Throught the Looking Glass

Virginia spares a person convicted of murder and California balks.

Fun & Games with Habeas

My vacation was supposed to start Wednesday afternoon, right after I continued a case on the 1 p.m. docket. The plan was to take a week, travel to Kentucky to hit some old stomping grounds and touch base with some folks and then go to Cincinnatti for my brother's confirmation (on Tuesday night; Who ever heard of having confirmation on a Tuesday?). Anyway, Mom told me about this about a week ago and I've been trying to get things squared away since. Luckily, the end of this week was already clear so I could extend the trip for 7 days. I don't dare go past 7 days because I have a few petitions to the Court of Appeals and at least two of them are cases in which the trial court should be overturned. Experience teaches me that this means my rejection slip from single judge of the Court of Appeals will take longer to get mailed to me and be thicker. From the date on the rejection slip I have 10 days to email a single page .pdf to the court stating the reason it's wrong and demanding to tell a 3 judge panel why the petition should actually be scheduled for argument. In that circumstance 7 days is the most I can risk away from my P.O. box.

Of course, there are still a ton of things that need to be squared away. I'd set aside Tuesday afternoon to deal with a bunch of it and planned to wrap up the rest this morning.I'll let ya'll pick which of the following fits best:

1. No plan survives contact with the enemy.

2. The great god Murphy frowned upon me.

3. The best laid plans of mice and men often go awry.

I open my P.O. box yesterday and there on the top is a manila envelope from the Attorney General's office - never a good sign.

Sure enough, a former client has filed a habeas petition against me, To make it worse, the AG office mailed it to an old address (it got forwarded) so it's getting to me late. I get to spend my afternoon up to about 8 p.m. putting together an answer and am thus thrown back at least a day for the start of vacation. Wonderful.

Anyway, the habeas is put together better than most I've seen. The writing is clear and it even includes copies of the case law and secondary sources Petitioner is relying on. And, for all its ill timedness, I can't blame Petitioner for taking her shot. Still, she did mange to irk me with some parts.

The primary complaint is that I was ineffective because I neither asserted the single larceny doctrine nor informed her about it prior to her guilty plea. This is a doctrine under Virginia law which says if you steal a key ring the prosecution cannot charge you with larceny for each key on the ring - only one larceny for the entire ring; the important factors to this limitation are that it all happens in the same time and place. Petitioner was extradited from Wyoming to face three charges: petit larceny (dad's wallet) and two charges of credit card theft (all from dad's wallet); there was never any doubt as to the facts of the case. The prosecutor dropped the petit larceny and Petitioner pled guilty to the two credit card thefts.

But wait, you think to yourself, that means Ken did screw up! Nope, while Petitioner has a good grasp on the basics of the single larceny doctrine she obviously didn't research its later development too well. Under Scott v. Commonwealth, precedent in Virginia holds that because the crime of felony credit card theft was created by the General Assembly it abrogates the common law rule that "stealing" a chose in action is not a crime. Going further it reasons that the creation of a brand new larceny by the General Assembly does not carry with it the single larceny doctrine restriction which applies to all the other larcenies. Not my favorite opinion, but it is binding precedent.

Anyway the strongest bolt in Petitioner's quiver pretty much shatters against Virginia's precedent. However, she made some other accusations which are basically downright strange.

The main reason she is upset and filing the habeas is that she got 10 years with 5 suspended on each charge (to run concurrently) and she got 3 more on a show cause from another jurisdiction. Her sentence was far above the guideline recommendation and I think it was extremely disproportionate. However, it was entirely legal. I have my theory as to how Petitioner got that much time, but I shan't air that right now. Of course, Petitioner has her own explanation for the disproportionate sentence: Ken Lammers sucks.

She makes the claim that I told her that a couple days before I had screwed up a case in front of the very same judge, that he was angry over that when he sentenced her, AND that I was shaking in fear during her sentencing hearing. Now, I don't remember talking about another case with her but it's always possible - sometimes I use general descriptions of other cases to explain how I think other actors in the court will act and react. The problem is, my calendar doesn't show me as having been before that judge for two months prior to Petitioner's sentencing date (which is fairly typical since I usually have one day per term) so there's no case I could have been talking about.

Gotta admit that my blood started to boil when I saw the accusation that I was shaking in fear. Shaking in fear??? You've got to be kidding me. How in the world do you answer that?

Then I realized that she might have merely misunderstood my trembling in anticipation of springing into battle, crushing the enemy, seeing him driven before me, and hearing the lamentation of the women. Or maybe I was just agitated because, under the terms of the guilty plea, I wasn't going to be able to join in mortal combat with the prosecutor. Or maybe there was a minor earthquake. Or maybe she made a bet with another inmate to see who could make the more ridiculous claim in her habeas petition.

Obviously, I don't know what the back story on that claim is. All I know is that it is incredibly insulting, Of course, the whole thing is a claim of ineffective assistance of counsel so I should be insulted by all of it. Still, this is the part which got under my skin.

I go now to gather and calm myself. Then I will continue prepping for my trip. I figure I can probably still get on the road by noon Thursday (God willing).

Another Try...

I posted this item (with several others) on 11/26, but with the Thanksgiving holiday and several subsequent posts, it kind of slipped through the cracks. As a lowly 1L, I wanted opinions from "real lawyers" on the policy of this district attorney. Do you think that a No Plea Bargain policy is good for the system?

The state prosecutor in Shelby County, Tennessee added two more violent crimes to his list of violations that he won't make a plea deal for. District Attorney Bill Gibbons now won't negotiate on carjacking and attempted first-degree murder cases. Gibbons hasn't allowed deals in murder, rape and aggravated robbery cases since 1997. Here is his official website

New LexCast

Episode 14 - Moore v. Commonwealth: Can an officer who cannot perform a search without violating the 4th Amendment circumvent the constitution by making an illegal arrest?

Listen to the to the audiocast by clicking play on the player (sorry, no video this week).

In the News...

Better Late Than Never
Man convicted on DNA evidence for 1973 rape gets up to 46 years in prison."A woman's testimony was not sufficient in 1973" to convict a rapist.

“Good Kid”
An 18 year old Chicago man was arrested after allegedly kidnapping two young children to perform a satanic ritual. The suspect’s grandfather, called the accusations "ridiculous", saying that his grandson was a "good kid."

Sex Offenders in the Wind
Dozens, possibly hundreds, of registered sex offenders remain unaccounted for in Mississippi and Louisiana. Authorities say most are likely still displaced by Hurricane Katrina.

Extreme Pro Bono
Oklahoma attorneys who represent death-row inmates are warning they'll refuse to take some cases unless an appeals court intervenes. The state doesn't pay attorneys for some legal work included in representing indigent inmates awaiting execution. Attorneys could go uncompensated for representing inmates in clemency hearings and 11th-hour court proceedings.

SexLaw - Consent

Wales - A young woman gets drunk and a friend arranges for her to have a security guard escort her home. Two days later she reported to a university counselor that "something" had happened. Police were called in and the guard admitted to consensual sex in a hallway near her apartment. She doesn't remember but claims that if it were consensual she would have led the man into her nearby apartment.

[On cross examination] she admitted "emitting a pleasurable groaning sound" at one stage, but added: "I was unconscious. I stopped groaning as soon as I knew something was happening."

The prosecutor folded his case admitting "drunken consent is still consent" and the judge directed the jury to return a not guilty verdict.

As you might imagine, every politician and and wag who sees any possibility of making hay with this has come forward.

Labour MP Vera Baird, said the judge was incorrect.

"He is wrong, there is no doubt about that, it is a dreadful error. The judge is utterly and totally wrong, he needs to be spoken to and sent on some re-training. This is a dreadful outcome because women will now think they cannot have a single glass of wine - I think this is going to put women off coming forward again and again."

And while that's pretty obviously a politician making hay, some have laid out the case more eloquently.

Until the 2003 Act came into force, a man would normally be acquitted if he could show that he "honestly" believed that consent had been given, even if a woman claimed that she had protested.

But this "honest belief" defence made juries reluctant to find defendants guilty in date rape cases and the conviction rate fell from one in four reported rapes in 1985 to one in 14 today.

The Government thought that more guilty verdicts would be returned if the consent provision was tightened, so it replaced the old defence with a new test: if the prosecution could prove that there was reasonable room for uncertainty over whether consent was given - and the defendant did not take reasonable steps to ensure that it was - he would have committed a rape.

Once the prosecution has proved that sexual activity took place in one of the precluded circumstances, it would be for the defendant, on the balance of probabilities, to persuade a jury that consent had been given.

All-in-all, a disturbing shift from the prosecution proving guilt to the prosecution proving opportunity and then forcing the defense to prove innocence. However, I am not an expert on the laws of the U.K. so I cannot comment on whether that's an accurate assessment of the law.

I get a few hits here daily from the U.K. Anybody able to explain what the actual state of the law is?

SexLaw - The States

1) Virginia may not be able to criminalize sodomy after Lawrence, but it's sure going to hold onto its ability to criminalize solicitation to commit sodomy.

2) Triple Jeopardy - The New York Legislature refuses to pass "civil confinement" laws so that NY can commit sanctioned double jeopardy. The governor takes it upon himself to start acting like the law is there anyway. A judge says "No" and orders evaluations for mental illness and release if it is not found. The first guy is set to be released from the mental hospital. So what happens? He is transferred directly back to prison.

Note, this guy has served all of his time and, under the judge's order, two court-appointed psychiatrists have found him not mentally ill or a danger to himself or to society. Welcome to the USsr!

SexLaw - International

1) When a Filipina moves to recant a rape charge high level politicians start talking about charging her with perjury .

2) In India a 75 year old man was found guilty of raping his own daughter. The trial court gave him five years. On appeal, the trial court was reversed. On further appeal, the appellate court was reversed and the sentence was raised to life in prison. Now he's back in court with an affidavit from his daughter stating that it never happened - she was induced by her mother to make the claim.

3) 26 years later South African law enforcement figures out who a rapist is.

4) "A Delhi court has sentenced a man to rigorous imprisonment of four years for attempting to rape a 13-year-old girl." [Can anyone tell me what "rigorous imprisonment" entails?]

5) A Portugese soccer player is cleared of rape charges in London.

DeathLaw - Singapore

One of the biggest death penalty cases out there right now is in Singapore. An Australian citizen, Van Tuong Nguyen, tried to smuggle heroin into Singapore. As was driven home to the U.S. in 1994, Singapore punishes severely and is not dissuaded when foreign governments try to intervene on behalf of their citizens. Nguyen was caught and sentenced to death.

Although efforts are still being made to persuade Singapore to choose a different path, Australia "has ruled out an appeal to the International Court of Justice, believing that would fail." Some are basically writing it all off to "when in Rome . . ." The Catholic Bishops from Australia have written Singapore's Prime Minister to ask for clemency. And opposition members are blaming the fact that the Australian will be killed on the fact that Singapore isn't a democracy (because, as we all know, democracy was the reason we got rid of it here in the States).

And, finally, the situation has cost Singapore's hangman his job. Australian press reports ran pictures revealing who he was and the government removed him. He regrets the fact he will no longer be earning his $400 per execution.

At a Glance...

1) When Lawyers Go Bad
A Maryland lawyer was sentenced to 20 years in prison for plotting to murder her former husband.

2) When Judges Go Bad
A Huston, Texas judge must serve probation for two years after being found guilty of using her dead mother's name to apply for a handicapped parking permit.

3) When Governors Go Bad
A portrait of former Connecticut governor John Rowland is now hanging at the State Library. The painting was hung Wednesday with no ceremony or fanfare. Rowland is serving a yearlong prison sentence in Pennsylvania for corruption.

4) Can Prosecutor’s “No Deal” Policy Be Bad?
The state prosecutor in Shelby County, Tennessee added two more violent crimes to his list of violations that he won't make a plea deal for. District Attorney Bill Gibbons now won't negotiate on carjacking and attempted first-degree murder cases. Gibbons hasn't allowed deals in murder, rape and aggravated robbery cases since 1997. Here is his official website.

DeathLaw - The States

1) Perception (from Taipei) - 997 executions later, "the US still loves the death penalty."

2) Wisconsin hasn't had the death penalty for 152 years and, despite efforts to put the punishment back in place for crimes with DNA evidence, it looks like it still won't. Even the State AG won't support it.

3) The Massachusetts House rejected the death penalty almost 2-1.

4) "In the past 23 years, since New Jersey reinstated the death penalty, no inmate has been executed. Of the 60 death verdicts returned by juries, most were replaced with life terms. Ten people are on death row today.

But there has been one clear result of New Jersey's death penalty: The state's taxpayers have lost out on $253 million."

5) Pittsburg - "As for fairness, ask yourself this: If I were charged with murder, would I rather be poor and innocent or rich and guilty?"

6) A $5,000 reduction in bond is taken by the lawyer as partial payment of fees. The lawyer doesn't hire an expert to rebut the DUI breath test. The attorney was incompetent and the defendant gets a new trial.

7) Kill a sex offender in prison - get a pass on capital charges.

DeathLaw - Religion

1) Two men wait to see if a Sharia court declares them gay and orders them stoned to death.

2) In Australia, Catholics are urged to take up their faith and oppose the death penalty because "opposition to the death penalty is a part of the Christian witness to the Gospel of life."

3) From Rome, the Catholic Community of Sant'Egidio is organizing and coordinating opposition to the death penalty in 320 cities: "Whoever wants to be there will try to think of how it is possible now to have a higher level of justice, justice without revenge and a restorative justice than never denies life."

DeathLawAround the World

1) China - Unburdened with the mandate against double jeopardy, a Chinese Appellate Court increases a penalty from life to death because the defendant went to the press first, the murder was committed in cold blood, and the defendant showed no intention of compemnsating the victim's family.

2) Taiwan - Not only were the men who raped, killed, and canabalized an insurance agent sentenced to death, they lost their right to vote as well.

1,000 Feet as a Crow Flies

The decision referenced by Orin doesn't bother me so much. The measurement in a straight line from the school to the location of a drug dealer makes sense. You are trying to create a dealer-free zone because kids congregate on or near campus and it's a natural place to prey upon them.

When I was in Junior High School (7-9th grade) there was a road that was barricaded off behind both the Junior High and the High School; it went about 100 feet further to the High School parking lot and I'm sure it was blocked off because the local suburbanites complained). It was the quickest way for those of us who walked to get to school and the area around that gate got clogged every morning with kids who hung out there - mostly the kids who viewed themselves as "cool" (though many of us just thought of them as the "dopers") and there was usually a funny odor in the air as I walked through them (I just wanted to get to school). These guys would pull up in a car out on the street and deal pretty brazenly. Then, in the 8th grade I was sitting in my homeroom about 5 minutes before school started and a kid, whom I remember as a big time doper, came dashing in the door. The police had raided the area, coming out of houses at the end of the street and arresting a bunch of kids and catching the guys who were dealing from their car. Doper swore that cops had even come down out of this huge tree which was out there. After that nobody hung out at the end of the street anymore and, I think the psychic shock caused the class years around mine to have less drug penetration then normal (beer & whiskey, on the other hand . . .).

Anyway, the dealers' car was parked on the street. As you walked to the High School, I'm pretty sure it was over 1,000 feet from the buildings, even as a crow flies. However, there was one row of houses between where they parked and the Junior High School. Walking around these houses probably put them over 1,000 feet from the school. As the crow flies, I doubt it was 500 feet. As I think back on it, there is no doubt in my mind that they were preying on the kids as they walked in to school. I've got no problems with the 1,000 foot safety zone.


Next time in the Strange Things in Ken's Life Theatre: Someday I'll have to tell ya'll about the day I was approached and asked to deal.

Oh Goody! More Ways to Screw With Airport Travel

Over at MoBuzz, Miss Stenquist tells us about a verbal lie detector which an Israeli is trying to sell to airports (2d story). And then she goes on to besmirch those of you who got up at 5 a.m. this morning to be the very first person into K-Mart - to make sure you got Uncle Harry the Talking Bass before they ran out.

1st Amendment Anyone?

In Florida a lawyer cannot use pit bulls in advertising. So says the government in the body of the Florida Supreme Court.

Come One, Come All!

Sign up for your "I want to be arrested by the Feds" card.

Doesn't this sound real familiar?(for those of us in the States)

The EU is federalizing certain crimes, but it's not a power grab:

EU officials insist that new powers to set criminal punishments for breaches of European law will remain minimal with a "strict test of necessity" applied at all times.

"We do not want to have criminal measures everywhere. We do not want to criminalise Community law," said an official.

Hmmm . . . What other federal government can I think of that has taken (originally non-federal) criminal powers unto itself? It's on the tip of my tongue . . .

Oh, well, it'll come to me sooner or later.

Happy Thanksgiving!

Vacatur

Vacatur: an order of a court vacating a legal proceeding. Webster's Third New International, 1972.

Why quote from Webster instead of Black? Because the three legal dictionaries I have in my office don't have this in them.

Anyway over at Volokh and Balkinization there is a discussion of the doctrine behind this. The background is pretty simple. The government is holding someone without charging him with anything. The person files a habeas. The government has purposefully held the individual in possibly the only jurisdiction which would rule in its favor. The courts in that jurisdiction do rule in the government's favor. The person appeals to the Supreme Court where the outcome is far from certain. At this point the government files charges against the person in order to moot the case before the Supreme Court and keep favorable precedent in place.

The argument is that in the case of one party purposefully abusing the system, unilaterally, and causing a case to become moot the underlying precedent can also be made moot.

I'm not an expert in this, and I haven't been following the case, but here are the issues which stick out in my mind:

1) Mootness - As we all know, mootness is not an absolute. If it were there would be absolutely no precedent regarding abortion because no one gets from a trial court, through the appellate courts and to the Supreme Court in 9 months. Now, I don't know what nook or cranny a case wherein one party purposefully set out to void the Court's jurisdiction could fit into but I suspect that a Court not particularly thrilled with being manipulated might bite on it. And, if it did the whole trick might backfire on the government because at this point there is no pressure on the Court to find in the government's favor. If he's charged then what difference does it make if a habeas is granted setting precedent against holding someone without a charge?

2) Applying Vacatur -

The parties in the present case agree that vacatur must be decreed for those judgments whose review is, in the words of Munsingwear, "'prevented through happenstance'"--that is to say, where a controversy presented for review has "become moot due to circumstances unattributable to any of the parties." Karcher v. May,484 U.S. 72, 82, 83, 98 L. Ed. 2d 327, 108 S. Ct. 388 (1987). They also agree that vacatur must be granted where mootness results from the unilateral action of the party who prevailed in the lower court.

U. S. BANCORP MORTGAGE COMPANY v. BONNER MALL PARTNERSHIP, No. 93-714
(I'd like to take credit for having found this but it's in the arguments on both blawgs).

The appeal above was argued specifically as to Vacatur caused by settlement and denied. However, the dicta above would seem to strongly favor use of vacatur in a case such as this if, and this is a huge IF, you could get the court to accept cert. solely and specifically vacatur. Maybe the Court will be upset enough with the manipulation to grant cert. but I'm not holding my breath.

As well, does it really accomplish anything? The next guy who's being held in the government friendly jurisdiction is going to get the same treatment. When his case reaches the Circuit Court it may not say it's following precedent but you can pretty much figure they're going to pull out the other decision from an old computer file and just change the names.

If this were a less prominent case so that all the judges in the Circuit didn't already know the result vacatur might make more sense. Perhaps, if there are no more people being held without benefit of the courts for 50 years or so everybody will forget the current case. However, the case is too prominent and I fear this is an issue we will revisit sooner rather than later.

The Silly & Strange

1) If you're hiding from police a deep freeze which locks behind you might not be a good locale.

2) It may not track exactly, but anyone who walks past a parked police car into a gun store to rob it deserves his Darwin.

3) The dreaded underwater bike riding bandits.

Doughnuts Not Pistols

Decision making by committee gives us an officer firing a doughnut rather than a pistol (I kid you not).

via the Conspiracy

New LexCast: In Memory of Professor Groot

The latest LexCast is up both in video and audio form. It's a tribute to Professor Roger Groot - the Professor which every single graduate of Washington & Lee remembers with fondness and appreciation. Men such as he are rarity and he will be sorely missed.

MoBuzz Crimlaw

Over at MoBuzzTV, Karina Stenquist's first two stories are about law matters. First, we learn of the U.K.'s plan to put a camera every 400 meters - on every road - to monitor and keep track of everyone's movements for at least two years. Then she warns us about transvestite, Thai, criminal gangs. And the final story isn't about law or crime - it's just weird.

The Infallalibility of Dogs

Using a dog which is 0 for 4 to justify strip searching people who have been pulled over.

Thanks to NS for the tip.

If You Abandon 33 Kittens in Ohio . . .

. . . you get "to spend a night in the woods without water, food or light."

Weekend Review...

1) Claims of attack at memorial false. U.S. Park Police this week said they want to assure the public that the memorials and monuments in Washington are safe, after a man who was stabbed stumbled onto the grounds of the Jefferson Memorial Wednesday night. The police now say that the man actually tried to commit suicide.

2) What? Did you lose a bet? Three University of Texas business students are free on bond after being accused of cutting down a century-old tree to settle a bet after a basketball game.

3) Whatever happened to just putting a frog in the teacher's desk? Police in Hampton, Virginia charged a second eighth-grade student in a plot to poison their social studies teacher. The 13-year-old boy is believed to have helped in one of three attempts to sicken the man by placing a cleaning agent in his coffee. Police discovered the plot Nov. 7 after another student told them about it. The teacher had reported vomiting a few days before the discovery.

4) District Attorney gets taken for a ride by the internet. A Philadelphia District Attorney has filed a federal lawsuit against a dealer who sold him a 1969 Corvette over the Internet. His lawsuit cites 40 significant defects in the car. He says it was advertised as a great-looking vehicle that gets a lot of attention.

Yes, convictions under the UCMJ are convictions under the laws of the United States.

Imputed Asportation

Just because you tricked someone else into taking the property away doesn't mean there was no asportation in your case.

Cigarette Not Probable Cause

In Virginia it's not probable cause when an officer approaches a car and finds someone asleep in it with a half-burned, hand rolled cigarette in his hand (and yes, it was a tobacco cigarette).

Don't Break the Law?Go Directly to Jail

She had drugs which weren't illegal - so she got a year in jail.

Nobody caught it.


Thanks to MD for the heads up.

Can't beat Notre Dame Legal Ed.

So, what's the one thing all decedents have in common?

Moments in the Life of a Criminal Defense Attorney

1) Chatting with an officer while waiting for a case I mention that I usually walk my dogs about midnight every night. The officer tells me I might not want to do that because someone got robbed in my apartment complex's parking lot last week. A couple days later I run across the officer who was the first responder (who also lives in my apartment complex). I ask him what happened.

Well, I was asleep in my apartment and I heard someone in the parking lot yelling for the police. My first thought is you've got to be kidding me! I think that someone had a fender bender. I get up and throw my uniform on and go outside. There's a lady in the parking lot who they had just tried to rob.

Apparently, a couple guys tried to jump in the lady's car but she put it in reverse and almost ran one of them over.

I couldn't believe it. My car was sitting right there and everything and they still did it. Not that I should be surprised - it's the same spot where they robbed that other guy two weeks ago.

You've got to be kidding me. I moved out of Richmond to get away from that stuff. I comment to the officer that I imagine it happened over by his building because it is the last one in the complex and they could make an easy get away.

Yeah, but when they ran away they ran through the pool area (the center of the entire complex) and jumped into a car they had waiting over by your building.

Wonderful. Well, at least it explains why there have been police patrols through our parking lots so much lately. I've actually had a couple cars start to follow me until they realized that I was walking the dogs (or, more accurately, being walked by the dogs).


2) Overheard discussion:

Attorney: You can tell Judge Smith was never a criminal defense attorney.

Lawyer: Why?

Attorney: Because he says things at trial like: "I realize you're preserving your argument for the appellate court and I'm happy to let you make a record but I'm ruling against you."

Lawyer: *chuckle*

Attorney: Yeah. I feel like asking him if he's read any opinions from the Court of Appeals lately.

[note] The undercurrent here is the perception by the defense bar that if you're going to win you need to win in the trial court. Only a judge with a prosecutorial background (or perhaps civil) would think that you were trying to set things up so you could win later in the appellate courts.


3) Former Client hired a "paid attorney" to represent him on a show cause. I had represented him on a prior show cause and got his time resuspended but he thought he needed better this time. I'm in the lockup area talking to a client whom I still represent and he starts waving like crazy at me through the glass. A little surprised to see him (he was on the street all the time I was dealing with him) I ask the deputy to get him out. He wants to tell me what happened: "He got me a year. I paid him all that money and he got me a year." etc. I listen for a couple minutes and say some words of sympathy before excusing myself. I can't say the "paid lawyer" did a bad job. Given the facts and the judge that was the probable outcome from the beginning whether I handled it or he did. And, to be honest, I can't generate a whole lot of sympathy because I think (without knowing) that the reason he hired the "paid lawyer" the day before he was supposed to go to court represented by me was to buy himself another month of freedom before getting sentenced (paid lawyer could not be in court on one day's notice). Still, I gotta admit that I find it interesting that he wanted to chat with me about the results.

Since When is it Not a Crime . . .

. . . to be in cahoots with a criminal?

Hmmm . . . obviously not a Southern law school.

At a Glance...

1) Granny, get your gun! You don't want to mess with this grandmother who wounded an intruder hiding in one of her closets. She said she shot him in the leg because she didn't want to kill him.

2) File under: Don't hold your breath! Prosecutors dropped trespassing and disorderly conduct charges against a George Mason University student who protested a campus visit by military recruiters. College officials had requested the charges be dropped. The student now says he wants an apology as well.

3) Trying to pull a legislative end-run? Here's the latest on the constitutionality of Virginia’s DUI laws. The State Crime Commission is recommending legislation to get around a judge's ruling that a key component of the state's drunken driving law is unconstitutional. If you'll remember, a Fairfax County General District Court Judge ruled that the DWI law denies a defendant's right to presumption of innocence. The bill proposed by the commission says that when a lawyer challenges the constitutionality of a law in general district court, the case is automatically moved to circuit court.

4) Crack or Meth? Pick your Poison. Authorities in a Kansas community say crack cocaine use increased recently while law enforcement focused on the methamphetamine problem. Police say they'll devote more resources to stopping crack use.

Catholic Doctrine & the Death Penalty

From Ave Maria Law's Law Review: A Note by Patrick Laurence

"It is true that those who argue that a doctrinal development has occurred do not all assert that the death penalty is immoral in principle. The precise change, they argue, is that the current teaching substantially limits the purposes for which the death penalty can be imposed. The new teaching is that, unless it is necessary to defend society against further harm, the death penalty should never be used. Under the traditional teaching, as expressed in the 1994 version of the Catechism, the death penalty was given more expansive use—a retributive function, not just a defensive function—and could be inflicted as a proportional punishment to redress particularly grave crimes. In a manner of speaking, this is a development to the extent that a change has occurred that is not contradictory to previous teaching. The development, however, is not necessarily predicated on any doctrinal change, as argued above. Thus, even in this sense, the argument that Evangelium Vitae’s teaching on capital punishment represents a development in doctrine is unfounded."¹⁴²

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¹⁴² "Although Joseph Cardinal Ratzinger announced at the publication of Evangelium Vitae that it contained a 'development of doctrine,' his subsequent explanation makes it clear that he was only speaking loosely: 'Clearly, the Holy Father has not altered the doctrinal principles which pertain to this issue [the death penalty] as they are presented in the Catechism, but has simply deepened the application of such principles in the context of present-day historical circumstances.'"

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

"In the absence of a blanket prohibition against the death penalty, it would be over-reaching to assert that Catholic judges and attorneys are barred from participating in any capital proceedings whatsoever. In order to conform properly one’s mind and heart to this teaching, however, and in light of the reasonableness of the prudential judgment concerning the medicinality of the death penalty in our own times, extreme circumspection is necessary."


Interesting. This is what I've plucked out of an extremely quick reading (after I stumbled over this by accident). I urge ya'll to take more time then I have at the moment and read it more thoroughly.

For further discussion see my videocast, read Tom's reply and my quick reply to him.

Moments in the Life of a Criminal Defense Attorney

1) I've been assigned to represent Client on his appeal of a domestic violence case. Client pleads guilty and prosecutor gives a minimal description: "They had a fight, your Honor." I start to proffer my client's position: "Your Honor, Client would state that the fight started when Wife swung the hair dryer at him and then charged him, slamming her fists into his chest. Rather than striking a defensive blow - which he would have been allowed - he grabbed her arm and then spanked her. It's a violation Sir, but we'd ask that this case be taken under advisement for a year. It's a strange situation where he could have punched her and been not guilty but in taking a lesser action he is guilty. Furthermore, they've separated and I can tell you Client has no intention of seeing her ever again."

At this point Wife stiffens in shock she looks over my head at Client. Client, in the world's worst stage whisper, says "Yes, I do."

I freeze and spend about half a second thinking what my ethical obligations are here. The judge catches it and before I can do anything (like move to withdraw) he steps in and asks my client a few questions about whether he will get back with his wife and then takes the case under advisement.

2) Arguing whether three dismissed charges and one prior conviction can be used as evidence in a check cashing case, the prosecutor first argues that it should be allowed in to identify. I point out that there is no doubt my client cashed the checks - no identity issue, only permission - and that Virginia law has only identity as the major theme in allowing this kind of evidence. The prosecutor then gets up and reads from Friend the statement that prior acts can be introduced to prove any element. After he finishes, I start to ask for sur-rebuttal because he raised new issues but the judge tells me to "sit down, you've proven your point." He then rules in my client's favor, excluding all the prior acts: "All that horn-book stuff is nice theory but it's too prejudicial for anything outside of proof of identity."

3) I get to sit and watch a prosecutor and a judge bump heads. First, despite dubious looks from the judge, the prosecutor drops a DUI charge because he has determined that the checkpoint didn't adhere to the requirements under the law. Later that same prosecutor, in a case I'm not in court to hear, so angers the judge when he refuses to prosecute another case that Judge stops court and takes a 30 minute recess. You know you're in a rough courtroom when the prosecutor is defending people.

4) Two comments which have stuck with me from the last week:
~~ At jail one inmate points me out to another: "There's that lawyer who got me off on that thing."
~~ After winning a motion in limine Client is put back in lockup with other defendants. As the bars close, he points me out to the other guys and yells in joy: "That attorney out there is slicker than sh!t!"

Not exactly the way I've ever wanted to be described but I appreciate the sentiment.

And Now, the News

1) Marrying the 15 year old by whom you have become pregnant will not stop charges from being filed.

2) Craigslist is a fad by which trendy urbanites try to find apartments, people, and things. And, of course, underage prostitutes.

3) If you have a marijuana grow farm in your house you shouldn't agree to a search, even if someone tried to break in.

MADD Judge Witch Hunt

MADD has begun yet another witch hunt against a Virginia judge who isn't maxing out every DUI no matter the circumstances.

Passing of an Extraordinary Man

Professor Roger Groot

Professor Groot scared, entertained, and - most importantly - taught everyone who went through Washington & Lee Law School. Who can forget the fear of being a 1L in his 8 a.m. criminal law courses? And who can forget the amount of law we learned because he pushed us? He was an extraordinary man and every single W&L grad is better for having known him.

A current student has set up this page in memory.

New LexRadio

This week's episode discusses proposed changes to Virginia's courts.

Articles commented upon:

Changes considered
To prevent lower courts from tossing cases:
Issue involves Fairfax judge who ruled DUI law unconstitutional


Reforming the Bench:
State Court System Should Seek Efficiency, Convenience

The mp3 should play in the player to the left in real time, but if it doesn't under "Lex Radio" Odeo will.

The U.K.

1) Not only has the prohibition against double jeopardy been banished (after 800+ years) it's being applied ex post facto - 14 years ex post facto.

2) A girl in Worcester doesn't have to wear the ankle bracelet while on pretrial because it clashes with her skirt.

both via UK Crim Justice

Canada

1) "Critics denounce mandatory minimums for gun crimes as political pandering."

Duh. Politicians passing "tough on crime" measures for the sole purpose of getting votes. Never saw that coming.

2) Living up to the stereotype - Canadians really are nice. They're so nice that they turn themselves in when charged with murder.

Australia

1) If you get caught importing ecstacy by the ton don't go to the park - or at least make sure it is within easy injured-stumbling distance of a police station.

2) Wow, are they really going to criminalize peaceful dissent?

New Zealand

1) A guy who does something truly disgusting isn't a member of the gang if we take back our colors, right?

2) People are upset because a man who tried to kidnap someone is working at some place called the "the Beehive." Tons of jokes come to mind but, with my luck, it would turn out to be the government's blogger assasination centre.

In the News...

1) Six juvenile detention center employees in Florida were fired and five others disciplined after police said a mentally retarded boy was raped by a sex offender who was allegedly assigned to bathe and change his diaper.

2) Police in Michigan arrest 846 sex offenders during a statewide roundup of people accused of violating the requirements of Michigan's sex offender registry law, authorities say.

3) New York Prosecutors are angry over the actions of a reputed mobster while out on bail. The man is being held under house arrest while awaiting trial but began filming a reality T.V. show for HBO called "House Arrest".

4) Another teacher sex scandal... High School teacher Kimberly Ann Cordrey-McKinney, 32, of Chestertown was charged with sexually abusing a 16-year-old student from the school.

5) Another priest sex scandal... Former Catholic priest Jerome Toohey, 59, pleaded guilty to sexually abusing a high school student in 1987 and 1988. At the time, Toohey was a priest and chaplain at Calvert Hall College High School.

6) Maryland State prison officials filed charges against several correctional officers and visitors for smuggling contraband into prisons. Banned items include drugs, tobacco and cell phones. Correctional experts say the black market in contraband inside prisons fuels violence.

Dial "G" for murder...

If you decide to use GOOGLE and the internet to help you with the murder of your wife- remember to clear your browser's "history"... better yet- get rid of the computer entirely! This is especially true when her body is discovered in a nearby lake and police find lake levels, water currents, boat ramps and information on how to access the lake stored on your computer.

San Francisco Ballot Measures...

San Francisco approved ballot measures Tuesday to ban handguns in San Francisco and urge the city's public high schools and college campuses to keep out military recruiters. "Measure H" prohibits the manufacture and sale of all firearms and ammunition in the city, and makes it illegal for residents to keep handguns in their homes or businesses.

"Measure I", dubbed "College Not Combat," opposes the presence of military recruiters at public high schools and colleges. The proposition encourages city officials and university administrators to exclude recruiters and create scholarships and training programs that would reduce the military's appeal to young adults.

Okay. I know I'm just a lowly 1L, but can someone out there explain how a local ordinance can supercede the 2nd Amendment to the U.S. Constitution? Also, if the city bans military recruitment- of federal soldiers/sailors/airmen, can the federal government withhold federal dollars in funding?

No Perjury for Rafael Palmeiro

Lawmakers have decided there isn't enough evidence to prove Rafael Palmeiro commited perjury when he told Congress he didn't use steroids - shortly before he was caught using steroids.

Is it the Bat Computer?

It's hard to think of advanced computer techniques and Richmond law enforcement in the same moment.

Police know who the Murderer was . . .

. . . but they can't tell.

What is a Vet?

Every year - on Veteran's Day - The Richmond Times-Dispatch reprints this article. And every year, I can't get through it without crying.
__________________________

What Is a Vet?

War makes strange giant creatures out of the little routine men who inhabit the Earth.

- WWII correspondent Ernie Pyle.

Some veterans bear visible signs of their service: a missing limb, a jagged scar, a look in the eye. Others may carry the evidence inside them: a pin holding a bone together, a piece of shrapnel in the leg -- or perhaps another sort of inner steel: the soul's alloy forged in the refinery of adversity. Except in parades, however, the men and women who have kept America safe wear no badge or emblem. You can't tell a vet just by looking.

What is a vet?

He is the cop on the beat who spent six months in Saudia Arabia sweating two gallons a day making sure the armored personnel carriers didn't run out of fuel.

He is the Nebraska farmer who worries every year that this time the bank really will foreclose.

He is the barroom loudmouth, dumber than five wooden planks, whose overgrown frat-boy behavior is outweighed a hundred times in the cosmic scales by four hours of exquisite bravery near the 39th Parallel.

She -- or he -- is the nurse who fought against futility and went to sleep sobbing every night for two solid years in Da Nang.

He is the POW who went away one person and came back another or didn't come back at all.

He is the Quantico drill instructor who never has seen combat -- but who has saved countless lives by turning slouchy no-'counts into soldiers, and teaching them to watch each others' backs.

He is the parade-riding legionnaire who pins on his ribbons and medals with a prosthetic hand.

He is the career quartermaster who watches the ribbons and medals pass him by.

He is the anonymous hero in the Tomb of the Unknowns, whose presence at Arlington National Cemetery must forever preserve the memory of all the other anonymous heroes whose valor died unrecognized with them on the battlefield or in the ocean's sunless deep.

He is the old guy bagging groceries at the supermarket -- palsied now and aggravatingly slow -- who helped liberate a Nazi death camp, and who wishes all day long his wife were still alive to hold him when the nightmares come.

He is an ordinary and yet an extraordinary human being -- a person who offered some of his life's most vital years in the service of his country, and who sacrificed his ambitions so others would not have to sacrifice theirs. He is a soldier and a savior and a sword against the darkness, and he is nothing more than the finest, greatest testimony on behalf of the finest, greatest nation ever known.

Veteran's Day

With warm regards to my fellow Army veterans.

And, I also want to extend my thanks to those who served in the other branches.

At a Glance...

1) Michigan prosecutors can use evidence of a defendant's past conduct in domestic violence cases under legislation that received unanimous approval in the State Senate. The two bills are aimed at better protecting domestic violence victims who endure a pattern of abuse.

2) Sex offenders in Kentucky would face harsher sentences, including life in prison without parole for repeat offenders, under recommendations by a state task force. It called for repeat sex offenders to face life sentences without parole, all felony sex crimes to be considered violent offenses, and juvenile sex offenders to be treated as adults.

3) A Montgomery, Alabama man who held 110 children and adults hostage at a private Tuscaloosa school in a 1988 standoff that lasted nearly 12 hours was denied parole. Some of the hostages told the state parole board how the takeover affected their lives. No one spoke at the hearing on behalf of hostage taker, now 60. He had claimed he took the hostages to demand help for the homeless.

4) Washington D.C. Police say their relationship with Crime Solvers is paying off. Since the program was launched in the capital in 1981, nearly $5 million in cash and $15 million in illegal drugs have been seized or recovered. U.S. Attorney Kenneth Weinstein said the program has provided information leading to 1,000 felony arrests. In the past 14 years, Crime Solvers has awarded about $60,000 in the District.

Georgia v. Randolph

A while back I was asked if I could analyze Georgia v. Randolph on CrimLaw. I couldn't at the time because I was judging a moot court argument with this as one of its questions. The question? When there is a common shared area (but exclusive to others) and one of the persons sharing the area refuses to consent to a police search can the other person give consent while the first person is present? In other words, can permission from one resident overcome prior denial by the other resident when both are present?

The poor kids doing the first session I judged got me, Tom (Seeking Justice), and the head prosecutor from Richmond's south side (Manchester). While every other contestant was getting questioned by civil lawyers (posing as judges) these kids had a little bit of a hot bench. The second session was just me and Tom and those kids might have actually had it a little rougher. They all did fine; I just felt sorry for them pulling the only criminal lawyers that were judging.

Anyway, Orin has addressed theory with far more depth than I have time to cover here. However, here are the rules of thumb which I think most courts have found:

1) If there are multiple residents of a house each resident can give permission to search if the other resident is not present.

2) The person giving permission cannot give absolute permission. If there is some thing or place which is restricted from the person giving permission (i.e. a forbidden room, an unshared safe, a computer with files that the permittor cannot access) then permission does not extend to a search of it.

3) The standard applied is not solely whether the permittor has actual authority; the standard is whether the permittor had actual or apparent authority. Hence, police can rely on Mom's permission to search her adult child's room, even if she has not gone in the room for two years. A search reliant on the claims of a woman that she is a daughter of the accused (and who opens the door with a key) would be valid even if she were only the nosy neighbor who had found the emergency spare (unbeknownst to the police). However, when a male gives permission to search that will not extend to the female resident's purse. Likewise, the search of the room above should not be valid if the door were locked and mom told the police she didn't have a key.

All that said, I think the standard which has been assumed for a long time is that if a person with authority gives permission it is valid against all comers. When we were discussing the moot court arguments with the law students in the after argument critique everybody was commenting on how the pro-Randolph argument was the "loser" argument.

Personally, I think the equities are in favor of the Randolph decision. Allowing the police to do what they did in this case is to allow them to game the system. Of course, they could have gamed the system anyway by asking to search when he wasn't present. And police gaming the system hasn't exactly been a powerful argument in recent years (see any of my various rants about Whren sanctioned clearly pretextual stops). It'd be nice if the Court stepped up and said, "The Constitution does not directly address this question and when there is an ambiguous area that relates to personal rights guaranteed under this document we must always err in favor of protecting the citizen against the overwhelming power of the State. Therefore, we find the search unconstitutional." It'd be nice, but I'm not holding my breath.

And Now - The News

1) I have seen this story on Law & Order before: A girl is kidnapped and made do unspeakable things. The police catch on but when they raid the apartment they don't find the girl. Finally, the wife breaks down and admits the girl is in a hollowed out part of the bed. I'm not kidding - I remember the episode.

2) When you steal the identities of your co-workers and charges so you can charge $10,000 under their names you will get caught.

3) My question is - Can mink survive if you break them out and dump them in the wild?

4) Stealing $540 in $10 increments. I guess patience can also be a vice.

5) A J.D.L. member, convicted of trying to bomb a congressman's office, is murdered in prison.

6) 40 burglaries since May - someone's an overachiever.

7) Spread computer viruses - get no bail. Hear that Sony?

8) If you are able to morph from prisoner to Texas official to jogger to Katrina victim you might escape jail (for a short period of time).

9) Witness recantation will not stop DOJ.

Governor Postpones Execution 2nd Time

Ohio Governor Bob Taft set a new execution date of Jan. 19 for a condemned inmate trying to prove his claims of innocence. John Spirko was scheduled to die by lethal injection next week. However, Taft granted a two-month reprieve to allow for DNA testing at the request of the state's Attorney General. It's the second time Taft has agreed to delay Spirko's execution over questions about his conviction.

Ripped from the Headlines

Andrea Yates, the mother who drowned her five children and received a death sentence for three of the killings, got a new trial today, courtesy of the Texas Court of Appeals. Seems that the government's psychiatrist at her trial said she was malingering in part because the crime was a copycat of a crime she may have seen on a "Law and Order" episode... but the episode did not exist.

Whoops. The Court of Appeals held that without the erroneous testimony, jurors might have found her not guilty by reason of insanity and spared her the death penalty.

Fret not; the prosecutor assures us he will pursue the capital charges again and put Yates back on death row.

Election Results I Care About But You Don't

Because everybody is concentrating on the BIG races that are not directly related to criminal law.

For some reason both the prosecutor and sheriff were voted out of office in Colonial Heights; the more shocking of this was that the Commonwealth Attorney was officially backed by the Republican party while the successful challenger ran as an independent. I've met both men (though none of us are drinking buddies) and both seemed pretty decent to me, but I haven't worked in Colonial Heights for a year or so. Thus I don't know the reason for this.

To everyone's shock, there is a new Sheriff in Richmond. The current sheriff has been a steady source of corruption stories, or perhaps just incompetence, in the local paper over the years. Still, everyone seemed to think she was bulletproof. The reason for the loss seems pretty clear: the jail.

And that's this year's political commentary.

The Ever-Improving Blog

Here at CrimLaw we are always trying to come up with ways to improve the blawg. So we thought we'd offer ya'll the opportunity to comment whether you'd like the site in Spanish, Redneck, Cockney, or Fudd.

If you haven't voted yet . . .

. . . you should be ashamed.

Go Vote!

I don't care if you write me in as your vote for governor, just vote. It is your most basic duty and privilege as a citizen of the Republic and the Commonwealth.

At a Glance...

1) A 13-year-old girl who was abducted and sexually assaulted at a Suffolk YMCA in 2002 cannot sue the organization because it enjoys charitable immunity, the Virginia Supreme Court ruled. A lower court dismissed a lawsuit filed on the girl's behalf, saying she was benefiting from the YMCA's charitable services when the attack occurred.

2) A Saint Louis, MO woman, who was about to be arrested on suspicion of fatally poisoning her boyfriend, was found dead in her house. Police said they planned to charge the woman, 52, in the death last year of boyfriend. Lab results showed he died of a massive dose of arsenic. Police said they don't know how she died but don't suspect foul play.

3) The lone law enforcement officer in a small Idaho town has stopped patrols after local officials couldn't pay $20,000 for stationing the sheriff's deputy in town. A contract between the county sheriff and the town stipulated that the town and its local school would each pay $10,000, but the school couldn't come up with the money.

Rose Gets Convicted

Nope, not that Rose, his son.

File Transfer Prosecution

First they killed Napster, just recently they killed Grokster, and now they are prosecuting bit torrenters.

That's going to prove problematic. Many legitimate shows are distributed via Bit Torrent (see TWIT or diggnation or CommandN) so attacking the software won't work. And it's peers to peer so locating the exact person to prosecute for distributing is going to be very, very difficult. That leaves attacking the tracker sites which put the peers together and some of them are located in places where they can't be touched. In fact, Pirate Bay even publishes the threat letters it receives and makes fun of them.

Getting That Law Professor Job

Y'know, I'll never be a law professor (I spent my law school years playing rugby). However, for those of you who can still live the dream there's some sort of conference going on and there are reccomendations on how to act here, here, & here.

New LexCast

The new LexCast is up. For those of you who want to see a larger version - so you can read the statute - you can get it at LexTV.

oFF pOINT: TIkI bAR

Not for the faint of heart (or those at work), but for those who still have a sense of humor this is a hilarious way to kill an hour or two.

My favorites are episode 1, 8 & 9. However, I suggest you watch them in order because otherwise you might miss some important plot twists.

Petition for Appeal Freak Out

The petition is written. I even hand delivered a copy to the Commonwealth Attorney at the end of the week. Unfortunately, I was too lazy to get in the office on time this morning and get it out by certified mail. It's not a problem; for a change I actually got it done early.

So, I'm rereading a copy of the statute I have laying around and think I spot an error. Something is not in the statute which I thought was there - something which will change the entire argument. I freak out. I've given this thing to the prosecutor. I've got a gazillion copies printed up and ready to mail out to the court of appeals and my client. I go into panic mode. I look to all the sources I can find online free - no help. I look on VersusLaw - no help. I get on to WestLaw and pay the extortionate rates. $4.50 to do a keycite. I copy the info I need and get off of WestLaw as quickly as I can just in case it's charging me more for each second I'm logged in.

I look over the West history of the statute. It doesn't show the change which is freaking me out. I look over the history again. It still doesn't show the change. For a second I start to think that it's no wonder I missed the change if WestLaw did. Then I think again. Something's wrong. I look at the typed out version of the statute which freaked me out and *ping* I finally get it. When I copied the statute I took out the non-relevant addition which the General Assembly added as of 01July 2005. I also took out the phrase immediately before it which should have still been in the statute. What an idiot. I wasted an hour on this garbage just to find out I hadn't made an error.

Around the Web

1) I knew there was a reason I didn't buy a hybrid - I didn't want a heart attack when an officer pulled up behind me and lit me up. via Volokh

2) In Russia they appeal jury acquittals.

3) And finally, we get to see the wizard behind the breath machine.

4) Most of the time when another defense attorney tells a difficult client story I have one which is almost exactly the same. However, I've never heard of the baking soda defense.

5) Aaarrrrggggg! shudder This story not suitable for reading by males.

6) Should prosecutors be required to explain their plea agreements? In most cases the answer is no. However, in Virginia the judge has to agree with the deal. If the prosecutor has agreed to a weekend in jail for a double homicide the judge is going to need to hear something.

Pirates?

What year is it?!? Miami-based Seabourn Cruise Line, a subsidiary of Carnival Corp. reported that one of their ships was attacked by pirates. The pirates fired a rocket-propelled grenade and machine guns Saturday when they attacked the luxury cruise liner. Two armed boats approached the Seabourn Spirit and fired on the ship as the pirates attempted to get onboard.
The crew initiated a trained response to avoid being boarded and the ship eventually outran the attackers.

Libby, Libby, Libby on the Label, Label, Label

1) Before it begins there will have to be background security checks for all the lawyers. That's right guys, it's time to get on the phone with your law school buddies and tell them that all the stupid things you did while you were drunk at law school never happened.

2) Before the trial has even started the main discussion seems to be about punishment. Some think the government is charging low and will try to get a high sentence. Some wonder if Libby's long government service might get him a pass. Others are sure of a pardon.

At a Glance...

1) An attorney in Kansas will use the "intoxication" defense for a man accused of killing his girlfriend's 3-year-old daughter after a drunken night. Police say the suspect admitted shaking and hitting the child in June after she refused to pick up laundry. The defense attorney said he doesn't plan to dispute that the suspect caused the injuries but that his client wasn't capable of acting intentionally.

2) Another escaped inmate captured in his quest for food! A grocery store shopper recognized an escaped inmate from news reports and called police, who captured him without incident. The convict was still in the prison uniform he wore when he escaped from a van taking him to a corrections system hospital.

3) Is trapping a coyote in a steel-jawed leg trap illegal? A Montgomery County, Maryland Circuit Court judge ruled that a coyote trapper acted legally when he used steel-jawed leg-hold traps to capture coyotes in a city neighborhood. The local Humane Society contended that the method was cruel and unnecessary.

4) A part-time police officer in Pennsylvania was suspended after being arrested last week for allegedly selling steroids he ordered from overseas. Reports say the officer was suspended without pay pending the outcome of his criminal case.

5) In Lexington, Kentucky, a university librarian, has sued four men involved in an earlier robbery of rare books and art. She says that the robbers caused her emotional and physical distress when she was stunned, tied up and blindfolded during the heist.

Moments in Court

I'm in the local law library and there is a guy asking the librarian questions about how get a case from Utah and see if there are any similar cases in Virginia. I take him over to the computer and show him how to do it on WestLaw. Then he starts talking to me about his problems with his business partners and how he needs "a lawyer who isn't beholden to the local power structure." He looks at me and alarm bells start ringing. I beg off pleading absolute ignorance of any type of law outside the criminal field.

A couple days later I go to the circuit court and there's a civil matter going on before I'm due. I walk in and it's Library Guy having a go at it pro se and he is all over the judge:

" . . . And, I want to note my appeal right now, 'cuz I know how you're gonna rule. Even though you should find in my favor because (waving at empty table) no one has even bothered to come to court to oppose. I note my appeal right now."

Judge: "You've sued me Mr. Smith. Should I even be hearing this case?"

"No, you shouldn't. In fact, you shouldn't have heard any of this and if you knew what you were doing you'd know you shouldn't ever have had anything to do with the case.

At this point I look up and wonder how much time Library Guy is going to get for contempt. However, the judge is in "patience of Job mode."¹ He looks up and comments:

"Mr. Smith, you can raise insulting to an art form . . ."

Library Guy: "I wasn't being ins . . .

"Now hold on, remember our agreement. I don't talk when you talk and you don't talk when I talk. You had your chance to speak - now it's my turn. I'm taking this case under advisement and I'll have to determine whether I can hear the case or not. Court will now take a 5 minute recess and then we will hear Mr. Lammers' matter."

The judge then stands up and leaves the courtroom before Library Guy can say anything else.

Y'know, most of the time I think it would be great to be a judge, but every once in a while I get this feeling that even judges have rough days.



¹ This is a special behavior which judges must be trained in when they first take the bench. However, it is generally reserved for young attorneys who are given dispensation while they figure things out and pro se participants.

Escaped Felons Done in by Pizza Craving

A pizza delivery driver tipped off authorities when she recognized a customer as one two escaped convicts wanted by South Carolina authorities. Judie Trainer, manager of the Buck's Pizza in Ridgeland, told The AP that she got a "funny feeling" when a customer at the Palms Motel asked her to step inside his room to pay for his pizza. Trainer said she recognized him as one of the felons on the run after their escape. She then had her husband call authorities.

Ego Booster

So, I am looking through Google to see who has been reading CrimLaw when I trip over this: Someone actually used a quote from me in his outline for CHICAGOS ELEMENTS OF THE LAW COURSE..

Wow. Someone actually taking something I said as authoritative - surely one of the signs of the apocalypse.

In The News...

OUTDOOR smoking illegal? Washington state will be considering a $100 fine for smokers caught puffing within 25 feet of a public building, and in Iowa, the state's hospitals ban smoking on entire campuses, meaning smokers have to leave the grounds to light up.

Best Man burns down newlywed's home. A Hampton, Virginia man will remain in jail until his Jan. 11 sentencing after pleading guilty to burning down a couple's home- two days after serving as best man at their wedding.

Frozen snack ends in murder. A teenager accused of killing his father after becoming enraged that his parents didn't buy him a "Sno-Ball" frozen treat pleaded guilty to manslaughter.

"It is still unclear what Mr. McFetridge was hoping to accomplish with this line of questioning, but it was somewhat ironic that many of his other questions concerned questionable psychological concepts such as multiple personality disorder and repressed memory, which the defense attorney, Jonathan MacArthur, aptly dubbed 'junk science.'; The highlight of my testimony, however, was during redirect, when Jonathan picked up one of the printouts to which the D.A. had been referring and asked me, 'Dr. Chambers, do you usually get your scientific information from Oprah.com?'"

Practitioner's Hypothetical

You're a defense attorney. A lady walks into your office and tells you she is an eyewitness in a "serious" case. She has given a detailed, video-recorded statement to the police. She has been threatened by friends of the defendants, but now is living anonymously in a different neighborhood. In the preliminary hearing of the case, she tells you she began testifying differently than her police statement. When the prosecutor had her declared a hostile witness and confronted her with her prior statements, she claimed that the material parts of the statements were not true or denied making the statements. The judge has adjourned the preliminary hearing in order to allow her to obtain legal advice about her testimony, after admonishing her that she was putting herself in possible jeopardy of perjury.

The "serious" case re-convenes in a week. Assume the prosecutor will tell you he is in fact prepared to charge her with perjury or at least obstruction if she continues to claim she did not make statements which he has on video. The evidence in the case indicates this witness is in no way implicated in the "serious" event.

What is your advice to her?

Daring Prison Break- Even More Daring Capture...

This story is more exciting than an episode of Fox's Prison Break. Emporia (Virginia) Police have re-captured an escaped prisoner who they say beat a guard over the head, stole both that guard's gun and another one. He then attempted to steal a car from three people at gunpoint before he succeeded. He then lead police on high speed chase through several localities. Link includes video.

When Your Client Turns on You

When clients do this, I just pick a spot on the wall and stare. I probably want out of the case as much as the defendant wants me gone but I know that the judge ain't gonna do it. And so does everyone else in the courtroom except the defendant.

Magic v. Dye Pack

And the winner is . . .

Tech Question

Despite testing it out, the video is causing at least one reader to have trouble. He's using the latest Opera browser and Windows XP. And before anybody tries to blame it on Opera, I use Opera and am having no problems.

Any suggestions?

Items of Interest...

A small-town judge who was ordered removed from the bench because he has THREE WIVES, faced a hearing before the Utah Supreme Court on Wednesday in an effort to retain his job.

The defense rests in trial of a former college professor charged with supporting Palestinian Islamic Jihad. Closing arguments are expected to begin next week. Sami Al-Arian and three co-defendants are charged with using Palestinian educational and charitable entities in Tampa as fundraising fronts for the Palestinian Islamic Jihad, a U.S. State Department-listed terrorist group blamed for more than 100 deaths.

Another Teacher-Student Sex Arrest. This time, its a female student. A teenage girl claims to have had an 18-month affair with her female basketball coach. The teacher/coach has been charged with lewd and lascivious behavior, a felony that carries a maximum 15-year prison term.

Church & the Death Penalty

Doggoneit, Tom's making me have to dust off the cobwebs from that section of my brain I haven't used since I got my undergrad degree in Religion. Anyway here's a quick riposte to his post:

I disagree with your contention that current Church teaching is utilitarian. I think that the element missed in that sort of analysis is the option of salvation. As long as someone lives he has the option open and a just people (who are protected) has a duty toward this salvation. Since acceptance of punishment is viewed as cleansing, maybe the Catholic position should be life in prison with the ability to accept the death penalty in order to absolve one's soul.

And now let's open another can of worms. Are you of a mind that you divide the magisterium into ordinary, ordinary universal, and extraordinary? If so, yes the various authorities you cite are ordinary. Under that sort of analysis, everything which has some support among some members is ordinary; of course, it would not be infallible.

I don't think support the death penalty can be a core universal teaching for an organization dedicated to extending the salvation of Christ's sacrifice to each of us. It can be an (or the) accepted necessary punishment to protect or to save (with acceptance by the sinner) but extending it beyond that doesn't make sense.

Denver has passed an ordinance legalizing small quantities of personal-use marijuana. The bad news for the tokers? The police will apparently continue charging people using the state statute instead of the city ordinance.

Thanks...

to Ken for graciously inviting me to guest blog here. I'm not certain whose reputation will be sullied worse amongst his colleagues for my appearance here. Just kidding! In fact what drew me here to make my first posting was Ken's podcast, on the left sidebar, dealing with Capital Punishment and Catholic teaching. This is an area of some interest to me, since I've prosecuted a death case and considered capital charges on other murder cases I've handled. I don't pretend to be a theologian, but my attempt to answer Ken's presentation is here. If such matters are of interest to you, check it out.

Again, thanks Ken, for the invite. I'll try not to get on here and boast when I whup on you in court.

Ken Lammers: InvisoLawyer [Warning: Some Foul Language]

I'm sitting in my office this morning putting the finishing touches on a petition for appeal. I look up and my office clock says 9:20. OMG! I jump up, run to the car, and [scrupulously obey the traffic laws] in order to get to the courthouse as quickly as I can. I get to the courthouse, grab my files and head straight to the Circuit Court for a show cause - where I arrive exactly on time because I had forgotten to change the time at my office. I talk to my client. I talk to the people who've come to support my client. I put on the show cause. Client's a 19 year old kid who is trying hard to turn his life around; however, he's not the brightest bulb in the box and he's pretty rough spoken. At one point he's talking about what he did on probation and actually says "and I passed every one of my piss tests." Everybody in the courtroom just stopped except Client, who did not realize he had just cursed in front of the wrong judge. Oblivious, he got about 4 more words out before she stopped him and told him he could not use that kind of language in her courtroom. Client stops. You can see that he's struggling mightily to think of something else he can say. Finally, it comes out, "I passed every one of those things" and we move on. In the end the judge gives Client the time he has served. I go back in the back and explain it to Client. Then I explain it to the people there for him.

Finally, I go back downstairs and a prosecutor meets me in the hall: "Judge Smith is looking for you about the Jones case." The District Court docket had finished before I got back from Circuit Court. They had the deputies call around on the radio to see where I was but the deputies in the Circuit Court didn't tell anybody I was in their courtroom. These were deputies who knew me and, as far as I know, don't have any grudges against me. By the time I get back to chambers the clerk has already explained to the judge where I was and he's pretty good about it; all he does is tell me to make sure his clerk knows if I have to go to another court before his.

After all that's over, I go catch lunch in the courthouse cafeteria and go to the law library to check my email.

At 1:00 I tell the clerk in the District Court that I have a case in Circuit Court and head back up there. When I walk into the Circuit Court the prosecutor fusses at me for blowing her off. Clueless, I ask what she's talking about and she tells me she called me on my cell phone this morning to see how we are going to handle this case. I tell her that I haven't been out of the courthouse since I arrived (cell phones banned) so I haven't checked my cell yet. Then I think for a second. I point out to the prosecutor that she was in the same Circuit Court courtroom I was in this morning (though not for my case); she should have known I was in the building. She tells me she never saw me. Anyway, we continue my client's case so she can try to come up with restitution.

Then I run downstairs. Client is to have a preliminary hearing for felon in possession of a firearm. Other cases are already in progress and I take my client out to the interview room outside the courtroom to discuss what is going on. The door is closed but I never leave the area of the courtroom. In fact, the rear-door deputy even looks in the room because he's looking for another attorney. When I finish talking to Client, we stand up to go into the courtroom. At that moment Client's girlfriend sticks her head in the door and tells us the judge has taken a recess. When I walk the whole 5 feet from the interview room into the courtroom I find out that the reason they took the recess is because they couldn't find me and my client. AArrrgggg!!!

Somehow I turned into the invisible man today. Hopefully, it's just a one day thing.

Off Topic...

Massachusetts could be first state with universal health care. Massachusetts House Speaker Salvatore DiMasi unveiled a proposal to reform the state's ailing health care system yesterday. The bill would make Massachusetts the first state in the nation to mandate health insurance coverage for all its residents.

Judge on Delay Case Removed

It is being reported that Tom Delay's recusal motion has been granted. First round to the defense.