15 June 2005

A Eureka Moment

Ya'll will remember the jury trial I had a while back over which I got just a wee bit upset.

A couple days ago we had the sentencing hearing. I'm scrambling to find some way to keep my client from getting the mandatory 5 year sentence for being in possession of a firearm after having been adjudicated a juvenile delinquent for an act which would have been a violent felony if he'd been convicted as an adult. The judge had already rejected my argument at trial that because my client was adjudicated rather than convicted, and the two mandatory punishments both apply to those "convicted", he should only be subject to a class 6 felony and not the mandatory punishments.

At sentencing I intend to attempt to get the mandatory punishment down from the 5 years the jury was told it would have to impose to the lower mandatory of 2 years (with a possible max of 5). To that end I'm developing a Blakely argument. I spend a good amount of time figuring out how Blakely can be used in this case, with this statute, under Virginia's sentencing scheme. The only problem is that I'm worried the argument is too complex. Having done this for a while if my argument is x(y-3) / 4(z-2) = 2, and I think the prosecutor's is going to be 1 + 1 = 0 +/-1, I worry that the prosecutor will win because his argument is somewhere in the ballpark and it's easier to follow (I'll assume, without admitting, that prosecutors have the same worry if their arguments get complex). I keep working the argument over, trying to make it simpler and making sure all the steps in the argument are as understandable as possible.

Then comes the day of sentencing. I have purposefully set the morning aside for prep (sentencing is at 1:00). I'm sitting in my office going over the paperwork and cases, making sure I have all my ducks in a row. But something's bothering me and I can't quite put my finger on it. I go back and look through all the paperwork. I look through some case law. I read through the appropriate portion of Professor Groot's Criminal Offenses and Defenses in Virginia. I go back and read the felon in possession of a firearm statute (yet again). Nothing is overtly wrong.

And then it dawns on me: everything, and I mean every last bit of paperwork, which was done in this case by someone other than a lawyer or judge is treating this as though the requisite felony was not a violent one. Most interestingly, the probation officer's sentencing guidelines state that my client should only get the mandatory 2 years instead of the mandatory 5 years. I had thought that was due to errors in the paperwork from the prosecutor's office which were relied upon by the probation officer (seen that happen many a time); however, this probation officer isn't one I've seen make too many errors of that type.

Although Client's final disposition only noted an A&B, the original charge was assault and battery of a police officer, 18.2-57(C). The Virginia "exile" statute, 18.2-308.2, doesn't list those felonies which are violent felonies; it refers readers to 17.1-805, which is a list of violent felonies in the section of the code which enables the sentencing guidelines. While I'm sure that assault and battery of a police officer is a violent felony, I flip over to that section to check.

OMG. It's not there! The crimes which are violent felonies are listed in numerical order and run up to 18.2-55 (battery of a juvenile detention employee with intent to injure) and then skip to 18.2-57.2 (felony domestic battery). Assault and battery against a police officer isn't a violent felony. I read the statue over again a couple of times, carefully. I go back and read the exile statute yet another time to make sure there's no other definition of violent felony. Eureka! Here's my simple, direct argument as to why the 5 year penalty should not be the one imposed (1 + 1 = 2).

A couple hours later it's time for my client's sentencing hearing. When I get to court my client's mother, father, grandfather, aunt, sister, and 5 friends of the family are present. It's an amazing amount of support for a court appointed client (most of whom don't even have any family support). No pressure here. Actually, they're quite decent people who ask intelligent questions and understand when I tell them what is going on.

I step up to the podium first and explain to the judge what I've found and ask for a mistrial because the jurors were incorrectly instructed that they had to sentence my client to 5 years. The judge and I go back and forth a couple of times as to whether there would need to be a mistrial in toto or just as to the sentencing portion of the trial. I pushed for an entirely new trial but I was losing that argument with the judge, who is pretty obviously contemplating a new jury for just the sentencing part of the bifurcated trial.

The prosecutor gets up and asks the judge for some time to look at the statute. The judge recesses the hearing and the prosecutor goes off to research the point. When he comes back he cedes the point in this case; he doesn't do so generally because he believes a catch-all phrase at the end of the list of violent felonies could apply. Then I get up and tell the judge that if the choice is between empaneling a new jury just to impose a sentence or having the judge correct the error in the sentencing hearing we would rather withdraw the motion for mistrial. The judge states that he was only going to allow a new jury sentencing and allows the motion to be withdrawn.

Then we do the sentencing hearing. I introduce a letter from Client's boss relating that Client is a valued employee and point out to the judge all of Client's friends and relatives in attendance. Then the judge asks my client if he has anything to say before he is sentenced. I tell the judge that my client's not going to make any statement "on advice of counsel" because the court of appeals considers the trial "in toto." What I'm concerned about is that even actually innocent clients will make a general apology (for this trouble, to the court, etc.) and the court of appeals may view that as an admission. Of course, there's also the possibility that a strong willed client could tell the judge off and denounce a conviction for a firearm the government affirmed his right to purchase; I don't want that to happen either.

With that, the judge reduces the sentence to 2 years. I try to get Client an appeal bond, pointing out that Client has a job, strong family support (he's not going anywhere), and how long it will take for an appeal. The judge won't agree to one but tells me we can come back if the appellate court grants a hearing on the matter (at the very least 4 months down the road). I go in lockup and talk with Client about all this. Then I walk out of the courtroom and there's everyone who came for him standing there, waiting. I spend the next half hour answering all sorts of questions. They are, understandably, upset that Client did not get an appeal bond. However, they aren't ranting at me they, are asking intelligent questions and intelligent follow ups. I'm impressed. After I've answered every question they can think of about the trial, appeals process, and who is above the judge (answer: the courts appellate and the General Assembly) they leave, unhappy with the results but satisfied that I have the situation in hand.

I go down to the clerk's office to get some information so that I can file an appeal. The clerk who's helping me looks at me and says, "No, you're not going to file another appeal on Judge Smith are you?" She grouses, in a friendly way, that I am keeping her busy because she is the clerk who does all the appellate paperwork for Judge Smith. I confirm that another appeal is coming her way and we both laugh a little over it. When I got back to my office I checked my appeals and all the current cases on appeal from this circuit (4 in various stages) are from Judge Smith; that's quite a feat considering there are 4 other trial judges in the circuit. In fact, he has 4 of my 6 current appeals (the two others are from Judge Jones in another circuit). I might have to rectify that; I wouldn't want the other judges to feel neglected.

16 comments:

Lennie Briscoe said...

Is there a limit to the number of appeals you can make on the same issue?

carpundit said...

Ken,

Two comments:

1. That was a good story, and I congratulate you on your good lawyering;

2. ABPO in many states is a misdemeanor, even though the same assault would be a felony in other contexts. A common explanation for the difference is that police take a job where they're expected to face assault. It's an analog of the idea that you can't breach the peace of a police officer (because he isn't entitled to it in the first place). Naturally, we resent the hell out of this. I think that if ABPO were treated more seriously by the prosecutor and the courts, there would be fewer suspects beaten senseless.

CP

Anonymous said...

Naturally, we resent the hell out of this. I think that if ABPO were treated more seriously by the prosecutor and the courts, there would be fewer suspects beaten senseless.

Cool. So that means cops beat people because of court handling of cases where the state grants authority. Got it.

I look forward to carpundit's defense of IRS agents who take money and ask questions later. Same thing, right? After all, someone might move money, or become judgement proof.

Next, we'll here defenses of needling, slapping the cuffs on hard, and chaining people to the pole and jerking the van around corners hard. Keeps 'em in line, yo.

Being a cop is hard. And it should be.

carpundit said...

I'm not justifying the beating of suspects. But if you want a fair system, you should have a fair system: fair to the criminals, fair to the cops, fair to the lawyers.

ABPO should be recognized as a serious crime because the failure to submit to lawful authority leads to danger. And, yes, cops who beat suspects should be treated harshly as well.

BTW, the IRS does take the money first and ask the questions later.

Being a cop is hard. You want better cops? Have higher standards, and have more respect for them written into law.

Anonymous said...

I think it is amazing how police officers demand respect while treating people like crap. I had a roomate in college who got caught selling drugs to an informant. About 8 "elite" detectives busted into our apartment and proceeded to tear through my possesions (in my room, not HIS room - my lawyer had a bit of fun with that) making bawdy fun of just about everything they found and leaving a horrible mess. I was not a suspect and was never charged with a crime, although I had to sit there in handcuffs while these "professionals" joked and jostled with my possessions (eg "how can a dope fiend read National Review! hahaha"). If police officers want to be treated like profesionals, they need to act like professionals.
Having a bad day or a difficult job or even a lack of respect from scumbags recidivists is a ridiculous excuse for obnoxious behavior.
Police officers are not McDonald's clerks, they are citizens who have been given special powers and priviledges over other citizens and indignities or difficulties on the job cannot possibly justify abusing them. Sorry, but life isn't fair. Its time law enforcement took that little cliche to heart instead of just using it as a defense for their shortcomings.

carpundit said...

Well, Anonymous, I'm a guest here, so I'll keep this polite and short. I extend you no sympathy on the search - you're the one who was living with the drug dealer.

Anonymous said...

I extend you no sympathy on the search - you're the one who was living with the drug dealer.

I'll keep it polite, too; no reason to cause Ken any grief.

That sort of remark is why many of us have no respect for cops.

I'm leading a local push to have all searches, and planned detentions videotaped. The local cops have the money and the means, and videotape when it suits them. Make it mandatory, and I suspect we'll see a big drop in reported abuses that can't be proven. A good cop could only gain evidence to prove his point, right?

carpundit said...

If that's what your community wants to do, so be it. The videotaping of routine searches is probably a good idea, anyway. It can protect police officers from the frequent false allegations of theft and violence made by disgruntled criminals - the most common kind.

I'm glad you're involved in your area's civic issues. Perhaps the next time you live with a felon, you'll decide the civic good requires your assisting the police rather than tacitly cooperating in the crime.

Anonymous said...

... fair for the criminals, fair for the cops, fair for the lawyers ...

How about fair for those suspected?

Fair for those who are innocent?

Life's not fair, as one LEO said to me. He's right. What you've sent around is coming around.

"Do you have a problem with respecting Law Enforcement Officers?"

"Nah, I did for years, but now I don't!"

Anonymous said...

For the record, carpundit, I (being the anonymous talking about video taping) am a different anonymous than the one who lived with the drug dealer. And the locale is Brooklyn, NY.

I respected cops a lot more when I lived in small towns. They were, for the most part, genuinely good, helpful and brave people. Large city cops are frightening, and from what I've seen, frequently a cause of problems, rather than a force for preventing them.

Ken Lammers said...

I've been away from my computer since I posted yesterday and have been getting the postings via email on my cell phone. I've been reading them with some trepidation noting that they were coming dangerously close to a flame war and I couldn't get to a computer to stop it.

While I probably would have stopped the discussion a little earlier, I want to thank you all for showing some restraint.

As I hope you all understand, this site is meant to be open to everyone - defendants, lay people, police, defense attorneys, prosecutors, judges, etc. I want anyone to be welcome to express a reasoned (and explained) view. I really don't want to have to shut down the comments because people are making fun of each other or being insulting. I realize that the different groups who come here are going to have widely divirgent views and expect that they will play off one another somewhat. However, I ask that everyone remain respectful and make every effort to give reasoned explanations of your views based upon your personal experiences or understanding of the law.

Thank you.

carpundit said...

Ken,
My deepest apologies for not dropping out at the first sign of flame. I was trying to stay within bounds, but I now see that I may have transgressed and offended my host.
Again, my apologies. I will be more careful in the future.
CP

Anonymous said...

Ken -

What carpundit said. I never wanted to be anything less than civil, and I think we, mostly, were, and bounded things well.

A key feature of progress with stability is the ability to politely disagree, and offer up reasoned, if impassioned, argument. While I understand your fear of a flamefest, I think we walked the line here in a dignified fashion. (Yay us, bloggers rock, etc.)

In any case, I see carpundit's point, and am glad they (he/she, whatever) at least tacitly acknowlege mine.

And I look forward to future discussions here, in which good minds with strong opinions cause, perhaps sparks, but no flames.

--the anonymous who didn't live with a drug dealer, but who probably lived with other felons in the past, and didn't know they were felons, 'cause, you know, that's hard to frame well on the rent-share ad.

Anonymous said...

Sorry, Ken. (I'm the (is it third) annomomie.) I know that there are lots of still-good LEOs out there (as well as good prosecutors and defenders and judges.) Guilt by association comes around.

Ken Lammers said...

It's all okay. Nobody actually crossed into vulgarity or ad hominem attacks (which will result in deletions). And I noticed the effort to keep it civil. I think Anon(video) probably had it correct stating that there were sparks but no actual flame. While I had some concerns as to where the discussion might be heading, it never actually went there and I again thank you all for the restraint.

I encourage everyone to speak their minds. I value the discussion. I'm just one of those strange people who also values civility. Living in Virginia for the last 9 years must be getting to me. :-)

Anonymous said...

Mr. Car, Mr. Ken,

I'm the idiot who lived with the drug dealer. I take full responsiblity for my actions and I'd take full responsibility for any crimes they could prove I committed(been there, done that, grown up, gotten a job, voted for Bush). My point, and perhaps it didn't come through well, was a very basic one. I don't like it when cops hot dog or joke and jostle in serious situations. While my complaint certainly seems petty, over-exhurberance of this type by law enforcement officers is counterproductive to their professional image. Making jokes and belittling someone who is doing their best to respect your authority is counterproductive and unprofessional.
If the police want to play cowboy, then they shouldn't expect to have a sober, professional image. Sorry if I offended anyone. I just get a bit indignant when the police do the whole "there he goes again defending that obviously guilty guy..." routine in these blogs. I mean, that might be jocular and cute among you professional law enforcing types, but to some of us private citizens its like waking in an operating room to see your heart surgeon playing catch with the anesthesiologist using a discarded organ.