Police Not in a Good Light

Sometimes it's just obvious that an officer is wrong.

Other times the individual officers may not have been wrong but whoever authorized a raid on a bunch of kids, who may very well have been in compliance with law, in full combat gear, needs to answer some serious questions.

In the end the second is more dangerous than the first. There will always be officers having a bad day or making a stupid decision, but their effect will be limited. However, when those in control start authorizing combat raids against citizens dancing, even if they are violating a trespass statute or licensing ordinance, the potential effects are disturbing.

Originally found on PDD and WP.

Lx RadioOff the Cuff: The Law of Battery in Virginia

Radio

This week's Lx Radio is up. Click on the symbol above to go to Odeo and listen (or better yet subscribe).

The topic this week is Felony and Misdemeanor A&B's in Virginia. It discusses the history of battery crimes, Malicious Wounding, Unlawful Wounding, A&B of Guards, A&B of Police, Domestic A&B, and Simple A&B.

In case anyone out there needs this warning: This ain't legal advice. Everything in the podcast is off the cuff and I did not go back and read all the cases and statutes before I spoke. The law may have changed, I may have misread and misunderstood something two years ago and still be clinging to a misperception. The way I describe the courts as working probably doesn't even apply to the courts I practice in. In fact - just in case someone is stoned enough to start quoting me as authority to a judge - I hereby state that everything in this lawcast is pure fiction. IT AIN'T LEGAL ADVICE.

Whew. Now that that's out of the way, let me say that this started as an attempt to do a vidcast but that didn't work because my computer kept locking up. I'm not sure if that is because I don't have enough memory or a good enough graphic card or that I was using the movie program that came with my computer. Anyway, I had to convert mpeg to mp3 and then spend a lot of time editing it down. There may still be parts wherein I talk like it's a vidcast and I apologize for that.

Leashing Prisoners

Indefensible posts about a prison's use of a leash as a manner to control shackled prisoners. The leash is used when the inmate is fully chained with a waist chain, has his hands cuffed, and his legs shackled (for those who haven't seen it this is a set of interconnecting chains). The leash is attached to the waist chain.

This is used in Virginia. have seen a situation where it is in use and situations where it is not. The one time I actually saw it used was with a violent and seriously disturbed client. The guard stood about 4 feet behind the client with the leash held taut so that Client could not make a lunge for me. When the leash is not in use what I've seen is the guard standing behind the client with a hand firmly grasping the collar of the jumpsuit and t-shirt and the other had lower (I think holding a lower part of the jumpsuit). I'm not sure either will control the inmate if he decides to make a lunge, but I think the leash is probably the better option. The client has room to move with the leash and it has got to be more comfortable than some guy standing there holding him erect and making him face a particular direction by yanking his neck around.

I Have Rights Again (Maybe)

Remember the judge who said at the beginning of the month that I have no rights?

Well, today we were in court in the same situation and this time the judge phrased it this way:

Mr. Smith, Mr. Lammers may have some rights here, but that's not what we're here to talk about. We're here to talk about your rights.

Okay, which one of ya'll out there put the judge wise to my blog post? I doubt he read it himself.

I told the local prosecutor that it was nice to have some of my rights returned to me and his comment was "Or maybe the judge is just putting you into the same category in which he places your clients and thinks you'll need those rights."

No new Lx Radio today. I tried to actually do a video post yesterday and couldn't get it done. Today I get to travel a couple hours away and visit a client in a prison and then I have to come back and finish an appeal so its doubtful that I'll post anything. Sorry folks. I promise I'll put something up Wednesday.

I went back to a non-brown format today (as you can see). Partially this is because - as you all know by now - part of the fun for me is rewriting the blog every so often. However, a larger part was the fact that people complained a little because the brown layout didn't look like something they should be looking at on their computer at work. Hopefully the new layout will keep you from getting in trouble with your bosses.

Sometimes you have to stretch to fit something under "criminal law" but this is worth it: Forbes: America's Richest Fictional Fifteen.

And, if you read through the bio's, about half have had problems with the law - in particular Lex Luthor and Auric Goldfinger.

Sometimes Those Whom You Least Suspect . . .

I'm off to the Blogging Summit in Charlottesville. Ya'll have a good weekend.

[addendum] Well, I have to eat my words. I'm not going to make it to the Blogging Summit after all. It's Saturday morning and Fate has conspired against me being able to get there without missing the first couple hours. I guess it wasn't meant to be. Anyway, since the Summit was on politics and I try to keep this site neutral, maybe it's for the best.

Feddie & the Habeas

It's always interesting to see the work of others. Steve Dillard provides us a look at a habeas petition he has done for someone serving 60 years for purse snatching, driving away while someone clung to the vehicle, and possessing a stolen car. After a quick glance, the basis of the argument seems to be that a Rule change in Georgia makes criminal appeals exhausted even though they have not gone to the Georgia Supreme Court and that this rule has retroactive application so that it applies in the petitioner's case.

It's too late for me to do an indepth reading but I plan to do so tomorrow and I commend the petition to ya'll as well.

Wilson v. Commonwealth

When I read this opinion the first time I had an emotional reaction against the conclusion it reaches. But I've been doing this long enough not to trust the emotions that arise during the first reading of a decision and went back to reread it. My reaction that time was: What the heck is going on in the Norfolk courts?

Issues:

There are three issues in the appeal. First is the refusal of the trial judge to accept a plea agreement for 20 years with 16 suspended. Second is the refusal of the judge to recuse himself from a case he sought to be appointed to. Third is sufficiency of the evidence. I'm not going to address the third issue because it's fairly typical. As well, I only read the majority opinion before posting this so I shan't be commenting on the concurrence or the dissent; I do this whenever I read opinions I plan to comment on so that the comments are my own.

Peripheral Matters:

Let me address a few things which are not exactly the direct point of the opinion but are very important. To begin with, there's something screwy about the procedure for appointing judges to a case in Norfolk. I don't know what it is exactly but on the first court date the judge who was supposed to handle the case was not present and the case was not continued to another date for that judge - it was handed over to a different judge. That's not the usual way I've seen things done but it's not terribly unusual either; there might be a number of reasons - such as crowded dockets or speedy trial requirements - which mandated this procedure. When the attorney asks for a jury trial the case is carried to another date, as it normally would be because of the need to assemble jurors and the fact that an appropriate amount of time has probably not been allotted for a jury trial. Here's where the red flag pops up. The judge accuses the defense attorney of "judge shopping"; by this I infer (though it is never stated) that the judge knew a different judge would be set for the next trial date. There was then a different judge who heard a suppression motion. After this, there was yet another judge at the next court date, who also commented on "judge shopping" when the defendant withdrew his request for a jury. In the four days between this hearing and the trial, the two judges who commented on "judge shopping" went to the chief judge and asked that the first judge be put back in charge of the case. The chief judge then placed the first judge back in charge of the case. I don't know what's going on here and why a defendant doesn't stay with the same judge throughout his entire trial but the fact that Norfolk doesn't assign a defendant to one judge, and one judge only, seems to be the major source of the problem here.

Next, it is clear that the defense attorney did not want his client to have the first judge deciding if his client was innocent or guilty and setting the penalty. The defense attorney is brutally honest about this when he tells the judge that the decision to seek a jury trial was taken when he found out that this judge had been substituted for the original judge: a defendant "cannot intelligently decide [whether to request a trial by judge or jury without] know[ing] who the judge is." At this point the judge punishes the defense attorney for "judge shopping" by removing him from the court appointment list. I don't know if the attorney was "judge shopping." I'd feel a lot more comfortable in asserting that he wasn't if there was a record of him trying to get a jury once this judge had been placed back in charge of this case; the appellate decision doesn't state whether he did or not.

In any event, the defense attorney's given reason for asking for the jury is entirely valid although it's not a reason that will endear an attorney to whichever judge he tells that to (basically you're telling the judge he cannot be trusted). In advising my clients as to whether they should take a jury I talk to them about whichever judge they are going before. When you stand in front Judge Smith, Judge Jones, and Judge Green every week you get to know them pretty well. If you believe that Judge Smith is really good at making the correct legal decisions but has never resolved a fact in a defendant's favor; that Judge Jones puts a lot of thought into the law and facts of every case but punishes excessively (even more than a jury usually does) whenever he convicts someone of what your client is charged with; and Judge Green routinely convicts with evidence that you don't think even rises to a preponderance but then almost always departs significantly downward from the guidelines, it would be malpractice not to take these factors into account when recommending to your client whether or not to take a jury trial. I don't know the trial judge in this case. The only objective facts I know are that the prosecutor thought his case was weak enough that he was willing to settle for 4 years active incarceration and the trial judge, apparently in a significant departure from the guidelines, sentenced the defendant to 750% above what the plea agreement would have been. I would have to have a serious talk with my client about a jury trial if I had a client before a judge who had done that sort of thing more than once.

As well, outside of the law addressed by the case there are a number of ethical issues raised here. Did the judge violate the cannons when he sought a case and refused to recuse himself? Did the judge act unethically when he removed the attorney from the court appointed list? Did the lawyer act unethically when he first asked for a jury and then withdrew the request? I'm not an ethics expert so the only one of these questions I'll address is the one the Court of Appeals spoke to. The appellate court didn't quite state that the judge violated the cannons when he didn't recuse himself; it merely recited the standard and stated that the violation of this standard didn't mean the law was violated. This is not a ringing endorsement of the trial judge's actions.

Finally, I'm not sure why the judges didn't handle this situation the way the judges I appear in front of would handle it. I know that if I ask for a jury trial my client, unless he decides to plead guilty, will have a jury trail and a jury sentencing. Because the jury trial is allegedly the default setting in a Virginia criminal case the jury must be waived by the defendant, the prosecutor, and the judge. Once I ask for a jury trial the judges hereabouts will just exercise their option to go forward with a jury trial if I try to waive at a later date. Because of the fact that a jury sentences this would generally be too devastating to risk just to get a different judge.

All of these side issues would have been avoided - and quite possibly the primary issues as well - if Norfolk assigned a trial to one judge from beginning to end (although I must admit I like the idea of a different judge hearing the suppression motion) and/or a choice for a jury trial would stick no matter which judge you ended up before.


Facts:

Defendant came to court expecting to have a bench trial in front of a particular judge. However, Defendant's case was put in front of another judge. At this point the defendant asserts his right to a jury trial and the case is put off to another date. Later, when the defendant appears in front of a different judge he withdraws his motion for a jury trial and the case is set for trial. At this point the first judge asks the chief judge to return the case to his courtroom for trial because he believes the request for a jury was made for the sole reason of removing the trial from his courtroom.

As the trial is about to begin both Defendant and Prosecutor state that they are ready to go forward. Then the prosecutor tries to put forth a plea agreement by stating the ultimate outcome of the agreement verbally to the judge - giving as his reason for the agreement the fact that one of his witnesses had previously committed perjury in a federal trial. The judge refuses to hear the plea agreement. When the defense argues that he must hear it the judge refuses because if he denies it the denial would "obviate [the] entire trial" (in Virginia if a judge denies a plea agreement spelling out a specific term the defendant can withdraw his plea and have the case transferred to a different judge). The defense then moved for the judge to recuse himself but the judge refused, claiming "he was willing and able to impartially hear Wilson's case, noting that he did not "hold any ill will' towards [defense counsel] even though he did not approve of [defense counsel's] pre-trial conduct."

The Findings:

There was no plea agreement - Because of possible ambiguity the Appellate Court does a two pronged analysis to determine whether the trial court's determination that there was no plea agreement is valid. First it does an analysis of whether the trial court could have factually concluded that there was no plea agreement and concludes that the trial court could have discounted the prosecutor's statement that there was one in favor of the defense counsel's pre-trial statement that they were very close to having one. It's unfortunate that the Appellate Court engaged in this argument because it is the Court's weakest (and not needed). When the prosecutor stands up and says that there's an agreement "for a total sentence of twenty years with four to serve" there's an agreement; which charges are dropped and which are reduced and which will get suspended time is pretty much irrelevant. The final disposition has been negotiated.

However, that argument doesn't matter because by operation of law there was no plea agreement. Rule 3A:8(c), requires the plea be in writing, signed, and presented in court. When both parties stated that they were ready to go forward with the trial they had no written plea agreement. The key here is that they stated they were ready to go forward when they actually weren't - therefore they were stuck with no agreement reduced to writing as required for a valid plea agreement.

It's the proper legal conclusion but it will bother anyone who actually practices in the courts, Why? Because we all see this Rule violated over and over again as a matter of course. While some judges are sticklers for the requirement that plea agreements be written many will allow a verbal agreement. The rest would have simply given the two sides a few minutes to get a quick plea agreement printed out. It's somewhat shocking to see a judge assert this Rule so stringently.

The trial judge was not required to recuse himself - As stated above, the Appellate Court doesn't come right out and say that the trial judge violated the Canons of Judicial Conduct; it just leaves us with a strong implication and states that the Canons aren't determinative under the law.

The burden of proving that a judge was biased or prejudiced is upon the defendant. Basically, it's going to be impossible for a defendant to prove bias in any case short of the judge looking down at the defendant and saying, on the record, "I hate all people with German names and therefore I find you guilty and sentence you 10 years more than I would someone with an Irish name." As is clear from reading the decision anyone on the Bench is capable of making statements on the record proclaiming how fair he is and how fair he will be at trial. Obviously this is not indicative of whether that judge is actually fair or just saying such things to cover himself on the record (although the Appellate Court seems to award it some weight). Thus, we should probably look toward the actions of the judge. Well, we can't consider the fact that the sentence is excessive because the sentence is within the maximum range and the judge said he imposed the massive sentence because of another reason. How about the fact that he didn't allow the plea agreement to go forward? Well, he was just enforcing the law - far more strictly than normal and with an eye toward keeping control of the case (p. 8) - but he was just enforcing the law. And what about the fact that he sanctioned the defense counsel before the trial? Bias against the attorney doesn't equal bias against the defendant. What about the fact that the judge actively sought the case? Well, the chief judge placed the trial judge back on the case in order to stop a perceived "judge shopping" incident and therefore the trial judge was not prejudiced.

Flames? Maybe not. But lots of smoke. Lots of smoke. The problem is that the smoke seems to come from things other than this specific defendant. Why is this judge so sensitive about "judge shopping"? Maybe because people are trying real hard to get out of his courtroom? I don't know, but it appears he is prepared to take unusual steps to keep cases from going to other judges; there's smoke there. The other source of smoke seems to come from the conflict between the judge and the defense attorney. This may not be directly tied to the defendant but every bit of it effects him. The question you have to ask yourself is whether you think that the defendant would have gotten as staggering a sentence if the judge hadn't been aggravated by "judge shopping" and his conflict with the attorney. I don't know this judge, so I cannot answer that question. Nevertheless, I must admit a strong suspicion. However, suspicion puts the judge in trouble with the Judicial Inquiry and Review Commission, it doesn't reverse this decision.

Resonable in the Courts v. Actual Reasonability

The 8th Circuit has upheld a sentence for 100 months for dstributing less than 2 oz of marijuana to a friend in pain from multiple sclerosis. Why is it valid? Because it's reasonable because the guidelines say it's reasonable.

Guest Blogger Intro

Hi all. Ken has been kind enough to ask me to guest blog here for a spell, and I thought I'd introduce myself. I'm a solo practitioner in Philadelphia, where I specialize in criminal defense (primarily white collar, but not solely) and appellate work. I'm looking forward to contributing, and to hearing some comments and maybe having some good discussion.

Well, not all the defense attorney complaints are the same on the other side of the pond but I fully sympathize with this one:

"Clients who simply fail to provide instructions who then turn up to their trial expecting their case to be fully prepared and expect to win their case."

In Case the First Application of the Death Penalty Doesn't Take

Maryland is now going to take its shot at convicting Muhammad the sniper.

Since Virginia has one of the shortest, if not the shortest, period of time between conviction and the State killing the defendant, the extra trials in other States might actually prolong his life.

ATF Out of Control

I first heard about his on talk radio this morning as I was driving to the courthouse. When I got back to my office this afternoon I did a search on Yahoo News, tracing the story back to CNSNews.com. Nobody else seems to have covered the story.

The ATF, with the cooperation of local and State police, descended on a gun show en masse; the article states that nearly 500 police participated (I'm a little skeptical at that number). They parked cars in obvious places and seem to have made very sure that everyone knew they were there. One guy who was there to legally sell a couple firearms was rousted and held for having a suspended driving license.

The worst is that the ATF took information which could only be legally used for the computer check and sent officers to the houses of people who were buying firearms to question people about the purchaser: "Gee, did you know your husband was going to a gun show today? Do you have his cell phone number? Did you know he was buying a gun?"

Well, sad to say, CrimLaw is going to start slowing down. From this point forward I am going to have to restrict posting because work is rudely interrupting.

The plan, at this point is one post one Wednesday, one on Friday, and a Lex Radio post on Sunday/Monday. Sorry folks but there are piles of work upon the piles of work in my office.

Anyone out there interested in co-blogging to fill in the blanks feel free to drop me a line. Only 4 rules: (1) Posts are about criminal law. (2) Absolutely no politics. (3) Civility. (4) Absolutely no politics.

Lex Radio - Probable Cause & Computers

Click on the Logo to find the rss for the PodCast.

Click on the Title above it for a direct download.

Volokh Conspiracy

Crime & Federalism

Southern Appeal

Gideon's Guardians

How to Get Your Client's Record in Virginia

One of the first thing I learned is that my clients will not be able to tell me what is on their records. Sometimes there's too much to remember, sometimes things were too distant in the past, and many they didn't understand exactly what was going on and know they were convicted but not exactly what for.

So, I always want to get a copy of my client's record. I file a discovery request pursuant to the Rules. What do I get back? Well, that varies.

The District Court Rules requires that I be allowed to "inspect and copy or photograph . . . (2) any criminal record of the accused." The circuit court rules aren't as specific but allow me to "inspect and copy or photograph . . . papers . . . upon a showing that the items sought may be material to the preparation of the defense and that the request is reasonable."

Some jurisdictions give me the record which they print out from the computer hook up all prosecutors have to the State Police. Others paraphrase it and deliver me a copy of the paraphrase. One jurisdiction makes me come to the office and hand you a copy of the record to let you copy whatever you like by hand. The last two are problematic. What if the record is long and something is missed? These records are often long and complicated, even when the prior convictions are all from Virginia. When there are convictions from another State there can be all sorts of problems. Records from different States are entered differently and without time to get it figured out (perhaps even by calling someone in another State) can lead to the noting of the same conviction twice or not noting something because it doesn't appear a conviction occurred. Sitting down and hand copying invites error.

So why are there jurisdictions play silly games with the client's record? Well, the reason I've been given is that the State Police tell them they cannot give copies to defense attorneys and the State Police come by and check. If the prosecutors don't do what they are doing the State Police will disconnect them from the database (yeah, I'm skeptical about that too).

Anyway, a while back another defense attorney and I were talking about this and he pointed out that there is a way that I can actually get the unadulterated record:

§ 19.2-389. Dissemination of criminal history record information.

A. Criminal history record information shall be disseminated, whether directly or through an intermediary, only to:
. . . .
33. Other entities as otherwise provided by law.

Upon an ex parte motion of a defendant in a felony case and upon the showing that the records requested may be relevant to such case, the court shall enter an order requiring the Central Criminal Records Exchange to furnish the defendant, as soon as practicable, copies of any records of persons designated in the order on whom a report has been made under the provisions of this chapter.

I never knew that law existed and I've never seen anyone use it. Why is the whole process so ridiculous? Probably because defense attorneys have about as much pull in the General Assembly as left-handed, red-headed step children.

Hey, I Know That Guy

I knew Steve back when he was a pre-trial guy here in Chesterfield. I think his blog is probably meant to keep his family and friends up to date but the car wreck post just had to be shared (and I'm sure there will be plenty of other posts about the joy of law school).

Frontier Law Student

My only advice to Steve is that when they start talking about how the 4th and 5th Amendments work not to try to apply the real world because the stuff you'll get taught in law school probably won't have much to do with the stuff you learned as a police officer in Petersburg.

So Goofy It's Worth a Play

This has absolutely nothing to do with criminal law but there's a firm out there with a quiz it is offering to law students as part of a contest for pro bono funding.

It is so goofy they had to be trying. After the intro make sure you answer a few questions both correctly and incorrectly. Maybe it's just me but I couldn't stop laughing.

Of course, the guy doing the quiz could probably buy everything I own with half a month's salary. So, he must be do something right - just not MC'ing quiz shows.

[addendum] I just looked at the thing again and the guy calls himself the "young Frank Hogan" which I assume is the Hogan in the firm name. So he's probably an actor and might not make as much money as I thought. Although I guess "the young Frank Hogan" could mean he's Frank Biffington Hogan the Fourth.

Sentencing and Sex Offenses

A couple days back Tom and Professor Berman went back and forth about how sex crimes against minors should be treated. Then yesterday I get an email telling me that Bob McDonnell, Chairman of the House of Delegates' Courts of Justice Committee and candidate for Virginia Attorney General, has proposed a mandatory 25 year term for those convicted of "committing major sex offenses against children under the age of 13" (which would include about everything).

It's a simplistic solution. Nuke 'em all, and if any are standing afterward, shoot 'em as they glow in the dark. Of course, that's the curse of politics. Simple solutions have to be offered out front and the actual complexities of the law can be worked out in the General Assembly later.

I suspect that Professor Berman is right that there is a core of people who should never see the light of day again, but that a large number, if not the majority, of offenders are single time offenders. That does not mean that these folks shouldn't get a significant penalty but in a number of cases 25 years is overkill. What I would prefer to see would be something like this: Every offense carries a mandatory sentence of life with all but up to 25 years suspended. Give judges room to work with so they can separate a drunk 18 year old who goes to bed with someone he thinks is 16-17 from someone who purposefully does something evil to a 2 year old. However, make it so that the judge can only give up to 5 years of the sentence to the defendant in any subsequent show cause unless it was based upon a sexual offense against a minor - in which case it would be presumptive that the entire sentence be imposed.

Monitoring makes sense (though I must admit that the electronic anklet is going to be expensive and quite possibly unworkable); however, I would probably like to see it removable by petition to the Court after perhaps 10 years without any intervening conviction.

I think it's workable and has enough play in the joints to allow just results. Thoughts?

Dislike of Judges

This guy really, really dislikes judges (although he does cut this judge some slack).

More "Heard in Court"

From yesterday: It's a routine statutory burglary sentencing hearing. The only thing on my client's record is a prior disregarding a red light and it involved a closed business rather than a home, so the guidelines recommend probation. The only real variable is that the judge is a substitute.

Client is actually fairly sympathetic. Among other things, I point out to the judge that he has three children by the woman he lives with and needs to support them.

Judge: "Sometimes I don't understand the guidelines. Breaking and entering is a serious crime. However, I'm going to follow them today. 5 years in the penitentiary, all 5 years suspended for a period of 10 years. One of the conditions of this suspension is that you not break the peace, obey the laws of Virginia and Her Sister States, and be of good behavior. Being of good behavior doesn't just mean obeying the law. For instance, continuing to have children out of wedlock can be a violation of good behavior . . ."

I am getting so tired of this *^%*(&

All of my petitions for appeal, to date, have been court appointed. The court reporting firms know that whether they turn over the transcripts to circuit court clerk's office on the day I order them or on the last day they could be turned in they will get paid. Guess when they are delivered to the clerk's office . . . every . . . single . . . time. Even when they are ordered to arrive early they usually arrive on the last day; they are due 60 days from the final order and court reporters can count to 60. I cannot prove that I am moved to the back of the list in order to favor "paying clients" but I have my suspicions. This has caused me a great deal of pain recently.

First, there was the case wherein the court reporter screwed up and counted her 60 days from the sentencing hearing rather than the date the Order was signed. And thank goodness she did because three days of transcripts weren't delivered when they were handed in. I got a two week extension for the filing of transcripts. The remaining transcripts were still filed late (after the extension). The Court of Appeals refused to allow the late transcripts to be used in the petition or argument. This was a huge problem because the late transcripts were the pre-trial motions - including the constitutional argument which is the primary basis for the appeal. I had to default so that I could wait until after 01 July when the law would change and allow me to file a motion for a delayed appeal for my client (prior to that the only option was for the client to waste his one habeas to get back in front of the court). In the mean time, the Court of Appeals filed a Bar complaint against me. The Bar was gracious enough to dismiss it after I provided copies of the motion for delayed appeal, notice of appeal, and petition. However, the Bar investigator reminded me that it is my responsibility to insure that the transcripts are timely filed.

Then comes the second case wherein the transcript is due on a Sunday. On Friday I go to the clerk's office and check. It isn't there. I call the court reporting firm and the person on the other side freaks out. She calls me back about 15 minutes later and tells me that the court reporter forgot my transcript. FORGOT MY TRANSCRIPT. However, she will have it done Monday and because that's the first working day after the due date they will deliver it then (and it will still be valid). Luckily, the transcript was fairly short and it was hand-delivered on Monday.

Third, there's the transcript of a jury trial which I'm appealing due Monday of this week. I've been bugging the clerks at the circuit court clerk's office for about a week prior to the due date (because in this county they order the transcripts rather than me). I check on Monday and the transcript hasn't come in. I start to sit down and write another motion to continue the due date for the transcript and drive it up to Richmond to hand deliver it to the Court of Appeals so that it arrives in time. Then, a little piqued, I decide to first call the court reporter firm. Whoever answered the phone was an expert at dealing with unhappy people because before I could get going she got the case name and told me the transcript was being hand delivered right now. Sure enough, the clerk called my office about 30 minutes later and told me they had the transcripts.

I was in the courthouse Wednesday to do a couple things and pick up the transcripts. While I'm there I stop by to talk to Tom (who was the prosecutor in the case) about the case. He's already had a look at the transcripts and tells me that parts of the trial aren't in them. I take the transcripts back to my office and found this:

"NOTE: The jury panel is called, they are sworn on their voir dire, the jury is selected and sworn to try the issue." - None of the jury selection is transcribed.

"NOTE: Opening statements are made by counsel; and the taking of evidence is begun as follows:" - The opening statements aren't transcribed.

"NOTE: The hearing is continued in the presence of the jury, the defendant being present; the Court now reads the written instructions to the jury. Following the Court's reading of the instructions, the case is argued by counsel, whereupon the jury retires to consider its verdict and returns." - None of the instructions or closing arguments are transcribed.

YOU HAVE GOT TO BE KIDDING ME!

Luckily, the errors I'm going to argue were not in those sections of the trial. But how the heck does the court reporter know that? So now I don't only have to pray that the transcript arrives on that last day so that I don't default in order to do a delayed appeal (and get a helpfully filed Bar complaint from the Court of Appeals). I also have to read every last sentence in the thing before close of business on that day to make sure that the court reporter put everything in.

But, you say, didn't you say above that you could file for an extension of the date on which the transcripts have to be turned in? Sure, I can do that. Of course, the ability to do that is pretty worthless if the transcript arrives at 2:30 while I'm at my office on the last day it's due. Even assuming I'm called by the clerk the moment the transcripts arrive and leave my office that very second I'd get to the court about 3:00. 15 minutes later I've gotten into the courthouse and the clerk has signed over the transcripts to me. Let's assume the transcript is only a few hundred pages. I can probably do a quick read of that by 3:45. And, let's assume I have my portable computer and portable printer with me (yes, I am a geek). If I move quickly, I can set up the system, type and print the motion in about 20 minutes. Abandoning my computer et al. at the courthouse I run out to my car and screech from the courthouse parking lot at about 4:10. Let's assume that I hit warp speed and there are absolutely no officers between me and Richmond (not to mention no traffic jams). I get to the city about 4:45. The city is magically clear of traffic so I get to the courthouse in ten minutes; 4:55. Of course, there's no parking in the city so I abandon my car in the middle of the street in front of the Court of Appeals. I run through the metal detector, past the Capitol Police officer, dash up the stairs and barrel through the clerk's office door at 4:59, bellowing for a clerk to stamp the motion in so that it is timely filed. The Capitol Police officer then tackles me and hauls me off to jail, but I got the motion to court on time. Assuming, of course, that the Virginia Court of Appeals' clerk's office doesn't close at 4:30 like a lot of other government offices do.

For some reason I've never tried that method of filing motions.

There remains yet another option. I could, via certified mail, file a motion for extension whenever the transcript hasn't arrived 3 days before the 60th day (gotta do it a couple days early to make sure it gets to the clerk's office before it's due). Of course, that would mean I'd be filing motions to extend in each and every one of my appeals and I can't think of a better way to endear myself to the appellate court judges (and, perhaps more importantly, the clerks). I just cannot see that turning out well. Although, to be honest, that might be what I'm forced to do.

I just love being on the hook for something which is at least partially out of my control.

Heard in Court Today

a) The judge is explaining the right to appeal: "but, of course, with each appeal the cheese gets a little more binding."

b) Asking a man about his financial situation (in order to see if he qualified for court appointed counsel):

Do you have any money in the bank? Any money in your sock? In a sock at home? Under your pillow? In your mattress?

c) Defendant: "My attorney, Mr. Smith, isn't here."

Judge: "Mr. Smith is in Austria on his honeymoon. He's not going to be here today . . ."

Moments in a Defense Lawyer's Life

a) Sitting around waiting for my client's plea agreement case to be called and getting bored enough to debate the lawyer sitting next over whether a female magistrate is a magistratrix or a magistrette.

b) Judge: "Mr. Lammers is absolutely correct. Nothing I do today is going to accomplish too much. The fact that the front two rows are filled with Mr. Defendant's family from as far away as New Hampshire shows he has strong support from a loving family. And putting him in jail is neither going to put him in a better position nor is it really going to help society. However, the one thing Mr. Lammers has not mentioned is that the reason we're here today is to punish . . .

c) Watching a trial wherein an attorney asks the witness about her conversation with her attorney and seeing the judge intervene to stop the question because it would violate attorney client privilige.

d) Watching a pre-trial murder hearing and seeing the following:

Prosecutor: Before we go forward Judge, I'd ask you to ask the accused his name. He told the officer his name was Mike Smith but when we ran his fingerprints they came back as belonging to David Charles Smythe.

Judge: Please tell us your real name.

Accused: David, Mike, Robert, charles, they're all in here . . .

Deputy: Uh, Your Honor, I don't want to speak out of turn but we think there might be some, uh . . . mental issues here.

The judge, sua sponte ordered a mental evaluation.

e) Someone else's reckless driving and eluding case:

Trooper: I had my car up to 135 mph and his motorcycle walked away from me like I was standing still.

The guy on the motorcycle went from south of Richmond to Fredericksburg and back at 185 mph, on a motrcycle, with police chasing him. Needless to say, he will be spending a little time in jail.

For those of you who are Virginia defense attorneys who need to know what authorizes you to tape a preliminary hearing in general district court (a court not of record for those not in the Commonwealth):

§ 16.1-69.35:2. Tape recording of proceedings in district courts.

Proceedings in a general district court may be tape recorded by a party or his counsel.

Okay, I admit it. I put that here so I'll be able to find it again someday when I need it. Now if I could just remember the statute which guarantees me discovery when I take the misdemeanor case to circuit court. I know it exists but just can't remember where.

An apology for stealing the safe. Some people are just too polite.

Race Hate Crime Rise Claim Rubbished.

Have the London bombings led to increased hate crimes?

The good news: crime in Chicago is down.

The bad news: it's being exported elsewhere.

Compensation to the Family of Murder Victims

"Mrs Moran has applied to the Victims of Crime Assistance Tribunal for compensation over the death of her [estranged, gangster] husband, despite profiting by almost $14,000 from his death through sales of her autobiography.

She has already received compensation payouts over the gangland murders of her sons Mark and Jason, and could receive up to $50,000 compensation over the gangland execution of Lewis Moran at a Brunswick club last year. "

"Baby Gangs" on the rise in Italy.

Aaaaarrrggg!!!

Blogger just ate my Around the Web post. I gotta go back and finish writing my brief now so I can't redo it.

Sorry folks.

You know, it's kinda fun reading Tom's blog as he tries to defend those pro-prosecution biases in the law which are undefendable.

I started to write a long reply to his "rebuttable presumption" = "permissable inference" post, but I like the conclusion.

However, the question which comes to mind is, if the law actually only states that when the defendant has a .08 BAC a judge may infer impaired driving, what's the problem when he doesn't infer it?

That is, of course, other than the fact that he will anger MADD and probably not get reappointed to his position the next time the General Assembly gets to decide whether to reaffirm him.

I case ya'll aren't watching Pennsylvania beat New Jersey (4-3) to advance to the Little League World Series. It was a great game to watch, including an amazing play at home by the pitcher.

If ya'll are watching pre-season football instead of this you should be ashamed.

Here are a couple of organizations dedicated to helping those who have spent time in prison:

Project Return

The After Prison Initiative

I've been asked to identify any organizations of this type which are out there. Does anyone know of others?

Lex Radio 081405 Nullification in the Courtroom

Click on the Logo to find the rss for the PodCast.

Click on the Title above it for a direct download.

This week's LexCast is about nullification in the courtroom and how it is used by prosecutors, judges, and juries (for some reason the ability to nullify has never been extended to the defendant or defense counsel). The audiocast is somewhat choppy; editing via audacity is a little rough, especially if you're still figuring out what's what (and I most definitely am). As well, I did this extemporaneously so it's not nearly as focused or efficient as I might have hoped for. The LexCast doesn't descend entirely into a rant but it could be better organized. I guess the lesson here is that if I'm going to actually cover a specific topic with some depth it would be good to do a little bit of an outline ahead of time. Oh well, live & learn. Hopefully ya'll will still find something interesting and useful in this week's LexCast. Enjoy!

Debating Death

Somewhere along the way I picked up this bit of wisdom: Be careful when you go to rural jurisdictions. Farmers learn early on that if there's something wrong with one of the cows you separate and you kill it. It's not that they hate Bessie or think she deserves to be killed, it's that the herd will be better off. They will apply this same philosophy to your client.

From a post on The Irish Trojan's blog dated 8/05/2005 01:18:00 AM EST, here are the comments which are arguing over this same sort of treatment for people (I'd cite the exact post except I can't get that to work).

Kentucky to Little League World Series

For those of you who aren't watching the best sporting event of the year, Owensboro Southern is going back to the Little League World Series. Last year they went because of an amazing pitching performance. This year they did it by getting a lead and holding on against a game team from Limestone, Illinois to win 11-10.

I love the Little League World Series. It is the best that baseball offers.

The Judge v. the Sheriff

In Petersburg, Virginia:

The Judges were unhappy because the Circuit Court building was being left unguarded when court was not in session. They get together with the Sheriff and after the meeting issue an ORDER that the courthouse be guarded at all times when it is open. For a year it is.

Then the Sheriff, citing lack of funds, stops providing security for the courthouse after court has ended. The Judge closes the building and puts up a sign giving a number to call if anyone needs access (the clerk's office and law library are both in the courthouse). The Sheriff takes the sign down. That same day, the Judge issues an ORDER and sign to post on the door:

It appearing to the Court that the Sheriff of the City of Petersburg has ceased to provide security for the Courthouse when Court is not in session, it is ORDERED that in such times when security is not provided, the Courthouse shall be locked. Entrance shall be had only by calling 555-1234. The Clerk of this Court is directed to post a copy of this Order on the front door of each Courthouse.

That same day, the Sheriff takes the ORDER and sign down.

The next day the Judge goes to the Sheriff's office to get the papers back. After some fussing back and forth, the Sheriff gives her the sign but not the ORDER, because it is "inaccurate." The Judge has the Sheriff tried for contempt. The Sheriff was found guilty of 1 count of civil contempt and 3 counts of criminal contempt.

On Appeal: Among other things the Sheriff argues the original order was improper. The Court of Appeals finds:

Clearly, the trial court has subject matter jurisdiction to address courtroom and courthouse security issues. Whether the trial court could order security when the court is not in session is not jurisdictional. The error, if any, would be as to whether the trial court had the authority to exercise its subject matter jurisdiction. If the court lacks authority to exercise its subject matter jurisdiction, the order would be erroneous or voidable, not void, and appellant's remedy would be a direct appeal, not disobedience.

The Sheriff also argues that because of a lack of funding it was impossible to keep someone at the courthouse when court was not in session because he has to staff the jail. The Court of Appeals finds:

Far from impossibility, appellant made a conscious decision to fulfill one set of duties to the neglect of the court order. Further, absent a timely effort by appellant to challenge the validity of the order before he was held in contempt, the claim that appellant was unable to comply with the order due to impossibility based on a lack of funding is irrelevant. We find the trial court did not err in not admitting evidence of "impossibility."

[note] This holding strikes me as problematic. I don't know how long the window is to appeal a sua sponte ORDER of a court which is not related to either a criminal or civil case - it's never been an issue in any of my cases - but I doubt it is as long as a year. When the City Council did not adequately fund the Sheriff's Department it was most likely too late to appeal the ORDER, even if it were origininally voidable. If the City Council refuses to fund the Sheriff a couple years after it's too late to appeal an ORDER there's not a whole lot he can do about it. [/note]

In the end the appeal succeeds. The reason? Judges are not allowed to testify as to court matters in Virginia and the Judge testified:

Code sec 19.2-271 states in part: "No judge shall be competent to testify in any criminal or civil proceeding as to any matter which came before him in the course of his official duties."
. . . .

[However, a judge can testify if she is the victim of a crime.]
. . . .
Because Judge Baskervill was not a victim of a crime committed by Sheriff Epps, we conclude that the trial court erred in allowing Judge Baskervill to testify. Although the court erred in admitting Judge Baskervill's testimony, that error does not require reversal if we determine the error was harmless. The Commonwealth has offered no argument that the error was harmless, and we perceive no basis for such a holding. While appellant's testimony was in accord with Judge Baskervill's, we cannot say that it is harmless error for the court to have allowed Judge Baskervill's testimony in light of our inability to determine why appellant chose to testify.

So the whole case goes back down. You get the feeling that the Court of Appeals was trying to send it back so that perhaps this could be settled in a rational, civilized manner ("now, now children, play nice").

Outside of the absurdity of all of this, the legal point which stands out to me is that if a defendant testifies it appears that every bit of harmless error analysis goes out the window for anything done in the prosecutor's case in chief. That's a point to file away for future appeal writing.

Police cite martial arts students for practicing defense against (fake) weapons.

Story via: Karol Kulaga

Killers, Escapers, but not Amwayers

The jail escape went bad when they couldn't convince the cab driver they were going to an Amway convention.

"[T]o those who say the death penalty is not a deterrent, I have two stock answers: One, it is not called capital deterrent, it is called capital punishment; and two, it for sure deters the condemned inmate from committing another crime."

And talk about Alabamans not too sure about the death penalty.

Rex Dean Penland was convicted of kidnapping and murder on the testimony of two other men. At the time DNA research wasn't far enough along to identify the different DNA's in the sperm and identify the blood on Penland's knife. Now it is and neither was his DNA found in the sperm nor her blood was on his knife

Still, the prosecutor is going to try him again.

Death penalty for corruption in China

A court in China must decide whether an official is a reformer or a corrupt official pretending to be a reformer.

Attorney General on the Death Penalty

Questioned by reporters, Attorney General Gonzalez would not agree that the system is flawed, or as former Illinois Governor George Ryan once described it, “broken,” but Gonzalez said he and President Bush think it can be changed.

Imagine going into court and arguing that your ticket is not valid because the radar gun didn't have the right algorithm to keep the picture takend from being altered. It worked in Australia.

A man convicted of murder is buried in Arlington and the Congress may change the rules.

Dang! I didn't make Time's list of top blogs.

But, then again, seeing the blogs they picked I'm not sure I want to be on the list. I only saw one blog on there which I think is decent.

He killed her because she wanted to cuddle?

Look, I'm not the most touchy-feely guy in the world, but even I've never gotten to the point I wanted to kill a girl for cuddling. Maybe for the ice cold feet in the bed or fighting me when I try to hog the blanket, but never for cuddling.

You Know There's a Problem When . . .

"The most high-profile case to date follows an investigation by an undercover reporter from The Sun who was sold the bank account details of 1,000 UK customers by a call centre worker in India.

The journalist was able to buy bank account, credit card, passport and driving licence details of UK bank customers for just £4.25 each.

The call centre worker in New Delhi also told the reporter he could supply confidential data from 200,000 accounts per month. The newspaper handed a dossier with all the details to the City of London police."

DSA Legal in England?

It appears that a denial of service attack has yet to be made illegal in England.

Will Spam from Nigeria Stop?

"The e-Nigeria, annual International IT Conference . . . calls on the National Assembly to urgently pass the Cybercrime Act as it is difficult at the moment to prosecute Cyber criminals in the country without an appropriate legislation."

I don't know about ya'll, but I ain't holding my breath.

Cybercrime Trends

IBM tells us cybercrime is on the rise, driven by "spear-phishing." ComputerWorld tells us that costs incurred from computer attacks are down. SC Magazine tells us that they're both right - crime is up but the costs are down.

Here's the discussion of sentencing at the ACS convention.

Managing Earnings

I now have a new euphemism I can use if my clients are charged with fraud: they are merely "managing earnings."

I mean, if it's good for the white collar folks it ought to be good enough for my clients and it sure sounds a lot better than lied, stole, cheated, &cetera.

Loyal to Commodore

My first computer was a C64 and I guess it still shows:


Which OS are You?

Virginia Governor Appoints Panel to Review the Forensics Lab

Virginia's lab, which has been in trouble ever since its DNA findings were disproven in the Washington (non)rape debacle, now has a panel of 13 independent scientists overseeing it. They "will review laboratory operations, adopt qualification standards for the lab director and other staffers, and establish an audit process to be used when errors occur."

From the National Geographic:

"The underlying principles of the identification forensic sciences have never been rigorously scientifically proven," said Jay Siegel, director of the undergraduate forensic science program at Indiana-Purdue University in Indianapolis.

"This includes handwriting, fingerprints, and firearms, and tool marks," he said.

According to a new study, traditional forensic analysis often relies on untested assumptions and semi-informed guesswork. It can also sometimes produce the wrong results.

. . . . .
Little research has been conducted on the accuracy of traditional forensic sciences, such as the analysis of handwriting, firearm marks, fingerprints, hairs, and fibers.

"My guess is that the broader scientific community just assumed that the claims and assumptions of the traditional forensic sciences were rigorously tested at an earlier time," Koehler said.

Chicago in another cutting edge attempt to deal with its gang problem: You want parole? Then you can't come back.

African-Americans arrested for a hate crime.

Mexican people and the death penalty.

Crime fighting cheer-leaders.

In South Africa prostitutes are stealing from Johns. Shocked! Shocked, I am!

Would meth be a problem if drugs were legal?

MADD "helping" at drug checkpoints? Or acting as political officers?

Studying for the Bar

Fitz-Hume got me thinking about what I did to pass the Bar.

Much like FH, I used the MicroMash Bar. The primary reason for this was financial. MicroMash was much cheaper and would give the materials to me on credit and money was tight when I graduated. However, don't be fooled into thinking that this meant it wasn't as good a study program.

From about the time I moved to Richmond from Lexington, Virginia (shortly after graduation) I fell into a fairly consistent pattern. On weekdays I would get up and walk from Church Hill, 29th Street, up Broad to 8th street; the walk was a pain because of a fairly large hill but the fact it went past a nursing school meant there were sights to ease my pain. I'd go into the city courthouse and set myself up at a carrel in the law library and read whatever materials MicroMash had told me I should that week and take the written tests they sent. I'd break for a hour for lunch. At first I went over to the City Hall for lunch until a guy who worked over there propositioned me; we were talking football and then . . . After that I ate lunch over at the federal building. If I got burned out during the day I would go watch a trial or go over to the Library of Virginia for a while. When the law library closed up I would walk back down to my apartment, eat, and spend a hour or so doing MicroMash's computer Multi-State prep. During this time I had plenty of time to go to movies, go watch the Richmond Braves, or just mess around on the web (I have vague, frustrating memories of trying to argue with an objectivist on some Yahoo list using Locke and Hume and Aristotle and Plato and every other philosopher I could remember from college only to have him descend into screaming at me when the argument got truly interesting).

About a month and a half out I decided it was time to get serious. I unplugged the TV, disconnected the cable, pulled the modem line out of my computer, and stopped buying any books. All I did was work toward the Bar. I'd spend the day at the law library and then the night doing MicroMash's electronic Multi-State prep. Weekends were usually almost entirely Multi-State prep. I don't know how many questions MicroMash gives you but I do know I did a ton of them and didn't finish them all (thus not qualifying for a refund - an important incentive to pass the Bar). Two days before the Bar I drove up to Staunton to meet a buddy and the next day we went down to Roanoke for the test; we spent the entire time quizzing each other about areas of the law and looking up things each thought the other was wrong about. Then we drove down to the Arena and took the test.

What kind of idiot/jerk kidnaps a nun?

Christianity and the Death Penalty

"[I]n 1992 the Catechism suggested current Catholic thought on the death penalty was not what strong proponents of capital punishment wish it to be. Then in 1996 further changes were made to the Catechism to bring it in line with Evangelium Vitae. It was at a press conference announcing these changes that Cardinal Ratzinger, now Pope Benedict XVI, used the phrase “a development of doctrine” to describe how the death penalty was being perceived in Rome.

The “development” is less clear than it may seem. Through the Middle Ages, Christian philosophers and theologians developed a set of careful distinctions concerning courts and penalties, and one of their central aims was to limit the punishments that might be imposed by otherwise unconstrained rulers. But something odd happened during the Enlightenment. Voltaire came across the anti-death-penalty arguments of an Italian criminologist named Cesare Beccaria and promptly used them, with enormous success, as yet another weapon in his war against Christianity. The traditional Christian teachings, which had typically functioned to restrict the severity of criminal sentences, were suddenly declared to have been teachings in favor of torture and the death penalty.

So successful was the attack that many commentators today still accept Voltaire’s terms. Whether they defend or reject the death penalty, they all seem to believe the patristic and medieval writers accepted capital punishment not merely as necessary at the time but as required by justice at all times. The current position of the Catechism thus appears a radical change from earlier positions—as it may be, from the positions of some theological figures, but not as many as the historical commentaries on capital punishment would lead us to suppose."

Lv Commonwealth Conservative

With Apologies

The feed for Lex Radio has changed so all your aggregators and subscriptions are now out of date. Everything now on the blog should reflect the new rss feed for it. This has been done in an effort to get it to work with iTunes (which kept uploading pdf files from the old feed) and to fix a problem with the latest post disappearing from Odeo. Hopefully, everything is fixed now and will work. We'll see.

For those of you directly downloading Lex Radio everything is still the same.

Wonderful, a serial killer with a blog.

The Russian media is awash with speculation as to who killed spammer.

A good idea based upon the acts of evil people. No one should revel in the death of an 18 year old who dies in service of his country.

Can you arrest someone for trespasses in your State on the theory that he isn't a citizen and therefore is banned?

Lex Radio 080705

Click on the Logo to find the rss for the PodCast.

Click on the Title above it for a direct download.

Article and Blogs discussed:

Part 1 - Indigent Defense Commission

Indefensible
SW Va Law
Confutatis Maledictis

Part 2 - Around the Web

Arbitrary and Capricious 1
Crime and Federalism
CrimProf 1, 2
Sentencing Law & Policy
DUI Blog
Arbitrary and Capricious 2
SoCalLaw
Indiana PD
Killing Trees
River of Cocaine

BTW: Because of problems I had trying to get the podcast feed up on iTunes and Odeo, the feed has changed and anyone who subscribed before will have to go back and subscribe again. Sorry about that.

Boston's City Council is considering an ordinance which would keep it from contracting with any company that refuses to hire people with criminal records.

New Type of Cyber Criminal in Town

A company hires a security agency and a profiler to catch someone stealing it's information and trying to blackmail it.

[L]aw enforcement authorities and computer security specialists describe [this] recent evolution of computer crime: from an unstructured digital underground of adolescent hackers and script-kiddies to what Bednarski describes in his study as "information merchants" representing "a structured threat that comes from profit-oriented and highly omes from profit-oriented and highly secretive professionals."

Are they saying that there's now a computer Mob?

Police suing to get out of a station because officers have come down with scabies, asthma and other respiratory ailments and they are tired of sharing the space with toxic mold, bugs, and rats.

NYC Murders Way Down

NY may be on its way to less than 500 murders this year.

How do you get convicted of attempted perjury? You either lied or you didn't.

Sometimes having a gazillion people's fingerprints on file isn't enough.

Hold police at bay for 5 hours, get 45 days in jail.

"DaimlerChrysler AG said Friday it is cooperating with the U.S. Justice Department, which is investigating claims that the company's Mercedes Car Group may have paid bribes to foreign officials and that senior executives were aware of it."

Isn't that standard operating procedure in a lot of countries? DOJ's involved, why?

P2P illegal in Europe.

Clubbing a Canadian goose is something the people at the 19th hole will frown upon.

Rob the clerk at a convenience store which you go to each day and you will get a lot of time in prison.

Sure, lie to the police officer (who finds you at the bar) who was in court when you were put on probation and told not to drink. That'll always work.

Why does internet scamming come from Nigeria?

Because they are too well educated and don't have enough real work.

Dukes of Hazard

Hey, there's a documentary out there about Feddie's State.

It was fun to watch but a total waste of time. If your brain kicks in at any moment or tries to compare it to the TV show you won't enjoy it. Basically, it was a TV show stretched into a movie.

BTW, how do I get the Governor of Virginia to pardon my clients after they've shot burning arrows into police cars at 125 mph and caused the police car to explode? Or do I just need to move to Georgia to get those kinds of results?

Blakely & Virginia's Guidelines

A question from J.H:

Based on the referenced VA Code, what if a Judge does not comply with providing a written justification for the enhancement, could the Blakely ruling be applicable for an Appeal in VA??

Va. Code Ann. §19.2-298.01(A), (B). Virginia relies on jury sentencing for all cases tried before a jury. In such cases, the jury is free to select any sentence within the statutory sentence range and is not in any way required to base the sentence on the sentencing guidelines. In such jury-sentencings, no Blakely issue is raised. However, the judge determines the sentence in any case where: the defendant pleads guilty to an offense; the defendant waives a jury trial and is tried by the court; the jury does not unanimously agree on the sentence; or the prosecution and the defense agree that the court may fix punishment. In such cases, the court must apply the sentencing guidelines and provide written justification for an enhanced sentence.

What JH is talking about is this:

§ 19.2-298.01. Use of discretionary sentencing guidelines.

A. In all felony cases, other than Class 1 felonies, the court shall (i) have presented to it the appropriate discretionary sentencing guidelines worksheets and (ii) review and consider the suitability of the applicable discretionary sentencing guidelines. . . . In cases tried by a jury, the jury shall not be presented any information regarding sentencing guidelines.

B. [When} the court imposes a sentence which is either greater or less than that indicated by the discretionary sentencing guidelines, the court shall file with the record of the case a written explanation of such departure.

The guidelines discussed were created with a stated purpose:

§ 17.1-801. Purpose.

The General Assembly, to ensure the imposition of appropriate and just criminal penalties, and to make the most efficient use of correctional resources, especially for the effective incapacitation of violent criminal offenders, has determined that it is in the best interest of the Commonwealth to develop, implement, and revise discretionary sentencing guidelines. The purposes of the Commission established under this chapter are to assist the judiciary in the imposition of sentences by establishing a system of discretionary guidelines and to establish a discretionary sentencing guidelines system which emphasizes accountability of the offender and of the criminal justice system to the citizens of the Commonwealth.

The Commission shall develop discretionary sentencing guidelines to achieve the goals of certainty, consistency, and adequacy of punishment with due regard to the seriousness of the offense, the dangerousness of the offender, deterrence of individuals from committing criminal offenses and the use of alternative sanctions, where appropriate.

The theme you'll notice running through all of that is the word "discretionary." The guidelines are by no means mandates. In fact, going back to § 19.2-298.01:

F. The failure to follow any or all of the provisions of this section or the failure to follow any or all of the provisions of this section in the prescribed manner shall not be reviewable on appeal or the basis of any other post-conviction relief.

This means that a judge doesn't really even have to state for the record his reason for departure. Basically, the guidelines are not mandated at all. Blakely only applies if the guidelines are mandated in some form or another.

With that in mind, the question becomes - why do we even have guidelines? They shan't be enforced by the appellate courts so why would a judge ever pay attention to them? They are a tool for the General Assembly. Under Article IV of the Virginia Constitution, sec. 7:

The justices of the Supreme Court shall be chosen by the vote of a majority of the members elected to each house of the General Assembly for terms of twelve years. The judges of all other courts of record shall be chosen by the vote of a majority of the members elected to each house of the General Assembly for terms of eight years.

Basically, every eight years a judge comes back before the General Assembly and has to justify himself. Additionally, if a judge has ambitions of becoming an appellate judge he may be questioned as to his record in regards to the guidelines. However, let's face it, if a judge were crass enough to be manipulating cases in anticipation of his future he'd realize that while downward departures might hurt him it is unlikely that upward departures would. In fact, whenever attorneys think that they've noted an upward, over-the-guidelines trend in the sentences handed out by a certain judge one of the topics which always seems to crop up is, "Judge Smith is running for the Court of Appeals." Is it true? Unlikely, but it makes good gossip.

Caption & Apsortation

Complaints about the unneeded use of Latin in law. However, it's not just Latin which gets used to sound important in the courtroom (while actually saying little).

A year or so back I had a really bad shoplifting case. There was no way to win and no way my client was pleading guilty. It was so bad that when I got to court the prosecutor had decided to let one of her third year, trial certified law student interns try the case (which only happens in open and shut felony cases).

We go through the case; it's as bad as I thought it would be and the intern is sailing though. It's just been too easy. Perhaps feeling a little mischievous, I slip into legal garbalese in my closing argument. I went on and on arguing that while the prosecution may have proven asportation it never proved caption. I don't know if other jurisdictions use these terms in larcenies but I know I'd never heard of them until I started reading Virginia case law. And even then "caption" wasn't in my copy of Black's so it took a little bit to figure out. I finish up with some sort of grand statement like "And, of course, as we all know, your Honor, since they haven't proven caption my client can't possibly be found guilty of larceny." Walking back to the defense table I glance over at the intern. He looks absolutely lost. When the judge asked for rebuttal the prosecutor had to ask the judge to give her a few minutes to explain. The prosecutor then spent at least 5 minutes explaining it to him before he got up and started speaking. Even then he didn't use the terms; instead he spoke of exercising dominion and control and carrying something away. To this day I'm not sure he knew which one was caption and which was asportation.

Teach them to sic an intern on me. Next time I'll have to memorize two or three Latin phrases so that they come tripping off the tongue. Maybe something like:

As we all know, your Honor, the police philosophy in this sort of situation is "Conlige suspectos semper habitos."


Your honor, the officer was clearly on a fishing expedition. You'll note that he didn't say "Dic mihi solum facta, domina."


I know my client hasn't yet paid the restitution however, he assures me "Perscriptio in manibus tabellariorum est."

Heck, I could even use some of these with Tom the next time we have a trial. During my opening argument I could tell the jury: "Ladies and gentlemen, Mr. McKenna rudely keeps trying to throw my clients in prison. Sometimes I just want to turn to him and ask, "Nonne de Novo Eboraco venis?"

Careful What You Wish For

Well, after griping about not having clients come visit there comes a client during my open office hours. He even brings his 3 month old son and his baby's momma.

About half way through the interview he apologizes for the odor coming from his son. I've been around plenty of kids so the odor isn't bothering me that much and I tell him so. Then he hands the baby off to momma. To give the kid credit he knew exactly what momma exists for and he starts grabbing. I ignore it, trying not to embarrass her. Then, out of the corner of my eye I see momma reach up, pull the right side of her blouse down, get what God gave her out, and shove the baby's face on it.

The rest of the interview I concentrated my view on Client with laser-beam precision.

Policing, the way it was.

Feeling the Luv

Crimlaw can always be depended upon to post something, usually something good. The only drawback to CrimLaw is that Lammers changes his format more often than a teenage girl changes her hair.

If only I could deny it . . .

Around the Web

1. You must break the law to follow it.

2. As opposed to the "Love Crimes" symposium it hosted last year.

3. The end justifies the means. A surprising thing to hear from Tom.

4. The only way you truly understand the criminal justice system is to work in it for an extended period of time. And, let's face it, the Harvard, Yale, and Stanford law students who clerk for Circuit Court Judge the Honorable Aloysius BigMuckityMuck Feeder III and then get their chance to serve as a clerk for Justice the Honorable "Here because I have no papertrail" Smith are the people most likely to come back and serve on the court. Somehow, I just can't picture these folks taking a prosecution job at a Commonwealth Attorney's office.

5. Calling out judges for putting private attorneys first on the docket. I can't speak for others but around here there is often some jockeying to be the last case (or at least near the end). The thinking is that the judge is more likely to cut your client some slack if there's no one else in the courtroom to see it and then demand that their attorneys ask for the same thing. The other way I've seen to guarantee that you are at the back of the docket is to be a lawyer with a reputation for being difficult. Everyone, prosecutors and defense counsels, wants your trial moved to the last spot because they are worried you will - once again - turn a 10 minute driving suspended trial into a 2 hour lecture on the constitution (and lose, just like the last 7 times).

6. But if there are fewer clerks per justice, what will all the Harvard, Yale, and Stanford grads do? OMG, they'll have to get "real jobs!"

7. Wait a sec . . . Blonde Justice blogged about something legal?!? No, wait, it was actually a story about her dad. Still, it was kinda there. Yeesh, if she keeps doing that she won't have time to blog about all those strange reality TV shows I don't watch. However, shall I keep up?

8. The hibiscus task force is shut down. Not entirely shocking.

I've been interviewed . . .

. . . over at Southern California Law Blog.

In case you can't figure out who is who, I'm the guy with the loud, noxious voice and Jeff is the one who sounds like he's had a little bit of training in this area and knows what he's doing.

A Judge Who Really Knows His Circuit

Client has been found guilty and I am trying to keep him on bond until his sentencing hearing. Mainly, I am arguing that he should stay on bond so he can keep his job. The Judge starts questioning Client:

Judge: You work at Zed Corp?

Client: Yes sir.

Judge: Has that been sold to Gamma Corp?

Client: About a year ago.

Judge: And does Moses still work there?

Client: Yeah, but he's been moved into packaging.

Apparently my client answered all the questions correctly 'cuz he got to stay out on bond.

Mr. Lammers Has No Rights . . .

Client is pleading guilty. Before the judge will accept the plea he has to question the client as to whether he understands the rights he is giving up, has discussed the case with his lawyer, and understands what he is charged with. The Judge begins his questioning:

Judge: Mr. Smith,you have a lot of rights in this courtroom. Mr. Lammers doesn't have any rights here. You have a number of rights . . .

Gotta admit, I was standing there in the half-listening state you find yourself in when hearing the same questions you've heard thousands of times. However, when I heard the judge strip me of all my civil liberties just because I had walked into his courtroom my head did snap up.