The Year Hereabouts

1) I ran for Supreme Court and even put out an advertisement.

2) It was hard to decide who was my most interesting client this year so here are the top two.

3) My favorite case of the year.

4) A frustrating moment in court.

5) I discovered that Virginia courts are liberal.

6) My most heavily read post of the year (I think).

7) The decision which made the least sense this year (and drove me nuts).

8) The biggest fuss in Virginia legal circles this year was when a pro-prosecution judge started forcing prosecutors and police to actually prove DUI accusations rather than assuming guilt. Video. Later follow-up.

9) My favorite new blog.

10) My favorite story of this week. Just imagine having to explain to your fellow officers that you were run off by a vicious pack of rat-dogs.

Caught by Mom

If you're going to deal pot by text messaging through cell phones you need to make sure nobody's mom understands how messaging works.

No More Gay Prison

NY is closing down its gay prison section.

Proper Use of a Taser

I know that every so often I've complained that tasers are sometimes misused. However, there are any number of times when the officer uses the taser for that which it was intended (an intermediate step short of pistol use). When an officer uses it properly he should get credit.

Here's an officer, faced with a big guy with a knife, who absolutely uses the taser in the way it is supposed to be used (video on right side).

Ed Barber Arrested for Sexual Charges

Ed Barber, the chairman of my county's board of supervisors, my personal representative, a teacher, and the only Democrat who has consistently held his own in an overwhelmingly Republican county was arrested on sex charges involving a minor: one count of aggravated sexual battery and one count of object sexual penetration.

Off Point: Guts

It has nothing to do with crimlaw, but I just wanted to point out this kid who arranged, all by his lonesome, to go to Iraq. He was lucky not to win a Darwin award but you must admit the kid had guts.

The Chief Justice's Son Was Arrested

Again.

Echoes on Indigent Defense Failures

Via SWVALaw, I found these two editorials which echo Esther's description of the problem with failure to fund indigent defense in Virginia.

Indigent Defense Underpayment in Virginia

I don't know what Virginia needs to budget to bring its indigent defense to a decent level but when the Chief Justice asks for 25 million and the governor only alots 3.7 million you sense that something's out of kilter.

The Libyan Supreme Court Overturns Death Penalties

The Libyan Supreme Court overturned the death sentence of five Bulgarian nurses and a Palestinian doctor who had been convicted of infecting 426 Libyan children with HIV virus.

Where do these whackos come from?

A judge declares that evil women are the cause of bad weather.

FBI Poaching Buffy's Territory

The FBI is now arresting zombie masters.

Answer the Phone . . .

. . . go to jail.

Merry Christmas Everyone

How Quickly Things Turn

Remember the student who got the visit from federal agents for getting Mao's Little Red Book? He was lying.

And you know what, this article's almost as bad as the first one. We still don't get the guy's name. We don't get any information on why he was lying. Political reasons? Trying to suck up to his leftish professors? Late paper? We don't get any information about if the school plans to do anything to the student or to the professors who reported without anything further than the kid's say so.

Still, the original was worse. If the reporters had done some precursory investigation they would have found enough flaws to make them suspicious. And how do run that story without interviewing the original source?

If one were cynical he might conclude that the reporter and his editor wanted their cake and to eat it too. If you put out the story incomplete then you guarantee at least one follow-up (either Kid Lies! or Confirmed! Rights Trampled!).

Thanks to TWM for the pointer.

Judicial Mafia

You know, I may whine every once in a while here about how judges in Virginia are tougher on the defense than prosecutors. I may even point to certain cases and wonder how far a judge would actually have to go to get in trouble in Virginia.

However, nowhere in my worst nightmares could I even conceive a Virginia judge engaging in blackmail of a newspaper in writing. Make sure you click through to the actual letter because, read as a whole, it's even worse than Joel's quotes make it seem.

The Problem With Unpublished Opinions

I'm not a big believer in unpublished opinions. First of all, in an age of West and Lexis there is no such thing as an unpublished opinion anymore. There are only opinions which are accorded weight and opinions which are not.

In a perfect world this should break down to "published" opinions - which establish precedent - and "unpublished" opinions - which are merely advisory. Unfortunately, the world's not perfect and the effect of an unpublished opinion seems to often depend upon who's relying upon it.

It's sometimes hard for me to get a judge to follow the words of a statute or follow established precedent. I handed one judge a published case and pointed out a precedent favorable to my client. I can't prove this and may be absolutely wrong, but it looked to me like the judge looked to see which court of appeals judges had participated in the opinion; he then looked up at me and said, "Mr. Lammers, I don't think this is the law in Virginia." Of course, that's an extreme case. However, it sets the scene for you as to what I'm facing when I present an unpublished opinion:

Me: Judge, I have a case with the exact same fact pattern as this case, Smith v. Commonwealth. It's not a published opinion but it shows how the court of appeals expects the published opinions to be applied.

Prosecutor: Your Honor, that doesn't carry any weight.

Judge: Mr. Lammers, I'm afraid Mr. Prosecutor is correct. This case does not have precedential value. Additionally, the case at bar can be distinguished from Smith because in Smith the defendant was wearing a yellow shirt and in this case your client is alleged to have worn a green shirt. Motion to strike over ruled.

Compare with a prosecution presentation:

Prosecutor: Judge, I have a case with the exact same fact pattern as this case, Smith v. Commonwealth. It's not a published opinion but it shows how the court of appeals expects the published opinions to be applied.

Me: Your Honor, that case is - at best - advisory. It doesn't carry any weight.

Judge: Mr. Lammers, this case has exactly the same fact pattern as the allegations against your client. I think this is the way that the court of appeals would apply the law. Motion to strike denied.

Does it happen that way every time? Nope, just often enough that every defense attorney knows the scenarios by heart.

Anyway, if I had my druthers unpublished opinions would say something like this:

[Unpublished] Jones v. Commonwealth - Applying McGillicuty v. Fairfax, the answer to appellant's question is: No.

If more elaboration is required the opinion ought to be published so that it will have it's due weight.

Stealing from a Nativity Scene

Someone's trying to buy a one way ticket straight down.

The Lesson Here . . .

. . . is to get your extradition compact in place with the Sioux.

Prosecutor Suicide?

The FBI is investigating whether a federal prosecutor stabbed himself over 30 times to commit suicide.

Crime Trends

Across the nation crime is down yet again. However, in Utah it's up. Identity theft remains the nation's fastest-growing financial crime.

Sex & Crime

In Houston women are using sex in order to do crime. Shocked! Shocked, I am!

Chicago Cutting Edge Crime Surveillance

They've been deploying "high-tech surveillance cameras, some of which can detect the sound of gunshots and automatically call 9-1-1."

Mod Prosecution

When I first saw this I must admit I thought it was petty. Then I read the part where in addition to the mods the seller put 77 games on the Xbox. Idiots.

Don't Borrow Commie Books

A college student ordered, through an inter-library system, the Little Red Book. Why? He was writing a paper on communism for his class on fascism and totalitarianism.

Next thing he knows, federal agents show up at his door.

If One of Your Lawyers Isn't . . .

. . . you still had a fair trial in NY.

I'm so confused . . .

OK, Tom takes an inmate's side & the Virginia Court of Appeals, en banc, overturns a conviction without even a dissent.

I get sick, sleep for three days, and everything changes. I feel like I'm in one of those Star Trek reverse universes.

Defamation of Character & a Prosecutor

A prosecutor got an award for defamation of character because a newspaper published a letter to the editor from someone the prosecutor was prosecuting.

This isn't my area of expertise, but I'd bet this goes away on appeal. It seems to me that a newspaper provides a forum for an assertion of the citizen who sends the letter. Since the assertion wasn't by an employee of the paper the action would seem to lie with the person making the assertion; of course, the person who made that assertion is probably litigation proof.

link via SWVaLaw

France to Outlaw Open Source Software

At the end of this week, France will pass "emergency" (non-debated) legislation which will make open source (free) software illegal. It will also allow scanning of all emails for attachment contents. And they want to make it illegal to copy CD's to a computer. (First story on Mobuzz.TV)

Light Posting: Ill

If I figure out who gave me this I will find some way to make him/her pay.

Blech. Anyway, I may post a couple of things today but don't expect much.

Catholics Can Lie Under Oath?

The doctrine of mental reservation.

One for Tom

Sometimes you just see a post that somebody else should read. I saw this post and realized I had to make sure Tom saw it.

Felony Dying

So, my question is, do you make dying a felony or a misdemeanor when you outlaw it?

Suing the Wedding

In Spain the music industry is suing weddings for using music without paying fees. (2d story and final comment)

Bird Smuggling

There's somone in Europe willing to pay $30,000 for a bird.

Solving Crimes with Animal DNA

Coming soon on CBS CSI: The Tundra.

Go to Leheigh, Learn a Trade?

I wonder if graduating from an elite school gets you automatic membership in the Thieve's Guild?

Too Pretty To Go To Jail

Remember the teacher who had sex with her student but was too pretty to go to jail? Well, one jurisdiction agreed but another is having none of it.

Proof the Record Industry is Insane

For years the industry persecuted kids for downloading music before it even attempted to adapt its business model to the realities of a busted monopoly (iTunes, Yahoo Music, etc. although rumor has it the industry is trying to force iTunes to raise prices).

Now, in the ultimate insanity, the industry is going to try have people prosecuted for posting music lyrics. That's right, music lyrics.

That might have made sense about 100 years ago before radio got widespread, when the music industry actually made money through the writing and selling of sheet music. Even then one would have expected that the actual issue would be the music part of the sheet, not the lyrics.

You know, these ridiculous acts by the music industry, MPAA, &cetera don't stop anything. All they do is make sure all the interesting sites open in Russia (i.e. the $10 a year music sites) or Sweden (Pirate Bay et al.)(sorry folks, not going to link - you're going to have to travel into legal gray areas on your own - although I recommend you read Pirate Bay's answers to legal threats page - it's hilarious).

San Fran: A Mayor Fails to Get It

The video on the page this week isn't me blathering on about whatever caught my attention, it's the videos made by San Francisco police officers which came to the attention of the Chief and the Mayor causing all sorts of whining and stupidity.

The videos are a bunch of skits primarily making fun of the police themselves, or, perhaps more accurately, making fun of the way the police see themselves as being perceived. One newscast I saw said that the videos came to light when an officer posted them on his website (not able to confirm that).

Now, I'm not saying the videos are right. I'm also not saying that I wouldn't have done something equally as silly when I was in my fraternity in college (thank goodness portable cameras weren't prevalent back then) or that I wouldn't even now. However, I've got to say that putting these out there wasn't the brightest move in the world.

Why? Well, because of people like me, of course. The next time the pictured officer is in a case charging a homeless Black man the video of the (clueless) officer running over a Black homeless lady could make for some wonderful impeachment/bias evidence.

Still, the way you handle something like this is to counsel (a nice sanitary term for "chew out") the officer and make him take it down. You don't call a press conference and commence le Festival. I'm not an expert in San Fran politics, but this just screams of a mayor trying to use the situation for political gain.

Stanley Tookie Williams Killed by California

"Williams, 51, died at 12:35 a.m. Officials at San Quentin State Prison seemed to have trouble injecting the lethal mixture into his muscular arm. As they struggled to find a vein, Williams looked up repeatedly and appeared frustrated, shaking his head at supporters and other witnesses."
. . .
"After he was declared dead, his supporters shouted in unison: 'The state of California just killed an innocent man,' as they walked out of the chamber."

Blind Faith

"There's no technology that can match a dog's smell, there's no machine that comes even close to the speed, accuracy and flexibility of a dog."
. . .
"The dogs are trained to detect dollars, no other currency," said instructor Sue Hunsaker, "and they are trained to find bulk, quantities of more than 500 bills. We don't want them to bother regular travelers."

PodCast

Cool! (I guess) My meager efforts to provide podcasting and videocasting have gotten me a "worth a listen" commendation.

Grandma's Dealing

Great, now I get to represent grandmothers selling some of their prescription in order to buy food.

Is a County Sheriff a State Official?

C&F poses the question and here's my totally off the cuff answer: it depends.

Sure, as far as federal law is concerned a county sheriff is a State official. As a practical matter, that just makes sense. The federal government deals with the State as a whole and the inner workings of the State are not its business (unless, of course, the State should want to do something as evil as mimic the Great Compromise in setting up two houses elected in different manners). Whether the constitution and laws of a State leave power in the hands of local municipalities and their officials or set up the governor as the person with almost all the power, the federal government should only care about the application of power by the State.

On the other hand, whether an official is a State actor within the State is entirely a question for that State. Should the State (or one of us 4 Commonwealths) choose to organize itself with a rudimentary State government and actually concentrate 95% of the political power at the county level with its own constitution, laws, and precedent declaring that officials are actually "county" officials then they're county officials as far as the State is concerned. Of course, this would be a State by State matter.

Mission Statement

Compare:

From Judging Crimes -

American law professors have long liked to say they teach their students "to think like a lawyer." Learning to think that way is a matter of internalizing certain assumptions. The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question. Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so. Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions rest.

From CrimLaw Explained -

This weblog's primary subject matter is criminal law. I do my best to avoid venturing into political subjects, personal life crises, and the various distracting things found scattered about the web. However, I think that about 10% of the time I get off point. Oh well . . .

This is my hobby. Almost always comments I make are gut level reactions to news articles based upon my knowledge and experiential biases. I rarely spend time researching the subject of a post so if you base any decision upon something I've written here you should have your head examined.

Yeesh! I think Joel might be taking this a little bit more seriously than I am.

Tookie

Turned down by the California Supreme Court.

And the Next A.G. Will Be . . .

We haven't even finished the Virginia Attorney General recount and someone's already sewing up the next election:

(Of course, he'll hire someone better than me to do his campaign posters)

Watch this video from his last campaign and tell me he wouldn't get your vote.

Around the Web

1) An elected judge v. an unelected supervisory commission - guess who wins.

2) The question in my mind is whether double jeopardy is a waivable right or whether it is a burden on the prosecution (and thus not something the defendant can waive).

3) MADD gets away with a blatant attempt to influence juries.

4) In case you hadn't heard, the government lost its big "terrorist" case.

5) DANG! What kind of engine is Toyota putting in its cars? 770 miles per hour over the speed limit.

6) Tired of your average, run-of-the-mill taser abuse stories? Well, here's one I've never seen before: an officer tasered his partner because she wouldn't pull over and let him buy a coke.

Tookie

[A] lawyer for Williams urged the court to issue a stay of execution on the grounds that Williams should have been allowed to argue at his 1981 trial that someone else killed one of his four alleged victims. The defense also noted state lawmakers are expected to consider a moratorium on the death penalty next month.

The justices didn't immediately rule. They earlier denied defense attorney Verna Wafald's request to reopen the case because of allegations that shoddy forensics linked a weapon used in three of the 1979 murders to a shotgun registered to Williams.

Williams has also appealed to Gov. Arnold Schwarzenegger for clemency, and the governor said last week that he was agonizing over the case.

Tookie

"[R]ioting concerns lead me to wonder whether Professors Cass Sunstein and Adrian Vermeule might now believe that California Governor Arnold Schwarzenegger is morally required to grant clemency in order to save the lives that could be lost in riots if he fails to grant clemency."

Sentencing Law and Policy: Might Sunstein and Vermeule say clemency for Tookie Williams is now morally required?

Tookie

When dealing with the gang mentality- the rough and tumble thugs forget one very important fact. When you choose the path of evil, when you take the road that leads to gangs and guns… sooner or later, someone is going to get killed.

The Unknown Lawstudent: Kill Tookie...

Sometimes It's Painful to Oppose the Death Penalty

Being opposed to the death penalty for rational reasons can be painful.

The right question to ask is not whether capital punishment is an appropriate - or a moral - response to murders. It is whether the government should be in the business of executing people convicted of murder knowing to a certainty that some of them are innocent.

That certainty has been established by DNA tests showing that many death row inmates did not commit the crimes for which they were convicted. Case closed.

The painful part of this position is that we who oppose capital punishment on these grounds have to breathe the same air as the celebrities, political panderers and other hankie-twisters who materialize every time a "Tookie" runs out of options and faces a far more humane death than that which he delivered to others.

By Kathleen Parker

Here's a Defense That Won't Fly

I shot the nun in self defense.

Ken Lammers - A Lush am I

My business cell phone has a voicmail wherein I say something to the effect of "If I'm not answering the phone I'm in court, at a jail visiting a client, in a meeting, or it's after 8:00 p.m. . . ." I get back to my car this afternoon and there is a message from a secretary of one of the Commonwealth attorneys' offices trying to get my potential court dates for the next term of circuit court. However, she starts her message by pointing out that I didn't state the most important reason I might not be answering the phone - "because you're too drunk."

I have no idea where people get these strange ideas about me.

At a Glance...

I just finished my first law school “Final Exam” (Torts). I feel like I just gave birth. To an attorney. Next semester, I’ll have my first CrimLaw class. Anyway, here are some CrimLaw headlines from around the country.

More Judges Gone Wild
A North Carolina judge who was censured twice for her behavior and facing a third complaint was relieved of duty by the chief justice of the state Supreme Court. The judge has been accused of berating and belittling lawyers, mocking a witness and other questionable behavior.

Man Sentenced in Judge Murder Plot
A Kentucky man was sentenced to 20 years in prison on each of two counts of attempted murder. The man was convicted of plotting a year ago to murder Judge Bruce Petrie at the County Courthouse and his former wife.

‘Tis the Season…
A 69 year old Salvation Army bell ringer in Florida wasn't going to let someone run off with his red kettle. He ran after the thief, who was decades younger and about 100 pounds heavier, authorities said. The bell ringer grabbed back the 20-pound kettle before the thief sped off in a car.

Iowa Lawmakers Debate Reinstating the Death Penalty
Lawmakers in Iowa are renewing a push to reinstate the death penalty. The debate will come next month when lawmakers consider toughening the state's sex abuse laws. One state senator says the death penalty would be limited to those who kidnap, sexually assault and kill a child.

Court Watching

Well, I'm going to be in the Cincinnati & Northern Kentucky region for the next couple days. My evenings are going to be filled with family obligations but the days are going to be clear. So, I figured I'd go court watch and see how things run (since it's not baseball season, it's either courtwatching or matinee movies).

If anybody out there is from the region and could give me a heads up to anything interesting (jury?) I'd be grateful. If you're from Cincy it would be helpful if you could just tell me where I could observe criminal trials. From what I can tell by looking at the clerk's site there are two courthouses (maybe?) and the site didn't say what was docketed where.

email me at - lammersk ~at- yahoo -dot~ com

Back in Kentucky

It's always interesting to see what's making news in other places when I'm traveling. The Lexington Herald-Leader has an appropriate sense of what's important in the world - the over-the-fold stories of the last two days have both been dominated by UK basketball. Yesterday was about the attempt to get Randolph "the NCAA will never figure out I have an agent if I don't sign a written contract" Morris back on the team. And today the big story is

TUBBY SMITH'S DEATH STARE

Anyway, once I got past the important stuff, I tripped across a few criminal law stories which I thought ya'll might be interested in (in the next few posts).

Mental Illness, Murder, and Jail

A women tries to kill herself and her husband. She only succeeds in killing him. Then she spends a decade in a mental health facility because she has extreme mental health issues and is not competent to go to trial.

The mental health institution declares that it is going to release. The prosecution gets the indictment back in place. The question now becomes whether her mental condition will worsen in jail. The prosecutor claims not to know whether it will but filed a motion asking for a quick mental evaluation "it would be unjust to the victim and to the family to allow the Defendant "to decompensate in jail to avoid being prosecuted for the crimes of murder and arson."

How Was the BTK Killer Caught?

He started sending things to the police to remind them of his murders. Then he sent them a note asking if they could trace something he sent to them on a computer disk. They sent a coded message (via a newspaper personal ad) saying they couldn't. Guess what? They lied.

Shooting Not True Billed

A Kentucky grand jury declined to indict a gun dealer who shot someone who disagreed with the U.S.'s Iraq policy.

Lexington-Fayette Commonwealth Attorney

As long time readers know, I find the Lexington prosecutor's site amusing. It's kind of garish and in your face - clearly a departure from the vast majority of prosecutor pages, which are usually pretty innocuous. Still, I haven't linked to it lately because a while back I had come to the conclusion that it had stopped being updated. However, being back in Lexington I was inspired to take a look.

And, what do you know, there's new content. Enjoy.

From the "don't leave written evidence of your subornation of perjury" department:

"The Tennessee Bureau of Investigation is now investigating a Tri-Cities attorney for perjury, after he is accused of advising one of his clients to lie under oath" in a DUI case.

How will they prove the case? How 'bout this email from the lawyer to his client:

"they won't have anyone there to testify how much you had to drink. You won't be charged with perjury. I've never seen them charge anyone with perjury, and everybody lies in criminal cases, including the cops. If you want to tell the truth, then we'll just plead guilty and you can get your jail time over with."

Ouch.

Moments in the Life of a Criminal Defense Attorney

1) Prosecutorial Thinking:

I'm watching jury selection and the prosecutor has just struck the only Black man on the jury. Defense makes a Batson motion. The prosecutor's reason for the strike?

Well, Your Honor, I don't know Mr. McGillicutty personally, but the name's fairly unique and I've prosecuted a number of McGillicuttys out of the Vistaville area and that's where he's from. He may have formed a prior opinion of me.

[note: I don't really think he should be disallowed this reason for a peremptory strike; I just thought it was an interesting insight into that dark labyrinth which is a prosecutor's mind. :-) ]

2) All You Can Do is Bite Your Tongue

In the same trial as above, the Defense has subpoenaed a number of professional witnesses (doctors and nurse/record keepers). It's a sex offense case and some of the things the prosecution is trying to use to prove the offense are pre-existing serious medical conditions which had long before the alleged event sent the complaining witness to the hospital. During the prosecution's case in chief the prosecution's (lay) witness admits to the point they were there to prove. When the jury breaks for lunch the Defense tries to do the right thing and asks the judge to release them. The following conversation takes place:

Defense: Your Honor, at this time I'd ask you to release Drs. Smith and Jones and Nurse Green.

Judge: Why?

Defense: Because the prosecutor's witness admitted the point I had them here to prove.

Judge: Did you know the prosecutor's witness was going to admit the fact?

Defense: No, Sir.

Judge: Well, did you ask the prosecutor if his witness was going to admit the fact?

Defense: No, Sir.

Judge: Mr. Moel, just subpoenaed and kept three professionals stuck in a courthouse for more than half a day and you didn't even need them. You've basically just wasted their entire day. You should have asked the prosecutor if his witness was going to admit the point. The next time you'd better make sure that you're going to need them.

This is one of those moments when, as a defense attorney, you just have to bite your tongue. Yes, you know that you shouldn't reveal your defense strategy to the prosecutor. Yes, you know that if the prosecutor's witness had testified differently the judge would have never given you a continuance to get the witnesses you needed ("If you needed them you should have subpoenaed them, Mr. Moel"). Yes, you know that even if the prosecutor stipulated the fact it's not the same as having witnesses prove it (especially after a prosecution witness has denied it). Still, you're in the middle of a trial and pointing out these fairly obvious truths to the judge isn't going to make the judge any happier with you (and by extension your client). So, you stand there and take it and the next trial do the exact same thing you did in this one in order to defend your client as best you can.

3) Police Computing

So, I'm sitting in the courtroom waiting for a case to be called and chatting with the police officer next to me. I comment on the spiffy new computers I've seen them using in their cars (we can't afford $400 video cameras to record what actually happens in stops but our tax dollars can be spent on impact resistant computers for every car - $$$). He admits they're pretty cool and it's great how they let him check records without even having to call dispatch. However, they're also a pain. Why? Because they keep track of the car's speed and location. All of the sudden the higher ups are all over the guys on the street because they are speeding too often. And, Lord help them if they sit in one place too long without having a "proper" reason for doing so. All of which sounded fine to me until he explained several techniques used (ie. pacing or driving up behind a car to observe if it's the reported DUI and then speeding past it to the car a mile ahead to check it out) which get counted as non-necessary speeding. I guess everyone has to deal with some sort of silliness at work (and, yes, I am sure that officers in other jurisdictions would be a little upset at losing the not-needing-to-obey-the-speed-limit benefit of being an officer, but all our officers are fine upstanding, outstanding examples of law enforcement perfection and would never even dream of taking advantage in their position in such a manner).

More Moore

Rick, whose letter I talked about in this week's LexCast, follows up with a further inquiry:

An avenue to explore with the facts in Moore might be a due process violation. I am loathe to argue substantive due process, but this strikes me, arguably, as a PROCEDURAL due process claim: if Virginia wishes to authorize warrantless arrests for misdemeanors, they may, without offending the federal constitution. But since Virginia explicitly prohibits such arrests, the Commonwealth creates a procedural due process right which is enforceable under the federal constitution.

Probably wasn't argued below, so even if the idea has legs, it's likely waived now anyway. But what do you think, theoretically?

It's an interesting thought but I haven't the time to explore it at the moment so I'll leave it to ya'll to comment upon (while I'm spending the day driving to Kentucky).

Luttig, The Destroyer

Yes, the 4th Circuit is probably the most government friendly jurisdiction of which our government could hope and dream.

HOWEVER, that doesn't necessarily mean that the Fightin' Fourth is all that thrilled when it feels like it's been manipulated. No less a personage than Judge J. Michael Luttig seems to be calling the government to the carpet for manipulating the system to get favorable precedent and then acting in a manner meant to preserve that precedent by mooting the case before it went to the Supreme Court (where the case was very much in doubt).

Man, I'd love to have been a fly on the wall when the DOJ learned that it had pushed so far that it might even have gotten beyond Judge Luttig's limits.

Prior Pertinent Posts: Vacatur

Link via C&F

Sue the Feds Over Refusal to Give Financial Aid

I've been involved in a number of pretty desperate attempts to try and keep a drug conviction off some kid's record so he can continue to attend school. However, I must admit that I view this as a long shot. I'm pretty sure the constitutional crimlaw issues will be judged not to apply because financial aid is a civil rather than a criminal issue. As for the equal protection claims, acting prejudicially against those who have been convicted has a long history (denial of voting rights, denial of right to have a firearm, denial of right to hold office, etc.) and I doubt this will give the courts much pause.

I understand the basic idea behind the federal legislation denying aid to those who have been convicted of drug use. If the young adult understands that he will lose the money he needs to go to college he has an incentive not to use drugs. Of course, that assumes people know about this provision and that a drunk college freshman will remember it at 2 a.m. Honestly, neither is too likely.

Still, one should be responsible for one's actions. However, the truly galling part about this is, as I understand it, this is a lifetime ban. That's just downright stupid. A two year ban would make the point and perhaps not totally throw a kid who got caught doing something dumb entirely off track. Maybe the ban should go as long as 5 years; this would give someone who has changed his life a chance to come back later and improve it. Anyone who's seen much of life knows that a lot of the things which are done 18-22 are not things which those who have grown a little have a desire to do at 30. A lifetime ban just tells someone that no matter how much he improves himself he will still be denied the opportunity to go to college (unless he somehow increases his financial lot without college, at which point this law become irrelevant anyway)..