Done for the Week

I'm not going to post for at least until Monday. If my jury trial goes well I'll probably be back posting on Monday night. If I lose I'll be somewhere beating my head into a wall.

Anyway, if you really want posts here go harass Skelly, Blonde Justice, Mike, or Tom (all of whom have the ability to blog at CrimLaw) until they post here just to get you to leave them alone.

I've also offered 123txpublicdefender123 the ability to post over here for at least the next week. Injustice Anywhere seems to be a good blog; I can only hope some of it rubs off over here.

BTW: Anyone out there who is a practicing criminal lawyer (from either side of the aisle) and wants to guest blog here for a while contact me if you can live by these simple rules

1) No politics.

2) No Politics.

3) No Politics.

4) Civility Reigns.

a) No cursing
b) No attacks on others.

i) Well, okay, you can "attack" someone but nothing nasty or mean.

5) Keep a sense of humor

a) For goodness sake it's a blog not a Supreme Court brief.
b) And not even one of the most important ones.

Heck, I'd probably even let a judge post here if I got a little desperate. ;-)

Ken Lammers: Hardened Criminal

Tuesday I leave the office and get to my apartment around 8:30. As I walk up I see a piece of white tape over the key to my lock. As I get closer I see writing on it:

PLEASE CONTACT ME AT 555-5555
IN REFERENCE TO A SUMMONS
OFFICER A.B. SMITH, UNIT 999
ARRESTAFIELD COUNTY
POLICE DEPARTMENT

Hmmm, that's not good.

First, I try to call the officer. However, he's a daytime officer and I get his voice-mail. I leave a message with my cell number and ask him to call me back.

Then I sit down and try to figure out exactly what the heck I could get a summons for. Missing a court date? Sure, I've missed a couple in the last 3 months or so (occupational hazard) but I've been back before those judges since and nobody's said anything. A bad check? I don't know of any that have bounced and my bank account has an unusual surplus at the moment (haven't paid this month's bills yet), so probably not. I haven't made any threatening phone calls or beaten up a girlfriend so it's probably not that. Haven't been in a bar fight lately so that's not it. Maybe they're on to my snipe poaching operation? Naw, since I've been trading the captured snipes across State lines for jackelopes it would most likely be federal marshals coming to get me if someone were onto that. Has my cat attacked my neighbor's froo-froo dogs? Unlikely, the cat grew up playing rough with two real dogs; if he attacked two dogs who are more yip than substance (my cat's small and these dogs are even smaller) he'd probably do enough damage that he'd have been picked up by animal control. Since he's over there laying on the floor I don't think that's it.

The problem with doing the type of work I do is that I've seen the infinite creativity of officers, magistrates, and citizens in finding new and strange things to charge people with. I tick through everything I can think of and I'm coming up blank. The only possible thing I can think of is that I've had my porch door open the last few days with only the screen and had a fan in it to air out the apartment. My porch faces the woods and my dogs bark at deer, kids, trains, as well as invisible things; I fuss at them when I'm home so it doesn't get too bad but they may go absolutely nuts when I'm not around. With the door open maybe it's been loud enough to violate the noise ordinance? I haven't looked at the noise ordinance lately but I think it goes something like this:

Whilst thou art in God's County, if thou durst form a sound and thy sound doth travel nary a hair's breath past the sacred distance of 50 paces thou art a rogue, naif, scoundrel, and villain. Yay, verily, thou dost give up thy rights constitutional and allow the stop of pretext. Thou shalt also forfeit the sum of 50 dollars.

The only problem is that I've only seen this ordinance applied to young guys with massive speakers in their fancy four cylinder Hondas (and possibly a little marijuana in the car). As well, none of my neighbors have said anything to me. Still, it's the only thing I can think of. And that bothers me because this is usually the kind of thing that an officer at least talks to you about first.

I actually manage to make myself nervous enough that I start to clean my apartment to take my mind off of it. Two hours later it's the cleanest it's been in maybe a year or so and I'm still wondering what the heck is going on. I don't live in Florida or New York so I don't think the prosecutors are trying to send me to jail because I've been too successful in representing my clients. Anyway, my ego hasn't yet grown to the point that I think the prosecutors view me as that great of a threat. It's hard to be perceived as a terrible menace when your marching orders from half your clients are "I don't care if I'm convicted or not. Just get me out of jail as soon as possible." Finally, I quit worrying about it and go to bed.

The next morning I call the officer again just before I go into the courthouse. I get his voice-mail again and leave another message. Then I go in and take car of that day's business.

I come out around noon and as I'm driving away from the courthouse he calls me back. He's a little confused: "I left you a note on your door?" I tell him he left me notice of a summons, he asks me my address, and then he looks it up.

It's a flippin' county sticker. I bought a Jeep Cherokee a while back when my Saab finally gave up the ghost (or, more accurately when I finally decided it would be cheaper to buy a reliable used car rather than fix that dang Saab every other month - sometimes the fact that a car is fun to drive just ain't enough). It has a Richmond sticker on it which is still good and I hadn't gotten a county sticker yet. Somebody must have gone through the apartment complex's parking lot and realized my grave sin, run my plates, and issued papers (I kid you not, there are county inspectors who drive through our parking lot about once a month doing this). So now I have to go to the county offices and pay $10 or so to get a sticker. Then the charge will be dismissed without me ever having to go to court. It's almost a let down. Almost.

I drive to the police station on my side of town to pick up the summons. I've never been to this one before and it's a small building with a lot of police cars in the parking lot; fairly typical. The only thing which stands out is the big, illuminated green sign with yellow letters out front which announces this as the police station. Of course, it's daytime so I don't get to see it lit up but it looks like it was probably a state of the art shopping center sign when it was designed and built in the 70's. I may actually have to come back one night when I'm bored to see what it looks like lit up. The only thing missing was a couple of those weird flowers that were on everything in the 70's.

I go in and the officer at the desk recognizes me immediately. We joke about it for a couple minutes, then he gives me the summons and tells me where to go to deal with it all.

Thus ends the Great Lammers Crime Spree of 2005.

Around the Web

1) The difference between a trial and an appeal.

2) Don't steal from your clients. In particular don't steal from cripples. Yeesh.

3) Another "foolproof" method to spot liars. Here's betting this one won't catch the same people that the modern lie detectors don't and that it will register false positives just as much on anxious people. Via CrimProf

4) People are fighting efforts to bring back mandatory sentencing.

5) Does putting more people in jail stop crime? Probably not. Does keeping them there longer? Probably yes. Will we all go broke trying to do this? Depends on if we adopt the federal government's definition of "broke."

6) Giving her the finger.

7) Somebody doesn't like defence solicitors.

8) Wow. Every single one of my grand larceny cases can be made federal. That's insane.

9) Okay. Now I'm nervous about my jury trial on Monday.

10) The Catch-22, of course, is: How do you prove the erased tape was exculpatory if it has been erased?

11) Judges upset that the government is trying to take too much power away from them. And no, it's not about Congress.

12) A discussion of the Florida "shoot if he looks at you cross-eyed" law.

13) Don't take Meth into the courthouse (or the jail - my clients keep trying to sneak it into the jail).

14) Was Martha in contempt? In any court wherein I practice she would be so found. Home incarceration is supposed to be a burden.

15) Show of hands. Who out there has had this happen to one of his clients? I can think of at least two off the top off my head.

16) Deer farms? Illegal hunts? If it's a farm and you raise them to be killed does it matter how it's done? I mean, of course, unless they have to be kosher or halal.

17) Curses, yet again I am foiled in my attempt to be named among the top blawgs.
via Alaskablawg

18) If you can't keep your pistol in your holster, at least keep your pants up.

19) Duckman v. Virginia Trooper.

Court TV

Y'know, I watch Court TV every so often in my office when I've nothing to do. Well, more accurately, I watch it when I can't motivate myself to do the next twenty things (there's always another 20 things to do). But I don't know the names of any of the commentators.

Still, when I saw this at Injustice Anywhere I knew exactly to whom it referred. I always thought she was just putting on a show - going so over the top that she had to be playing a character. But, according to this and this, perhaps she is not.

Dynamite Charge from Titcomb

When a jury tells the judge it is deadlocked, the judge will call them out and give them a "Dynamite Charge." Defense attorneys hate this because, while the words are putatively neutral, their arrangement and meaning is often taken as an instruction for any holdouts favoring the Defendant to cave in.

I've only seen one judge read the dynamite charge and make it sound neutral. When I've heard it out of other judges' mouths it sounds an awful lot like, "Go in there and convict this guy so we can all go home and get some supper."

I've never seen it used but here's a version of this charge pointed out to me today by another lawyer (calling it the "Titcomb Charge"):

THE COURT:

What I am about to say does not mean that you are going to be made to agree or that you are going to continue deliberations until you arrive at a verdict.

Trials are expensive and the jury must decide the issues in the case. If you cannot decide, then we will have to get another jury to decide the issues. I see no reason why you as jurors are not as competent and able to decide the issues as any other jury.

It is your duty to make an honest and sincere attempt to reach a verdict. Of course, that must be unanimous. Jurors should be open-minded and listen to argument of others.

Talk over the issues and evidence freely and fairly. Each juror must decide the issue for himself or herself, but only after an impartial consideration of the evidence with his or her fellow jurors.

In the course of deliberations a juror should not hesitate to re-examine his or her views and change his or her opinion if convinced it is erroneous.

Each juror in the minority view should reconsider such minority view in light of the opinion of the majority. And, likewise, each juror in the majority view should give equal consideration to the views of the minority.

No juror should surrender his or her conviction as to the weight of the evidence, solely because of the opinion of his or her fellow jurors or for the mere purpose of returning a verdict.

As fairminded individuals, then, I'm asking you to go back, to retire, to make another honest effort to come to a conclusion on all the issues presented in the case, keeping in mind what I said to you in this instruction.

Thank you and you may retire for one more effort.

So, how many people out there want that read to their jury?

Short and . . . Sweet?

So I'm looking at opinions as to attorney-client privilege and I come across this unpublished gem: Prince v. Commonwealth, No. 1347-92-1

There are three questions and the third is: Whether the court erred "in admitting John H. Underwood's testimony, which violated the attorney-client privilege."

The answer?

III. Violation of Attorney-Client Privilege

We have reviewed the evidence concerning Underwood's testimony and find no error in the trial court's admission of his testimony.

That's it. No muss, no fuss. None of those annoying legalities.

Client Identity and privilege

Below, in the advice to a computer stealing client post, I stated that I thought that while my conversation with a client was confidential I could be forced, under subpoena, to reveal my clients' names (okay, I didn't say it exactly that way but that's what I meant). A commenter stated:

I disagree. The identity of your client in most states can be kept a secret when the identity itself is material. Rule 1.6 of the MRPC: "a lawyer shall not reveal information relating to the representation of a client unless the client gives consent after consultation This "prohibition that generally includes disclosure of a client's identity." See, e.g, Cent. for Nat. Sec. Studies v. DOJ, 331 F. 3d 918 (D.C. Cir. 2003)

Here, in pertinent part, is Virginia's version of the Rule in question:

RULE 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

(b) To the extent a lawyer reasonably believes necessary, the lawyer may reveal:
(1) such information to comply with law or a court order.

I spent some time online trying to find some clarification in Virginia law and ethics opinions. Unfortunately, the ethics opinion which seemed to apply (LEO 1300) isn't online. Today, while I was in the law library I looked up LEO 1300 and here's what a quick read tells me.

1) The Bar does not opine as to whether I am legally bound to turn over client names.

2) The bar opines that ethically I am forbidden to give out present or former client names because the mere fact of representation could be embarrassing or detrimental. As well, my escrow records (you know, that book over there covered with dust) are confidential.

3) In what seems to be a throw-away statement at the end the Bar opines that my bank records are not confidential.

I guess this means that if my client paid by cash and less than $10,000 he's safe. Hopefully I'm wrong in that reading (it was a quick read and I'm doing this by memory).

When I got back to my office I did a cursory search of all Virginia cases with attorney and privilege within 10 words of each other and found nothing relevant.

All of this leaves me uncomfortable about which way the appellate courts Virginian might handle this sort of circumstance. I don't know if I'd be legally required to hand over the client list. Of course, I'd be obligated to fight the subpoena and appeal any decision by the court. The time that appealing it all the way up to the Virginia Supreme Court would take might make the effort cost and time prohibitive for the prosecutor but that's not something I'd care to rely on.

Anyone got a Virginia answer to this? I'd also be interested in how other jurisdictions handle this sort of thing.

Day by Day

And the next day I get assigned as his attorney.

Around the Web

1) The next time you see a judge acting rude in a courtroom and you wonder why none of the lawyers do anything about it,read this from the Virginia Supreme Court. Now realize that the attorneys who filed the complaints will have to appear in front of that same judge over and over and over . . .

Via SWVaLaw

2) Don't buy a newspaper after the judge tells you not to and don't lie to the judge if you do. I bet the punishment ends up being a fine - maybe the typical 10 days for contempt.

3) Who cares if the prosecutor has witnesses, physical evidence and a confession? Make the prosecutor prove it.

4) Ummm . . . I must not be asking enough. The price in the quote seems dead on to me. Of course, if we're talking about a jury, an appeal, or a violent felony the price goes up but for someone who walks in charged with simple possession or larceny I'd feel a little guilty charging much more.

5) The lesson here? Don't work for a prostitute.

6) Questioning grand jurors about prejudice. Not sure the comments quoted support a racial content rather than an assumption that the people in front of the grand jury are criminals. Not that I'd be happy about the second assumption either.

7) Pity the poor white collar criminal. He might have to spend time in prison for embezzling that pension fund. He might even have to spend as much time as a low level drug dealer. And, gasp, he might even be in the same prison. Cry me a river.

Off Point: The Church as Literature

Via Spoons I found Lileks' posting about the choice of Pope:

I'm still astonished that some can see a conservative elevated to the papacy and think: a man of tradition? As Pope? How could this be? . . . At the risk of sounding sacrilegious: it's the Catholic Church, for Christ's sake! You?re not going to get someone who wants to strip off all the Baroque ornamentation of St. Peter?s and replace them with IKEA wine racks, okay?
. . .
To those who want profound change, consider an outsider's perspective: the Catholic Church is the National Review of religion. You may live long enough to see it become the Weekly Standard. In your dreams it might become the New Republic. But it's never going to be the Nation. And if ever it does, it will have roughly the same subscriber base.

Some of it's a little over the top and I don't agree with his solution but the post is probably the best "Papal Post" I've seen so far.

Evidence and the Defense Attorney

Regarding the stolen computer in yesterday's post Mark asks/comments:

About the kid with the stolen computer: What would you do if that kid walked into your office? What's your advice as an ethical practitioner of law? You can't just tell him to keep it or destroy it, can you?

If I had that computer, I'd call the professor's bluff. Literally call him on the phone and ask him, "So, if this computer is such a big deal and there are government agencies looking for it and all that, you shouldn't have any trouble telling me the serial number that's written on the bottom. And the address of the wireless card that you've been tracking....Didn't think so." Click.

Well, I wouldn't tell him to call a professor who might recognize his voice or might get police to track his phone number or get prints off the pay phone. And, as his attorney I sure as heck wouldn't make that call. My conversation with John Smith might be confidential but the fact that he's my client isn't. The police would have a pretty strong suspect if only one of the students in the class was a client of mine. I do agree it would be fun to call the prof's bluff but it just ain't worth the risk.

When this kid comes into my office I'm not sure there's much I can tell him as to what he should do with the computer. I can neither take the evidence of his guilt into my possession nor advise him to do anything illegal with it. If he asks me if he should hide it I must express no opinion. I think something along the lines of, "I can't and won't tell you what to do with the computer. I am not allowed to aid you in any future illegal act like hiding evidence."

Of course, this is a gray area if I've ever seen one. If he brings the computer to my office and then leaves with it in his possession have I aided in hiding evidence? My answer would be no; he's responsible for his own acts with an item in his possession.

But what if he asks me legal questions about his situation? Can I advise him that as the situation stands there is little evidence and a weak case against him? That if the computer is traced to him the prosecutor will have a strong case? This is the really sticky point. My client is asking me legal questions and it is my obligation to advise him as to his situation. But I'm not stupid, I have an idea what he's going to do with that information.

I think what I have to do is something along these lines. First, I tell him that I cannot help him to commit any crime and that I absolutely refuse to discuss the possibility of any future crime. Then I tell him that he has an obligation to act within the parameters of the law. Then I explain to him his legal situation. Then I shoo him out of my office.

Let him take the information and make his own decisions. Maybe he'll do the morally correct thing. I have my doubts about that (my job makes the best of people cynical) but I don't know that. He is the one who will act of his own free will.

It's not an entirely satisfying answer and I recognize that fact. A number of the things my profession requires of me are not entirely satisfying. Nevertheless, I think the answer I've given best fulfills the obligations which are part and parcel of being a defense attorney.

Around the Web

1) Labour's going to cut crime 15%. Heck, they might even get votes on this side of the Atlantic if they can follow through on that.

2) A Monday in court, PD style.

3) DUI quotas? Say it ain't so . . .

4) Crime is all the parents' fault. Because we all know that teens and young folks have no free will.

5) Hey, if you flirt with public defenders it can't be used against you in court.

6) Who's guilty of what?

7) A probation hearing from a (drafted) prosecutor's point of view.

8) CSI is making people expect the prosecutor to actually provide evidence. Shocking! Absolutely shocking, I say!!

9) I forgot is not an excuse for those who don't register as sex offenders. I've had people tell me this before. I've even had people whom I believe tell me this before. It doesn't make much of a difference when you step in front of the judge.

10) A five hour interrogation just might not wash with a jury.

11) DUI road blocks don't work (and they don't; they catch the folks who wouldn't have been pulled over by an officer because they weren't driving erratically). But they'll still be used because they make MADD happy.

12) Now, this is a heck of a bluff. A little over the top though. If I was the kid the computer'd get wiped down and dumped in a lake, ocean, or sewage facility. Maybe I'd even go out in the woods and bury it. It's not like some dog or wild critter would dig up its bones and bring them where someone would see them. But I sure as heck ain't turning it in if the world is going to come down on me like that.

13) Kaplah!

Arrgggg!!!!

Blogger ate my large, inciteful, life altering post which would have finally revealed to all of you what the question is for the answer "42."

I guess ya'll will just have to keep wondering.

Benedict XVI

His Holiness Pope Benedict XVI

May St. Boniface help him and the God guide him.

Sacrifices

So, I'm going to go visit a client in Alexandria. Alexandria is a part of this place up around DC which everyone in the rest of Virginia refers to as NoVa (variously translated as "not Virginia," "non-Virginians," or Northern Virginia). The rest of the Commonwealth pictures this section as the place where endless amounts of money is poured down the drain in unending highway projects that benefit no one important (only NoVans). Anyway, it's a place most sane Virginians avoid but I grew up in Kentucky so I don't know any better - and I don't seem able to learn.

I leave home before 4 p.m. I have all the directions and the jail is actually on the way to RFK stadium. If I hit the jail a little before 6 I can make the stadium at 7 and watch the Nationals. In no time at all I am burning rubber, heading North.

[note: At this point I want to thank those Yankees who travel I95 for guaranteeing that if I keep my vehicle under 80 mph no trooper is ever going to notice my slow-poking vehicle. In particular I want to thank those of ya'll from New York and New Jersey who seem to think that "Speed Limit 65" means that speeds are limited to those above 65 and that a healthy margin of error should be left so that you cannot accidentally get within 10 mph of the speed limit. And the shifting back and forth between the three lanes until there is 2" of clearance through which you can squeeze your car and zip off is simply amazingly adept driving (worthy of NASCAR even).]

Anyway, after driving for about 2 hours I hit NoVa. I start looking for my turn off onto 495E. I spot it. I try to get over. I fail. So, the next turn off I get off so I can go back. But noooo, that doesn't work. I end up going miles in the wrong direction until I try the same thing with this secondary highway (and get the same result). I find myself driving through Fairfax on a road I'm pretty sure is taking me the right direction. Then I find myself in Arlington (no, not the cemetery). I stop at a couple gas stations to try and buy a map. At the first the Indian clerk doesn't understand a word I say; at the second the Indian clerk points me right to his $40 map books (which I buy).

For the next little while I sit with that book and figure out how to get to the stadium (yes, I am male and refuse to ask directions). It's too late for the jail so I'm going straight to the stadium. It turns out I am going the right direction and all I have to do is go a little further, catch a secondary highway, cross some bridge in memorial to someone, and follow Independence in a straight line through the city to RFK. And it works until I get half way through the city, look up, and realize that without making any turns at all I'm on Pennsylvania. So I backtrack and find out that the road which is straight as an arrow in my brand new $40 map book actually makes a left turn at some point after the government buildings. Silly me, I didn't make the left turn on the straight road. Anyway, once I find Independence again it's a straight shot to the stadium.

I get parked and head up to the stadium. The lady runs the scanner over my printout (ticket by internet) and says, "Honey, your ticket is for tomorrow." What? Aw crud. She's right. I must have clicked on something wrong when I bought the ticket. However, it's too late now so I go over to the trailer where tickets are being sold. I got directions to the correct area and was looking for actual ticket booths but quickly started to think that that trailer over there with people in the windows was probably ticket sales (nobody was in line but why else would it be there). At first I think about seeing if I can exchange my ticket but after starting to talk with the lady selling tickets I decided it was not going to be worth it. The lady didn't understand what I meant when I walked up to her window and asked "Tickets?" I actually have to put some effort into getting her to understand and sell me a $15 ticket.

I get in and go up to the 500 level, shoo a guy out of my seat, and then go down and buy the obligatory hotdog and Nationals t-shirt before returning to my seat. The game is pretty good. The Nats go nuts in the 7th and win 9-3. The seats in the upper level are tiered steeply enough that you can see everything and they're close enough to enjoy the game. Of course, next time I will bring ear protection because up there you're just a little too close to the speakers. Of course, as is always true in the cheap seats half the fun is in watching the crowd. Most of the entertainment was in watching three guys running around with no shirts painted red, white, and blue (each his own color) trying to get us all to do the wave. I think it took them about 1 1/2 hours but sometime in the 8th they got it to go around the stadium 3 times. After that we just ignored them.

So the game ends and I spend the next hour trying to get a hotel room. Two hotels are right near the jail but they're both full. The only good thing about stopping at them is that I see the road the jail's on; I look down the road and, sure enough, I see institutional architecture. Finally I find a hotel further down the way and the next morning I sleep in because I know where I'm going.

But, of course, when I get there I find out that the institutional building I saw at the dead end of Mill Road is a post office and there ain't nothing else there. Over the next 45 minutes of driving I find out that there are no less than 3 (possibly 4) Mill Roads within a 2 mile radius - none of which connect. However, I finally find the "Public Safety Center" hidden behind a swank apartment complex and a fancy glass office building. At first I'm confused by the name but seeing fences everywhere and a building with very thin windows I realize that this has got to be the jail. However, when I go to check in it's 11:05 and visitation doesn't start again until later in the day. Darn. Looks like I'll have to find something to do and I just happen to have a ticket to the Nationals game. Don't throw me in that briar patch . . .

So off I go. I get a little lost again but find the stadium in plenty of time. I find one of the elusive DC caps that everybody is trying to buy; everybody in line both Saturday and Sunday was trying to buy stuff with the DC logo and settling for that silly cursive W if they couldn't. This time I'm in the 200 section down low. Unfortunately these seats aren't tiered very steeply and the guy and gal sitting in front of me are both 9' tall. I spend the game peering around them. Still, it's fun and the people down here aren't acting too silly. I guess more expensive tickets get you a certain amount of decorum. Not that this meant the people sitting around me were the greatest baseball fans. The lady in front of me was in her cups by the 5th and I heard another guy ask if the Nationals would get to bat in the 9th if they were behind. But he didn't have to worry, the Nats went nuts in the 7th and won 7-3.

The game is over by 4 p.m. so I have three hours to kill. I go to the monsterplex-mega movie theater just up the street from the jail, buy my ticket from the computer, ride the escalator up high enough to start worrying about nose bleeds, and watch Miss Congeniality 2 (a decent matinee time killer). It gets out at five 'til seven.

At 7 p.m. I arrive at the Public Safety Center just as visitation hours start. I walk around the perimeter to the gate and get buzzed through. Then I'm standing outside a small brick building. The door buzzes and I go in where there's one deputy standing there to check me in. For the life of me I can't shake the feeling I'm in an old spy movie trying to get through Checkpoint Charley. After she checks me through, she buzzes me through a door on the other side and tells me to follow the side walk. As if I had a choice. Both sides of the sidewalk have a wrought iron fence next to them and I'm funneled into the building at the end. No one is there. I turn right like I was told to and walk through a museum and reach a door with a buzzer and get buzzed in. Then I'm in a lobby with a guy in civilian clothes who's locked in a glass box. He checks my papers again and then sends me up an elevator to meet with my client. After I spend a hour or so visiting my client I go back down and the guy in the glass box buzzed me out of his area and I walked back out and down the sidewalk. This time I don't go through the little brick guardhouse because the way out is through a one way rotating iron gate and then the outer chain link fence gate. Then I drove the 2 hours back home.

Just thought I'd let you know what kind of sacrifices I go through to visit my clients . . .

If You Can't Outlaw Smoking Outright . . .

I saw this sign in a few places in Alexandria:

City Code Prohibits
the carrying of
lighted tobacco products
of any kind.

And I'm pretty sure you have to carry tobacco if you're going to smoke it.

Gone to the Game

Okay, I'm off to DC to visit my client and go to the National's game. If I can remember how I'll do a little photoblogging along the way.

$1,828,930

I am worth $1,828,930.00 on HumanForSale.com

Personally, I think the price is a little steep. However, if there is a beauthiful young lady out there willing to pay the price, I might be willing to be persuaded.

Just remember my critters (2 dogs, 2 cats) are part of the package. Just think of it as proof that I love animals and chidren.


lv Blonde Justice (who is worth much more than me).

Free Henry Earl

Sadly, I've represented at least one guy in my particular county who may, over time, give this guy a run for his money. The guy is interdicted (forbidden to drink) but every time he gets out of jail his first stop is the liquor store and then he ends up right back in jail. The last time I represented him he was thrown in jail when the police found him drunk outside a doggy day care place barking back and forth with the dogs.

But at least the guy has enough sense not to drive a car. You can see him riding his bicycle around the county on the days he's out.

Gun Control

So what happens when the county attorney in a rural county proposes stricter firearm control?

"Can't we just say no?" Supervisor Russell Holland asked his fellow supervisors, most of whom looked at [the county attorney's] memorandum with weary disdain.

It seems that they are going to appoint a committee to study the matter (undoubtedly before they dump it).

from the Powhatan Today (although not in its online version).

Off Point: Baseball

Take me out to the ball game . . .

So, I have to drive up to Northern Virginia tomorrow to visit a client in jail in Alexandria. In general, driving anywhere near DC is a pain but I hope things won't be too bad on a Saturday.

Anyway, since I'm required to head in that direction I decided I'd go to watch the Nationals play. I'm really happy to have a big league team within a couple hours. Prior to this I could go to watch the Richmond Braves (and I still plan to do this) but I suspect I shan't be able to do this much longer since the idiots in Richmond seem determined to drive the Braves out. And of course, I guess I could have driven a little further north in order to watch some team from the lesser league which I understand is up there (there are rumors that some team is up there which doesn't allow it's pitchers to bat).

Now, if we could just get a local channel to carry the games. The only pro team we get are the Atlanta Braves on radio.

News Worthy

So, I'm sitting in the courthouse law library yesterday and I look out the window. In the parking lot is a van from one of the local channels. That's kind of odd because I haven't heard anything about any murder trails (the usual reason we see the news guys).

This morning I found out that it was because D'Angelo was back in court.

And Now For Something Completely Different . . .

Client and fiance are driving down the highway arguing. Client gets so mad that he throws fiance's purse out the window.

Miles further down the road they realize they need gas. The only problem is that all their money was in the purse. It's dark, they don't think they'll be able to find it, and they don't have the gas to go back. So they come up with a solution.

They pull into an all night gas station. Client gets out and fills the tank. As soon as he finishes he jumps back in the car and shouts, "Go!Go!Go!" Fiance hits the gas . . .

And smashes straight into the car three feet in front of her at the next pump.

Riotous NY

Over at Objective Justice, Sean Sirrine has a post about how police were proven wrong by video tapes and charges were dropped.

Reading the underlying article, the most disturbing part to me is the unannounced editing of a video at the prosecutor's office which only came to light when the defendant got a copy from another source.

Proof the Clients Shouldn't Have Video Cameras

This is absolutely hilarious over at I'm a PD.

It reminds me of the case wherein my client and his buddy put a video camera to wonderful use.

Jury "Threat"

Spoons commented below:

I've never understood why so many defense attorneys view taking a case to trial as a "threat" against the prosecution. As a prosecutor, I love jury trials. It's why I took this gig in the first place.

Yes. I think the jury trial are usually the part of the job which fires up people on both sides of the aisle. But they come do come with a price and I think that's what the "threat" is about.

I think the "threat" most often thought of is that it clogs the docket (which the prosecutor and the judge have responsibility for, not the defendant) and is a lot of work and time for a prosecutor who has more serious cases to handle and really doesn't want to spend the time needed to prep a jury trial on an uttering case (or larceny or simple possession or any of a litany of minor felonies). This is a more realistic threat in areas where there are greater crime rates and more serious crimes. It doesn't work in places where there 100 or so felonies in an entire year.


In more serious crimes the "threat" probably goes more like this:

(1) Your boss is an elected official. I'm not.

(2) You're supposed to win in the courtroom. I'm not.

(3) If you lose it's potentially newsworthy. If I lose nothing more happens then was expected.

(4) If your office persists in refusing to make rational deals and loses a number of times it definitely becomes newsworthy.

(5) With 3 & 4 in mind I point you back to #1.

Of course, most people have enough sense not to say any of this out loud because it is the surest way to make sure the prosecutor won't deal. However, it's always in the background, an unstated part of the conversation.

Around the Web

1) Okay, I admit it. I want to be a fly on the wall when the prosecutor next talks to this officer. Well, maybe not the wall since the paint is probably going to scorch and peel.

2) Georgia: experts can testify to all the junk they want to in criminal cases but civil cases are too important for all those hijinks.

3) Whatdoya'know? The defense attorney isn't always the bad guy in plea bargaining.

4) Hmmmm . . . I wonder what his grades were like? I'd bet they were better than the dog's marks.

5) Apparently they haven't heard about Crawford across the pond. Maybe we can lend them Scalia for a while to straighten them out.

6) Strip searching someone in front of a camera is wrong - even if you get police permission beforehand.

7) CAT HUNTING? What a jerk.

8) Off color - and weird (but worksafe).

9) Okay, if you are going to bond someone out of jail make sure your money doesn't smell like marijuana.

In reference to the jury discussion below a reader asks:

(1) Did you consider the possibility that the prosecutor looks forward to an objective bunch of people listening to the witnesses and cutting through all of the [garbage] that a defense attorney or his/her client have been throwing out? (2) Or that judges might be a little too lenient because the volume of crime they're exposed to means they don't take the crimes as seriously as a "regular person?"

In answer to the first question, my answer is no. Judges are going to cut through any garbage much more harshly than a jury will. Why? Because the judge has been sitting in his courtroom for the last ten years hearing the same stories from the same people day after day, month after month, year after year. He's heard the defense the attorney is attempting 100 times and hasn't believed it 99. The majority of "trials" he's seen have really been slow guilty pleas. I'm not saying that judges set out to be biased but everybody who works in criminal law develops a level of bias. It's just the opposite of the point you raise in the second question: the volume of guilty defendants seen in the courtroom tends to predispose a judge to an assumption of guilt. Juries tend to come to court with an assumption that a person wouldn't be charged if he weren't guilty but they don't have years of experiential bias reinforcing that view; thus, they are easier to get to decide certain facts in Client's favor than a judge would have been.

The answer to the second question is yes and no. While much of it has been mitigated by guidelines, every judge has tendencies and if they were deciding the sentence entirely on their own some would undersentence and some would oversentence. And every person who works in a courtroom for any period of time gets a little blase about repetitive "minor" crimes. Think about it for a second, if the judge got red faced and snarling every time a grand larceny (in Virginia a theft of $200 or more) was brought before his bench he'd have a heart attack about his second year on the bench. I'm sure that before guidelines judges fell into habits when they sentenced certain common offenses whether they were overly lenient or overly harsh. Now they tend to just sentence these crimes per the guidelines.

In the end, my belief is that the vast majority of prosecutors and judges are honest men and women doing there jobs as best they can. However, the constitutional jury protection assumes that they are not. The right to a jury is meant to protect against prosecutors or judges out of step with the community for whatever reason. Sadly, I cannot say that it provides that protection in Virginia. The primary reason for that? Jury sentencing.

Thanks

I want to thank WindyPundit for uttering some kind words which make me sound like I actually know what I'm doing.

Be Afraid, Be Very Afraid

When a prosecutor looks forward to jury trials we should all be nervous.

Actually, the jury's power to sentence does not, in and of itself, make the right to a jury in Virginia a nullity. It is the procedure of criminal trials which combine with jury sentencing to make the system nonviable. Among these procedures are sentencing guidelines for judges, bifurcated trials which include the introduction of a client's record without context, and mandatory sentences.

I really don't have any problem with Tom McKenna's assertion "that the traditional function of the jury at common law was not only to decide guilt, but also to reflect the community view of the appropriate punishment." The only difficulty is that he leaves out the qualifying phrase which should come at the end of that sentence: "as a check to overzealous prosecution or punishment." One must remember that the purpose of a jury is to act as a check on the government in the persons of both the prosecutor and the judge. Although different forms of juries were already extant, the place where most people trace our right to a jury trial is the Magna Carta in 1215:

(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

Or, in the original Latin:

39. Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terre.

Note that "judicium parium suorum" isn't translated above as "judgement of his peers." That translation has caused mischief over time as people argued that an older definition of peers (peers of the realm: a duke, marquess, earl, viscount, or baron) applied (and therefore argued juries should be comprised of "community leaders") despite the fact that Blackstone lists peers as excused from service (those "above fifty years old, peers, clergymen, women, and the king's tenants in ancient demesne, are excused from attendance"). Anyway, this was clearly a protection sought as a barrier to the King.

Perhaps more important to our national ideal of jury protections is Penn's Case in 1670 (especially since Penn came over here and had a State named after him). Of course, Penn's Case is usually discussed in a religious freedoms context or used by those who argue that a jury has a right to nullify the prosecutor's indictment (assuming that a charge is technically correct but that twelve citizens think it an unjust application of the law). Of course, American courts have long attempted to curtail this ability of juries and in most jurisdictions lawyers are forbidden to argue it. While I'm sure someone who believes as strongly in the history of the jury as Tom does favors reinvigorating this legitimate jury function by giving it the full endorsement of the law, most prosecutors and judges disfavor this power of the jury. Anyway, even if the legal precedent is no longer followed, the idea that a jury stands between a citizen charged and the government's prosecutors and judges finds its roots here.

Okay, having established that juries are meant as protections against the sovereign let's discuss how this protection has been stripped in Virginia.

To begin, let's not pretend that jury sentencing was always a bad thing. There have always been judges who oversentenced for philosophical reasons, political reasons, or because they were just plain ornery. Defendant Hatfield would probably rather have a jury of county citizens decide his sentence rather than Judge McCoy. And yes, this would be a reflection of the community's view of the appropriate punishment. Is there a chance Hatfield would receive a heavier punishment from the jury? Possibly, but probably not. I know if someone like Isaac Parker were my judge I'd want the jury to sentence me. Some juries surely sentenced some defendants to worse prison terms than the judge would have but it seems likely that the greater number of them did not.

Why is that likely? I'm glad you asked. It's rooted in criminal procedure. Virginia (and I'm sure most other States) historically did not have a bifurcated trial (bifurcated trials have a innocence- guilt hearing and if the defendant is found guilty a sentencing hearing). This meant that the jury would have only one hearing and then went back to the jury room to decide innocence or guilt. If they found the defendant guilty they decided the sentence immediately without returning to the courtroom for a second hearing and then returning to the jury room to determine the sentence. This was important because it kept the prosecutor from introducing the defendant's record and using it to get the jury to come back with a greater sentence. A judge would have had recourse to the record in sentencing; worse still, a judge might have seen defendant Hatfield in his court several times in the last couple of years and formed the (never publicly expressed) opinion that Hatfield is scum who really shouldn't see the light of day ever again.

Bifurcated jury trials came into existence as a way to make death penalty cases constitutional. Criminal procedure eventually adopted them for all jury trials (again, I am describing what has happened in Virginia). In capital cases this allows the defense, which is usually pretty hamstrung in the innocence-guilt hearing (prosecutors aren't stupid - they tend not to bring factually iffy cases to a capital trial), to present as much evidence as it can gather in favor of preservation of the client's life. Of course, the prosecution gets to present testimony from the victim's family members and others which it believes to favor the killing of a person by the Commonwealth. Nevertheless, on balance I think that bifurcated hearings are probably a good thing in capital cases.

However, bifurcated hearings in regular trials rarely benefit the defendant. A defense lawyer who is planning his appeal should not put his client on the stand because if his client says anything which implies he is guilty (like expressing remorse) the appeal is dead. The courts appellate Virginian will look at the voluntary confession made within the trial and ignore all other aspects of the trial. As well, in grand larceny or B&E trials there aren't often a group of grieving family members at the courthouse willing to testify in Hatfield's favor; often the only people on the defense side of the courtroom are the defendant and his attorney. Of course, in most cases the prosecutor doesn't have grieving victims breaking down on the stand either. The entirety of this hearing is often a dramatic reading of the defendant's record by the prosecutor (some of these guys should be out doing Hamlet) and argument as to what the sentence ought to be. Then the jury goes back to the room to decide.

So, what's wrong with that? Shouldn't the jury know about the man they're sentencing? Yes, they should. It was a flaw in the old system (defense attorneys are going to yell at me for saying that). The problem we now run into is the fact that they have no context within which to place the prior convictions. In olden days a judge knew the client's record and therefore was likely to hand defendant Hatfield a more severe sentence. In modern times the judge knows defendant Hatfield's record and also has a sentencing recommendation to place it in context. He knows the general sentence that people with a similar record should receive throughout the Commonwealth. He is not required to sentence accordingly but the vast majority of times he will. The jury is specifically denied this context. Va. Code sec. 19.2-298.01 (A): "In cases tried by a jury, the jury shall not be presented any information regarding sentencing guidelines."

Without this context there is the very real probability that juries are going to oversentence. For example, let's assume that Hatfield is charged with a 1st possession of cocaine and has convictions of misdemeanor possession of marijuana and misdemeanor vandalism from 5 years ago. I run the guidelines and realize that they will recommend probation without an active prison sentence. Then I look to see which judge he is in front of: Judge Smith. Smith hasn't found someone charged with possession not guilty in the last 15 years but he almost never deviates from the guidelines. I don't believe Hatfield is guilty but I know how a bench trial will turn out. I also know that if he is tried in front of a jury he has a 50-50 chance (conservative jurisdiction which favors law enforcement, officer who's been on the force 10 years, looks impressive in his badge and uniform and is basically a professional testifier, etc.). If my client's found guilty the prosecutor will rant about how this is his second drug conviction and I can argue that they don't have to imprison my client. Common sense tells us all how that will turn out. So, Hatfield faces a choice of a 99% probability of no prison time if he forgoes his right to a jury or a 50% chance that he will spend an unknown amount of time in prison if he exercises his right to a jury. This places an onerous burden on the defendant; he must increase his probability of significant prison time in order to exercise his right to a jury. I believe this to be a large enough barrier that it has constitutional ramifications - defendants who should be able to avail themselves of their right to a jury trial will not - in fact dare not - because of the very real threat that the possibility if jury sentencing imposes.

But wait, there's more.

The sentencing jury as a barometer of the community analogy fails completely when we consider mandatory sentences. I'm not talking about things like Virginia Exile (Tom's specialty) where the time is mandatory whether a judge sentences or a jury sentences. What I'm talking about are what might be called "soft mandatory" sentences. These are the sentences which a judge can suspend but a jury must impose. In Virginia Class 4 felonies require 2 years, class 3 require 5 years, and class 2 require 20 years. A judge has the power to suspend all or part of this time and the sentencing guidelines completely ignore soft mandatories. So the choice often becomes even more stark. If I believe Mr. Hatfield has little chance of winning in front of a judge but a 60% chance of winning with a jury but he's charged with aggravated malicious wounding (Class 2 felony: 20-life) it becomes extremely hard to recommend a jury even though I know he's facing 7 years under the guidelines. You think the fact that the jury must sentence him to 20 years if he's found guilty - whether they want to or not - isn't a massive disinclination to the exercise of Hatfield's jury right and the protection he is entitled to of having a group of citizens stand between him and the government.

Tom's correct when he states that the law allows the judge to suspend a part of the jury's sentence. However, they don't. Oh, I know it happens on occasion (although not yet for any of my clients), but there's a reason Tom remembers the cases when the judge reduced the jury sentence: they happen so rarely that they stick out like sore thumbs. I've discussed this in more depth here (in fact I think I've discussed all of the above there as well). While the statutes in the books make good reading, their application doesn't come anywhere near salvaging the reality.

I see four possible fixes. First, we could do it Tom's way and recognize the tradition of letting juries sentence as the community's conscience. In so doing we would have to eliminate soft mandatories (or allow juries to suspend time). And since we're relying on tradition we should bring back the traditional trial procedure. It would make life a lot more interesting: "Well, Mr. Hatfield, Judge Smith is going to convict you and the guidelines call for 2 years in prison. I think you have a good chance of being found not guilty by a jury and they won't see your 5 prior convictions. If they find you guilty, I don't have any idea where they might sentence you. What do you want to do?" It would make things a lot more interesting and might still have some constitutional implications but I think it would confuse the issue so much that it would be be impossible to see them as clearly as we can now. To be clear, I don't favor this solution. I just think it would be the most interesting.

Second, we could allow juries to receive the defendant's convictions but also give them the non-mandatory sentencing guidelines and allow them to suspend time. Or, in the alternative not tell the jury about the soft mandatory and if they sentence less than the soft mandatory have the judge add that back in as suspended time.

Third, we could treat the sentence put in place by the jury as the maximum possible sentence and require judges to sentence according to the guidelines in jury cases but suspend whatever time above the guidelines.

Fourth: We could just do it the easy way and have judges sentence. There's probably a reason the majority of States have adopted judicial sentencing and it probably has a lot do with avoiding all the difficulties described above.

Wonderful

I have a brochure on my desk for a CLE: "Indigent Criminal Defense - Advanced Skills for the Experienced Practitioner."

It looks like a good CLE, and about half of it looks like it could actually prove useful. On top of that, it'd be a good way to meet others who are doing the same thing I am (but not in the same courthouses). And the Chief Justice of the Virginia Supreme Court appears to be hosting the thing so it would be politically advantageous to attend (not that His Honor, Chief Justice Hassell knows me from Adam - I'd just rather not walk into the Supreme Court one day and be asked why I wasn't there). Beyond all that, I'd actually like to go and could use the CLE credits.

So why am I not going? Because I'll be defending indigent clients that day in both Chesterfield and Powhatan counties. Isn't that ironic?

No really, I'm asking. I've been so confused since that song . . .

Not Just Illegal - Also Alien

You might not just get arrested, you might get abducted.

Around the Web

1) PDD discusses the ongoing Jackson case.

2) I don't even remember how many cases I tried before I won the first. This is an interesting tradition.

3) Should apologies save people from jail? I know my clients would be willing to trade an apology for jail.

4) Florida has passed a shoot first, ask questions later, self defense statute. I woulda figured this for Texas (for all I know Texas may already have this law).

5) Be careful who you carjack

Affidavit of Truthfulness

So, I'm sitting in court today waiting for my client's aggravated malicious wounding case to be called. I'd already had my traffic court case for the day and the judge rendered a punishment which kept me from taking an appeal on a legal issue (sentence was too low to risk it). I'm trying to do some work while I wait.

Then comes the most interesting case of the day. A lady walks up to the bench on a speeding charge. I wasn't paying much attention at first so I didn't hear whether she pled guilty or not guilty. However, my attention (and that of every other attorney in the court) was quickly drawn to the bench. The judge looks up from the paperwork: "What is this motion to dismiss?"

"The DA didn't answer my motion."

Judge looks through the paperwork. "The motion for an Affidavit of Truthfulness?"

"Yes"

Judge: "And there's also a writ of mandamus in here . . ."

The judge then starts to read through the papers. The prosecutor looks around like he's wondering "Who let this crazy lady in here?"

Finally, the judge starts to read sections of one of the lady's filings out loud (not sure which). All of them seem to start, "The defendant, a child of God . . ." and descend into flowery language which makes little sense.

As best I could tell the defendant filed a motion for the prosecutor to file an Affidavit of Truthfulness. When he didn't she moved for dismissal and filed a motion for a writ of mandamus to make the court order itself to dismiss the case.

Needless to say, the judge wasn't exactly thrilled by all this. She lectured the lady about being sanctioned for filing frivolous motions, found her guilty and sent her on her way.

A little while later I was talking to the prosecutor about how he hadn't filed an affidavit of truthfulness in my client's case either and therefore should drop the case. Heck, I even mentioned it to the judge when we went up to the bench. For some reason they just didn't agree that it was a sufficiently large flaw to make my client's case go away . . .

Stuck at the Office

It's a rainy Friday night and I'm stuck at the office doing something which needs to be finished tonight.

Life sucks.

Heroin Cure

When I saw this my jaw just kind of dropped open in shock - there's a pill out there which doesn't get people high but gets them away from heroin without methadone.

Methadone is not a solution. I've represented a number of people who basically just switched from heroin to methadone and were just as hooked as before.

If there's something out there which is far, far better why the heck do we persist in the use of methadone clinics handing out a drug which is only slightly less evil than that which it is supposed to cure.

We should be ashamed.

Felonious Wounding in Virginia

In reference to my "Trial of the Century" post this question was in the comments:

I assume your guy was charged under § 18.2-51 or its progeny, which does indeed offer four different charges... but I'll be darned if I can see which one is the "malicious injury" charge is the judge was talking about.

§ 18.2-51 is shooting, stabbing, cutting, or wounding with intent to maim, disfigure, disable, or kill - maliciously it's a Class 3 felony; criminally negligent it's a Class 6 felony. Since you said it was 5-20, you meant the Class 3 version. So the elements the Commonwealth would have to show: (1) malicious; (2) bodily injury; (3) intent to maim, disfigure, disable, or kill.

Since all the Commonwealth has to do at the prelim is establish probable cause, it seems they could meet that burden easily based on the testimony presented.
. . .
What charge was the judge referring to?

Here's the statute in question:

§ 18.2-51. Shooting, stabbing, etc., with intent to maim, kill, etc.

If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.

Case law establishes 4 different felonies under this statute. The ones everybody knows are malicious wounding, which covers the "shoot, stab, cut, or wound" part of the statute and unlawful wounding, which is basically recklessly shooting, stabbing, cutting or wounding someone. How you can recklessly wound someone with "with the intent to maim, disfigure, disable, or kill" I don't know but I've only been able to preserve the issue in one case and my client decided not to appeal.

The other two charges are related to the "or by any means cause him bodily injury" section of the statute. Under this section fall malicious injury and unlawful injury. Case law is specific in that a "wound" requires breaking of the skin. Internal damage is an "injury." A malicious wounding can be charged generally but a malicious injury must be charged with specificity as to cause and effect. In other words, a malicious wounding charge can say "Smith did maliciously wound Jones" but a malicious injury charge must say "Smith did strike Jones with his fist causing Jones to have a concussion." Case law is pretty lacking as to a definition of an injury actually is but it seems to be something at least more than a bruise (although there are some amazingly bad unpublished cases which would make just about any battery charge a malicious injury).¹

But in most cases it's a moot point. If the prosecutor charges malicious wounding and the defense objects the prosecutor can amend or refile. Even if the prosecutor goofs and doesn't do this, the defense preserves the appeal, and the appellate courts overturn it (always remembering appellate review is entirely discretionary), the case comes back to the trial court and the prosecutor merely files a new charge in the proper manner and proceeds to trial again. However, most prosecutors will just amend the charge if the defendant raises the objection (prosecutors can amend through out most of the trial process in Virginia).

The fact that it's a point so seldom raised and argued was the reason I was impressed that a judge knew it - particularly a judge who sits in lower court and usually doesn't have to put too fine a point on felonies because all he has to do is decide probable cause.


¹ The actual locus of this charge should revolve around the "with the intent to maim, disfigure, disable, or kill" section of the statute because without that intent the charge should be reduced to a misdemeanor battery. However, in reality this seems to be one of the most ignored sections of any statute out there. Prosecutors prosecute, judges decide, and deals are made based upon whether there was a wound or injury. Period. Or, to put it in legalese: the defendant will always be found to have intended the natural consequences of his actions. So, if you hit somebody and he falls down but is unharmed you are okay; if he falls down and breaks his arm it'll be charged as malicious injury and probably convicted as unlawful injury.

Juries take this more seriously but the charge carries a 5-20 year sentence; juries cannot suspend any of that 5 years and a judge can. As well, judges will often refuse to reduce time to which a jury has sentenced a defendant. Therefore, taking this to trial will often raise the defendant's exposure dramatically and therefore (as is true with many felonies in Virginia), there are not too many people willing to risk a jury trial.

U-Turns, Jurisdiction, and Software Contracts on the Brain

Sometimes a story just tears its way through the courthouse gossip vine. Yesterday it was this case:

A man had been convicted of making an illegal U-turn in general district court. Word was, in the lower court he just stood there as the judge found him guilty and then went off to the clerk. However, once he got to the clerk he apparently decided to exercise his right to appeal the conviction for a trial de novo in the circuit court.

Yesterday he came to the circuit court. His case was called and he pled not guilty. He started talking about how the court had no jurisdiction because of some contract. The prosecutor and judge are a little confused so he pulls out copies of the contract which he brought for the judge and prosecutor because he realized the case would be the first of its kind in Virginia and of precedentual magnitude.

Here's the contract:
----------
Software License Agreement:

Revision 9/12/2001/01

 

Definitions:
1. The System will here forward refer to John Smith Serial# 111-22-3333.

2. The Owner will here forward refer to John Smith Serial# 111-22-3333.

3. Software - For legal purposes the software governed by this agreement will include all contents of memory of the system referred to as John Smith Serial# 111-22-3333 or information derived thereof.

4. Redundancy in this agreement is not in error.

5. This agreement is non-exclusive, independent, and self-contained. The terms are binding in any relationship or interaction between the System and any other object or entity.

6. Authorization of the software is an object and includes authorization of the software and authorized use of the software for this agreement.

7. Authorized Use of Software: Authorized Use of this software is cooperative responsibilities agreed to by the owner after payment of the software lease stated below.

8. Unauthorized Use of Software: Unauthorized Use of this software includes all competitive responsibilities assigned without authorization by the owner. Possession of the software for more than 3 days, without payment of the software lease, is also considered unauthorized use. Unauthorized software is to be disposed of immediately (less than 3 days) as listed in Destruction of Software. Unauthorized users of the software will be subject to prosecution of copyright, patent, and software piracy laws as well as forfeiture of 1.5 times the lease price.

Authorization:

1. The owner is the sole owner and executor of the software.

2. Authorization, possession, and responsibility for this software is non-transferable.

3. Any possession or use of this software not approved by the owner is considered unauthorized use.

4. Authorization is bi-stable. It either is or is not authorized. If there is any question it is to be considered unauthorized.

5. Possession, control, or jurisdiction over the system is equal to possession of the software.

6. Use of or possession of this software constitutes agreement to the terms of this document.

7 Any removal of or denial of responsibility or self-control from the system will constitute possession of the system.

8. Any compromise of the proprietary technology and intellectual property contained in the software will constitute use of the software. This includes any attempt to use psychologically active or reactive drugs, hypnotism, psychological manipulation, or behavior modification.

9. This document shall supercede any previous revision and shall remain current as long as a newer revision is not present. All revisions shall be subject to the approval of the owner.

Terms of Use:
1. Price: The price of the lease of this software is One million dollars ($1,000,000.00) per year after taxes, fines, or any other liabilities are subtracted. Any use of this software will commit the user to pay the full price of the software lease.

2. Duration: The duration of the software lease will be for no less than the total life of the system. This began on 7/23/1965 and will end upon the destruction of the software.

3. Modification of Software: Any analysis, alteration, manipulation, de-compilation, decoding, or disassembly of this software by anyone other than the owner is to be considered unauthorized use.

4. Unanticipated Damage To System: No repair or recovery is authorized and no resuscitation or heroic life saving actions are to be taken in order to prolong system function. Alteration of the software or system to repair damage is forbidden and the software is to be disposed of immediately (less than 3 days) as listed by destruction of software.

5. Destruction of Software: The destruction or deletion of the software may be accomplished by any means which will result in a lack of brain activity for a period of 24 contiguous hours.
----------

His claim was that this agreement rendered him outside the jurisdiction of the court (unless, of course the Commonwealth was willing to pay applicable fees). The guy was dead serious. Apparently he caught the judge in a good mood because they are said to have discussed the provisions of the contract for several minutes. The judge ended the conversation by pointing out the last provision under Terms of Use and asking the defendant if that meant if he had the deputy take him out and shoot him then the court would have jurisdiction. The defendant is said to have stood there giving it serious thought and replied, "Yes, your honor, that would work."

Needless to say, the judge did not take him up on his interpretation of the contract.

JRM asks:

Can you help us out on Virginia criminal procedure? In California, prosecutors make charging decisions, not victims. If a victim wants to "press charges" it's not legally meaningful.

It sounds like from this account that something else occurs in Virginia. Is this right?

In Virginia there is a magistrate who sits at the jail and actually signs off on any warrant. Usually this means that an officer comes before the magistrate and tells him Suspect Smith did such-and-such and he wants a warrant for Smith. In theory magistrates are nuetral parties who judge whether or not there is probable cause but in reality most of the time they act as the charging arm of the police department. In fairness, I must say that there may be a number of charges which they refuse to warrant on any given day but I don't hear about them; I get the clients who tell me how they sat there while the magistrate and officer looked through the statutes to find something to charge them with (usually in response to the question: "I've been doing this for years and never seen anyone charged with felony emptying trash with only one shoe before. Didn't even know it was illegal. How did you get charged with that?").

However, citizens can also go to the magistrate and try to get him to file charges. Some magistrates are more reluctant to approve these charges and it is vary rare to see a magistrate approve a violent felony charge unless an officer is there to support the charge.

This process is abused shamelessly. Businesses go in and file felony and misdemeanor check charges left and right in order to avoid having to take people to civil court (charges are often dropped if payment is made and restitution is mandated upon conviction).

Beyond this, regular citizens go in and take out all sorts of misdemeanor charges against each other. The most common of these are assault and battery, various phone abuse charges, trespassing, violations of local pet ordinances, etc. Quite often, when one citizen goes and files a charge the other citizen goes and files another against the first. These are "cross-warrants" and usually both charges are valid because they arise from some long running fued wherein both parties have managed to do something which is technically illegal.

Cross-warrants are acrimonious and take a long time to try because of all the emotion and the tendency of both sides to bring 4-5 witnesses for their big day in court. Prosecutors tend to roll their eyes at them and sigh in exasperation. Judges hate them because they clog the docket. In most cases everybody wants the two misdemeanor dog running free cases (which would take a hour to try) settled so that more serious cases can be handled. The usual way that this is handled is for the two defense attorneys to do an accord and satisfaction wherein both defendants certify that they are satisfied and the judge dismisses the case but alots court costs to the parties.

Now, the prosecutor always retains the ability to amend or dismiss charges. If the prosecutor feels that one of the cross warrants is ridiculous he can drop it and choose to prosecute the other. Technically, the prosecutor could choose to move all citizen warrants for nolle prosequi (dismissal without prejudice for those of you in heretical jurisdictions which use English rather than Latin). In some jurisdictions prosecutors' offices have adopted a policy of not pursuing check charges filed by businesses (under the theory that prosecution offices are not collection agencies). However, in most cases prosecutor won't dismiss charges filed by voters; they (and the judges as well) will just lean on the defense attorneys to try to get them to settle it out and accept anything reasonable the defense attorneys come up with (again, usually an accord and satisfaction).

Hope that clears it all up.

Creek Running North: Life and Death

From Arbitrary and Capricious:

A remarkable family story, remarkably well-told:

One morning twenty years ago this month, I opened the front section of the Washington Post and read that my friend Stephen Peter Morin had been executed by the state of Texas for capital murder.

There are two reasons that that sentence, while accurate, felt awkward to write.

First reason: it has been a long time since I thought of Morin as a friend. He was a twisted, manipulative and malevolent person, and if I hate anyone in the world or out of it I hate him.

Second reason: I knew him as Ray Constantine.

This is what literature looks like. And no, I don't know why I didn't link to it sooner. Go and read it now.

Trial of the Century

WARNING: Explicit Language

I go to the courthouse with 6 different hearings scheduled in 3 different courtrooms. I touch base with my clients in courtroom B, call for my client in courtroom A (no answer - a no show), and then head down to courtroom D.

In courtroom D, my client is facing a preliminary hearing for malicious wounding (felony 5-20) As well, he has charged the complaining witness with assault and battery and his fiance has charged the complaining witness with sexual battery. I knew it was a different kind of case the first time I got a look at the paperwork. The magistrate had given my client a personal recognizance bond for this charge which is never done for this type of charge.

I get to the courtroom and my client is sitting there with his fiance and two witnesses they have brought. We all go out into the hall and I discuss with everyone what they saw. Then I go back into the courtroom and walk up to the prosecutor. She asks what case I'm there for and, after I tell her, says "Oh, yeah, that cross-warrant thing." Then she points to the name of the attorney representing the other guy and asks if I know who he is. I tell her I've never heard of him and she tells me she doesn't know him either. We talk a little further and I'm left with the impression that she's willing to settle this the way most cross warrants are (if I can make it go away she won't interfere).

As I walk away from the prosecutor a young man stands up and walks up to me: "You must represent Client. I represent Mr. Jones." I look at him and everything about him just screams "newly-minted lawyer." So we walk out into the hall to talk and I offer him the typical deal that any of us long-practicing, cynical defense attorneys would snap up in a second. Everybody involved that night will sign an accord and satisfaction. No muss, no fuss, and nobody gets a conviction on their record.

He balks. He keeps talking to me about his client's medical expenses. I ask him a couple of times if he knows what the facts are and he assures me he has talked to the detective and knows the facts. We talk back and forth and he goes in and talks to his client a couple of times. Finally, he tells me his client doesn't really want my client to go to jail but the best he'll agree to is my client only getting convicted of a misdemeanor (with no time) if all the charges are dropped against his client. I talk this over with my client for a minute and it is rejected. I tell Mr. Jones' lawyer and, realizing that since we are now contested we go to the end of the docket, I go handle my cases in the other courtrooms.

When I get back the case is called. As is typical in cross warrants, both cases are called at the same time. I walk up with my witnesses, the detective walks up with his witnesses, and the other defense counsel walks up with his client. The other defense attorney moves for witnesses to be excluded and the prosecutor calls the first witness (my client's fiance).

Her version of the events:
-----
"We're at a bar with some friends and this drunk guy comes up behind me and runs his fingers through my hair and starts talking about 'what he could do with this red hair.' I turn around and tell him to stay the fuck away from me."

"Later, the guy comes back, grabs my hair and pulls it back telling me he's going to fuck me. My fiance runs him off."

"My fiance goes to the bathroom and this guy comes up from behind me and grabs my left breast." At this point she grabs her breast and demonstrates exactly how he grabbed her to the judge. "I push his hand down and he grabs my butt. I tell him to leave me alone that my fiance is coming back and he says, 'I'm going to put him down in 5 minutes and then I'm going to take you home and fuck the dogshit out of you.' Then he got up and walked over to Client and told him 'I'm going to put you down in five minutes and take your girl home and fuck the dogshit out of her.' Then Mr. Jones spat at Client and started to throw a punch but Client shoved him down. Then Client grabbed Mr. Jones by the collar and walked him to the door and threw him out."

"The bar tender told us we had to leave so we paid our tab, Client apologized, and we left. As we went out the door Mr. Jones came at Client again, spat at him and Client pushed him back. A big guy then grabbed Client and shoved him against the wall and told him 'You need to get the fuck out of here.' Then we left."
-----

All-in-all, it's pretty powerful testimony, made all the more so by her unabashedly straight-forward description of the night. She just seems oblivious to the fact that she's swearing like a drunken sailor and grabbing herself in front of the judge (who, to his credit, keeps a straight face throughout). Mr. Jones' attorney keeps making annoying hearsay objections which are technically correct but accomplish nothing for his case (except to exasperate the prosecutor). Another sign of a brand spanking new lawyer; I remember doing the same sort of silliness myself when I started practicing.

The prosecutor then calls a lady who corroborates fiance's version of everything which happened inside the bar (although less colorfully) and a man who corroborates fiance's version of what happened outside the bar. The second witness even testifies that he saw Mr. Jones leave the scene (after my client had left and police had responded) and he didn't seem to have any injuries. The next witness is the bartender. She really didn't see anything and she was outside handling another situation when my client threw Mr. Jones out of the bar. So she made my client leave.

Then came the son of the bar owner. He was outside when Client went to leave. In his version of the events my client walks outside, says something to Mr. Jones and then shoves him down causing Mr. Jones to hit the back of his head. Mr. Jones' attorney asks a really strange question: "Did he turn as he fell?" But the witness repeated that Mr. Jones had fallen straight backward.

Then the prosecutor stops and tells the judge that at this point she would like to call the defendants to testify. I talk briefly to my client and we agree. My client testifies to pretty much the same stuff his fiance had (though less graphically). Mr. Jones' attorney asks Client if he slammed Mr. Jones' head into the door as he threw Mr. Jones out of the bar. Client looks at him like he's off his rocker and says "No, I opened the door with my other hand."

Next, the prosecutor goes to call Mr. Jones. His attorney says he'll testify but reserve the right to assert his 5th Amendment rights as to some matters. The judge looks dubious but allows it (by this time the case has been going for almost a hour - he would probably have agreed to most anything to get it over with and get his docket back under control).

Mr. Jones testifies that he doesn't remember much from that night - that he's got "post traumatic memory loss." The prosecutor asks him if he went to the hospital. He starts out saying, "I didn't want to . . ." At this point his attorney says, clear as a bell, in front of God and everybody else who cared to listen "Yes, you did."

Almost before the words fade I'm objecting, loudly. The judge asks why and I explain: "Your honor, his client started to answer the question and his attorney corrected him and told him to give a different answer." The judge gives the other attorney a mini-lecture about how he can't tell his client what to say. To be fair, I now think Jones' counsel was just trying to get Jones to answer without commentary; at the time I thought he was telling his client to change an answer. Anyway, the case goes on.

Mr. Jones testifies that he doesn't remember what happened that night but that he had bruises on the front left of his face and two days later his head hurt so much he had to go to the doctor. The doctor found blood in his skull in the front, behind his forehead. It was drained. The prosecutor asks if he has any scars and Mr. Jones points out a crease which runs across his head from his right ear to his left. You can't see the scar but you can see the crease in his hair clearly. With that, the prosecutor rests her case.

Then Mr. Jones' attorney calls Mr. Jones. As he does, he opens his folder; I glance over and see about 15-20 pages of notes, photocopies of the statute and case law, and various other items. I came to court with two pages of notes for a felony prelim and this guy looks like he spent the last full week prepping for two misdemeanors. Another thing which brings back memories of what I used to do when I first started to practice (if I did that now I'd probably be able to handle maybe two cases a week).

So Mr. Jones' counsel pulls out some photographs. He asks Mr. Jones if they are pictures of him after the operation. Mr. Jones confirms that they are. As the attorney hands them to me to peruse I see that they are pictures of the head shaved and the stitches across the skull. Before the judge can see them, I object that Mr. Jones' attorney is supposed to be presenting his client's defense to assault and battery and sexual assault and battery and that photographs of injuries don't go toward a rebuttal of his actions. The judge agrees but says something cryptic about how he thinks the injury's already been proven anyway.

So then it's time for my case in chief. Mr. Jones' attorney has been trying to make some hay with the fact that my client and his fiance hadn't pressed charges until charges were served on them. I ask Client if he even knew Mr. Jones' name before the charges were served and Client states that he didn't and that he he just wanted to get away that night and forget about it all. It wasn't until charges were filed against him that he felt the charges had to be filed against Mr. Jones.

Then it's all over but the arguing. I argue that my client was not the provocateur (yep, I used a $3 word in general district court) and no medical evidence has been introduced as to any wound; therefore, the charge should be dismissed. Mr. Jones' counsel argues prejudice on the part of the witnesses against his client. The prosecutor submits the case.

The judge looks down from the bench and shows a knowledge of the statute which I don't usually see in a circuit court judge. He points out that my client was charged with malicious wounding and that under the statute there are actually 4 different charges and my client should have been charged with malicious injury. He dismisses my client's charge on that basis. Wow. For a while there, I thought I was the only person who'd read the statute and case law in this area but I guess not.

Personally, I think it was a decision based on equity and judicial efficiency; he probably thought there was enough evidence to certify the charge to the grand jury but not enough to convict, considered the circumstances of that night, and decided to use the law to cut this case out of the herd. Not that I'm complaining – I try never to complain about a result which is good for my client and this is the absolute first case I've won in front of this judge since he took the bench.

Then he turns to Mr. Jones. He starts telling him how good a job his attorney did for him (a sure sign of a guilty finding). Then he finds him guilty of both counts. As Mr. Jones' attorney starts his “don't throw my client in jail” tap dance I ask the judge's leave to withdraw and my client and I go outside of the courtroom. When I come back in Mr. Jones has been sent to lockup and his attorney is in the back doing the paperwork for an appeal to the circuit court.

I talk to his lawyer and the young man asks me if I had any advice for him. I tell him you can't do much when you haven't got much to work with and that he should have taken the accord and satisfaction. It's a polite conversation but after I go off and handle another case I think about it and realize that my reply could have been taken as obnoxious. I don't think it was but I look around for the attorney anyway - he's gone.

And thus ends the trial of the century.

The Benefits of Aggressive Policing

Conversation with an officer as we are both walking out of the courthouse to go to our cars:

Officer: A lot of drug dealers have moved out to this county.

Me: Why's that?

Officer: They think it's safer out here because of the aggressive policing. They figure nobody's going attack them to take their drugs here; so they deal in the city and live out here.

Me: Are they warehousing the drugs in the city?

Officer (grinning): No, they're keeping the drugs in their homes. That's how we keep catching them.

Around the Web

1) How to talk to a lawyer. In general very good advice. As to how much information to give your Criminal defense attorney, unless your attorney asks you to tell it all to him answer the attorney's specific questions. Oh, and . . . if you know your attorney is waiting at his office for you to come by and talk to him - go to your attorney's office and talk to him. I hate phone interviews. I want to see you, watch your body language, see you clothes, etc. Believe it or not, all of these things can be very important for your defense.

2) From Orin and Waddling Thunder - Do law professors need practical experience? I remember one professor telling me that it was considered bad to have actual experience if you were looking for a law professor position because you were considered "contaminated" and probably no longer theoretical enough (my summary of a longer conversation). All I know is that the people teaching criminal law and any class which teaches constitutional law that touches upon criminal procedure should know that of which they speak. Theory and courtroom reality are entirely different things and those who might need to actually practice in the courtroom need to know the difference (I am now shivering as I suppress painful memories of some of my early courtroom arguments).

3) Teaching the law of rape. Maybe ya'll can make constructive comments. My criminal law class covered murder for 80% of the class and the entire course leaned heavily on the Model Penal Code. And, boy, that was oh so helpful when I started defending people charged with grand larcenies and B&E's in a common law State.

4) Indiana Public Defender gets a not guilty verdict.

5) 400 hours at the DOJ as "pro bono publico?" Ummm . . . I'm gonna pass on the snide comments. It's just too easy.

6) Johnnie Cochran has passed on. I cannot comment on the man personally but it does seem like he was a heck of lawyer.

7) What do you know, Public Defender Dude is getting fan mail. Sadly, it looks kinda familiar.

8) Firing 43 prosecutors in one fell swoop. Not a bad day. ;-) Of course, it looks like he might have to hire them all back.

9) Should you retain your license to deal firearms if you leave 31 weapons - including machine guns and firearms - in your unlocked car so they can be stolen?

10) Should someone be allowed a lesser term of incarceration because he is an important research scientist?

11) Stay away from the police if you are trying to get to the hospital for a birth.

12) The guy who killed his officers with a grenade in Iraq tried to escape. He was a no-go at this station.

BTW SoCalLaw has a really nice new format.

13) Living in the closet of a teenage girl and then writing her letters from jail. ick.

14) Mr. DA honors us with another post. Yeesh, his office sounds busy.

15) FBI at work. Because nobody would think someone hid something in a crawl space.

16) Can a juror's blog taint a trial?

17) The defendant from Crawford pled (that's right pled, not pleaded) guilty anyway.

18) Okay, this is just sick - and it doesn't beat the alcohol breath test either.

19) "There is too much law as it is. Most of it better left unread." I agree with the sentiment but not generally a fan of the book.

BTW: I want to thank Mike for helping out over here at the beginning of the last week. He did it without even being cajoled into it which shows he's good people. Go read his blog. He seems able to keep things over there always at a high quality. If only I could figure out how to do that . . .

20) At least these guys aren't drinking bleach to beat the test. I about fell over the first time I heard someone had done that.

21) Client control: ( 'klI-&nt k&n-'trOl ) 1. A term generally a part of a prosecutor's vocabulary which means to get your client to do what the prosecutor wants him to do. Generally, this means to force your client to plead guilty. However, it may also have other meanings. 2. A term defense attorneys joke about because they know that no matter how rational or heated their discussions are with their clients a number of clients will display traits such as free will, stubbornness, or lack of foresight. As well, there is always that possibility that the client may truly believe in all that patriotic "right to trial," "presumed innocent," and "proof beyond a reasonable doubt" silliness we feed our children in their civics courses.