Getting the Courtesy Pass & Still Complaining

Some Background:

I-81 is a death trap in Virginia. It is winding and hilly and filled with 18 wheelers and all the traffic travels at speeds beyond any reason. While I was in law school in Lexington (right off I-81), you would see reports of deaths almost every day and one time there was a wreck which literally piled up miles of cars.
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§ 46.2-862 - Reckless (Speed) - A person shall be guilty of reckless driving who drives a motor vehicle on the highways in the Commonwealth . . . (iv) in excess of eighty miles per hour regardless of the applicable maximum speed limit.

[note] It is an unwritten law in a great portion of Virginia that anyone traveling over 90 mph gets jail time.
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§ 46.2-852. Reckless driving; general rule - Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.

[note] If you make another car do something it would not have done because of your inappropriate act it usually falls under this statute.
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§ 46.2-817. Eluding

A. Any person who, having received a visible or audible signal from any law-enforcement officer to bring his motor vehicle to a stop, drives such motor vehicle in a willful and wanton disregard of such signal or who attempts to escape or elude such law-enforcement officer, is guilty of a Class 3 misdemeanor. It shall be an affirmative defense to a charge of a violation of this subsection if the defendant shows he reasonably believed he was being pursued by a person other than a law-enforcement officer.

B. Any person who, having received a visible or audible signal from any law-enforcement officer to bring his motor vehicle to a stop, drives such motor vehicle in a willful and wanton disregard of such signal so as to interfere with or endanger the operation of the law-enforcement vehicle or endanger a person is guilty of a Class 6 felony. It shall be an affirmative defense to a charge of a violation of this subsection if the defendant shows he reasonably believed he was being pursued by a person other than a law-enforcement officer.

[note] If you are driving recklessly and refuse to pull over it is usually charged as the felony.
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§ 18.2-460. Obstructing justice.

A. If any person without just cause knowingly obstructs . . . any law-enforcement officer in the performance of his duties as such or fails or refuses without just cause to cease such obstruction when requested to do so by such . . .law-enforcement officer, he shall be guilty of a Class 1 misdemeanor.

B. If any person, by threats or force, knowingly attempts to intimidate or impede . . . any law-enforcement officer, lawfully engaged in his duties as such . . . he shall be deemed to be guilty of a Class 1 misdemeanor.
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Now the Facts:

New Jersey deputies, returning from New Orleans, were traveling up I-81. They were in a convoy, in the passing lane, traveling 95 mph, using their lights, and forcing people off the road. A local deputy tries to pull them over. Some stop; others continue down the road. The stop was initially hostile but eventually the local deputy extends the courtesy and lets them go with a warning. The New Jersey sheriff calls and rips the Virginia deputy (apparently forgetting that nowadays calls can be taped):

"If you think that that's not a disgrace, you should take that badge off your shirt and throw it in the garbage," Speziale said. "This is unacceptable, and I'll tell you what, I hope I get the opportunity to show you the same courtesy up here in New Jersey."

Speziale told Roane that "law enforcement is all about supporting each other" and said he was reporting the Augusta County stop to the National Sheriffs' Association.

Speziale ended the call after cutting short Roane's attempt to detail the incident. "I don't talk to deputies," the New Jersey sheriff said.

Rumor has it that this stop was worse than it is portrayed but I cannot confirm that. Rumor also has it that Virginia law enforcement is being warned to respond en masse in these situations.

Hopefully, this is an anomaly. Another convoy of 80 New York law enforcement cars was stopped on the same day but no fuss has been made about that.

I have spoken to some law enforcement types about this and gotten pretty much the same reaction which was summed up by a trooper today who finished the conversation by shrugging his shoulders and saying, "Yankees."

LexCast

This week's LexCast discusses three opinions of the Virginia Supreme Court about criminal law.

1. The dismissal of cases because of a rule of the Virginia Supreme Court.

2. Can one attempt to do evil things to a minor when there is no minor involved?

3. Is an indigent client irretrievably prejudiced when his attorney doesn't object to the fact that he is going to trial in his jail suit?

Here's the video.

You can listen to the audio alone by clicking on LexRadio in the left hand column and going to Odeo.

The audio is better this week but it's still wonky. I think at least part of the problem might be that the clip on mike is mono. Hopefully, I'll come up with a fix for the sound soon.

BTW, the technical problems were fixed with Odeo and last week's LexRadio is up as well.

If you sit real still in the MRI machine it can measure whether you are nervous or if your brain is multi-tasking. This is being hailed as indicating whether someone is lying or not.

Anticipatory Search Warrants

Here's the first step down a rather massive slippery slope (at least if the supreme court validates this dodge of the constitution). It may not seem so bad as framed but just where do you draw the line in this sort of thing? And believe me, if it's allowed it will be pushed as far as possible and there will be courts which will apologize for the expansions.

I leave the parade of horribles to your imagination because it's 9 p.m. and I'm going home now.

Political Hardball in the Courts

I saw this first back on Injustice Anywhere and avoided talking about it for a while because of my general aversion to putting political matters on this blog. However, there comes a point when something is just too humorous . . .

The Kentucky AG and Governor are of different parties. There's been an open state of war between the two of them with the AG indicting members of the Governor's administration for making hiring decisions based upon -GASP!!!- political reasons.

The Governor decided this was not a situation calling for a nuanced approach and he nuked the AG. He pardoned everyone in his administration whom the AG had indicted. Then, called before the grand jury himself, he took the 5th.

But wait, there's more - An employee of the Transportation Department testified against the administration. Her supervisor recommended her for a bonus specifically because she testified against the administration. The acting transportation secretary not only refused to do that, he told her: "if it were 20 years ago I probably would have come back there and socked you in the mouth."

The AG has now re-indicted the acting transportation secretary for not rewarding the employee for testifying against the administration.

You just cannot make things like that up.

Article 1, Article 2, Article 3

Pacers Paroled

The Pacers who went into the stands to fight with the fans are going to get community service.

Why?

So you don't want fly to Missouri to meet the guy you've been IM'ing for the last few months (perhaps it will be hard to explain why you're not a 22 year old blonde physics major who loves to cook and wants a large family). Don't fly to meet him. Don't IM him anymore. Don't take his phone calls. All legal - if somewhat obnoxious - options.

However calling to tell him you have been "kidnapped, raped, stabbed and left in a ditch along Interstate 29 near Kansas City International Airport" is not a good plan. It's especially not a good plan when he calls the Missouri police and they call the Kentucky police who find you sitting in your home safe and sound.

Homeland Security is Dictating How Police Communicate

Homeland Security is dictating that local law enforcement abandon the old numerical codes in favor of plain language because police forces use different codes.

Whence the authority?

Jury Duty Scam

From an email my father sent me about social engineering scams:

Here's a new twist scammers are using to commit identity theft: the jury duty scam. Here's how it works:

The scammer calls claiming to work for the local court and claims you've failed to report for jury duty. He tells you that a warrant has been issued for your arrest.

The victim will often rightly claim they never received the jury duty notification. The scammer then asks the victim for confidential information for "verification" purposes.

Specifically, the scammer asks for the victim's Social Security number, birth date, and sometimes even for credit card numbers and other private information -- exactly what the scammer needs to commit identity theft.

So far, this jury duty scam has been reported in Michigan, Ohio, Texas, Arizona, Illinois, Pennsylvania, Minnesota, Oregon and Washington state.

I don't know if it's for real or not but I can see it happening. Of course, if anybody called me to say I had a warrant and then started asking for my credit card number I might be a wee bit suspicious.

Next week, the Texans.

This Post has nothing to do with criminal law

Unless taking pleasure in my former firm's bad press is a crime. I plead gulity. Take a look at the link to see an example of Big Law arrogance.

You are a Social Liberal (63% permissive) and an... Economic Conservative (68% permissive) You are best described as a: Libertarian You exhibit a very well-developed sense of Right and Wrong and believe in economic fairness. loc: (49, 68) modscore: (41, 38) raw: (3835) Link: The Politics Test on Ok Cupid

NYPD Podcast

"Hello and welcome to Inside the NYPD, the official podcast of the New York City police department, broadcasting from police headquarters in lower Manhatan to our listeners around the world."

Homepage here.

via Rocketboom vlog.

Keep an Eye on This Case

I think this whole Abramoff case might well be a witch hunt, and is obviously a proxy battle against Tom DeLay, but I think this case could be very interesting, and bears watching.

And By the Way

Ken, for a guy who said his posting would become light, you sure have been prolific. Not that that's a bad thing. I'll have some thoughts on Kozlowski, Saddam and some other things over the next few days.

Mea Culpa, I'm Back

I owe y'all an apology. No sooner had I made my intro post but that I got called to trial. Federal Court here in Philadelphia. Client was indicted, along with several others, on 42 counts of bank fraud, RICO violations and other stuff. We slog along for a while. Then, through an odd series of circumstances, the AUSA offers a deal. A sweetheart deal. Like, no time, which, given that our guy was looking at mucho years, was good. Now, here's the point of the post. This has never happened to me before. Part of the deal is, the client has to allocute. He stands up in court on plea day,and, when the judge asks him to allocute, he turns to me and says, no kidding, "Do I have to cop to the stuff that wasn't in the indictment?" Just as I was thinking about how long it would take to pluck the guys eyes out with my pen, the AUSA, to her credit, suggested that perhaps we ought to take a short break. The judge was not amused. Nor was my cardiologist. Long story short, case over. My posts ought to become somewhat regular, as they say, and I apologize for disappearing without an explanation.

How to Not Impress the Apellate Judges

Y'know, I know I'm critical of some court rulings I've seen (just a few) and I might use some harsh words here but I just cannot picture putting these three titles on the sections of my appellate brief:

I. The District Court Altered Substantive Law In Concluding That The Class Meets Rule 23(a)'s Commonality And Typicality Requirements.

II. The District Court Eliminated Wal-Mart's Defenses And Otherwise Altered Substantive Law In Concluding That The Class Is Manageable

III. The District Court Altered Substantive Law By Failing To Recognize That Monetary Relief Plainly Predominates And Concluding That The Class Meets The Requirements of Rule 23(b)(2)

I've got to agree with S. Cotus that someone needs to learn a couple new verbs.

Winning the Speedy Trial Argument

Sometimes even defense attorneys have a good day.

This case has been going on forever. In fact, my client is one of the first ten charged with felonies moved to the circuit court at the beginning of 2005. The case was then continued once by the prosecutor. When we came back on the trial date both I and the co-defendant's attorney raised speedy trial right (over 5 months between preliminary hearing and trial by Va. Code sec. 243). The prosecutor argued that we couldn't argue this because we hadn't filed a motion 7 days prior to trial. The judge agrees. My client is found guilty of attempted robbery and use of a firearm in a felony. The co-defendant is found not guilty because complaining witness cannot ID him.

Fast forward to the sentencing hearing. The judge gives my client 6 years. I plan to appeal and stand to ask for an appeal bond. I tell the judge I have a good faith belief that the speedy trial ruling will be overturned because the law had just changed to what the judge had declared it to be and it was not that way when he ruled. The judge starts talking about reopening the argument. The senior prosecutor who had been pushing this case is not in the courtroom so the prosecutor who was assigned to that courtroom that day was basically sitting there trying to figure out what the heck the judge and I were talking about. Eventually, the judge converts my motion for an appeal bond into a motion to rehear the speedy trial argument and orders me to brief it.

Fast forward to the next hearing. I have given this brief to the new prosecutor (who somehow got stuck with this case now that it looks like it's going down the tubes). The prosecutor asks the judge for time to file an answer and to order transcripts of the continuance so that if the judge was wrong about the need to file a motion pretrial they can check to see if I objected to the continuance (necessary to preserve speedy trial rights). The judge continues the case saying something to the effect that he's not going to rule right now but it looks like I may have the prosecutor on the law. Then we all go around in circles talking about who is going to order and pay for the transcripts. When we leave both I and the prosecutor believe that the judge is going to order the transcripts.

Fast forward to the next hearing. The prosecutor has filed an answering brief which argues that the prosecution begins with the swearing in of the first witness and that exceeding the speedy trial requirement is a defect in the institution of the prosecution which must be raised prior to trial. It's a good try but the judge agrees with me that "institution of the prosecution" means a flaw in the indictment, presentment, or grand jury and finds in my client's favor. However, all that means is that I now have the right to argue the motion to dismiss for failure to abide by the speedy trial statute. It's clear that the trial took place after 5 months had passed but I had to object at the continuance in order to preserve the speedy trial rights for my client. I can't prove I did because the transcripts were never ordered. The clerk had thought the prosecutor was going to order them. I argue that the case should end right now (I think the words I actually used were, "This dog needs to be put down") but the judge continues it for a week to get the transcripts. This time the prosecutor is tasked with ordering the transcripts.

One day ago: The transcript of the continuance comes in. I've been concerned about this because my file indicates the continuance was a prosecution continuance and I didn't note specifically that I objected. Objectively, I know that I always object to a prosecution continuance because a defense attorney must always object to a prosecution continuance to preserve his client's speedy trial rights. However, I cannot remember having done so (a generic ten minute hearing 6 months ago - figure the odds of remembering) and it's worrying me. I pick up my copy of the transcript. Reading through it, I get to the point where the prosecutor moved for a continuance because an officer-witness cannot be located. Then I read these golden words:

THE COURT: Mr. Lammers?

MR. LAMMERS: Your Honor, obviously, for speedy trial issues, I have to object. I'm not going to jump up and down on the table, but I'd ask that my objection be noted.
. . . .
THE COURT: All right. I not the objections of each of the defendants, but I will grant the motion.

I almost whoop for joy right there in the clerk's office.

Today 8:45: We're back in court and the prosecutor, showing some class, concedes that I objected and that the trial date set outside the 5 months was not at my behest. The judge meticulously sets out what has happened in this case for the record, dismisses the charges per the speedy trial statute, and orders my client back to the jail to be released today. Mom and girlfriend are in the audience and break down crying. I walk back to the lockup area with my client who is absolutely glowing. Handshakes and a quick hug. Then I go to the hall outside the courtroom where Mom and Girlfriend are so happy they are bouncing. Handshake from Girlfriend; Mom hugs me in tears.

Then it's over and I have to run off to do things in other courts. However, for the rest of the day I am bulletproof. Everything goes my clients' way and it's just an all around great day. It'll probably even out tomorrow but today was just great.


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BTW: For those who will want to say how terrible this "technicality" result is, let me make 3 points. First, this was a hard fought case. Personally, I believe the story my client has stuck with throughout the trial. He's a nice kid but not bright enough to lie convincingly (and more importantly, consistently). IMO, Client should have only been convicted of brandishing, a class 1 misdemeanor. It was a serious enough brandishing that he probably should have gotten the max (12 month sentence - 6 months actual jail time). Instead, he spent a year and a month in jail.

Second, when the prosecutor and the judge were insisting on seeing the transcript of the continuance motion they were looking for a technicality in order to not apply the statute. The 5 months had clearly passed; they were looking to see if there was any way they could get around the statute.

Third, I'm in such a good mood today your comments just won't penetrate.

Gotti Mistrial

Mob trials always have the most interesting headlines:

Like father, like son: 'Junior' Gotti dodges conviction

The younger Gotti pulled his own narrow escape on Tuesday when he was acquitted on a securities fraud charge, and a mistrial was declared on more serious racketeering counts including a botched and bloody kidnapping of a radio show host.

Ya Gotti believe they're all lying rats, lawyer sez

Jeffrey Lichtman called the gangsters murderous "maniacs" - and derided Sliwa as a "money-grubbing liar addicted to publicity" as he delivered closing arguments in Gotti's kidnapping and racketeering trial.

"These witnesses lied to you and they lied to you repeatedly."

JUNIOR'S LAST JAB

Defense lawyer Jeffrey Lichtman claimed Gotti renounced the mob and defied his father when he pleaded guilty to unrelated racketeering charges in April 1999 — and then harkened back to the secretly taped words of the late John "Dapper Don" Gotti.
. . . .
Prosecutors normally get the final word at trial, but Manhattan Federal Judge Shira Scheindlin gave Lichtman the rare chance to respond in light of Gotti's unusual defense, which requires him to actively prove he renounced the Mafia.

'JUNIOR' GOTTI CHICKENS OUT OF TESTIFYING

"Your honor, if I may. I'm going to follow my head and not my heart, and I'm going to opt out on taking the witness stand," Gotti, rising to his feet after a 40-minute huddle with his lawyers, told Manhattan federal Judge Shira Scheindlin.

COURTS TREATED JACKO BETTER

the feds, for 14 months in 2003 and 2004, both in the lawyers room and visiting room in Raybrook prison, secretly taped Junior.

Despite the fact that those tapes were made by the feds for the expressed purpose of nailing Junior, they have successfully blocked the defense from using them.
. . . .
"The thing is," said sister Angel, "the jury will never hear John angrily saying he no more wanted anything to do with the life and will believe all the stuff the informants are saying about him."

Another Wiseguy Sings At Junior Gotti Trial

"John was very, very good to me," DiLeonardo, 50, said while testifying for the government against Gotti at a mob conspiracy trial. "I love John."

We just don't get that kind of coverage down here in Virginia.

LexCast 8: Is Criminal Practice What I Expected?

Well, for this LexCast I tried something different. I filmed it at my apartment. Various pets wander in and out while I'm filming and one cat gets very insistent about being let out (you'll hear him meowing and, when that didn't work, see where he actually started bumping the tripod for the camera).

Anyway, it was an experiment. I like the look of it (mostly) but the sound is terrible. Next time I'll have to bring my clip on mike home and use it.

The video is here. The audio is available over at Odeo which can be gotten to by clicking LexRadio in the column to the left.

Dogs, Dogs, & More Dogs

Apparently, the government must be having problems proving the reliability of its dogs because it has now gotten the 9th Circuit to declare that the 4th Amendment doesn't apply when people cross the border. The government was using dogs to provide the requisite indicia of illegal activity but pushed to have the 4th entirely invalidated.

Y'know, I remember the courts having the ability to interpret the constitution but I just can't find the grant of authority to abrogate it.

Next week, da' Bears.

The FBI's View on Virginia Law

From The Bureau. Background: A former FBI Director had an assistant who refused to change her car's tags from Texas to Virginia despite having been in Virginia for 5 years. Such an act would have resulted in disciplinary action for anyone else in the Bureau but she claimed a waiver from Virginia.

[The] director of investigations in Richmond said, "There is no such thing as a waiver. The Virginia statute doesn't give anyone the authority to waive anything. Even Jesus Christ doesn't have the authority to waive the laws of the Commonwealth of Virginia."

Are the punishments for white collar crimes too punitive?

Earlier this week officers learned they won't face criminal charges in the death of 21-year-old Victoria Snelgrove, who was struck in the eye by a pepper-spray pellet fired by police trying to tame unruly crowds near Fenway Park last fall.

Monday, Sept. 12, Juan Melendez spoke to a small gathering of Florida State University students about his time in prison and his life on death row after he was wrongfully accused of first degree murder and armed robbery.

UW-M's Provost has recommended firing 2 professors for felonies but "UW is required to show evidence that a crime is connected to an employee's job before it can legally fire the employee."

Still More Problems from the Labs

A Texas appeals court has ordered a new hearing in a death row case because of questions about the Houston Police Department's handling of DNA evidence.

A Foreign Ministry spokesman Thursday outright ignored a US attorney’s legal notice on Prime Minister Khaleda Zia, calling it “funny.”

Clients Came Today

It's a miracle!

I had my open office hours and two people came. Of course, in order to make that happen I had to set actual appointments and double-book 3, 3:30, & 4. Six appointments, 2 show.

The "What's Your Sign" Defense

Not sure I'd have the guts to run this defense.

7th Circuit / Habeas / Priest Conviction

The 7th Circuit has granted a habeas petition in a priest pedophilia case on grounds that counsel was ineffective.

Differences in the Law

Texas has a law which allows you to travel with a firearm as long as it is not in plain view. In Virginia, if you do not travel with the firearm in plain view you must have a concealed carry permit. Without such a permit you are violating the concealed weapons statute. In cases I have handled this has included pistols in the glove compartment, in a closed box under the seat (unloaded), and in bag in a mesh holder at the back of an extended cab truck. You are basically required to have the firearm sitting on the passenger seat, in plain sight, at all times. Personally, I think the only place you can have a firearm out of sight in your car and not get convicted is if it is in the trunk (and even then the back seat had best not fold down so that the trunk actually connects to the cab).

The way I've usually seen this handled is that the defendant has his charge dropped if he agrees to give up his firearm.

You Just Cannot Make This Stuff Up

What happens when the judge interrupts you and your client's conversation at the side of the courtroom to ask you to speak more quietly?

Well, here's what happens if Client speaks before you can.

via Skelly

No CrimLaw Questions for Roberts

Douglas Berman isn't too happy that there haven't been a lot of questions asked about criminal law matters.

Guam: Police Recruits

The police cadets from Guam just don't look as chipper as the ones from New Zealand. Of course, it's hard to look chipper when you are rolling across the ground.

Death Penalty Myths

Arguing the myths which favor the death penalty.

Limerick Crime

There was an old man from Nantucket . . .

Wait, that's not what they mean by a Limerick crime gang member?

Dern. I thought it was a criminal like the Riddler.

Ireland: Comparative Crime

I think this is comparing crime rates in Ireland with those throughout Europe.

Guam: NCIC

NCIC reports as used in Guam.

LexTV & Radio: The 6th Amendment and Virginia

Click here to see a video of my discussion of Luginbyhl v. Commonwealth, in which the Virginia Court of Appeals rules that a police officer's sworn statement that he did a DUI breath test in proper conditions, that the machine that didn't malfunction, that he didn't make any mistakes, that the reading he observed was "X", and that he was properly trained in the machine's operating procedure is not testimonial and therefore the sworn statement is allowed into evidence despite the federal Supreme Court's 6th Amendment ruling in the Crawford decision.

The discussion is also available as audio if you go over, click on Lex Radio and listen to it at Odeo.

Be forewarned, I have a face for radio and a voice for silent films so either choice is kind of Hobsonish in nature.

New Zealand: Happy Officers

Don't they look like the happiest class of police recruits you've ever seen? Every other recruit class picture I've ever seen has been of a bunch of sullen cadets standing in front of some building. And look at the car. Not the stock white, gray, or brown car for them.

Someday when I become rich (like they promised me when I went to law school) and can travel around the world, I think I might like to visit this Bay of Plenty place.

New Zealand: The System

Here's a brief explanation of the New Zealand criminal law system and here's a more indepth explanation of the entire legal system.

New Zealand: Terrorist Police Recruit?

"Police have rubbished allegations a man who was almost recruited as an officer was linked to the terrorists responsible for the Bali bombings."

As an aside - Here in the States we need a term which is the equivalent to "rubbished." This is a cool phrase that's used throughout all the Commonwealth nations. Hereabouts, our papers merely report that our politicians "deny" things. I can't really think of what we could use here that carries the same meaning and impact. Our nearest related term would be "trashed", but that carries a different connotation (destroyed - i.e. "We trashed their rugby team.") The nearest I can think of in meaning is "pooh-poohed", but that just look silly as a headline on the Washington Post.

Suggestions?

New Zealand: Car Thieves

"Fortunately for them, there is no criminal charge for stupidity."

New Zealand: Politics & Crime

Bashing a parole board for letting someone out who recidivates. (hmmm . . . is that the proper verb form?)

It's a press release from New Zealand First, which a little research indicates is a 10% party getting its power through the formation of coalitions with other more powerful parties. Given that, I'm not sure how badly the larger parties need it and don't know its ability to follow through.

A Prosecutor's Conscience

I'm sitting in the courtroom and the prosecutor is negotiating with the attorney next to me. I don't hear what the defense attorney asks for, but I hear the prosecutor say, "I'm sorry. I can't give you that deal without giving it to everyone else here and my conscience won't let me do that."

I looked over at the prosecutor and I must have grinned because he looks at me and says, "Yes, I do have a conscience!

The Political Season is Upon Us

Things are starting to gear up and accusations that "X" is soft on crime are starting to surface.

"The Pentagon permitted lawyers from the American Civil Liberties Union to sit in on interrogations of prisoners at Guantanamo Bay and, in some cases, advise the terrorists of their rights."

Wonderful, Katrina donations going to white separationists.

A Richmond judge sets a very dangerous precedent by allowing law enforcement officials to testify as experts on gang tattoos.

Guilt by association. Or, more accurately, impeachment by implied association - without even actual proof of association. As one guy asked me when I told him what the spiderweb is supposed to mean on the elbows of white clients, "How many of them are posers?"

I don't know. I can't answer that question from anything other than my subjective experiences and inferences. I suspect most haven't "earned" the tattoo. And I pretty much guarantee that the police "experts" cannot answer that question with any kind of objective, statistically based study either.

Does Punishment Work?

You'll remember that in July 2004 I posted a couple times about punishment:

Do Heavy Guideline Sentences or Mandatory Minimums Work?

Continuing the Punishment Discussion

Someone recently left a comment on the latter of these asking: "I would like to make a question: in your opinion, is punishment deterrent to crime?"

At the risk of repeating myself, yes, I believe that punishment acts as a deterrent. I don't have any scientific proof of this but through observation and discussion with many of my clients I can tell you that the examples I would offer would be the firearm possession statutes. Once the fact that heavy punishment follows possession of a firearm as a felon or possession of a firearm and drugs at the same time sinks in these activities are avoided. As well, I believe - again without proof - that there is probably a fair portion of drug suppliers that won't touch crack because they realize the punishment difference between crack and powder.

Of course, there is a range of reasons why these punishments deter certain activities. One is that there are few crimes which are implicated and it sinks in that if the criminal actor is going to be risk averse he needs to avoid these specific activities. A second is that the punishments are out of proportion. They are so heavy that when a cost-benefit analysis is done most everyone realizes that it is just plain dumb to have a firearm around drugs or to deal in a specific form of a drug when profit can just as easily be made selling a different sort. A third is that the punishment is widely publicized and known; a massive punishment doesn't deter if there is no notice.

I don't think this can be applied on a larger scale (for the reasons discussed in the second post above); however, for a limited class of charges it can be very effective. On the other hand, it also leads to some very unbalanced and unjust sentencing based upon arbitrary factors (ie crack v. powder).

Map of Visitors

For those of you using Site Meter, I just wanted to point out a new feature I found. Under By World Map you can get an actual map from where your latest visitors have come. The one I put up here is mine for North America.

Cool!

Japan : Yakuza

Anytime you run a news search for crime in Japan you come up with lots of Yakuza stories. Here's the ever popular finger story (seen in every movie) along with a sociology and history of the organizations.

In some aspects the Yakuza seems more civilized than our organized crime (leaders retire) while in others it seems less (gangsters targeting crowds at baseball games).

Part of the problem with closing down the Yakuzas is their police connections:

This is not to suggest that Japanese police completely look the other way when it comes to the mob. Over the years Japanese law enforcement officials, who have been admired the world over for their high standard of discipline, have staged numerous raids on various yakuza offices. These assaults have tended, however, to be more a show of police muscle than a genuine attempt to shut down gangster operations. Relations between Japanese police and the yakuza are complex; each side evidently has something akin to respect for the other. Like certain elements of the civilian population, some Japanese police officers admire the yakuza's adherence to a feudal-era code of chivalry. Likewise, Japanese mobsters for whatever reason from time to time will turn in a member of a gang to help the police "solve" a case. In one expert's words, there exists a "symbiosis" between police and mobsters that has served to legitimize the position of the yakuza in Japanese society.

Apparently, Japanese businesses are so compromised that 50% of loans in Japan are write offs because they are unenforcable against Yakuza members.

Japanese Crime : China

Throw a Malatov cocktail at a Chinese Bank = 3 years, 6 months.

Mail razor blades to the Chinese consulate = 8 months probation (if you're sorry).

Heck, my clients are always sorry - maybe I should start practicing in Japan.

Nigerians and Katrina

Nigerians are email scamming asking for money because of Katrina.

Crime Trends in Australia

1. The good news is that crime seems to be on the decline.

2. The really bad news is that "hillbilly heroin" is making serious inroads into Australia.

Australia - U.S. : Death Doctor

Apparently a doctor went to Australia and was associated with 80 deaths, including at least 8 proceeding from operations the doctor was forbidden to perform in the States. The doctor somehow got back to the U.S.

One prosecution was dismissed, another has begun. However, there are worries that the case has become so politicized that the U.S. may refuse extradition (he must be in a blue circuit).

Articles here, here, here, & here.

Australia: Villification Legislation

Okay folks, time for a paradigm shift. They are no longer "hate crimes." They are "villification enhancements."

Crime in Australia

Not too surprising: Firemerms are used most often in robberies, murders and attempted murders.

Crime in Australia

Feminist Authors promoting crime?

The Next Justice

Orin has done a wonderful job of pointing out why, other than the obvious political reasons, Janice Rogers Brown should be made a Justice of the Federal Supreme Court: she believes in the 4th Amendment. Of course, she'd be awful lonely as the only Justice who does, but it'd be a step in the right direction.

Heck, if Orin'd said she was also textualist I might've had to hunt her down and propose.

So You Thought Virginia Would Have Conservative Courts . . .

How do you define a conservative court? I would define it as a court which relies on textual interpretation and original intent of constitutional matters. A court which is reluctant to expand the meaning of a statute beyond that which is plainly spelled out in a statute, even if the result would not be optimal or lead to a result everyone agrees is bad. It's the legislature's job to fix a statute as long as it doesn't trespass upon constitutional issues; even when the constitution is trespassed upon a conservative court will not amend the statute, it will merely strike down the section which is unconstitutional and leave the repair to the legislature. Above all, conservative courts sneer at legislative intent arguments, recognizing that statutes are often a compromise between several legislators who have left enough play in the wording so that everyone thinks the statute means what he wants it to mean, and there is never an adequate written explanation of what the majority of the legislators wanted the statute to mean, and that those few legislators who try to develop some sort of written record are probably promoting a viewpoint which they wouldn't have to if the statute supported their interpretation through the canons of interpretation, et cetera, &cetera, etc.

Virginia, that redest of red states, would surely have one of the most conservative courts out there - wouldn't it?

Consider this not atypical passage from Carter v. Commonwealth, 2002, 38 VaApp 116:

Well established "principles of statutory construction require us to ascertain and give effect to the legislative intent." "The plain, obvious, and rational meaning of a statute is always preferred to any curious, narrow or strained construction; a statute should never be construed so that it leads to absurd results." Thus, "[i]t is a basic rule of statutory construction that a word in a statute is to be given its everyday, ordinary meaning unless the word is a [term] of art." Because the Code of Virginia is "one body of law," we may consult other statutes "using the same phraseology" to assist us in divining legislative intent. "Although penal laws are to be construed strictly [against the Commonwealth], they 'ought not to be construed so strictly as to defeat the obvious intent of the legislature.'"

This one paragraph contains pretty much all the dodges used in Virginia law to avoid giving a statute the written meaning of the statute: legislative intent, absurd results, term of art, use of other statutes to divine legislative intent, obvious intent of the legislature.

Hmmm . . . There seems to be a theme here . . .

[addendum] As well, a conservative court would believe in State rights and interpret things under the State's laws and constitution as much as possible, applying the federal constitution only when it has been imposed upon it by the federal supreme court. What do the courts appellate in Virginia have to say about that?

Jackson v. Commonwealth, 41 Va.App. 211 (2003): Our courts have consistently held that the protections afforded under the Virginia Constitution are co-extensive with those in the United States Constitution.

Thus, no recourse to the Commonwealth's constitution at all.

OMG! Somebody switched our appellate judges with - shudder - judges from the 9th Circuit! They're going to turn us into California - or worse, remake the whole Commmonwealth in the image of Northern Virginia. We're dooooomed!!!

The Chief Justice Has Died

Chief Justice Rehnquist has passed away. May God bless and welcome him.

Comment Spam

Because I have been getting comment spam I have activated Blogger's word-repeat verification. Sorry for the added inconvenience.

Sentence Diagrams and Statutes

So, while I sat in the office most of the afternoon with no clients dropping by, I spent the time trying to sentence diagram a statute. I am trying to figure out how to prove to the Court of Appeals that its interpretation of a statute is wrong. Mind you, I'm rusty at this and I haven't gotten the copy of Higher lessons in English: A work on English grammar and composition I ordered yet. Still, a few web pages got me most of the way along.

After a couple hours of doing this, I came to one conclusion All legislators must be taken out and shot. Tom has brought me around on the death penalty. However, the only reason I favor it is that the other option would be far more cruel. The only other appropriate punishment would be to make legislators sit down and draw sentence diagrams of their own convoluted, self - contradictory, obscure statutes with 7 or 8 conjunctions or subjunctions as well as 3 to 4 prepositional phrases each. It is a punishment far worse than death.

Oh yeah, does anyone know if subjunctives are handled the same way conjunctives are in a sentencing diagram? I think so but I haven't been able to find confirmation.

A Client

Y'know, I sit in my office every Friday from 2-5 p.m. so that any client can come by to see me. I tell them this. The back of my card tells clients to come see me during this time. My answering service tells people to come see me during this time.

Today a client actually dropped by to talk to me about his case. He is the first person to do so in over a month. Over a month.

Sometimes I look down the road and wonder if the attorney doing real estate law needs an associate . . .

An Interesting Set of Blogs

Here is a different approach to blogging. A DC lawfirm has set up three blogs about different aspects of federal and international law. There is daily blogging at each, but in a very different format than I've seen previously. Each post reads like a mini-brief (with footnotes, no less) and is very professional. None of the posts have an individual's name attached - only the firm's name.

My best guess? An associate is tasked to write something each day or a group of associates share a rotating duty to post. The posts are informative but very white bread. No outlandish opinions or personal stories appear. I think the blogs are meant to look impressive for clients who might come to the website, but not do anything which might upset a client by expressing strong opinions or personal quirks. They're also meant to keep the reader on the firm's website - they don't link anywhere else.

As always, I wonder about the economic efficiency of such sites but I don't run a big firm so maybe I'm wrong in thinking that the time an associate spends researching and writing a post with footnotes supporting every other line might not be the best use of billable time. Perhaps it's a long term reputation building strategy (much like publishing a news letter).

Anyway, here's the master page which links to all three blogs.

Lv Grits for Breakfast

Sua Sponte No More

One of the first blogs I read was Sua Sponte. It was always an interesting read and was one of the blogs which convinced me that I could actually get CrimLaw going.

Well, law school's over, a clerkship starts, and the blog ends.

Bon chance, mes ami.

Changes in Virginia's Exile Law

I just noticed today that the General Assembly has changed the punishment portion of our felon in possession of a firearm law so that it is more lenient.

Va. Code sec. 18.2-308.2 used to call for 5 years punishment, none suspended, if in possesion after having been convicted of a violent felony, 2-5 years, 2 not to be suspended, if convicted of a non-violent felony, and had a catch-all "This is a class 6 felony" (0-5 years). I know this because in a case now on appeal I argued whether the mandatory time provisions applied when the underlying was not a conviction but a juvenile "adjudication" (which is by law a civil proceeding). However, the prosecutor and judge found a case which reasoned that because the statute states that someone can be convicted under 18.2-308.2 if he was convicted of a felony or adjudicated a delinquent for an act which would have been a felony then the fact that the mandatory punishment section of the statute only refers to those convicted means that the mandatory punishment portion of the statute applies to those adjudicated as well. The trial judge had to follow the precedent and now I'm trying to figure out how to politely tell appellate judges that their statutory construction skills were a little bit, ummmm, "out of kilter" when they decided that case.

Anyway, the law has now changed so that someone found with a firearm after previously being convicted of a violent felony will get 5 years. All others will get 2-5 years unless 10 years have passed since the conviction. In that case the punishment reverts to a simple class 6 felony (0-5). It's a subtle change in the law which actually makes a lot of sense. However, I'm surprised to see it because it flies in the face of "getting tough on crime" in an election year. Our legislators should be congratulated for this improvement in the statute.