Always Remember

I will never leave a fallen comrade.

from The Soldier's Creed

Lack of Class - Stealing a Post

Ya'll will remember that in this post I commented on the fact that someone out there had posted about a post from CrimLaw on a German blog. Well, it turns out that he plagiarized the entire post from German American Law Journal:: US-Recht auf Deutsch. Specifically, it was a post by Clemens Kochinke, who has been kind enough to link to this blawg several times. Here's Clemens' original post and here's his comment on all this as best I can translate using Babel Fish, PROMT, and some freehand:

Thief as Attorney

Transatlantic theft of mental property and a thief disguised as a lawyer: rechtsanwalt.typepad.com/blog.

Posts from the German American Law journal:: US right to German appear there illegally in full text. And CrimLaw expresses thanks, delighted and unsuspecting of the link from distant Europe.

The awkward thief does not even go to the trouble to hide Blogger control instructions incompatible with his blog. Beside GALJ posts there are various plagiarisms from other gBlawgs. As concerns the theft of the American texts, the Blogger - if that's what you'd call him - probably makes himself culpable. He clearly goes beyond fair use.

Sorry about that Clemens.

My Father (Kenneth Frank Lammers Sr.) sent me this:

NEVER SAY TO A COP

1. I can't reach my license unless you hold my beer. (OK in Texas)

2. Sorry, Officer, I didn't realize my radar detector wasn't plugged in.

3.Aren' t you the guy from the Village People?

4. Hey, you must've been doin' about 125 mph to keep up with me. Good job!

5. Are You Andy or Barney?

6. I thought you had to be in relatively good physical condition to be a police officer.

7. You're not gonna check the trunk, are you?

8. I pay your salary!

9. Gee, Officer! That's terrific. The last officer only gave me a warning, too!

10. Do you know why you pulled me over? Okay, just so one of us does.

11. I was trying to keep up with traffic. Yes, I know there are no other cars around.. That's how far ahead of me they are.

12. When the Officer says "Gee .Your eyes look red, have you been drinking?" You probably shouldn't respond with,"Gee Officer your eyes look glazed, have you been eating doughnuts?"

An officer suggests planting drugs when the search warrant doesn't turn anything up. But, of course, it was revealed as only a joke when the suggestion turned up on security video tape and the case was dropped.

I read this list of punishments for various crimes in New Hampshire and found myself comparing it to similar Virginia laws. Some were better, others were worse, and many were similar.

Here's one for you: 20 years in jail for picking the pocket of someone who has $5.00 in his wallet.

Anybody got anything out there in their State which tops that?

Public Defender Dude goes indepth into the case wherein a jury found the public defenders' office was found 100% liable for a conviction in which the police lied.

Taking Away All Harmful Insruments

Take away firearms and we will have peace in our time.

Take away knives and we will have peace in our time.

Take away dogs and we will have peace in our time.

Prosecutors Underpaid?

Commonwealth Conservative expresses dissappointment at the pay for prosecutors and gets taken to task for it in the comments.

Wrestling Catfish

Into every State's history some strange laws must enter.

In Missouri it shall soon be legal to jump into the water and wrestle with giant catfish. For those of you who don't quite get what that entails, picture diving under water and wrestling something which can weigh up to 150 pounds in an attempt to get it out of the water (where you cannot breath) and onto land (where it cannot).

Who Gets the Blame?

A comment from my Prosecutors with Firearms post:

If a defendant looses a capital case who's facing either death or very long time, who does he blame? The defense lawyer or the prosecutor?

Well, yesterday a client of mine left the courtroom screaming at me¹ and the deputy wouldn't let me go back to the lockup area to talk to him until they had him locked behind a door and I could speak to him through a screen. Once I got back to talk with him I found out all sorts of interesting things about my parentage, my competency, and my greed²; He never once said anything about the prosecutor or judge. It was all my fault.

Defense attorneys are yelled at, threatened, and blamed by their clients all the time. And we have to interact with these folks far more often than the prosecutor. Last week I was at a section of a local prison interviewing a client and during the interview they were so worried about him that they had him tethered so that he could not get to me. I'd bet everyone has heard stories about defense attorneys getting hit or stabbed by their own clients. I know this happens to prosecutors and judges too but suspect I am in a dangerous situation more often then they are. Heck, perhaps the General Assembly will give me the right to carry a concealed weapon without a permit too. Maybe a nice Mac 10?"



¹ It went something like this: "You're fired! I want another lawyer! You're fired! He (prosecution witness) has a capias on him - tell them he has a capias on him! He should be going to jail! They're lying! He has a capias!! Tell them he has a capias! You're worthless! You're fired! You're fired!" It was at the end of a preliminary hearing and he was mildly upset because I couldn't wave my magic wand and make his case disappear.

² I can discuss this (at least generally) because he was yelling so loudly that even the class of high-school kids who were outside observing the courtroom could hear it.; there is no way you can claim a reasonable expectation of privacy in that conversation.

International Notice

Whodathunk this blog would get international links?

Actually, I don't know where this was posted from but it does make me wish that my family still spoke the language.

Pretrial Publicity

Mike wonders about the parameters of blogging and / or setting up a web page for your client. The rule I think applies is this one (from Virginia's Rules):

RULE 3.6 Trial Publicity

(a) A lawyer participating in or associated with the investigation or the prosecution or the defense of a criminal matter that may be tried by a jury shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication that the lawyer knows, or should know, will have a substantial likelihood of interfering with the fairness of the trial by a jury.

(b) A lawyer shall exercise reasonable care to prevent employees and associates from making an extrajudicial statement that the lawyer would be prohibited from making under this Rule.

A website or news article (including a prosecution press release or conference) would violate this rule as the point would be to take part in a media which is widespread and accessible to a great number of people. Posting on a pre-existent blog might not have the same effect - they just don't have the same reach. I doubt many jurors will have read CrimLaw before coming to court.

Now, as to whether a clerk might be reading this (or better yet a judge) and I might be able to influence her through the power of my prose . . . Hmmmm . . . Nah, I'm just not devious enough to pull it off.

And still no Justice shows the good sense to hire me as a clerk.

Whatdoya' mean I gotta apply first? These are supposed to be the smartest of the smart, the wisest of the wise - they should be able to spot my innate talent shining through the web. And I'm only down in Richmond; how hard could it be for one of them to take a trip down here and see if I'm available?

Fraud at BestBuy?

It looks as though BestBuy may be pulling a bait-and-switch by advertising one price on the internet and having a separate price on its stores' intranet.

Signs that the Feds Don't Have Enough to do

Going out to Wise and Clintwood to pursue people who had copies of the new Star Wars movie on their computer and let others download it via Bit Torrent.

Y'know, if the government, RIAA et al aren't able to quash "internet 2" (400 times faster than current broadband speeds) they're going to lose this fight. Actually, they've already lost it for music and the other dominoes are falling.

It might be time to develop new laws and business models you idiots. Why the heck aren't you (WB, ABC, NBC, CBS) offering your programs via Bit Torrent, Kazaa, Grokster, &cetera with a couple embedded commercials? Why aren't you (Paramount, 20th Century Fox, TriStar) releasing trailers, 20 minute sections of the film, and old films with ads imbedded? The music industry has already adjusted to file sharing, implicitly recognizing the failure of legal coercion in the face of continued, large-scale file sharing. For example, Yahoo! Music has the price for unlimited downloads down to $4.99 a month (6.99 if you choose not to subscribe for a year). Prices in this range with assured quality make it competitive with often poor quality, possibly virus containing rips found P2P.

Pull yourself together. Adapt rather than trying to preserve your monopolies / oligopolies through regressive laws. Participate in the capitalist system rather than trying to run rough shod over it. If this tech were being embraced rather than fought off some amazing things could be taking place.

rant triggered by post from ComCon

A Judicial Wrong

The judge who threatened a lawyer who was representing Ross' wish that he be executed has now been revealed as having attempted, while a private lawyer, to act to prevent the execution.

KKK Statute Misapplied

Bet you never knew the KKK wore Grinch masks.

Oh No, He Didn't . . .

Mike just wondered whether a sued PD's office hired a "paid lawyer."

Prosecutors with Firearms

They won't even let me carry a cell phone in to the courthouse and the next time we have a jury trial Tom might be packing heat. Not cool.

Now I can never turn my back on a prosecutor ever again.

Is a Blog Post Allowed as Evidence?

Orin's question actually led to a friendly argument between me and a prosecutor. The question:

Is a computer printout of [a] blog post, identifying "my sister's former boyfriend" as being present in a house shortly before the author was killed, admissible at trial?

The prosecutor asserted that it wouldn't be allowed in because it didn't fit under the hearsay exceptions because it wasn't a dying declaration, excited utterance, and didn't indicate any relevant state of mind.

I allowed that he was right on the first two and probably the third but that the exception which would allow it under Virginia's common law evidence rules would be the res gestae exception. This is a common law exception which allows statements which occur with significant relation to a crime to be admitted into evidence if they are tied to the crime. It's generally been done away with in States which have adopted a version of the federal rules and there has been a trend in common law States to relegate it to just another way of saying "excited utterance." The difficulty with this in Virginia is that res gestae is also the manner in which felony murder is proven: if the homicide is related to the underlying felony then it is within the res gestae and therefore a felony murder. This seems to dictate a wider understanding and Virginia' Supreme Court has set forth this test for the res gestae hearsay exception:

(1) The statement or declaration made must relate to the main event and must explain, elucidate, or in some way characterize that event;

(2) it must be a natural declaration or statement growing out of the event, and not a mere narrative of a past, completed affair;

(3) it must be a statement of fact, and not the mere expression of an opinion;

(4) it must be a spontaneous or instinctive utterance of thought, dominated or evoked by the transaction or occurrence itself, and not the product of premeditation, reflection, or design;

(5) while the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation, and

(6) it must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made. Chappell v. White, 182 Va. 625, 633-34, 29 5. E. 2d 858, 861-62 (1944).

I think the blog entry falls fairly comfortably within those parameters; or, I should say that I would expect most judges to find that it did if the prosecutor presented the evidence under this exception.

Understand, if I were the defense attorney I wouldn't roll over on this one. There is an argument that this is not a comment on the murder at all because it is precedent to the murder. As well, the Virginia Court of Appeals has published at least one decision wherein it claims that res gestae is just excited utterance: Royal v. Commonwealth 12 Va. App. 928 (1991). Authenticity was an issue raised in comments to Orin's post and is probably the strongest argument against introduction into evidence: prove it was written by the decedent, that nobody else had the login code or the browser he used didn't automatically enter the login name and password, that it wasn't written under duress, etc. There is also the fact that no one was named in the post which could give rise to the argument that it doesn't even provide proof that the defendant was even the person being written about (although this could be countered by reference to the fishing rods).

Of course, this is all really just a mental exercise since the accused made a confession.

Freespace is Done

I often disagreed with Timothy Sandefur but I always enjoyed reading Freespace. Unfortunately, that pleasure will be no more.

I applaud him for making the right choice but will miss reading his blog for my own selfish reasons.

Around the Web

1) Well, it looks like Texas will have life without parole after all (even if it means loaded guns in prison).

2) Independent counsels never die, and some don't even fade away.

3) So, how many of those firearms do you think the officers actually dumped 5 miles out?

4) Just naming the dog Mr. Mooch Face should have bee a crime by itself, much less the devil-worshipping, toxic dump claims.

5) From Musings and Rants (via Skelly)

Client: "That judge don't understand my problems."
Me: "No, that judge doesn't care about your problems."

Yep, I've had that discussion a couple or more times.

The CIA Wants You!

The number one reason for wanting to work for the CIA? They have a sense of humor.

via Orin @ Volokh

Random Jury Stories

1) Hung jury in the case of a man accused of killing an officer.

2) "A Chicago podiatrist was condemned to death by a federal jury Monday for fatally shooting a disabled woman at point-blank range to keep her from testifying against him in a $1 million Medicare fraud case."

3) "Two Louisville Metro Police officers and the city aren't liable for the shooting death of a handcuffed man who attacked the officers with a box-cutter knife, a Jefferson County jury has decided."

4) "Four women who claim legendary record producer Phil Spector pointed a gun at them in separate incidents may testify against him in his September murder trial, a judge ruled today. . . . But the defense could also claim a partial victory today, with the judge ruling that jurors won't be allowed to hear about the two times Spector was convicted of gun-related violations."

5) "Jury selection is getting underway in the case of a U.S. Marshal charged with shooting a man after a traffic dispute."

6) "A man charged with setting a fire that killed a Houston firefighter was convicted of murder Monday afternoon."

7) "Jury clears businessman in VAT fraud case."

Around the Web

1) Is it really an escape if you just get off the bus at the wrong stop?

2) Is an innocent serving a life term?

3) A chief PD asks the judges to eval his employees. While I guess that could be helpful I must agree with Skelly that observation by the bosses would probably be more appropriate.

4) The Brits have moved beyond our silly concern with firearms; they're now concentrating on taking away knives.
via UK Criminal Justice

5) What people think about capital punishment.

6) Looks like English juries may be heading the way of the Dodo.

7) A prosecutor uses his mother's name to get a credit card.

Not a Fan of Law & Order

"Would it surprise you, that is, to learn that people who claim to be victims sometimes don't turn out to be victims at all, and that many victims have rap-sheets as long as their offenders, motives to lie or distort, and involvement in the criminal cases they report to the police well beyond that of an innocent bystander?"

"Yes?"

"Then stop watching Law & Order."

And further down the page:

"5. Most police officers do not hate defense attorneys. Likewise, most prosecutors do not hate defense attorneys. Like judges, police officers and prosecutors understand that defense attorneys are an ineluctable part of the criminal justice system, and the American system of democracy would fall apart tomorrow without them. Many police officers and prosecutors even admire defense attorneys for the difficulty of the work they do, and regret inadequate understanding of the importance of that work amongst the general public. The television show Law & Order has done more to knowingly lie to the American people about defense attorneys and what they do, and about the criminal justice system and how it actually operates, than any show in the history of American television. Law & Order accurately depicts the criminal justice system in the same way Hitler actually depicts the sensibilities of the average Berlin resident in 2005."

Actually, the legal posts are inciteful. [addendum: er . . . that oughta say insightful]

BTW, I got there from Alaskablawg.

More on Dogs Which Never Err

In Australia dogs were mistakenly trained to search for talcum powder.

Thanks to Have Opinion, Will Travel for the heads up.

Around the Web

1) Mike passed the California Bar. Y'know, you kinda got to wonder what kind of questions are asked in the Cali exam: "Like, Dude, should a totally harmless plant like marijuana be illegal, or what, dude?"

2) In NY it's okay to pat a woman on the @@@.

3) Orin finds a law which could send a lot of US law enforcement officers to jail. Of course, it'll never be enforced but it's kind of strange to see a relic of an era when Congress tried to stop over enthusiastic enforcement.

4) SL&P finds a case wherein a judge cuts the sentence from a crack conviction drastically, in part because of the 100:1 sentencing disparity between crack and powder.

5) It looks like life without parole will continue to not be an option in Texas.

6) Can your execution be stayed in order to allow you to donate your liver and save someone else's life? Not according to the Indiana Parole Board.

7) Apparently, the trial of Hillary's fund raiser isn't going well for the prosecution.

8) DOJ is planning a national sex offender registry. It seems only to be a conglomeration of all the State registries. Hopefully, it will not require my clients to check in with another government agency. I've had too many clients who get in trouble because they don't realize that they were supposed to report to the Virginia State Police as well as their probation officer.

9) Defame someone in Kansas, go to jail.

10) Prosecutor who refuse to prosecute, even with a full confession. Why? Because the guy didn't do it.

Ranking the Browsers

Cyber Crime Law got me thinking about browsers.

There are 4 Windows browsers out there which are noteworthy: Opera, Netscape, Firefox, and Explorer. I have all of them on my computer and have recently updated the first three. If you follow any tech news at all you know that Firefox has been making serious inroads Microsoft's monopoly over browsers. You may also have seen that the newest version of Netscape is getting good reviews. You may not know that Opera is better than both because Opera is not as well publicized. Here is my ranking of the browsers and what I see as their strengths and weaknesses:

#1 Opera 8.0 - All around, Opera is the best browser. If you are someone who is going to be something of an advanced user get Opera and play around with the different configurations and tools. I suspect everyone will use a slightly different configuration.

Upper end usage: Opera is the only browser which has native voice controls. They are somewhat primitive but they work. I don't think they are good enough to actually browse the web with (for instance, I can't figure out how to open things in my personal bar) but I really look forward to seeing how well developed this becomes by the next few versions.

Opera also has RSS/Atom/XML aggregator capability. At the right end of the address bar it will indicate if a site has a feed and if you click on it the feed will be saved. The browser will pop up a small window at the bottom right when any saved blog has a new entry. The bar at the top of the browser has a "Feeds" table you can pull down which will show all the feeds. Click on a feed and it opens a tab with the title of each post for that blog. There are also some controls which allow you to delete read posts, set date limits for the posts you want to see and how you want to see the posts. Unfortunately, it's not perfected. Or, better said, it has to be done for each particular feed, there is no way to set it to show only new posts, and when I tried to set it so that I would only be shown that day's postings it would work immediately but the next day it would go back to showing me all postings. Still, it's the best aggregator I've seen which came in a browser (although I must admit I now use FeedReader). Opera tends to improve things fairly quickly and I look forward to the future of this feature.

Normal usage: What sold me on Opera to begin with and what it does better than any other browser out there is tabbing (although Opera calls them pages, not tabs). The right click menu which can be used over the tabs or over links is better thought out and more useful than that of other browsers. In particular, the option to open a link in a foreground or background tab is great (other browsers set this option universally so that you always open one way or another); it's a convenience which now drives me nuts when I use other browsers without it. As well, if you have set your startup preferences on "Continue from last time" when you close Opera it saves all your tabs and reopens them when you reopen Opera. Thus, if I have 10 stories I want to blog about I can save them all in background tabs and when I start my computer up tomorrow I won't have to hunt them all down again.

Opera also has a "Copy to note" function. You highlight a section of text, right click, and choose "copy to note" from the menu. It permanently saves the text. To retrieve the note you have copied you go to the tools menu and under "Notes" are all those you have saved. You can even type a note in yourself if you so desire.

Opera saves logins under "Wand." When you go to a sign in page you click the wand at the top and it offers the possible names under which you have previously signed in to that site. While sometimes not as convenient as automatic sign ins by other browsers, this allows you to sign in to various email accounts rather than automatically being forced into a particular one. For instance, I have more than one account in both Yahoo and AOL. If I use the auto sign ins from other browser they will always open a particular account; Opera gives me the option to open the email I want to open.

There are a number of other little advantages which you discover as you work with Opera over time but I think those are the major ones.

Disadvantages: Compatibility. I find that perhaps 2-3% of the pages I visit have compatibility issues. Simply put, nobody checks to see if their page is compatible with Opera and Microsoft hasn't gone out of its way to make things compatible (see here, here, and here). The two pages I use the most which have this problem are VersusLaw and Blogger's posting pages (which I can only get to work in Explorer or w.bloggar). Opera works fine with blogs, news pages, etc.

The free version of Opera has an advertisement at its top. This doesn't bother me in the least but I've seen others complain about it.


#2 Firefox 1.04 - The primary advantage of this browser is its simplicity and its compatibility. It's a good solid browser which is almost completely compatible with Explorer sites. The only page I have seen not work with it has been Blogger's posting pages (maybe because of pop-up controls). The tabs are of limited use because they all close when the browser closes. I know this is the biggest fad among those who want to turn away from Explorer and it's very adequate. But it's not much more.

Yes, I know you can put extensions on Firefox. However, most every extension I'd want is already in Opera. And when I last did this (way back in Firebird days) it screwed the browser up.


#3 Netscape 8.0 - Perhaps the best description of this browser would be a bunch of interesting ideas some of which don't work yet. The best thing it has is the "multi-bar" which will allow all sorts of tool bars without eating up a bunch of space; you switch between them in the same space and can create new one easily. It's a good idea. When I first set up Netscape it imported my Opera bookmarks - and it worked. Tabbing works the same way that Firefox's does and it still dumps them all when you close the program.

I tried to set up the rss aggregator but it didn't always show them for sites which I know have them and didn't seem to work for many which it did show the feed. It worked for the Volokh Conspiracy but that was the only one I got to work completely. Once it's set up there is a tab which rotates through the titles of posts and you can click on the tab to get that post or on a symbol to see several titles in a pull down menu. There doesn't seem to be much ability to control the feeds and the tab. It's an interesting idea but not a really good system because it takes too much space.


#4 Explorer - About the only thing good about Explorer is that every site makes sure it is compatible. Microsoft doesn't even seem to be trying to keep up. I use it when I have to.

From Have Opinion, Will Travel

"Appellate judges sit above the fray as the battle unfolds beneath. When the smoke clears and the dust settles, they descend from their lofty perches and shoot the wounded."

Lambzilla

Ya'll are so lucky that I'm not good enough at computer art/graphics to steal that logo or CrimLaw might disappear altogether - replaced by Lambzilla the Blog that ate Richmond.

Shameful

In response to some students getting suspended for having drugs, school administrators lock down a school and ask the police to do a sweep. Then the administrators, in violation of school policy and contrary to police wishes, locked down the lockers which the dogs indicated on and left them that way for 4 hours so that all the students knew which students had there lockers searched. Then the administrators sent a note home to the parents implying that this had been done at police request; the police chief protests loudly that they were only there because they were asked to come by school administrators.

Oh, and the kicker is of the 31 lockers searched because a dog indicated NOT A SINGLE ONE HAD DRUGS. None. Nada. Not a scintilla.

But remember folks, a canine sniff never reveals any private items to the police because it can only indicate the presence of an illegal item.


Thanks to Christopher Coyle for the heads up.

Around the Web

1) Over at the Conspiracy David Koppel breaks down Florida's new "shoot 'em if they look at you cross-eyed" self defense statute.

2) Create a fake job and try to coerce a former clerk to turn on his judge? Can't imagine why the Bar wants to take their licenses.

3) Tom's tips on writing a criminal appeal. Me not think writing. That you think win you will. Will upset anyone but opposing counsel.

4) Where to prosecute a computer crime? Perhaps a courthouse should be built right in front of MicroSoft's headquarters and all trials should be held there.

5) Is it a conflict of interest if your attorney is being prosecuted by the same prosecutor you are?

6) No constitutional confrontation issues in Thailand.

7) Police aren't much better at knowing who's drunk than you and I.

8) Something's wrong when the defendant offers to increase the jurors' salaries out of its own pockets.

9) Orin on ceding more subpoena power to the law enforcement. As someone who feels like someone needs to step in and take some of the powers to subpoena away from prosecutors - in particular the grand jury chicanery - I cannot support the expansion of police powers in the area of terrorism by stating that the expansion would only bring them to where they are in criminal law.

10) Some judges just don't want you to talk in their courtrooms. And it is beyond belief that anyone would be stupid enough to anger the clerks and secretaries. Personally, I really don't want all my cases scheduled for 4:30 on Friday.

11) Injustice Anywhere comments that the Jackson case is looking like a rout. Not having followed the case all that closely I cannot state anything with certainty but it sure looks like this was a weak case which has become weaker and weaker as the trial goes on.

12) This has made it around the criminal blawgosphere a few times in the last couple weeks. What we'd all like to say to our clients sometimes.

Beware the Pretty Lawyers

A pretty female lawyer gets results without working too hard for them? Yeah, we get that here too.

There was a young lady who started practicing a couple years back in my circuit. Whenever she came into court the trick was to get behind her in the line to talk to the prosecutor. She would smile, flirt a little, and get an amazing deal. Then, immediately after she walked away you would step up and look the prosecutor in the eye and ask what he was going to do for your client. It invariably worked (assuming your client wasn't an axe murderer).

The things they don't teach you in law school.

CYA Paperwork

It's the paperwork you develop so that your client cannot later say that you didn't tell him stuff you told him:

Good Day,

Per your instruction I have begun the process of your appeal. As you know, the appeals process is not fast. Things which should happen and their schedule:

1) The appeal must be noted within 30 days of the entry of the sentencing order in the circuit court.

2) The transcripts of the trial must arrive within 60 days of the entry of the final sentencing order in the circuit court.

3) The circuit court must send a copy of the trial record to the court of appeals within 3 months of the final sentencing order in the circuit court.

4) The petition of appeal shall be filed within 40 days of the court of appeals getting a copy of the file from the circuit court.
     i) This is the written argument as to why the court should agree to listen to your appeal. The court of appeals does not have to grant you an appeal.

5) The court of appeals will take as long as it decides it needs to make the decision as to whether to hear your case. This can take months.

6) If the court of appeal decides to hear your case a date will be set and the attorney will go make the argument. Generally, the attorney will go alone. If you are not in jail you are welcome to come observe but you will have to sit in the gallery.

7) If the court of appeals refuses to hear your argument or rejects it after an argument at the court it is possible to appeal the case to the supreme court of Virginia.
     i) You will be notified when the court of appeals has reached its decision.
     ii) If you want to appeal to the Supreme Court of Virginia notify my office as soon as possible after receiving the decision of the court of appeals.

8) The notice of appeal to the Virginia supreme court shall be filed within 30 days of the final judgement of the court of appeals.

9) The petition for appeal to the supreme court of Virginia must be filed within 30 days of the final judgement of the court of appeals.
     i) This is the written argument as to why the court should agree to listen to your appeal. The Virginia supreme court does not have to grant you an appeal.

10) If the supreme court decides to hear your case a date will be set and the attorney will go make the argument. Generally, the attorney will go alone. If you are not in jail you are welcome to come observe but you will have to sit in the gallery.

11) If the supreme court refuses to hear your argument or rejects it after an argument at the court there is no further right of appeal in Virginia.

12) Virginia will not pay for an appeal to the Supreme Court of the United States. The chance that the Supreme Court of the United States would listen to a case is very, very small and it would be very expensive to hire someone to do it. However, if you have the money (or can convince someone like the ACLU, NAACP, or NRA to pay for it) you should hire an attorney as quickly as possible to start a petition as soon as possible.

13) You have the ability to file a writ of habeas corpus for a year after the last decision of the Virginia court of appeals or supreme court. I cannot represent you in this.


PLEASE UNDERSTAND

1) An appeal is basically a legal argument which says that a judge has done something that is legally or constitutionally wrong in the courtroom.

2) This is not a new trial
     i) No new evidence will be allowed.
     ii) There will be no jury.
     iii) The attorney will argue in front of judges that the trial judge did something legally incorrect.

3) Arguing that the judge got the facts wrong is very hard. The judges on the appeals courts usually defer to the facts which the judge found.

4) Arguing that a sentence was wrong is even harder. The judge can sentence a defendant to as much jail/prison time as he feels is correct as long as it is less than the maximum sentence. He is not required to follow the sentencing guidelines.

5) I cannot argue that I messed up as an attorney. I have to argue the errors made by the judge; it would be a conflict of interest for me to argue that I made mistakes. Attorney mistakes are something you must raise in a habeas proceeding. At that point you can tell the court of any errors you believe I made and how they messed up your case.

I will proceed with your appeal and forward you petitions and orders as they arrive at my office.


Respectfully,


Ken Lammers Jr., Esq.

I've developed this one recently in reaction to certain issues which have popped up. If anyone has any suggestions I'm open to them.

Why Come to a Defense Attorney's Site?

Someone got here searching for "defense attorneys scum." Not sure why you wanted to come here if you felt that way but Welcome to my little corner of the Web.

Proof That I Can Win Some Arguments in Court

Background: Client went into a grocery store and tried to steal meat. An officer who was working as plain clothes security followed him outside and confronted him. The officer claims Client sprayed him in the chest, at a range of 10-15 feet, with Halt! dog repellent and ran away. Shortly thereafter Client is caught by officer and backup officers. Client stands charged with felony petit larceny, A&B of a police officer, and illegal use of tear gas, phosgene and other gases. The first two are class 6 felonies (up to 5 years); the last is a class 3 felony (up to 20 years). Client is pleading guilty to the larceny, not guilty to the A&B (a swearing match with the officer; wonder how that will turn out?), and not guilty to the illegal use of gas. Here's the statute for the illegal use of gas:

§ 18.2-312. Illegal use of tear gas, phosgene and other gases.

If any person maliciously release or cause or procure to be released in any private home, place of business or place of public gathering any tear gas, mustard gas, phosgene gas or other noxious or nauseating gases or mixtures of chemicals designed to, and capable of, producing vile or injurious or nauseating odors or gases, and bodily injury results to any person from such gas or odor, the offending person shall be guilty of a Class 3 felony.

If such act be done unlawfully, but not maliciously, the offending person shall be guilty of a Class 6 felony.

Nothing herein contained shall prevent the use of tear gas or other gases by police officers or other peace officers in the proper performance of their duties, or by any person or persons in the protection of person, life or property.

I was amazed that the 3d charge actually got through the preliminary hearing. I was certain that when I pointed out to the judge that the Halt! bottle introduced into evidence described its contents as "liquid" the charge would get dismissed. However, the general district court judge certified the case. In circuit court I moved for an expert and got told to talk to someone at the State forensic lab and see if he could help first (and actually, he was a great deal of help). Then came the trial. Here's the motion to strike the evidence at the close of the prosecution's case in chief:

THE COURT: The Commonwealth rests, Mr. Lammers.

MR. LAMMERS: Your Honor, at this time I have a motion to strike. In particular, I have a motion to strike on the 18.2312, illegal use of tear gas - the use of gas charge. I believe if you look on the side of the container that was entered into evidence, it will identify itself as a liquid. I remember reading that in general district court. It is spray. It's not something like a tear gas canister or such thing where you set it off and smoke erupts from it. It is a liquid. Now, I believe what the Commonwealth is going to rely on, Your Honor, would be that it is a chemical capable of producing such an odor for gas. And if you look at the evidence as stipulated, sir, if this stuff is sitting at room temperature - well, 212 degrees centigrade before it boils. And 175 -

THE COURT: It's 175.

MR. LAMMERS: It is 175 before it lets off major fumes, Your Honor. Now, while it may have some odor, all things have an odor. I mean, if I smell this podium, it's going to have an odor. The only gas that is going to be released is the H2O in the form of evaporation, and the expert, the man from forensic science couldn't say whether or not some capsaicin might evaporate with that. But it's not a major evaporation. Your Honor, I would say to you that the entire purpose of this is to stay a liquid so it does spray. It is inhaled, and that's the purpose of the item. It's not meant to become a gas. [note: I swear, I remember saying something about it being liquid because it was meant to be a persistent agent but it's not in the transcript] It's not a tear gas bomb. It's not mustard gas or anything. I think the purpose of the chemicals, as it states in there, would have to be something along the lines - I don't know how - in many volatile gases, you may store the inert qualities, the inert chemicals separately and put them together to form a volatile gas; that would be my - what I would believe is what they're trying to reach there. If you have what's meant to become this type of poisonous, dangerous gas, then you violate the statute. That's our first argument for striking it, Your Honor. The second argument would be there's no injury to the officer. Now. I realize the officer testified, and I do have -

THE COURT: Do you see my head cocking?

THE COURT: I see your head Your Honor. I looked into what injury is precisely under Virginia law. And as frustrating as it is to try to pinpoint, the Court of Appeals believes an injury is, "everyday ordinary meaning of injury." Crying a little bit, or however it would affect crying, or your nose stuffing up, or something along those lines, obviously since the officer is able to continue the pursuit, he wasn't stopped. He wasn't injured. I looked around at the various cases. Your Honor, and an injury - the widest definition I could find of injury is in the case of Luck against the Commonwealth. And in that case, Your Honor, it's a soft issue tissue injury. I think that there are a number of cases that - a number of cases which hint at the possibility that a mere bruise would be an injury, but I could never pin that down in a specific case. The entire purpose of this type of fluid, this type of liquid is to disable without injury. This is something that was created for mailmen to spray at dogs so you didn't have to hit the dog or hurt the dog, you just disable it for a short period of time and you could go, move away. And the dog would recover. It's not meant to injure anyone, sir. And I think at the very best, at the very best, that might be an ambiguous part of the statute. And as always, I would argue the fact that all statutes are to be construed strictly against the Commonwealth, it would call for it to be construed as I just did, sir. However, I don't think that we really need to reach that point. I think that it's a liquid, and I think that it's - I don't think that it falls under the statute, sir. I'll let the Commonwealth speak, sir.

THE COURT: Mr. Smith?

PROSECUTOR: Your Honor, in looking at 18.2-312. that statute. Judge. I've got copies if the court requires one. Basically there are six elements, the release in a place of public gathering, a mixture of chemicals that are produced causing nauseating odors and resulting in bodily injury. This statute is silent. It doesn't contemplate - it doesn't care about whether this item is in a gas form, a solid form, a liquid form, a plasma form. It doesn't matter. An odor in the common meaning of the term is the property or quality of a thing that stimulates or is perceived by the senses if smelled. Mr. Lammers is absolutely correct. A cup of coffee will have a distinct smell about it while it's in a liquid form. A rose is a rose. It smells like a rose, it is solid, and it has a distinct smell. Of course, those are not smells that are nauseating, at least to most people. Now, in this case, Judge, we have a chemical mixture, and that is illustrated by all of the materials that were supplied by the manufacturer itself. So when you look under the first sheet of the material safety data sheet, it lists component or material chemical name, and a percentage, 35.35 percent of a capsaicin, and that is one of the chemical components of this chemical mixture contained in this spray, which was released by the defendant in a parking lot at a public gathering that produced certainly a nauseating odor and bodily injury to Officer Jones. It caused a burning sensation, which I don't think anyone would question, being some sort form of hurt, which resulted in his eyes watering and his difficulty in breathing.

THE COURT: If I fill up a squirtgun with a mixture of water and Mr. Clean, and I squirt it at Officer Jones, would I be violating the statute?

PROSECUTOR: You have created a chemical mixture, Judge, with Mr. Clean, or whatever chemical agents you may add to it, if you release it in that form upon a person, yes.

THE COURT: So my example, if I put Mr. Clean in the water and put it in a squirtgun and squirt it at Officer Jones, I have violated the statute?

PROSECUTOR: Whether we call a homemade mixture. Judge, or whether we call it professionally produced tear gas, it doesn't matter. The point is, its an agent, a chemical mixture that is being used as a weapon. In this case, that is the purpose for which this statute was created. It doesn't care whether you make it in your bathtub, at your home, or you go to the store and purchase it. And some of these mixtures, some of these chemical compounds have legitimate uses, and that is why they're not all bad. And certainly pepper spray, as the case may be, has legitimate uses that it's carried by most police officers, most of the time. And, in fact, the statute contemplates its appropriate use there at the bottom. Nothing herein shall prevent the use of tear gas by a police officer or by other peace officers or by other persons in the protection of person, life or property. Unlawful use of this compound, we don't have that here. We have an unlawful use. We have a malicious use, as the defendant is using it to - employing it to further his escape and prevent being arrested.

THE COURT: Well, at this juncture of the evidence, in the light most favorable to the Commonwealth, the court the overrules motion to strike. Mr. Lammers.

[Important practice note for new lawyers: When the judge says this you've won. He's basically stating that the prosecutor may have squeaked past his prima facie case but (unless you screw up) there's not enough evidence for a conviction. Take the signal. Don't argue with the judge that this is a statutory argument and should be decided right here. Don't introduce evidence in your case in chief which could screw up your case.]

--------------- --------------- ---------------

After my client testified in order to contradict the officer's statement as to whether he knew the man chasing him was a police officer and whether he sprayed him (there was no new evidence as to the chemical composition since all that had been introduced during the prosecutor's case) I made a renewed motion to strike the evidence:

THE COURT: Go ahead.

MR. LAMMERS: Yes, sir.

THE COURT: Keep it brief, please. I've been paying attention, so just keep it brief.

MR. LAMMERS: Yes, sir. Well, I think you hit upon the crux of my argument or the weakness of the Commonwealth's when you said you put water into something with - I don't remember what you said exactly, but I would say lemon juice. You could spray that at somebody and that would be an irritant. And in construing the statute. Your Honor, I direct you to the doctrine of interpretation, [note: I absolutely know I said the words noscitur a sociis here; the court reporter just seems to have ignored it] which says that when there's a list in a statute you look towards that list when you interpret the statute. I have it here, if you want to see it, sir.

THE COURT: The statute?

MR. LAMMERS: No. I actually have the doctrine that I'm talking about.

THE COURT: I'm familiar with it, Mr. Lammers.

MR. LAMMERS: Okay. And as you look at this statute, there's very serious gases here, including tear gas, which is not as the Commonwealth has somewhat indicated, the same thing that officers carry on their side. They carry capsaicin which is similar to what my client had, but it's not tear gas. Tear gas is clearly a gas. Well, it can be released any number of ways. But it is a debilitating gas, if exposed for too long a period of time. The seriousness of the gas is not what this - is not the same category as what my client had, sir. Thank you.

THE COURT: Mr. Smith?

PROSECUTOR: Judge, to amplify my earlier point, the court should not lose sight of what this statute is trying to cover. Just by looking at well, if you have an item that has some kind of commercial or applicable use, there are a number of household chemicals and cleaners that we use that are great for cleaning floors, but when you put them in somebody's eye, you do permanent damage. The statute is drafted broadly enough so that whatever mixture of chemicals you put together, if it creates this effect, and it is used in such inappropriate fashion as described in this statute, it is a crime. It is a Class 3 felony, and I would ask you to find him guilty. Judge.

THE COURT: Although it's a nasty thing that Mr. Green did to Officer Jones, I can't find that this substance is the substance that is addressed in 18.2-312. I have read the exhibits. I have read the lab analysis. I read the statute, I can't find that. I think the consequence of Mr. Green's behavior is addressed in the assault, or would be addressed in the assault. I grant your motion to strike as to that charge. Mr. Lammers. Any comment as to the remaining charges?

--------------- --------------- ---------------

To this day I'm not sure why the prosecutor pushed this charge. I suspect it was because the officer was extremely upset and had gone to the trouble (along with the neutral magistrate) of looking up this charge because he wanted my client buried under the prison. Not terribly difficult to understand if things occurred as the officer said they did.

It was a stretch to try and get this under that statute. Mind you, this was kind of a Pyrrhic victory since my client's conviction on the other two charges and his prior record got him over three years. Still, if he'd been convicted of the gas charge as well I shudder to think what kind of time he might have gotten.

Any errors in the above come from my OCRing this and a ton of small errors which were in the transcript. I think I've fixed most but sure I missed some. Sorry if it causes any confusion.

More on Court Fashion

Remember the prior discussion on what men wear to court? Well, today a lawyer showed up in court with a brown blazer, a tie, jeans, and black gym shoes (or at least I thought they were gym shoes - a colleague thought they were boots).

He sat in the lawyer section for at least a hour before his case was called. I left the court to do a couple things and returned just as the lawyer went to the bench with his client. Then I went over and sat next to a friend who had waited after his case was finished specifically to see what was going to happen. The deputy on our side of the bench did a double-take then looked over at us and pointed at her pants; we just nodded.

Me: "If he gets away with that I'm wearing jeans from now on."

Colleague: "I'm gong to start coming to court in sweats so I can be comfortable like my clients."

The lawyer waived his client's preliminary hearing and the judge didn't say a word to him the whole time. Not a word.


Does anybody know where I can buy some decent jeans?

A New-Olde Defense

So, I'm looking through my boxes of old books last night trying to find the Ranger Handbook I had when I was in the Army so I could settle a point I'd been discussing with another veteran (hopefully the caveat will keep Homeland Security from knocking on my door). There's a whole bunch of law school books, the MicroMash study books from my study at home Bar course, a lot of books about various religions from my undergrad (including my Arabic Bible, a Koran, and my Biblica Hebraica) but no Ranger handbook.

However, I did run across a copy of The Palladium of Justice: Origins of Trial by Jury and started to reread it. In so doing I ran across this forgotten gem: the writ of odio et atia - the writ of "spite and hatred."

The writ became part of English common law by statute in 1275. If someone charged a crime the defendant could file for this writ and have a jury impaneled to determine if the charge was filed out of - you guessed it - spite and hatred. If the jury so determined there was no trial on that charge (and since in 1275 we're talking about trial by combat that's an important point).

Hmmm . . . Virginia's a common law State. All the laws in place when the Commonwealth and the U.S. formed (much after 1275) have carried into our common law. The common law still exists unless statutorily changed. Statutes are to be construed to be in congruence with the common law and those that over rule the common law are to be narrowly construed.

I think I've just run across the perfect defense to about 50% of my A&B cases - perhaps as high as 75% of my domestic A&B cases. And if this applies to civil procedures pretty much every contested divorce and custody fight is doomed.

Now, which unsuspecting prosecutor and judge should I spring this upon . . .

Credit Where Due: The General Assembly Steps Up

I know I vent a lot here about the statutes and rulings which are made at levels far above mine as a defense attorney. So, on those occasions when those above me got something right I think I'm obligated to put a word in.

You'll remember that the Washington Post was pounding on Virginia because of all the procedurally defaulted appeals. The appellate courts Virginian were very strict about any error as to form or timely filing and there were a good number of appeals thrown out because of these procedural errors. The only cure was for the defendant to file his one allowed habeas in order to get the case back online.

A lot of lawyers who've been practicing criminal law for a while have made procedural errors. Sometimes it's a brief filed a day late. Petitions were also dismissed if a required section was not included or labeled incorrectly. The one that seems to catch a number of people is the requirement by the Virginia Supreme Court that the petition for appeal contain both a "Questions" section and an "Errors Assigned" section. There is no reason for the "Errors Assigned" section since it is redundant (thus the Court of Appeals only requires questions). Usually the two sections are something like this:

Errors Assigned: The judge erred in ruling that the drug dog barking as a car drove by at 65 mph provided reasonable articulable suspicion for the stop. (Transcript page 20)

Question: Did the judge err when he ruled that the drug dog barking as a car drove by at 65 mph provided reasonable articulable suspicion for a stop? (Transcript page 20)

However, without the Error section the court would bounce the petition in a second even though it didn't affect any substantive matter.

In the last Legislative session, the Virginia General Assembly stepped up. The House offered the bill I discussed here which would only have fixed the error of timely filing but not the other problems. It was a step in the right direction but I had thought that it could be done better. Well, the General Assembly fixed it beyond my wildest hopes:

§ 19.2-321.1. Motion in the Court of Appeals for delayed appeal in criminal cases.

A. Filing and content of motion. -- When, due to the error, neglect, or fault of counsel representing the appellant, or of the court reporter, or of the circuit court or an officer or employee thereof, an appeal in a criminal case has either (i) never been initiated; or (ii) been dismissed for failure to adhere to proper form, procedures, or time limits in the perfection of the appeal as required by law or by the Rules of the Supreme Court; then a motion for leave to pursue a delayed appeal may be filed in the Court of Appeals within six months after the appeal has been dismissed or the circuit court judgment sought to be appealed has become final, whichever is later. Such motion shall identify the circuit court and the style, date, and circuit court record number of the judgment sought to be appealed, and, if one was assigned in a prior attempt to appeal the judgment, shall give the Court of Appeals record number in that proceeding, and shall set forth the specific facts establishing the said error, neglect, or fault. If the error, neglect, or fault is alleged to be that of an attorney representing the appellant, the motion shall be accompanied by the affidavit of the attorney whose error, neglect, or fault is alleged, verifying the specific facts alleged in the motion, and certifying that the appellant is not personally responsible, in whole or in part, for the error, neglect, or fault causing loss of the original opportunity for appeal.

B. Service, response, and disposition. -- Such motion shall be served on the attorney for the Commonwealth or, if a petition for appeal was granted in the original attempt to appeal, upon the Attorney General, in accordance with the Rules of the Supreme Court. If the Commonwealth disputes the facts alleged in the motion, or contends that those facts do not entitle the appellant to a delayed appeal under this section, the motion shall be denied without prejudice to the appellant's right to seek a delayed appeal by means of petition for a writ of habeas corpus. Otherwise, the Court of Appeals shall, if the motion meets the requirements of this section, grant appellant leave to initiate or re-initiate pursuit of the appeal.

C. Time limits when motion granted. -- If the motion is granted, all computations of time under the Rules of the Supreme Court shall run from the date of the order of the Court of Appeals granting the motion, or if the appellant has been determined to be indigent, from the date of the order by the circuit court appointing counsel to represent the appellant in the delayed appeal, whichever is later.

D. Applicability. -- The provisions of this section shall not apply to cases in which the appellant is responsible, in whole or in part, for the error, neglect, or fault causing loss of the original opportunity for appeal, nor shall it apply in cases where the claim of error, neglect, or fault has already been alleged and rejected in a prior judicial proceeding.

(There's a similar statute for the Virginia Supreme Court)

That is an amazing statute and it will go into operation 01 July 2005. It fixed the conflict of interest problem inherent in habeas petitions by taking it out of the habeas section and making it an appellate motion. It allows things to be fixed which are not in the control of the lawyer (I cannot make a court reporter type the transcript faster - all I can do is call and yell). It gives an amazingly fair window within which to fix the problem. It doesn't take away the client's habeas rights.

The only disturbing part is the prosecutorial veto in subsection B. 99% of prosecutors won't abuse that veto. What do they care? It's the Attorney General's problem. However, in the case where you have someone who does there isn't even a hearing or a weighing of the argument by the appellate courts. It just gets dropped.

Still, it's an amazingly well put together statute and our Legislature should be complimented for it.

Yep, It's a New Format

Those of you who have been reading this blog for a while know that I do this every so often. I get bored and rebuild the site. All that white was bothering my eyes so I took some steps to fix it. I'm not exactly thrilled or disgusted by the current format but it works on Opera, Explorer, Netscape, and Firefox. I can't guarantee it will stay like this but I don't know when I'll next have time to mess with it. If you want to see my old formats go here and my favorite so far here.

I've also added a group of blogs from Truth Laid Bear and linked to a lot of the blogs in his top 50's. Mostly this is so I can glance through them from time to time but I do not vouch for their content. I eliminated a couple which had profanity in their titles and the page which seemed to be all semi-nude oriental women but just glanced through the rest to make sure they actually had blog content.

In further news, since I switched up to Opera 8 I'm using its feed reader to check most blogs. So, the fact you don't see me hitting you from my blawg doesn't mean I've stopped reading it.

The site is now getting about 350-400 individual hits a day (although I'm sure this post won't help those numbers). On the weekends this falls to 150-200. I have no idea how many folks out there are getting the Atom feed I set up a while back and no longer coming to the site. However, when ya'll do come you tend not to stay too long. The average visit seems to be less than 90 seconds.

Any suggestions to improve the site are always welcome. Personally, I'm thinking of going back to the old format which I've parked at Crimlex. These washed out bright whites and grays hurt my eyes after a while. Comments?

Crime, Politics, & Virginia

Looks like our potential representatives are already getting in trouble.

Mob Actions (Lynching)

In a comment to the lynching post a couple days back, Mister DA asks:

Seriously, has anyone ever been successfully prosecuted under this statute? As opposed to just charging the ringleaders with murder?

Personally, I've never heard of anyone getting prosecuted as a member of a mob for this specific act. However, there are a number of statutes which deal with this subject:

§ 18.2-38: Any collection of people, assembled for the purpose and with the intention of committing an assault or a battery upon any person or an act of violence as defined in § 19.2-297.1, without authority of law, shall be deemed a "mob."

§ 18.2-39: Any act of violence by a mob upon the body of any person, which shall result in the death of such person, shall constitute a "lynching."

§ 18.2-40. Lynching deemed murder: Every lynching shall be deemed murder. Any and every person composing a mob and any and every accessory thereto, by which any person is lynched, shall be guilty of murder, and upon conviction, shall be punished as provided in Article 1 (§ 18.2-30 et seq.) of this chapter.

§ 18.2-43: The attorney for the Commonwealth of any county or city in which a lynching may occur shall promptly and diligently endeavor to ascertain the identity of the persons who in any way participated therein, or who composed the mob which perpetrated the same, and have them apprehended, and shall promptly proceed with the prosecution of any and all persons so found; and to the end that such offenders may not escape proper punishment, such attorney for the Commonwealth may be assisted in all such endeavors and prosecutions by the Attorney General, or other prosecutors designated by the Governor for the purpose; and the Governor may have full authority to spend such sums as he may deem necessary for the purpose of seeking out the identity, and apprehending the members of such mob.

§ 18.2-44: No provisions of this article shall be construed to relieve any member of a mob from civil liability to the personal representative of the victim of a lynching.

§ 18.2-45: Every person suffering death from a mob attempting to lynch another person shall come within the provisions of this article, and his personal representative shall be entitled to relief in the same manner and to the same extent as if he were the originally intended victim of such mob.

§ 18.2-46: Venue for all actions and prosecutions under any of the provisions of this article shall be in the county or city wherein a lynching or other violation of any of the provisions of this article may have occurred, or of the county or city from which the person lynched or assaulted may have been taken as aforesaid.

I believe that if you talked to a historian he'd probably tell you that these laws were anit-Klan laws and variations on the theme are probably found in different Southern States. I suspect that they were probably ignored for the most part for years but I'm sure some people were prosecuted under them.

The interesting thing is that these statutes are finding new life as anti-gang weapons. A group of "Montagues" piles in a couple of cars and drive down the street in the wrong part of town. One of them opens fire on "Capulets" standing on a street corner, killing two. You've got a solid case against the shooter, a solid principal case against the driver, but what about the kid who's a backseat passenger in the second car from which nobody fired. Is he even a principal in the second degree? Is he aiding and abetting?

With these statutes you don't have to worry about that. He's there as part of the mob. This fits the definition of a lynching. The kid is facing a pretty solid lynching / murder case.

I have seen a couple of cases with kids charged in this vein although I can only think of one which involved an actual murder (there are also other mob violence charges for malicious wounding, A&B, and other lesser charges).

The Galactic Civil Liberties Union

Lord Vader,

A lawsuit has been filed on behalf of the citizens of the Galactic Empire regarding your continued use of your religous beliefs while conducting state business.

We are awaiting a hearing date from the Imperial High Court. In the meantime we must demand that you cease and desist all practices of the Sith/Jedi religon while on duty for the Galactic Empire.

Furthermore, don't try to scare us with your sorcerer's ways Lord Vader. Your sad devotion to that ancient religon will not stop the GCLU legal department. We are everywhere and see everything!

Thank You,

Windham C'Bathos P.A.

"GCLU, protecting the liberties you only think you have"

WOW

The Texas Inquisition - A judge takes on the State ethics board.

via Dallas Criminal Lawyer

Store Wars

May the Farm be with you.

via Peekaboo

Optimism

Optimism:

1 : a doctrine that this world is the best possible world
2 : an inclination to put the most favorable construction upon actions and events or to anticipate the best possible outcome

example:

Opening a ski equipment shop in the Greater Richmond Area (where it's flat and snows once a year) just as Summer is beginning.

Proof that Virginia is Superior

§ 18.2-40. Lynching deemed murder.

Every lynching shall be deemed murder. Any and every person composing a mob and any and every accessory thereto, by which any person is lynched, shall be guilty of murder, and upon conviction, shall be punished as provided in Article 1 (§ 18.2-30 et seq.) of this chapter.

Shame on the rest of you who live in States which haven't passed this statute and thus associate lynching with cuddles and kitties.

Setting the Record Straight

The Virginia Supreme Court's description of a habeas hearing and the prosecutor's introduction of the defendant's record in the sentencing phase of a death penalty case (to prove future dangerousness):

"During the hearing, the Commonwealth's Attorney admitted he knew, at the time the conviction records were proffered during the trial, that three of the purported convictions actually were only one. He testified, however, that he advised defense counsel of the discrepancy during the trial, and that he assumed the error would be explained to the jury by defense counsel during closing argument.
. . .
[W]e recognize there was the factual dispute concerning whether the prosecutor notified defense counsel, during the trial, about the inaccurate records. Nevertheless, the flawed documents were proffered by the Commonwealth's Attorney, who had the duty to assure, as far as reasonably possible, that the records were accurate. If their correctness was in doubt, or if the prosecutor knew they were inaccurate in any particular, the documents should not have been offered in evidence." Evans v. Commonwealth, 323 S.E.2d 114, 228 Va. 468 (1984)

This got the defendant a new sentencing hearing after the Commonwealth waited until the law changed so that the defendant would be exposed to the death penalty (previously error of this magnitude meant commutation to life).

ambivalent imbroglio describes the federal supreme court's non-handling of this case.

I couldn't find anything that showed the prosecutor involved in this case is now a judge in the same county. You're going to have to go to ai's blog and ask him for further elucidation.

Odds and Ends

No Good Deed Goes Unpunished: Another attorney approached me and asked me to take over the appeal of a case he had taken to trial. Client had already sent disparaging letters to the judges complaining and he didn’t want issues concerning conflict of interest. He’d do it for me if I asked so I agree and I’m subbed in.

2 months later, after waging a couple battles to get all the transcripts I have them all in hand. The trial transcript is 600+ pages. The 4 days of motions and sentencing hearing are at least 300 more. Oh well, I guess I know what I’m doing this weekend.

Chagrin: I got another transcript back and was reading through it. I had filed a motion pretrial and the prosecutor had filed an answer along with a case that was factually dead on but addressed a similar but different legal issue. Or at least I thought it was pretty obvious that it did.

However, the judge starts out the hearing (before I can say a word) with “In light of the case that the prosecutor has proffered . . .” Before he can finish that statement I was on my feet arguing for everything I was worth. The problem is that, having taken that blow to the head right at the beginning my argument wasn’t too coherent. When I rush my arguments tend to come out in partial sentences. Court reporters have specifically commented to me about how much they hate this but it’s not something I think is going to ever change and most of the time the judge understands what I’m arguing. However, reading the transcript context does not come through and I look like I’m a babbling idiot (and maybe I was for the first couple of shock filled minutes). Nevertheless, I preserved the error about 10 times in the case. Trial judges hate this but you get paranoid about the appellate courts kicking an appeal because you didn’t preserve the error at exactly the proper point in the case. Anyway, about half way through that first argument my synapses reconnected and the argument makes much more sense. By the time I finish making it over and over and over again it’s pretty clear (and the judge was ready to shoot me). The judge still didn’t follow [my understanding of] the law but that’s what courts appellate are for (if I can convince one to hear the case).

Predicting Client Behavior: After years of doing this I still cannot accurately predict whether clients are going to show up for court. I’ve had two this week whom I was certain would show pull a no-show and a client today - whom I would have bet large sums of money had skipped - show up. Of course, her case turned out much better than I thought it would; she got suspended time on three charges (30 hours community service at her church) and one charge withdrawn. Maybe she knew something I didn’t.

DeathLaw - Race & Execution

The same statistics which come up every time also come up in Ohio: if you kill a white person you are more likely to get the death penalty than if you kill a black person. This has raised the usual calls for a moratorium.

This argument does raise the bias issue. The problem is that those who oppose the death penalty don't seem to realize that it doesn't help their argument.

I'm not a statistician, so I'll assume that every single other factor (such as the class of the victim, class of the accused, or locality) has been eliminated and the only element involved is race (a la the Baldus study) . "Death sentences were handed down in 18 percent of cases where the victims were white, compared with 8.5 percent of cases where victims were black."

If you're not outraged - or at the very least bothered - by that something's wrong with you. Those percentages show that the life of a murdered Black citizen is valued less than the life of a murdered White citizen.

But this is also the problem with making the anti-death penalty argument using these statistics. Those statistics call for an equalization in value. The argument that they should lead to fewer death penalty cases is an argument that the life of White citizens must be devalued. Some may make this argument but it's not a winner. It runs counter to the moral current to argue that a group of people must be devalued.

On the other hand, these statistics clearly point to a need to make our institutions (in particular our prosecutors) raise their valuation of the life of slain Black citizens. This requires that more people accused of killing Black citizens be subjected to the death penalty.

Nor is it a solid argument for abolishment of the death penalty. If memory serves me, it was Justice O'Connor who toyed with the anti-death penalty advocate in McCleskey v. Kemp by pointing out that his argument was a strong point in favor of taking discretion away from the prosecutors and requiring a death penalty prosecution for every single case which fell within certain parameters. And it is. The primary flaw in the system seems to be the prosecutors not pursuing cases evenly. If every single case which had more than one victim required a death penalty prosecution (as an example) it would solve this problem and all prosecutions would be based upon factors clearly not related to race.

Please find a better argument. This one only works for the true believers. They're not the ones who need convincing.

And Now a Word from Mr. Finch

click on the picture for the closing argument

Final Exam to Represent Indigent Clients

Okay, a couple years ago, rather than increase funding for court appointed attorneys the Virginia General Assembly set up the Virginia Indigent Defense Commission. Statutes were also put into place requiring lawyers who want to be put on "the list" to practice misdemeanor indigent defense to attend a CLE approved by the Commission before they are put on the list. In order to be put on the felony list an attorney must go to the CLE and be co-counsel on 4 felony cases from beginning to end. Additionally, we all have to go to a certain number of approved CLE's (6 hours biennially for criminal and an additional 4 for juvenile indigent). Here's the statute.

I wonder what effect this will have on the practice of criminal law. Those of us who have been practicing for a while are going to be grandfathered in but I suspect that this is going to be a significant entry barrier. Those requirements aren't going to be too hard for lawyers starting out in a PD's office but most of Virginia doesn't have PD offices. A lot of young lawyers come to court the first time when they have just joined a firm or opened their own office. They are looking around for some way to start money flowing in the door and the court appointed list is a starting point; a number of these attorneys become skilled and choose to continue to do criminal defense. If they have to wait 4-5 months for the next CLE they won't start doing criminal law. Even worse, in some counties there isn't enough going on in court to make it worth getting appointed only for misdemeanors and a young solo practitioner (the third lawyer in a three lawyer county) is never going to get felony cases. He'll never start to practice or he'll walk away in favor of real estate law.

To recap: Having not increased the funding for indigent defense in order to draw and keep qualified individuals, Virginia is putting entry barriers in front of the least lucrative legal practice.

I understand the argument that we need to do something to guarantee the quality of representation for indigents. Previously we had trusted the judges to assign cases to appropriate attorneys. I don't remember anyone handing me a violent felony my first day in the courthouse; I was getting A&B's, driving suspended, and (on a big day) a grand larceny. From the beginning I've watched judges assign indigent cases. Our judges clearly have a group of attorneys to whom they give misdemeanors and minor felonies, a group to whom they give mid-level felonies, and a group to whom they give major felonies. I like to think I'm in the second group but I'll probably have to be around for a few more years before I'm considered solid enough for the third. In fact, I'm not sure that our judges don't try to classify us into a certain type of criminal law. Over the last couple years I have tended to get more serious felony battery charges (malicious wounding, aggravated malicious wounding and the like) than I've seen other court appointed lawyers receive. Other lawyers seem to get more mentally troubled patients than I do and more sex crimes. However, this may just be normal statistical variances; I don't know that the judges all get together and start comparing notes as to what lawyers they are going to assign to what cases.

I suspect that in a lot of jurisdictions lip-service will be paid to this list but the reality will continue as it is. I've read through the statutes and don't see anything which requires a judge to follow the list. A judge in a county with 3 attorneys who will agree to practice indigent defense isn't going to have a whole lot of use for the list if those 3 lawyers aren't on it.

Not that that is my situation. I work in jurisdictions where there are clearly enough attorneys that the judges will probably follow the list. It might get interesting a couple years down the line - when fewer new attorneys are even trying to practice indigent defense because they haven't taken the proper courses or stood as co counsel - but for the moment the list will be full of local attorneys.

So I have the application sitting in front of me. It was mailed to me and a clerk at one of the courts also made sure I had a copy. Not counting the cover sheet and a map of Virginia's jurisdictions, the application is 5 pages long and confusing (lawyers cannot write non-confusing documents). It asks for names and numbers of judges they can contact about me. And it asks two questions straight from one of my 3L final exams:

17.HYPOTHETICAL: Your client fails to appear for a court hearing that you had discussed with him the previous day. During that meeting your client mentioned to you that he was concerned about the possibility of incarceration following today's hearing and was thinking of not appearing. You have not heard from him today. When the case is called the judge turns to you and asks: "Counsel, why isn't your client here?"

What is your reply? Justify your reply based on your understanding of a criminal defense attorney's duties toward the client, the court, and opposing counsel, as well as any interest you may have in preserving your reputation for integrity before the court.


18. HYPOTHETICAL: FOR USE ONLY BY ATTORNEYS APPLYING TO REPRESENT JUVENILES

Your client is thirteen years old. She is awaiting a disposition hearing following adjudication for distribution of cocaine. You know based on your investigation and interviews with your client that her mother is a drug addict and her father is incarcerated for a drug-related felony. She has told you that she has used cocaine a number of times, but believes that she does not have "a problem." You believe that she has a serious drug addiction and that without help she will no doubt recidivate, or worse, wind up dead. You talk to the Court Services Unit worker who has not uncovered your client's family history and thinks that because it is a first offense, probation and return home is likely. You know of an excellent residential drug treatment center for teens and through some informal inquiries you learn that it is likely that the treatment center would accept your client.

You discuss the option with your client and she tells you that she only wants to go home and that she wants you to argue for that disposition. If you argue to the judge for your client to go home on probation, and there is no opposition from the CSU worker, there is a good chance that the judge will do it. After considering all of the facts, you believe that the best interests of your thirteen year old client would be served by her going to the residential treatment program. Do you reveal any of your client's family background to the CSU worker? What do you argue to the court? Justify your reply based on your understanding of a juvenile defense attorney's duties toward the client, the court, and opposing counsel, and the CSU worker, as well as any interest you may have in preserving your reputation for integrity before the court.

I can't believe I'm going to have to answer questions like this again. I took ethics in law school. I actually took the Ethics of Criminal Law at W&L:

Ethical Problems in the Practice of Criminal Law Seminar. A criminal law problem-based examination of the formal and informal system by which the conduct of attorneys is regulated, including codes of professional responsibility, the role of the federal constitution, and personal standards and values. Includes ethical choices exercised by prosecutors and defense counsel in areas of client relations, exchange of information, pretrial litigation, discretionary decision making; particular emphasis on assessing the duty to provide zealous advocacy and avoid conflicts of interest. Two hours.

I already took the final exam; it was my understanding that all that was behind me. And now I've got years of real world experience which can only screw up the answer which you're supposed to give to questions like that. Not that the answer is too hard - you just turn to your friendly local prosecutor, explain the situation, and ask her for advice. Right?

Well, okay, maybe that's not the answer I'll give the Commission. I gotta admit it's tempting though since I wonder how many of the thousands which come in over the next week or so will actually be read. I suspect I may have guaranteed that mine will be. :-)

The Car as Part of a Drug Deal

markm comments about #17 below:

Since the report on the reporting the stolen-car stolen case doesn't mention any eyewitness ID of the alleged perpetrator, I'm wondering if this is a case of a false confession obtained by police tricks and duress. That is, I can't see any actual carjacker being stupid enough to call the police in this case, but I can easily see someone stupid enough to pay a stranger $1700 for a car with no paperwork, and then call the cops when it comes up missing.

And I can see cops pressuring the guy to solve their carjacking case by pleading to a reduced charge rather than facing pretty nearly the full sentence for receiving stolen goods. (I assume the car was worth far more than $1700, because why bother carjacking a beater? And someone who gets that kind of good deal either knows the item was hot, or is at least guilty of being too stupid to live unsupervised.)

Sadly, I don't have a hard time believing the final confession. I've had any number of clients do something similar. He probably realized he was in trouble because his wallet was in the car; maybe he even saw the car getting towed (or was told by a couple buddies). So he came up with his story and went to the police to try and sell it to them. He knew they would be looking for him soon and thought going to them with a claim that he bought the car and it had just been "stolen" would make him look honest.

Grand larceny of a car is a strange beast. In Virginia if you are found in possession shortly after the theft of an item you are presumed to have stolen it (thus doing away with that pesky presumption of innocence). "Shortly after" can mean days if you are talking about a vehicle. What this does is make a number of grand larceny autos into a proxy for drug dealing.

This begins any number of ways. The most obvious is someone actually stealing a car. However, the far more common seems to start with somebody who has legitimate access to the car (the owner, a boyfriend, cousin, daughter, &cetera). However the car is gotten it is "rented" or "sold" to get drugs or pay off drug debt. Of course, no papers pass hands. Subsequently, the owner reports the car as stolen and a couple days later someone who didn't steal the car is in jail charged with grand larceny.

Client sits there and tells you about the deal but doesn't usually admit to the drug involvement. "Deuce" owed him some money and lent him the car for a week. No, Client doesn't know Deuce's real name or where I can find him. In a few cases the client will actually admit to the nature of the transaction but going in front of a jury with the defense "He didn't steal the car. He rented it with 5 rocks of crack cocaine." isn't something I recommend highly to my clients.

On the other hand, a lot of cases in this vein never go to trial. The complaining witnesses tend not to show for trial. This is probably a combination of several factors: the witness is afraid he'll get in trouble in the neighborhood, he doesn't want to turn on his dealer, or he doesn't want it to come out in court that he was engaged in an illegal act. Anyway, most clients charged with this seem to spend dead time in jail until it becomes obvious that the witness isn't going to come to court. Usually that means a month or two until the first date and then another month after the prosecutor gets one continuance to try and get his witness to court.

Around the Web

1) This doesn't just happen to PD's. Court appointed lawyers get subbed out by "real" lawyers too. Although the more common term hereabouts seems to be "paid" lawyer 'cuz, y'know, I'm just doing all this gratis since I'm independently wealthy.

2) Y'know defense attorneys look at some cases (oh, say, ones with pictures of their client abusing prisoners) and think "not a winner." Then they get the best deal possible for my client. And then the judge decides that some pretty dubious testimony from a co-defendant/lover of the client means she may not have understood what she was doing? No way that trial's a winner; all it can do is get worse and she already told the judge she understood what she did. What was that judge thinking?

3) Too cool. By Norm's theory I should be able to pick up a nice bit of lucrative business from IBM or GM or their ilk. I look forward to my impending wealth.

4) The Arizona Supreme Court rejects the "criminals have a civil remedy if their rights are violated" argument in a racial profiling decision.

For those out there who don't understand the argument the State was using, it goes a little like this: Willful violations of the constitution shouldn't lead to immediate action against law enforcement in the criminal case. All evidence should be allowed in and unconstitutional factors should only go to the weight of the evidence's credibility. The remedy available to the defendant is to sue the government actor who violated his constitutional rights after the conviction. My experience has been that prosecutors will grin at you as they say this but keep a straight face when they argue it to a judge. Nobody truly believes this will work but it was the excuse for years of constitutional violations until the Supreme Court imposed exclusion as the remedy.

5) Hmmm . . . I've a few clients whom I need to advise to move to Idaho.
via Crimprof

6) Wow. The FBI actually found a leaker.

7) The 5th Circuit holding the federal prosecutor to his plea agreement.

8) A Judge in Florida rips into the DOJ for the positions it is requiring its prosecutors to take.

9) "This is a message to the medical profession. Don't treat Italians. [Giving patients medical samples] is rampant and accepted in the medical profession, unless your patient is Italian."

10) It's good to see that somebody other than me also hates Word.

11) This just in . . . Military recruiters lie and cheat. So now the rest of the world knows what every military recruit has known since Hannibal was putting his army together. "I'm telling you, you'll love working with the elephants. And, since you said you didn't want to travel, it's the perfect job to keep you in Carthage. I have it on good authority that there's no way the general's taking them with his expeditionary force."

12) Did they not think that if they faked the guy's death with a female body someone might get suspicious?

13) Can't get away from those judicial activists: changing hoe to ho.

14) Coke arrested for coke. My best along these lines was a client named Larcenia arrested for larceny.

15) Criminals who break the law? Simply amazing.

16) Okay, do they not know that he used to be a prosecutor? I think Orin might be confused - there must be a Federalist Society event next door which invited him but put the wrong address or something.

17) If you steal a car it might not be the smartest move in the world to report when someone steals it from you.

18) Off Point: Why it's not the Holy Girlfriend Church.