I will never leave a fallen comrade.
from The Soldier's Creed
Thief as AttorneySorry about that Clemens.
Transatlantic theft of mental property and a thief disguised as a lawyer: rechtsanwalt.typepad.com/blog.
Posts from the German American Law journal:: US right to German appear there illegally in full text. And CrimLaw expresses thanks, delighted and unsuspecting of the link from distant Europe.
The awkward thief does not even go to the trouble to hide Blogger control instructions incompatible with his blog. Beside GALJ posts there are various plagiarisms from other gBlawgs. As concerns the theft of the American texts, the Blogger - if that's what you'd call him - probably makes himself culpable. He clearly goes beyond fair use.
If a defendant looses a capital case who's facing either death or very long time, who does he blame? The defense lawyer or the prosecutor?Well, yesterday a client of mine left the courtroom screaming at me1 and the deputy wouldn't let me go back to the lockup area to talk to him until they had him locked behind a door and I could speak to him through a screen. Once I got back to talk with him I found out all sorts of interesting things about my parentage, my competency, and my greed2; He never once said anything about the prosecutor or judge. It was all my fault.
RULE 3.6 Trial PublicityA website or news article (including a prosecution press release or conference) would violate this rule as the point would be to take part in a media which is widespread and accessible to a great number of people. Posting on a pre-existent blog might not have the same effect - they just don't have the same reach. I doubt many jurors will have read CrimLaw before coming to court.
(a) A lawyer participating in or associated with the investigation or the prosecution or the defense of a criminal matter that may be tried by a jury shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication that the lawyer knows, or should know, will have a substantial likelihood of interfering with the fairness of the trial by a jury.
(b) A lawyer shall exercise reasonable care to prevent employees and associates from making an extrajudicial statement that the lawyer would be prohibited from making under this Rule.
Is a computer printout of [a] blog post, identifying "my sister's former boyfriend" as being present in a house shortly before the author was killed, admissible at trial?The prosecutor asserted that it wouldn't be allowed in because it didn't fit under the hearsay exceptions because it wasn't a dying declaration, excited utterance, and didn't indicate any relevant state of mind.
(1) The statement or declaration made must relate to the main event and must explain, elucidate, or in some way characterize that event;I think the blog entry falls fairly comfortably within those parameters; or, I should say that I would expect most judges to find that it did if the prosecutor presented the evidence under this exception.
(2) it must be a natural declaration or statement growing out of the event, and not a mere narrative of a past, completed affair;
(3) it must be a statement of fact, and not the mere expression of an opinion;
(4) it must be a spontaneous or instinctive utterance of thought, dominated or evoked by the transaction or occurrence itself, and not the product of premeditation, reflection, or design;
(5) while the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation, and
(6) it must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made. Chappell v. White, 182 Va. 625, 633-34, 29 5. E. 2d 858, 861-62 (1944).
Good Day,I've developed this one recently in reaction to certain issues which have popped up. If anyone has any suggestions I'm open to them.
Per your instruction I have begun the process of your appeal. As you know, the appeals process is not fast. Things which should happen and their schedule:
1) The appeal must be noted within 30 days of the entry of the sentencing order in the circuit court.
2) The transcripts of the trial must arrive within 60 days of the entry of the final sentencing order in the circuit court.
3) The circuit court must send a copy of the trial record to the court of appeals within 3 months of the final sentencing order in the circuit court.
4) The petition of appeal shall be filed within 40 days of the court of appeals getting a copy of the file from the circuit court.
i) This is the written argument as to why the court should agree to listen to your appeal. The court of appeals does not have to grant you an appeal.
5) The court of appeals will take as long as it decides it needs to make the decision as to whether to hear your case. This can take months.
6) If the court of appeal decides to hear your case a date will be set and the attorney will go make the argument. Generally, the attorney will go alone. If you are not in jail you are welcome to come observe but you will have to sit in the gallery.
7) If the court of appeals refuses to hear your argument or rejects it after an argument at the court it is possible to appeal the case to the supreme court of Virginia.
i) You will be notified when the court of appeals has reached its decision.
ii) If you want to appeal to the Supreme Court of Virginia notify my office as soon as possible after receiving the decision of the court of appeals.
8) The notice of appeal to the Virginia supreme court shall be filed within 30 days of the final judgement of the court of appeals.
9) The petition for appeal to the supreme court of Virginia must be filed within 30 days of the final judgement of the court of appeals.
i) This is the written argument as to why the court should agree to listen to your appeal. The Virginia supreme court does not have to grant you an appeal.
10) If the supreme court decides to hear your case a date will be set and the attorney will go make the argument. Generally, the attorney will go alone. If you are not in jail you are welcome to come observe but you will have to sit in the gallery.
11) If the supreme court refuses to hear your argument or rejects it after an argument at the court there is no further right of appeal in Virginia.
12) Virginia will not pay for an appeal to the Supreme Court of the United States. The chance that the Supreme Court of the United States would listen to a case is very, very small and it would be very expensive to hire someone to do it. However, if you have the money (or can convince someone like the ACLU, NAACP, or NRA to pay for it) you should hire an attorney as quickly as possible to start a petition as soon as possible.
13) You have the ability to file a writ of habeas corpus for a year after the last decision of the Virginia court of appeals or supreme court. I cannot represent you in this.
1) An appeal is basically a legal argument which says that a judge has done something that is legally or constitutionally wrong in the courtroom.
2) This is not a new trial
i) No new evidence will be allowed.
ii) There will be no jury.
iii) The attorney will argue in front of judges that the trial judge did something legally incorrect.
3) Arguing that the judge got the facts wrong is very hard. The judges on the appeals courts usually defer to the facts which the judge found.
4) Arguing that a sentence was wrong is even harder. The judge can sentence a defendant to as much jail/prison time as he feels is correct as long as it is less than the maximum sentence. He is not required to follow the sentencing guidelines.
5) I cannot argue that I messed up as an attorney. I have to argue the errors made by the judge; it would be a conflict of interest for me to argue that I made mistakes. Attorney mistakes are something you must raise in a habeas proceeding. At that point you can tell the court of any errors you believe I made and how they messed up your case.
I will proceed with your appeal and forward you petitions and orders as they arrive at my office.
Ken Lammers Jr., Esq.
§ 18.2-312. Illegal use of tear gas, phosgene and other gases.I was amazed that the 3d charge actually got through the preliminary hearing. I was certain that when I pointed out to the judge that the Halt! bottle introduced into evidence described its contents as "liquid" the charge would get dismissed. However, the general district court judge certified the case. In circuit court I moved for an expert and got told to talk to someone at the State forensic lab and see if he could help first (and actually, he was a great deal of help). Then came the trial. Here's the motion to strike the evidence at the close of the prosecution's case in chief:
If any person maliciously release or cause or procure to be released in any private home, place of business or place of public gathering any tear gas, mustard gas, phosgene gas or other noxious or nauseating gases or mixtures of chemicals designed to, and capable of, producing vile or injurious or nauseating odors or gases, and bodily injury results to any person from such gas or odor, the offending person shall be guilty of a Class 3 felony.
If such act be done unlawfully, but not maliciously, the offending person shall be guilty of a Class 6 felony.
Nothing herein contained shall prevent the use of tear gas or other gases by police officers or other peace officers in the proper performance of their duties, or by any person or persons in the protection of person, life or property.
Errors Assigned: The judge erred in ruling that the drug dog barking as a car drove by at 65 mph provided reasonable articulable suspicion for the stop. (Transcript page 20)However, without the Error section the court would bounce the petition in a second even though it didn't affect any substantive matter.
Question: Did the judge err when he ruled that the drug dog barking as a car drove by at 65 mph provided reasonable articulable suspicion for a stop? (Transcript page 20)
§ 19.2-321.1. Motion in the Court of Appeals for delayed appeal in criminal cases.That is an amazing statute and it will go into operation 01 July 2005. It fixed the conflict of interest problem inherent in habeas petitions by taking it out of the habeas section and making it an appellate motion. It allows things to be fixed which are not in the control of the lawyer (I cannot make a court reporter type the transcript faster - all I can do is call and yell). It gives an amazingly fair window within which to fix the problem. It doesn't take away the client's habeas rights.
A. Filing and content of motion. -- When, due to the error, neglect, or fault of counsel representing the appellant, or of the court reporter, or of the circuit court or an officer or employee thereof, an appeal in a criminal case has either (i) never been initiated; or (ii) been dismissed for failure to adhere to proper form, procedures, or time limits in the perfection of the appeal as required by law or by the Rules of the Supreme Court; then a motion for leave to pursue a delayed appeal may be filed in the Court of Appeals within six months after the appeal has been dismissed or the circuit court judgment sought to be appealed has become final, whichever is later. Such motion shall identify the circuit court and the style, date, and circuit court record number of the judgment sought to be appealed, and, if one was assigned in a prior attempt to appeal the judgment, shall give the Court of Appeals record number in that proceeding, and shall set forth the specific facts establishing the said error, neglect, or fault. If the error, neglect, or fault is alleged to be that of an attorney representing the appellant, the motion shall be accompanied by the affidavit of the attorney whose error, neglect, or fault is alleged, verifying the specific facts alleged in the motion, and certifying that the appellant is not personally responsible, in whole or in part, for the error, neglect, or fault causing loss of the original opportunity for appeal.
B. Service, response, and disposition. -- Such motion shall be served on the attorney for the Commonwealth or, if a petition for appeal was granted in the original attempt to appeal, upon the Attorney General, in accordance with the Rules of the Supreme Court. If the Commonwealth disputes the facts alleged in the motion, or contends that those facts do not entitle the appellant to a delayed appeal under this section, the motion shall be denied without prejudice to the appellant's right to seek a delayed appeal by means of petition for a writ of habeas corpus. Otherwise, the Court of Appeals shall, if the motion meets the requirements of this section, grant appellant leave to initiate or re-initiate pursuit of the appeal.
C. Time limits when motion granted. -- If the motion is granted, all computations of time under the Rules of the Supreme Court shall run from the date of the order of the Court of Appeals granting the motion, or if the appellant has been determined to be indigent, from the date of the order by the circuit court appointing counsel to represent the appellant in the delayed appeal, whichever is later.
D. Applicability. -- The provisions of this section shall not apply to cases in which the appellant is responsible, in whole or in part, for the error, neglect, or fault causing loss of the original opportunity for appeal, nor shall it apply in cases where the claim of error, neglect, or fault has already been alleged and rejected in a prior judicial proceeding.
(There's a similar statute for the Virginia Supreme Court)
Seriously, has anyone ever been successfully prosecuted under this statute? As opposed to just charging the ringleaders with murder?Personally, I've never heard of anyone getting prosecuted as a member of a mob for this specific act. However, there are a number of statutes which deal with this subject:
§ 18.2-38: Any collection of people, assembled for the purpose and with the intention of committing an assault or a battery upon any person or an act of violence as defined in § 19.2-297.1, without authority of law, shall be deemed a "mob."I believe that if you talked to a historian he'd probably tell you that these laws were anit-Klan laws and variations on the theme are probably found in different Southern States. I suspect that they were probably ignored for the most part for years but I'm sure some people were prosecuted under them.
§ 18.2-39: Any act of violence by a mob upon the body of any person, which shall result in the death of such person, shall constitute a "lynching."
§ 18.2-40. Lynching deemed murder: Every lynching shall be deemed murder. Any and every person composing a mob and any and every accessory thereto, by which any person is lynched, shall be guilty of murder, and upon conviction, shall be punished as provided in Article 1 (§ 18.2-30 et seq.) of this chapter.
§ 18.2-43: The attorney for the Commonwealth of any county or city in which a lynching may occur shall promptly and diligently endeavor to ascertain the identity of the persons who in any way participated therein, or who composed the mob which perpetrated the same, and have them apprehended, and shall promptly proceed with the prosecution of any and all persons so found; and to the end that such offenders may not escape proper punishment, such attorney for the Commonwealth may be assisted in all such endeavors and prosecutions by the Attorney General, or other prosecutors designated by the Governor for the purpose; and the Governor may have full authority to spend such sums as he may deem necessary for the purpose of seeking out the identity, and apprehending the members of such mob.
§ 18.2-44: No provisions of this article shall be construed to relieve any member of a mob from civil liability to the personal representative of the victim of a lynching.
§ 18.2-45: Every person suffering death from a mob attempting to lynch another person shall come within the provisions of this article, and his personal representative shall be entitled to relief in the same manner and to the same extent as if he were the originally intended victim of such mob.
§ 18.2-46: Venue for all actions and prosecutions under any of the provisions of this article shall be in the county or city wherein a lynching or other violation of any of the provisions of this article may have occurred, or of the county or city from which the person lynched or assaulted may have been taken as aforesaid.
"During the hearing, the Commonwealth's Attorney admitted he knew, at the time the conviction records were proffered during the trial, that three of the purported convictions actually were only one. He testified, however, that he advised defense counsel of the discrepancy during the trial, and that he assumed the error would be explained to the jury by defense counsel during closing argument.This got the defendant a new sentencing hearing after the Commonwealth waited until the law changed so that the defendant would be exposed to the death penalty (previously error of this magnitude meant commutation to life).
. . .
[W]e recognize there was the factual dispute concerning whether the prosecutor notified defense counsel, during the trial, about the inaccurate records. Nevertheless, the flawed documents were proffered by the Commonwealth's Attorney, who had the duty to assure, as far as reasonably possible, that the records were accurate. If their correctness was in doubt, or if the prosecutor knew they were inaccurate in any particular, the documents should not have been offered in evidence." Evans v. Commonwealth, 323 S.E.2d 114, 228 Va. 468 (1984)
17.HYPOTHETICAL: Your client fails to appear for a court hearing that you had discussed with him the previous day. During that meeting your client mentioned to you that he was concerned about the possibility of incarceration following today's hearing and was thinking of not appearing. You have not heard from him today. When the case is called the judge turns to you and asks: "Counsel, why isn't your client here?"I can't believe I'm going to have to answer questions like this again. I took ethics in law school. I actually took the Ethics of Criminal Law at W&L:
What is your reply? Justify your reply based on your understanding of a criminal defense attorney's duties toward the client, the court, and opposing counsel, as well as any interest you may have in preserving your reputation for integrity before the court.
18. HYPOTHETICAL: FOR USE ONLY BY ATTORNEYS APPLYING TO REPRESENT JUVENILES
Your client is thirteen years old. She is awaiting a disposition hearing following adjudication for distribution of cocaine. You know based on your investigation and interviews with your client that her mother is a drug addict and her father is incarcerated for a drug-related felony. She has told you that she has used cocaine a number of times, but believes that she does not have "a problem." You believe that she has a serious drug addiction and that without help she will no doubt recidivate, or worse, wind up dead. You talk to the Court Services Unit worker who has not uncovered your client's family history and thinks that because it is a first offense, probation and return home is likely. You know of an excellent residential drug treatment center for teens and through some informal inquiries you learn that it is likely that the treatment center would accept your client.
You discuss the option with your client and she tells you that she only wants to go home and that she wants you to argue for that disposition. If you argue to the judge for your client to go home on probation, and there is no opposition from the CSU worker, there is a good chance that the judge will do it. After considering all of the facts, you believe that the best interests of your thirteen year old client would be served by her going to the residential treatment program. Do you reveal any of your client's family background to the CSU worker? What do you argue to the court? Justify your reply based on your understanding of a juvenile defense attorney's duties toward the client, the court, and opposing counsel, and the CSU worker, as well as any interest you may have in preserving your reputation for integrity before the court.
Ethical Problems in the Practice of Criminal Law Seminar. A criminal law problem-based examination of the formal and informal system by which the conduct of attorneys is regulated, including codes of professional responsibility, the role of the federal constitution, and personal standards and values. Includes ethical choices exercised by prosecutors and defense counsel in areas of client relations, exchange of information, pretrial litigation, discretionary decision making; particular emphasis on assessing the duty to provide zealous advocacy and avoid conflicts of interest. Two hours.I already took the final exam; it was my understanding that all that was behind me. And now I've got years of real world experience which can only screw up the answer which you're supposed to give to questions like that. Not that the answer is too hard - you just turn to your friendly local prosecutor, explain the situation, and ask her for advice. Right?
Since the report on the reporting the stolen-car stolen case doesn't mention any eyewitness ID of the alleged perpetrator, I'm wondering if this is a case of a false confession obtained by police tricks and duress. That is, I can't see any actual carjacker being stupid enough to call the police in this case, but I can easily see someone stupid enough to pay a stranger $1700 for a car with no paperwork, and then call the cops when it comes up missing.Sadly, I don't have a hard time believing the final confession. I've had any number of clients do something similar. He probably realized he was in trouble because his wallet was in the car; maybe he even saw the car getting towed (or was told by a couple buddies). So he came up with his story and went to the police to try and sell it to them. He knew they would be looking for him soon and thought going to them with a claim that he bought the car and it had just been "stolen" would make him look honest.
And I can see cops pressuring the guy to solve their carjacking case by pleading to a reduced charge rather than facing pretty nearly the full sentence for receiving stolen goods. (I assume the car was worth far more than $1700, because why bother carjacking a beater? And someone who gets that kind of good deal either knows the item was hot, or is at least guilty of being too stupid to live unsupervised.)