatal heroin.

2) For the second year running New Jersy has the country's most potent heroin.

3) "A team of Afghan judges, prosecutors and investigators began training on Sunday as part of a drive to accelerate a crackdown on Afghanistan's booming drug trade.
. . . .
Some 85 individuals, including 15 judges, have been chosen as members of a task force to be trained by the Italian Institute of Higher Studies in Criminal Sciences in order to prepare them for speeding narcotics cases through Afghan courts
."

Miscellaneous Crime

1) In Australia police are trying to reduce crime statistics by gaming the numbers. However, they are setting some limits: "the email said any request to downgrade more than 25 sub-incidents to a single incident should be referred to a supervisor."

2) In Argentina bank robbers were shut down so they turned to kidnapping. The police are helping - the kidnappers:
Axel Blumberg managed to escape his kidnappers briefly and run down the street calling for help. Neighbors called police -- and were ordered back into their houses. Two senior police officers were later charged with taking bribes to turn a blind eye to the kidnapping.
. . . .
The public's mistrust of police runs so deep in Argentina that people often don't even report kidnappings to the police for fear that officers are involved. Instead, they hire private experts to negotiate with kidnappers, and frequently pay ransom.
Yep, I'd pay it too.

3) Sometimes increasing police patrols really doesn't accomplish the mission:
They tried increasing visibility [of patrol] but that only displaced the crimes and didn't help to catch anyone.
The next option? Catch 'em. And that's what these police did.

4) "Current under-reporting of the dynamics of modern-day slavery amounts to treason to our global community. This is a terrorism issue. Not only do reports ignore victims who are nationals of the countries in which their trafficking is occurring, they are silent on the impact this terrorism has on the rest of the community." A serious problem but also a case study in how people addressing a serious problem will try to cram it into the framework of "THE" serious problem of an age (the one getting all the attention and funds) even when it absolutely does not fit.

5) "Organized crime gangs dominate parts of Bulgaria, and the EU aspirant's prosecutors ignore corruption while intimidating in Cold War style those who expose graft, the top U.S. official in Sofia said on Friday." Which only leaves me with one burning question: what the heck is an aspirant? Someone who wants to be? And why would the EU put someone who shows such a shocking lack of the study of Descartes in charge of prosecutors?

11 December 2004

Off Point: Rumsfield & the Question

Okay, it was back in the 90's. My unit 519th Military Intelligence Battalion (Tactical Exploitation, Airborne) was technically "Airborne." However, large numbers of soldiers in the unit (including yours truly) were "Legs." It wasn't all that important in reality because most of our unit was never, ever going to jump into combat (this was before F company joined the battalion). It had little to do with our individual company missions and for a long time we trained for our missions so we could do them well.

Then one day we got a new LTC. He was a disaster. Now, I don't know if he didn't understand our mission or if he was trying to use the unit as a stepping stone in his career. All I know is that all of the sudden we started doing things which could be tracked on paper and shown to superiors instead of a number of mission specific things which didn't really show and wouldn't matter unless someday we actually had to perform the mission in a combat zone. He also cared a lot about appearances.

So one day we have a battalion inspection. That was pretty typical but then he had us all come into the area theater. He stood up on the stage and announced that he was considering having everyone in the battalion wear maroon berets whether they were Airborne or not (at the time Airborne wore berets while Legs wore field caps). Then he asked for comments. The first person called on was a Sergeant First Class who worked in the Headquarters building and he laid down the party line: "That's a great idea, sir. I think it will build unit cohesiveness and blah, blah blah . . ."

Every soldier that commented from that point until they stopped taking comments (about 30 minutes later) told the battalion commander how bad his idea was and laid out reasons. It was very, very clear that almost all the soldiers in the unit thought this was a really bad idea. And the commander did not have any satisfactory answers; it was obvious that he wanted us all wearing berets so the unit would look more Airborne and make him look better. Of course, nothing we said was listened to - a week later the message came down that we were all to start wearing berets and we did.

Which is a long-winded way to say that it was my experience that in today's professional - but rarely career Army - soldiers will do as ordered (complete their mission) but are not afraid to tell their superiors what they think. They are citizen-soldiers, not soldier-citizens, and don't fear the prospect of harming their careers. This is doubly true when you are talking about Guards and Reserves.

Of course, this all leads to the burning question: WHY???

Why would Rumsfeld open himself up so he could get dinged like that? While I generally disagree with Ogre's comment about this post from Gleeful Extremist, he is absolutely right in his last sentence conclusion: "The military is NOT a Democracy." Those senior in the chain of command should show up, inspect, hand out medals, give the rousing speech, and leave. Town Hall formats are things tailored for a democratic process; they are meant to have a politician answer questions from citizens - you know, the people he's supposed to answer to. Senior members of the chain of command may answer to the President, Congress, the citizenry, &cetera but they cannot and must not answer to soldiers. Rumsfeld should have made his speech and walked away.

However, the truly interesting part is that the question was the right one to ask and has (at least seemingly) brought a positive reaction. Some reports have credited this to a reporter (because we all know no soldier would be bright enough to ask it). I am deeply suspicious of the claim that the reporter actually authored the question. In particular, there is strong evidence that the SPC Wilson was concerned about this before he left to go to the Middle East. The reaction from the assembled soldiers would also put the lie to the reporter's claim: "Shouts of approval and applause arose from the estimated 2,300 soldiers who had assembled to see Rumsfeld." This is indicative of a unit where the concerns voiced were widespread; this is probably a subject which has been discussed ad nauseum among the troops. Maybe the reporter helped the Specialist phrase the question but he was not the origin of it.

Is Dialing Into a Conference Call an Interception?

Is the Virginia wire-tap law vague and overinclusively interpreted? Maybe if our politician weren't snooping on each other we wouldn't be worrying about this.

10 December 2004

Burglary Abroad and at Home

Here's how you are supposed to react to a burglar in Britain and here's how you are supposed to react in the States.

second article found here

09 December 2004

Cracking a Safe

Interesting site about breaking into locks and safes throughout history:
Although it is possible to ‘crack’ a combination lock, its rarely a method used by criminals, or even by safe manufacturers called to open a safe whose combination has been lost. Many safes have time locks, so even if the combination is cracked, the safe will not open outside office hours. All post offices have time locks on their safes. Many safes also have a simple microswitch inside the combination lock connected to the alarm system to trigger it whenever the dial is turned. For these reasons, most attempts to break into safes by-pass the lock altogether. One method is to ‘drill’ the door. With engineering drawings of the bolt mechanism, it is possible to find a point on the safe door to drill through. A screwdriver can then be pushed through and manipulated to release the bolt mechanism – by-passing the combination lock altogether.
. . . .
A popular alternative to ‘drilling’ safes is to use explosives. Gunpowder was used with some success in 19th century America, simply pouring it in through the keyhole. The shock burst the front plate of the door open, making the bolt mechanism accessible.
It goes on describing all sorts of techniques and the counters used against them.

LvBoingBoing

The 2 Problems With Blogs

1) We don't know our place:
The bloggers' lack of ethics is a real problem, because they often presume to fact-check actual journalists, their moral superiors. Can you believe the nerve of them! We go to journalism school and learn how to journalize, and yet they think they can correct us on factual matters when they don't even have a code of ethics except their own personal ones, which can't be very good, or they would be on TV.
2) We don't publish horoscopes.

Strange Crime News

1) "Your honor, my client was asleep when he raped her." Is that an affirmative defense?

2) Santa and pot. Hey! There had to be a reason he was always so laid back and happy.

3) Threatening people with "rapist dogs."

4) Do not run naked in front of the police dog - at least not if you want to remain male.

Around the Web

1) American On Line wonders why prosecutors aren't named in those cases which decry prosecutorial abuses.

2) Did O'Reilly really call bloggers "criminals at computers" (go to 04 December 2004)? BTW, I just realized day by day is back up - I recommend it to ya'll.

3) Wow. Increase the prosecutor's budget and the sheriff's budget but cut the indigent defense budget by $1,000,000.00. I don't think that would even happen here in Virginia.

4) How police actually deal with the insane.

5) What is the actual percentage of false rape accusations? My feeling on this is that there are definitely a higher number of false complaints in this area.

6) There are places where you do not commit burglaries. Generally, they involve an armed citizenry.

7) Okay, I don't know if I'm even allowed to comment on this as a member of the great, unwashed Goyim (Goyeem?). I'm definitely pretty sure I'm not allowed to tell ya'll that I laughed so hard I almost fell out of my seat. Something this hilarious could only come from Orin.

08 December 2004

The Preliminary Hearing in Virginia

Mr DA comments on my last post:
You don't have court reporters at PC hearings!? How the heck [is a personal tape recording] an official record? Doesn't the court keep a verbatim record of its own? I mean, we've had a nasty infestation of video courts in the last few years, but at the very least there is a certified video clerk logging times and names and exhibits and such like, and a honest to God certified court reporter of one sort or another has to prepare the record. How can it be a court of record if no one is keeping a record?
The inferior trial court in Virginia is not a court of record. There's never a court reporter unless someone pays for it. As well, the inferior court does not approve the charges for trial; it only sends the charges to the grand jury and the grand jury then decides whether or not the case will go to trial (along with all the other ham sandwiches).

In fact, a prosecutor does not have to submit to the findings of the judge in the inferior court. If the inferior court judge finds that probable cause is lacking and dismisses the prosecutor can then take the case directly to the grand jury and indict on any charge he wishes. Even if the judge found probable cause the prosecutor can indict the Defendant on new and / or different charges in front of the grand jury. The prosecutor can even skip the inferior courts entirely, take a case to the grand jury to get the charges, and have no hearings outside the superior trial court.

Why do we even have preliminary hearings then? Well, there's this little statute:
No person who is arrested on a charge of felony shall be denied a preliminary hearing upon the question of whether there is reasonable ground to believe that he committed the offense and no indictment shall be returned in a court of record against any such person prior to such hearing unless such hearing is waived in writing by the accused.
So, in theory all felonies should have prelims before indictment. I'm not sure how this is gotten around having never had a reason to challenge it and thus no reason to do the research (I'll happily post the answer if someone emails it in).

Beyond the theoretical reasons there are also practical, real-world reasons. If a person is arrested and delivered to the jail prior to an indictment (generally on a warrant sworn out by an officer) the preliminary hearing is a necessary part of keeping him in jail. He is held on the warrant until the prelim date and, assuming the charge is approved by the inferior trial judge, he is then held until trial in the superior court. Without this process no one could be held until an actual indictment came down and the grand jury only sits once every month or two (sometimes three). The prosecution and police generally aren't willing to let a murderer roam the street for a month while they wait for the indictment.

The Defense wants prelims to take place because they are where we get a lot of our information about the case. Required discovery in Virginia is minimal. Trial by ambush is apparently the way our Legislature and Supreme Court think we can get the best results. While many prosecution offices will turn over more than that required, some prosecutors play this to the hilt. So the Defense attorney wants that prelim. Everyone knows that the prelim is basically discovery for the Defense. Our appellate courts deny it but most trial judges realize what the situation is and give us a good deal of latitude in asking pertinent questions.

Because the inferior court has no record, a long standing practice has been for Defense attorneys to use tape recorders in these proceedings because of the lack of a court reporter. It's not efficient. In fact, it's quite a pain to work with but the courts aren't going to approve a reporter for anything short of major cases. And even the use of tapes has been called into question by the Yarborough case. In this unpublished opinion the appellate court allowed a superior court to shut down an attorney who was using a transcript of his tape and had the tape available at court. The appellate court did not reach the merits; it denied the appeal on procedural grounds. Still, it is enough to make me wonder about the viability of tapes. And the reason I wanted a court reporter when my case became extremely serious.

07 December 2004

And So It Begins . . .

Lately All Things Have Been Quiet on the Virginia Front. There have been no great, hard fought battles wherein complex legal matters are at stake.

However, I knew they were coming. I knew that as of this Thursday I would be arguing a case involving the chemical composition of something I claim is a liquid and the prosecutor swears is a gas. I knew that next week I had an argument as to whether my client could have refused to return a rental car while he was in jail. I knew that I also have a 4th Amendment argument for next week. Other arguments loom in the future. And then, from out of left field . . .

I come into court today with a client charged with malicious wounding. From conversations I've had with the client and the Detective when I first got the case, I'm thinking there is a good chance this might go away completely because of self defense; perhaps the prosecutor will offer a lesser offense such as A&B or unlawful wounding. So I walk up to talk to the prosecutor and she tells me that the charge is being changed from malicious wounding to aggravated malicious wounding because some nerves were damaged.

Holy Crud!!! My client's exposure has changed from 5-20 years (with a realistic expectation after suspended time of setencing guidelines between 2 - 6 years) to 20 years to life (with a realistic expectation after suspended time of sentencing guidelines between 5 - 11 years). A case which, at the start of the day, looked fairly typical has changed into a potential disaster in the making.

Waiting for the preliminary hearing I come to the conclusion that I need a court reporter here for a case with a potential life sentence. In most cases a tape recorder would be used but the Virginia Court of Appeals has called that practice into doubt in Yarborough. So I go ask a couple questions of a lawyer who has been practicing much longer than I have and decide I must ask for a continuance so that I can petition the circuit court for a court reporter (the circuit court approves the use of court reporters for indigent Defendants in inferior courts).

I walk in and tell the clerk I need to make a motion in this case. A couple minutes later the clerk calls it. About 6 witnesses walk up on the prosecution's side. This is not good because the judge will not want to continue a case which will inconvenience that many civilians.

"Your honor, the Commonwealth attorney has been kind enough to tell me that she is going to amend my client's charge from malicious wounding to aggravated malicious wounding and I have to ask for a continuance to get a court reporter."

The prosecutor, obviously not happy, comments on the fact that I had plenty of time to ask for a court reporter prior to this date and even offers to lend me a tape player.

"Your honor, the maximum penalty has gone from 20 years to life. I feel that I need a court reporter here."

The prosecutor then points out that she has not amended the charge and we could have the preliminary on the malicious wounding. She would just wait and direct indict later. I can't remember saying anything after that (I'm sure I said something); I just remember standing there and looking at the judge.

The judge looks down with a quixotic look. I can never get a full read on this man. He looks a little like he's torn; he looks a little like he's surprised I am doing this (I'm not certain this judge thinks I'm very competent); he looks a little resigned; he maybe even looks a little confused; however, he doesn't look upset.

"He already knows the charge is coming. Out of an abundance of caution, I'm going to continue the case. Mr. Lammers, you know that you have to arrange this through the circuit court and have the court reporter here on that day?"

I assure him I do. Then comes something I didn't expect.

The judge says to my client: "You've got a good attorney and it looks like he's digging in and fighting for you. You make sure you stay in contact with him."

So at the end of the day I have a very serious case, a prosecutor with whom I have probably burnt some bridges, and a judge whom I still cannot figure out completely. We'll all have to come back in January and see what happens.

Around the Web

1) What happens when you tell a PD that she will be in court all day because you are making sure her traffic ticket is called last? R E V E N G E

2) W&M law students are teaching those in jail. Great, now the jail house lawyers will have more ammo. The law student from W&M told me . . . (of course, the jail house lawyer won't fess up that they were discussing "To Kill a Mockingbird" at the time)

3) The worst part of this is the wounded kitten after the attempted escape by tractor.

4) Federal employees: the perfect mugging victims?

5) Not enough left wing ranting in your comments? The Agony and the Ecstasy provides you the perfect way to provide your own with the Autorantic Virtual Moonbat.

6) The much awaited Becker-Posner Blog is finally up and running. Now, who are these guys anyway?

7) Gotta admit I never thought I'd see a link to this from Lex Communis. NOT WORK FRIENDLY

05 December 2004

The Latest on the Peterson Trial

What's going on in Texas?

Sure it's a NYTimes article. Still, if you get past the spin there are distressing facts here:

"In the Miller-El case, appellate lawyers and legal scholars are buzzing over what they say is the insolence of the Fifth Circuit.

In an 8-to-1 decision last year, the Supreme Court instructed the appeals court to rethink its "dismissive and strained interpretation" of the proof in the case, and to consider more seriously the substantial evidence suggesting that prosecutors had systematically excluded blacks from Mr. Miller-El's jury. Prosecutors used peremptory strikes to eliminate 10 out of 11 eligible black jurors, and they twice used a local procedure called a jury shuffle to move blacks lower on the list of potential jurors, the decision said. The jury ultimately selected, which had one black member, convicted Mr. Miller-El, a black man who is now 53, of killing a clerk at a Holiday Inn in Dallas in 1985.

Instead of considering much of the evidence recited by the Supreme Court majority, the appeals court engaged in something akin to plagiarism. In February, it again rejected Mr. Miller-El's claims, in a decision that reproduced, virtually verbatim and without attribution, several paragraphs from the sole dissenting opinion in last year's Supreme Court decision, written by Justice Clarence Thomas.
. . . . .
'The Worst Court in Texas' was the ignominious verdict on the cover of the November issue of Texas Monthly, the state's glossy bible of style and politics. The target: the Texas Court of Criminal Appeals.
. . . . .
In another episode widely perceived as an embarrassment, Roy Criner, a prison inmate serving 99 years for the rape and murder of a 16-year-old girl that he insisted he had never committed, successfully petitioned for a DNA test not available during his trial. The test determined that the semen in the victim was not his. A second test produced the same result.

The trial court asked the criminal appeals court to order a new trial, but with Judge Keller prominently in the majority, it voted 6-3 to let the conviction stand. Gov. George W. Bush, then running for the White House, granted Mr. Criner clemency.
. . . . .
Last December [the 5th Circuit] considered the last-minute appeal of Billy Frank Vickers, scheduled to die for the killing of a grocer in 1993. With the inmate already given his last meal, the judges deliberated until 9 p.m. and announced they were leaving, with no decision. Bewildered state prison officials allowed the death warrant to expire, granting Mr. Vickers a delay. He was executed six weeks later.
. . . . .
In October, a Houston federal judge granted a last-minute stay to Dominique Green, but the state appealed. The Fifth Circuit then gave defense lawyers less than half an hour to file their response, Professor Dow said. A rushed brief was e-mailed to the court and turned down. The Supreme Court also rejected a stay, and Mr. Green was executed that night."

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04 December 2004

Around the Web

1) Is Mark unindicted co-conspirator 01 or 114?

2) A judge tells the prosecutors he won't set a trial date.

3) Playing "Who's got the Client?" Unfortunately, I've played this game with a couple clients who have been shifted from jail to jail to jail . . .

4) Can private citizens advocate a right to jury nullification?

5) Only in Japan: a bank robber mails back the money with an apology.

6) "Minced Oaths" (substitute swear words / phrases).

7) A strange case and a lawyer Skelly thinks is a kook (read the facts of the case he links to). Personally, I'm a little suspicious of the judge as well. How many judges would refuse motions to dismiss with prejudice from both the Defense and the prosecution?

8) I've read and been told in more than one CLE that the sentencing situation is turning judges and prosecutors against one another. Mostly, I've not given it too much credence and chalked it up as wishful thinking. And yet . . .