29 June 2005

With all the speculation which is presently going on about a possible new federal supreme court Justice or two, I thought I'd point ya'll back to a prior post wherein I expressed my (unlikely) hopes for what qualifications a new Justice might have.

Writing an Appeal for Someone Else's Trial

Right now I'm in the middle of writing three appeals. Two are due Saturday (almost done on those two) and the other is due later in July.

The one due in July is interesting because it's someone else's trial. I've never before written an appeal for a case someone else tried. It's more frustrating than doing one of my own because I didn't start out with the knowledge I'd have from one of my own trials. Yesterday I spent about three hours watching (and rewatching) the two hour tape of the interrogation because the biggest issue is whether Client asserted his right to remain silent. I have to do all the research that I would have normally done before the trial. That's not to say that the lawyer who tried the case didn't do a good job. He preserved the error which I'll argue should have led to suppression of the confession; once the judge allowed the confession in defense counsel was fighting a rear-guard action and he still managed to get several charges dismissed by the jury. Still, defendant got 20+ years on the remaining charge and decided he wanted an appeal.

It's interesting having another lawyer's jury trial file in my hands. It's set up much differently then I set up for a jury (or difficult bench trial). He has typed notes and a folder for each witness or individual piece of evidence. There's only one case printed out and included in the file. It's interesting seeing how somebody else preps for trial.

My jury trial file usually has a number of cases with notes down their margins to remind me what they stand for and I organize my folders by possible arguments with cases for each argument, requisite jury instructions, motions in limine, etc; I write what the folder is about on the outside in Arabic (well, okay, usually phonetically spelled English) so the no one can tell what they are about when I spread them out on my table. I have one legal pad for the case. The first five or so pages are for jury selection, the next few are for opening statement, the next however many are needed are for witness questions and answers, then there are pages for the closing argument, this is followed by pages devoted to the jury sentencing hearing. So far I've never had to get to the second pad I always have with me but it's been close a couple times.

Well, I gotta go back to court and then dive back into writing. See ya'll later.

28 June 2005

New Laws

Ladies and Gentlemen, it's almost that time of year again when Virginia gets new laws ( 01 July). Here are the change which caught my eye (plagiarized from VSB's Criminal Law News which plagiarized them from The Acts of the General Assembly, 2005).

Criminal Law

Murder of someone under 18 requires the convicted to register as a sex offender and be put on the web page. Va. Code secs. 9.1 - 902, 905, 907, & 913

A minor may not waive his right to counsel for an offense which would be a felony if he were an adult unless (1) he has consulted with an attorney, (2) the court determines the waiver to be free and voluntary, (3) the waiver is in writing, (4) the court finds that both the child and parent consent, & (5) the court finds the waiver is in the best interest of the child. Va. Code sec. 19.2-266. [Note: This effectively means that all minors will be required to have counsel in felony level cases. I think this is a good idea for two reasons. First, nothing goes away at 18 anymore. It may be an adjudication but it'll show up on the record as a felony conviction. Second, I've seen a couple parents who did not want their child represented because the Commonwealth of Virginia was going to charge the parent $112 to cover my court appointed fee.]

It is now a felony (up to 5 years) if an employer pays wages with a bad check Va. Code sec. 18.2-182. [Note: Gotta admit I kinda thought that was already a felony.]

Distribution of a Schedule III drug is now a felony (up to ten years) and so is distribution of a Schedule IV drug (up to 5 years). Va. Code sec. 18.2-248. [Note; Now when one of my clients gives a friend some pills for her tooth ache Street Drugs will be able to get him for a felony rather than a misdemeanor]

Hunting While Intoxicated went from a class 2 misdemeanor (up to 30 days) to a class 1 (up to 12 months). Va. Code sec. 18.2-285. [Note: Spoilsports. Can I still fish drunk?]

Law enforcement can take steps to block someone who is otherwise eligible from getting a concealed carry permit. Va. Code sec. 18.2-308.

It is a felony (up to 5 years) to provide a prisoner with a cell phone and a felony for a prisoner to have a cell phone (up to 5 years). Va. Code sec. 18.2-431.1.

Criminal Procedure

Prosecutors are "conservators of the peace." Va. Code sec. 19.2-12.

If the defendant's sanity is at issue and the defense gets its own expert to evaluate the defendant the expert is required to write a report and the defense is required to give the report to the prosecution. Va. Code sec. 19.2-169.5.

Speedy trial and double jeopardy defenses must be raised at the latest 7 days before trial, in writing, or they are forfeit. As well, the prosecution has the right to appeal any dismissal on these grounds. Va. Code secs. 19.2 - 266.2 & 398.

Counsel for accused can give a copy of the presentence report to the defendant. Va. Code sec. 19.2-299.

Detention and Diversion programs (lock in drug programs) shall not be imposed in addition to an active sentence at a state correctional facility. Va. Code secs. 19.2-316.2 & 316.3. [Note: I'm not sure if this effects the clients whom the judge only sends to jail for 6 months and then to one of the programs. I'd advise reading the new statutes once they've been published]

If an appeal is not timely filed or it is dismissed because of improper form or procedure the defense has 6 months from the time of dismissal to reinstate the appeal. Va. Code secs. 8.01-654, 19.2 - 321.1 & 321.2. [Note: These should be called the Washington Post statutes. WP has been hammering Virginia over how many appeals are dismissed due to non-substantive errors.]

Traffic Laws

If a license is suspended because of reckless driving the judge can give the defendant a restricted license. Va. Code sec. 46.2-393. [Note: Thank goodness. Do you know how tired I am of explaining that "Yes Uncle Bob got a restricted license for his DUI but that doesn't mean you can get one for your reckless driving"? For some reason that never satisfied my clients.]

You cannot watch motion pictures or video displays while driving. Va. Code sec. 46.2-1077. [Note: But, Army of Darkness is just soooo much more interesting then that semi in front of me . . .]

27 June 2005

I want to thank a fellow Virginia blogger, Red Stater, for the kind words and the link.
Yep, I'm going to stay employed.

Dissecting the Jackson Prosecution

PDD dissects the failed Jackson prosecution.

Virginia Court Appointed Attorneys

Discussing pay for indigent defense.

For the record: as it currently stands, court appointed attorneys are paid $90 per hour with caps as follows:
misdemeanors & preliminary hearings - $112
$148 per appeal of misdemeanors to circuit court
$395 for felonies which max out under 20 years
$1094 for felonies which max over 20 years
Judge's Discretion for capital cases
That's not the amounts which the statute states because the General Assembly has not funded it. As of 01 July 2005 it is supposed to go up a couple dollars.

For further discussion read some of the posts in the right column under Indigent Defense.
A death row case wherein the judge and the prosecutor were dating?
The problem with improper information in a presentence report is that by the time you get in front of the judge and move to strike it it's already been read and had its effect.
Britain: Doing away with the jury.
Under the Major Crime Act that will come into effect later this week, suspects will be questioned in special hearings about alleged criminal dealings.

Failure to answer questions can result in a jail sentence.
via CrimProf

DUI Eye Test

Good Information here, here, and here.

Silly, Funny, & Strange

1) I have not been promised nothing for entering this plea.

2) Abductee saved by lions.

3) DC police chief's car stolen.

4) Precedent based upon a footnote about what wasn't noted in a dissent.
Backlash against Gonzales' urging of mandatory minimum guidelines.
Just because you got your rights back doesn't mean you got your rights back in Virginia (and remember not knowing isn't a defense in Virginia).

Prosecutors in Virginia

How one Virginia prosecutor handles the courtroom and another handles his free time.

Maybe I should see about getting a news crew out there to follow Tom around for a while and see if anything interesting shows up. I'd have to be careful though and make sure the reporter had some common sense. Once 01 July rolls by Tom has the power to arrest. Imagine some bubble-head asking him how he could do something as evil as persecute the poor and helpless souls who are doomed by society to a life of despair because they used a drug without harming anyone else. He'd probably arrest her on the spot on probable cause for accessory after the fact of drug use. At the very least he'd go get the drug dog and run it past her car.

Hi Tom :-)
How can you possibly begrudge someone calling his kidnappers a name?

I need that guy on one of my juries.
The continuing battle to keep a judge from hearing criminal cases.

22 June 2005

If you steal a lottery ticket which cost $.50 and redeemable for $2,500 you cannot be found guilty (in Virginia) of grand larceny (at least if you are charged with common law larceny).

Will Medical Marijuana Become Irrelevant?

As I have stated previously, I am somewhat suspicious of the pro-medical marijuana arguments. If you've been reading this blawg for a while you'll remember a couple years ago when I asked if marijuana's effects are as good as advertised why hasn't anyone come up with a pill containing the effective ingredients? After all, we know it can effect people through ingestion (brownies).

Well, it looks as though my proffered solution was backward. Rather than try to put the ingredients of marijuana in a pill scientists are going to stop the breakdown of "stress-induced analgesia" which appears to be a fancy way of saying "the brain's own marijuana-like compounds." In other words, it won't induce from an external source, it will stop the body from reducing its own compounds which marijuana mimics.

Does Interdiction Accomplish Anything?

When Pat Moynihan was an adviser to President Nixon, he persuaded the French government to break the "French connection" by which heroin came to America. Moynihan explained his achievement to Labor Secretary George Shultz, who said laconically: "Good."

Moynihan: "No, really, this is a big event."

Shultz, unfazed: "Good."

Moynihan: "I suppose that you think that so long as there is a demand for drugs, there will continue to be a supply."

Shultz: "You know, there's hope for you yet."
Ever wonder why your friend (or maybe you) can't quit smoking?
New research coming out of the University of Pennsylvania has found that nicotine triggers the same brain pathways that give opiate drugs, like heroin, their addictively rewarding properties.
That explains a lot.
It has become a prosecutorial trend over the last few years to charge people who provide others with drugs with homicide. However, I am curious as to why this one was in federal court.
A man knocks at your door. Is it the Pizza you ordered or the drugs you phoned for? And if they deliver after 30 mintues do you get it for free?
British serious drug arrests are down but confiscated weight is up.
Interesting, Instructions on to how to defeat store electronic security. Now if there weren't those pesky security guys watching through those camera bubbles and jumping you as you try to leave . . .

via Transparent Grid.

Time to Pony Up the Money

For anyone out there who might be a Centre alumnus / alumna it's time to get the checkbook out.

Here's the cool site they set up to remind us and tug at our heart strings.

If anybody else out there wants to give money to an outstanding college, I'm sure they won't turn your money away.

21 June 2005

Pretending to be a lawyer (and the same guy from a local point of view).

And yet another pretender.
In a 14 hour interrogation, he confessed but he didn't do it. 7 months later DNA cleared him.

Disparity in Sentencing

The fact that there is a disparity in sentencing since the guidelines became non-mandatory should probably give you a clue as to how disproportionate the guidelines were Mr. Attorney General.

Most Common Shoplifted Items

My experience doesn't track with the list Tyler Cowen links to here. The most common type of shoplifting I see in court is theft of meat, clothes, and electronics. Of course, I only see the things that stores care to protect.
Big time memory loss right before a trial wherein you are supposed to testify against corrupt police officers.

Tale of the Trial

A murder trial in retrospect.
Will people convict executives because they act like every other executive and get a big paycheck?
The Klan is effectively dead (and unlamented) but we're still seeking justice.

Declaring Reasonable Suspicion

A Legislature writes into a statute that potential status is grounds for reasonable suspicion.
Y'know, this guy shouldn't do a lick of time. Any sensible person should know there isn't enough Scottish whiskey in the world to reach the value of $300 million. Now, if we were talking about Kentucky Bourbon . . .
A defense attorney should know better than to try to hire someone to kill her husband.
Wow. 26+ seconds per hearing. unbelievable.
Do prosecutors police prosecutors?
I understand the basic impulse even if I cannot agree with following it.

Just so Tom can see it in print: If found guilty, I have no problem with sentencing him to life in prison without possibility of parole.

20 June 2005

Even a prosecutor doesn't get to take his suspension from the Bar when it is convenient for him.

With thanks to Bill
Welcome to the Wonderful World of Virginia Law

I just wanted to take a second to welcome Brian to the study of Virginia law.

One of my professors described Virginia law by telling this story: He had moved to Virginia from New York1 several years earlier and was at some meeting which was discussing what changes should be made to Virginia's trust and estates laws. There was a motion to do away with some sort of tenancy which no one used and - as far as anyone could tell - no one had ever used. The motion looked like it was going to carry the day, but then a gentleman stood up and said, "I don't believe that something which Mr. Jefferson wrote into our laws should be removed." The tenancy remained part of the law by an overwhelming majority vote.

I'm actually shocked that they are merging chancery and law. What's next - a statutory criminal code?

1 Sometimes I wonder if there are any people left in New York / New Jersey when I look around and realize how many have moved down here. It causes inflated real estate prices but it also means that some good restaurants open up.


I sat around working on multiple appeals over the weekend. It's time consuming and I have started to do it at the local law school library so there's no one to distract me. The advantage of working at the University of Richmond law library is that I'm not an alumnus so no one knows me. I can work in peace and have all the major publications at my fingertips. However, it is humorous sometimes. As I walked out of the building on Saturday there were two students standing there and they both eyed me warily before one turned to the other and asked suspiciously "Who's that?" (because, as we all know, law schools worldwide suffer from industrial espionage). And later that same day I didn't know the law library closed at 5 p.m. so I'm sitting there in a corner happily typing away and suddenly the lights go out. I suspect that if I hadn't gotten up and left immediately - before the kid at the front desk could leave with his girlfriend - I would probably have been locked in; so much for reshelving the books.

I used to go back and spend the weekend at W&L when I had to write a bunch of appeals. It was a great way to get away to the mountains. As well, the law library was open 24 hours and I could spend all sorts of time getting the appeals written; I remember this being highly touted when I was there: "Anyone can come in and use our law library at any time." However, the last time I tried that W&L had placed student-only pass keys on the doors. I couldn't get in except during regular hours which made it not worthwhile to take the 2 hour trip. So now I think the students at UR Law are going to be seeing me more often.

In the end, I got one nearly finished. The only thing which bothered me was that I had a case printed out in my trial folder which had two pertinent paragraphs. There wasn't much more to it; in the end I found better citations and didn't even use the case. However, on the front of the case I had written in BIG letters "GfG." I have no idea what "GfG" means but apparently three months ago I thought it was pretty important because I scrawled it twice at the top of the first page. The decision involved collateral estoppel in a criminal case. For the life of me, I cannot remember what "GfG" means and it's been bugging me ever since I looked at the file Saturday morning. And it's still bugging me . . .

17 June 2005

"Paid Attorney" = "Good Attorney"?

In a comment to the post below about real / paid attorneys:
I will note that I know of at least one bad PD. He is the father of a very close friend. Since he is still practicing, I'll only note that this is in PA.

He regularly pleas people out because it is easy, and laughs about it at the dinner table. He's talked about a nod-and-wink agreement with the DA, and mentioned how that makes everything easier.

I think he's a bad actor; not indicative of PDs, at all. But I feel it must be said that they're out there.
Of course they are. I've seen a few myself. There is a percentage of bad actors in every single job or profession in the criminal justice system. However, to be fair, paid lawyers can be just as bad. Just because someone goes out and hires a "paid" lawyer doesn't mean he's getting a better lawyer; it just means he's getting a lawyer for whom he paid more money. Sadly, there is no way for a defendant to know if he's hiring the best attorney in town or the best advertised attorney. I've seen a number of people trade down when they hired a private lawyer over their court appointed / PD; I've also seen trades up. But what can you do? You cannot walk up to someone, box his ears and say, "You idjut, you just paid a firm $5k and they sent a kid who passed the bar two months ago to represent you in an attempted murder case. The PD you fired has been doing this for twenty years and won his last 6 juries." Likewise, you cannot walk up and say, "IMO, the attorney the judge just appointed to you sucks. You need to go hire someone."

16 June 2005

If you are a high-powered executive who is cheating and stealing you should probably keep your wife happy.
Underwear Gang?
So, if your dog is summoned to court are you required to bring him?
If a law professor won't go to court to fight a bogus parking ticket, who will?
What happens when an Alaska PD goes to Georgia?
"I am convinced that Macon, Georgia, is situated just a couple of floors above hell."
What? I knew Georgia was a little behind the curve but they don't have air conditioning?
No, "community caretaker" responsibilities do not give you the right to go into a house. At least not in this case's circumstances.
But the prosecutors are allowed to bribe their own witnesses . . .
Does Race Still Rear Its Ugly Head in the Courtroom?

Staunch Moderate talks about race in juries and Mike raises a case wherein the question might be whether the victim was picked on because of race or retardation (or both).
Y'know, I get upset at the low pay we get for court appointed work in Virginia and the very slight increase we are due to get in July (rumored to be $2 per misdemeanor and $4 per felony) but I don't think I'd ever do this.
An intern at a PD office comments on the "real lawyer" comments he's heard.

Actually, I've heard more often the "paid lawyer" comment. Because, as you all know, I'm independently wealthy and just do defense work as a way to pass the time (trips to Monaco have just become soooo boring).

Link via Skelly.
Kenya is getting rid of its death penalty.
Defense Attorneys Pay Attention

It violates Blakely to declare a defendant who is a minor eligible to be tried as an adult in any case wherein the maximum punishement of the felony is longer than the defendant would spend in juvenile detention until he's 21.

The logic is valid. I wonder how the appeals courts will quash it.

15 June 2005

PDD Comments on the Jackson Trial

I told you so . . .

A Eureka Moment

Ya'll will remember the jury trial I had a while back over which I got just a wee bit upset.

A couple days ago we had the sentencing hearing. I'm scrambling to find some way to keep my client from getting the mandatory 5 year sentence for being in possession of a firearm after having been adjudicated a juvenile delinquent for an act which would have been a violent felony if he'd been convicted as an adult. The judge had already rejected my argument at trial that because my client was adjudicated rather than convicted, and the two mandatory punishments both apply to those "convicted", he should only be subject to a class 6 felony and not the mandatory punishments.

At sentencing I intend to attempt to get the mandatory punishment down from the 5 years the jury was told it would have to impose to the lower mandatory of 2 years (with a possible max of 5). To that end I'm developing a Blakely argument. I spend a good amount of time figuring out how Blakely can be used in this case, with this statute, under Virginia's sentencing scheme. The only problem is that I'm worried the argument is too complex. Having done this for a while if my argument is x(y-3) / 4(z-2) = 2, and I think the prosecutor's is going to be 1 + 1 = 0 +/-1, I worry that the prosecutor will win because his argument is somewhere in the ballpark and it's easier to follow (I'll assume, without admitting, that prosecutors have the same worry if their arguments get complex). I keep working the argument over, trying to make it simpler and making sure all the steps in the argument are as understandable as possible.

Then comes the day of sentencing. I have purposefully set the morning aside for prep (sentencing is at 1:00). I'm sitting in my office going over the paperwork and cases, making sure I have all my ducks in a row. But something's bothering me and I can't quite put my finger on it. I go back and look through all the paperwork. I look through some case law. I read through the appropriate portion of Professor Groot's Criminal Offenses and Defenses in Virginia. I go back and read the felon in possession of a firearm statute (yet again). Nothing is overtly wrong.

And then it dawns on me: everything, and I mean every last bit of paperwork, which was done in this case by someone other than a lawyer or judge is treating this as though the requisite felony was not a violent one. Most interestingly, the probation officer's sentencing guidelines state that my client should only get the mandatory 2 years instead of the mandatory 5 years. I had thought that was due to errors in the paperwork from the prosecutor's office which were relied upon by the probation officer (seen that happen many a time); however, this probation officer isn't one I've seen make too many errors of that type.

Although Client's final disposition only noted an A&B, the original charge was assault and battery of a police officer, 18.2-57(C). The Virginia "exile" statute, 18.2-308.2, doesn't list those felonies which are violent felonies; it refers readers to 17.1-805, which is a list of violent felonies in the section of the code which enables the sentencing guidelines. While I'm sure that assault and battery of a police officer is a violent felony, I flip over to that section to check.

OMG. It's not there! The crimes which are violent felonies are listed in numerical order and run up to 18.2-55 (battery of a juvenile detention employee with intent to injure) and then skip to 18.2-57.2 (felony domestic battery). Assault and battery against a police officer isn't a violent felony. I read the statue over again a couple of times, carefully. I go back and read the exile statute yet another time to make sure there's no other definition of violent felony. Eureka! Here's my simple, direct argument as to why the 5 year penalty should not be the one imposed (1 + 1 = 2).

A couple hours later it's time for my client's sentencing hearing. When I get to court my client's mother, father, grandfather, aunt, sister, and 5 friends of the family are present. It's an amazing amount of support for a court appointed client (most of whom don't even have any family support). No pressure here. Actually, they're quite decent people who ask intelligent questions and understand when I tell them what is going on.

I step up to the podium first and explain to the judge what I've found and ask for a mistrial because the jurors were incorrectly instructed that they had to sentence my client to 5 years. The judge and I go back and forth a couple of times as to whether there would need to be a mistrial in toto or just as to the sentencing portion of the trial. I pushed for an entirely new trial but I was losing that argument with the judge, who is pretty obviously contemplating a new jury for just the sentencing part of the bifurcated trial.

The prosecutor gets up and asks the judge for some time to look at the statute. The judge recesses the hearing and the prosecutor goes off to research the point. When he comes back he cedes the point in this case; he doesn't do so generally because he believes a catch-all phrase at the end of the list of violent felonies could apply. Then I get up and tell the judge that if the choice is between empaneling a new jury just to impose a sentence or having the judge correct the error in the sentencing hearing we would rather withdraw the motion for mistrial. The judge states that he was only going to allow a new jury sentencing and allows the motion to be withdrawn.

Then we do the sentencing hearing. I introduce a letter from Client's boss relating that Client is a valued employee and point out to the judge all of Client's friends and relatives in attendance. Then the judge asks my client if he has anything to say before he is sentenced. I tell the judge that my client's not going to make any statement "on advice of counsel" because the court of appeals considers the trial "in toto." What I'm concerned about is that even actually innocent clients will make a general apology (for this trouble, to the court, etc.) and the court of appeals may view that as an admission. Of course, there's also the possibility that a strong willed client could tell the judge off and denounce a conviction for a firearm the government affirmed his right to purchase; I don't want that to happen either.

With that, the judge reduces the sentence to 2 years. I try to get Client an appeal bond, pointing out that Client has a job, strong family support (he's not going anywhere), and how long it will take for an appeal. The judge won't agree to one but tells me we can come back if the appellate court grants a hearing on the matter (at the very least 4 months down the road). I go in lockup and talk with Client about all this. Then I walk out of the courtroom and there's everyone who came for him standing there, waiting. I spend the next half hour answering all sorts of questions. They are, understandably, upset that Client did not get an appeal bond. However, they aren't ranting at me they, are asking intelligent questions and intelligent follow ups. I'm impressed. After I've answered every question they can think of about the trial, appeals process, and who is above the judge (answer: the courts appellate and the General Assembly) they leave, unhappy with the results but satisfied that I have the situation in hand.

I go down to the clerk's office to get some information so that I can file an appeal. The clerk who's helping me looks at me and says, "No, you're not going to file another appeal on Judge Smith are you?" She grouses, in a friendly way, that I am keeping her busy because she is the clerk who does all the appellate paperwork for Judge Smith. I confirm that another appeal is coming her way and we both laugh a little over it. When I got back to my office I checked my appeals and all the current cases on appeal from this circuit (4 in various stages) are from Judge Smith; that's quite a feat considering there are 4 other trial judges in the circuit. In fact, he has 4 of my 6 current appeals (the two others are from Judge Jones in another circuit). I might have to rectify that; I wouldn't want the other judges to feel neglected.

14 June 2005

Insulin-Induced Hypoglycemia = Involuntary Intoxication

Yasmeen (who's now off interning for the government) sent me a link to this case:

The Colorado Supreme Court has ruled 4-3 that involuntary intoxication from induced low blood-sugar content is a defense. Apparently, that portion of the decision was actually 7-0. The disagreement seems to have risen because he voluntarily injected himself with an overdose of insulin because he was anticipating eating ice cream and cake at his daughter's birthday.

Here's the opinion in toto. I haven't had the opportunity to read it yet.

For me there are three possible questions:

(1) Was the man acting in a manner which consistent with normal practice in the use of insulin?

(2) Did a doctor tell him he could use the medicine in the manner he did?

(3) Is there any reason to expect this kind of reaction in a normal individual?

Somebody read the case and tell me how far off base I am. For some strange reason, I plan to read the 6-8 cases that the Virginia Supreme Court handed down at the end of last week and don't think I'll be reading a Colorado case tonight.
If you are reported as doing pushups in the middle of the street and yelling at cars, the police will come.

If the police officer finds you laying in the middle of the street with only a wet pair of shorts, he will ask who you are.

If you tell officer you are God, get on your hands and kness and scream obscenities, you will get capstunned and sent to the mental hospital.

Around the Web

1) Breyer wants to get rid of peremptory challenges. Once upon a time I would have agreed. However, then I tried a couple juries and experienced the phenomenon of jurors who answer all the questions correctly and stare hatefully at your client the entire time. How else am I to get that juror off the jury?

2) Should jury acquittals be required to be unanimous?

3) Mothers never believe their sons could have done anything. However, when your son's attorney calls and tells you to tell him to stop trying to kill that same attorney maybe a call to Junior is in order.

4) In the depths of a jury murder trial.

5) 144 people swept up in a cock fight.

6) Smuggling fish in a skirt.

7) Now I know why so many of my motions don't succeed, I haven't been using the correct "Hello" format.
I was looking for a cheap desk and ran across these on the web yesterday.

This one is very traditional and impressive
, but

This one is cool.

Not that I can afford either at the moment but someday, someday . . .
I say again, law professors should not try to run over attorneys.

More Michael Jackson

Here's a page where Yahoo! has a number of links.

Cudos to the prosecutor who had the class to refuse to bad mouth the jury.

13 June 2005

Just in case you've had your head buried in the sand for the last couple hours - Michael Jackson, not guilty on all counts.


If a lawfirm puts it's name in gigantic letters on a sky scraper (or the nearest Richmond equivalent) that's a written ad, sent to the entire city of Richmond, and meant to draw in customers, isn't it?

Under Virginia's Rule of Professional Conduct 7.2(d) I think that requires an equally large "ADVERTISING MATERIAL" sign and instructions as to how people can keep from getting this message again in the future (which might be a little tricky).

Around the Web

1) Are the vast disparities between federal and State sentences going to become the reason for downward departures?

2) If the usual punishment for something is less than a year active jail time should it be a felony? Here's how the Texas Legislature answered that question.

3) The seven guys the President pardoned.

4) I've actually heard judges say that they don't put any stock in nystagmus tests because it's too involved for anyone to get it right.

5) Explaining the naming of a judge on the blog. And more here.

6) If you prosecute cases based upon a statute you know to have been found unconstitutional are you liable?

7) What do you know? A rehab paradigm is cheaper than an incarceration paradigm. This, of course, is in the short term but I suspect that in the long term sending people to rehab rather than the typical few months in jail may still be cheaper.

8) CrimProf reporting false crimes.

9) Why would the government do something as stupid as what appears to be overt witness tampering?

10) Asking a judge to recuse himself because your office filed an unsuccessful complaint against him.

11) Is community based prevention a better way to handle things than incarceration?

12) An interesting explanation of what Beyond a Reasonable Doubt should mean.

13) Nazi war crimes in 2005?

14) Smile, you're on candid camera.

15) Hopefully if you save someone's life it won't be because you want to bank it for later. Still, some day that good act might come in handy.

09 June 2005


A judge refuses to dismiss a criminal case because the defendant has filed a civil case against the officer who broke her arm in three places and caused nerve damage.
I never know what to make of stories like this. They feel like shuffling things at the top without addressing problems at the bottom.

Context. I need context. Was the Indigent Defense Assistance Board refusing to fund defenses? Because that's usually the major problem and adding more members (no matter where they come from) doesn't seem to address it.

via Indefensible

Off Point (But Cool)

Gotta admit that ComCon is absolutely correct in his assesment.

Just imagine how long that took.
Can you get that DUI thrown out because the government can't disclose the way the breath test machine works?

Law Professors Should Not Hit Lawyers With Their Cars

Personally, I think this is a very important public service announcement and perhaps one of the most important trials of the century.
Readers per Month

I never thought I was one of the big dog bloggers (like How Appealing). However, over time I've gotten to the point where I though that this blog was getting a respectable number of readers.

Then comes the information that an antitrust blog is getting 50,000 readers a month. In perspective, my blog had that number of hits over about the last six months and the biggest month of all I had about 10,500 readers. My readership has been on a slow but steady rise over time so that I currently average probably somewhere between 400-450 readers per day on a weekday and about 200 per day on weekends. Again not How Appealing numbers (it got 6,000 readers yesterday), but I kinda thought it would be out front of an antitrust blog. Yeeesh.

via Crime & Federalism

08 June 2005


A fellow W&L law graduate, John McChesney, argued before the Virginia Supreme court in the case where the judge and prosecutor are in conflict over who should be prosecutor while the elected prosecutor is in Iraq.

And there's even a video which shows part of his argument (3d down, with the little camera).

And to think, I knew him when he was just a regular Joe . . .
Montana has done something to revamp it's public defender system.

I can't really tell everything that has been changed. It looks like they've added high level bureaucracy and more indigents who are required to be covered at the lower end. Have they added more slots for the basic courtroom level PD? Have they increased the pay so that people can afford to be PD's?

Anyone out there from Montana who wants to enlighten us?

Blawg Not an Ad

Look, if anyone thinks that most legal blogs are advertisements they have not bothered to read many. Yes, I know that some are meant to work that way but I suspect that few of them are worth the effort put into them in order to get any business out of them.

For the record, CrimLaw is not meant to solicit any business. I get about one email a week soliciting free legal advice; I tell them they need to go sit down with a local attorney who actually knows the law in Guam. Thinking hard about it, I've had two people contact me about retaining me because of the blawg. One never came in for his interview and I referred the other to local attorneys. It's a wonder that I've gotten that many since I am probably too honest here about about clients to draw people to me. I've had emails fussing at me both for being too defendant sympathetic and not defendant sympathetic enough.

I know I've said this before, but I say again: This started as a hobby. H - O - B - B - Y. It's grown into a way to exchange ideas with fellow professionals and interested lay persons. It's about ideas, not money.

Around the Web

1) SCOTUS has everybody under the sun commenting on the federal supreme court's decision making the federal government able to illegalize the sale of marijuana even if it has no real connection to interstate commerce (yeah, I remember the grain case - thought it was wrong too). Tom comments here and Mike here.

2) A PD's office doing away with guilty pleas at arraignment. We don't have this issue in Virginia because the first court appearance (usually within 48 hours) is only to make certain the defendant knows his charge and to determine what he's going to do about an attorney. I really don't understand why States (and the feds) have pleas at that early stage.

3) Yep, if your client wants you to file that useless appeal you have to file it. I know he pled guilty. I know he signed away his right to appeal. I know that the judge's sentence was entirely legal. I also know (as does every criminal defense attorney) that you file that appeal.

4) The right to abortion apparently does not protect the person who ends the existence of the unborn, even if the mother asks him to do it (I guess there must be a doctor exemption).

5) Insanity: Doing the same thing over and over [in ever failing attempts to stop repeat DUI drivers] and expecting a different result.

6) There's nothing illegal about running away from your family so long as you don't lie to the police.

7) Remember, in Virginia you cannot sing religious songs too loudly.

8) Imagine being the guy who failed the bar by 3 points and then getting a letter telling you that they guesstimated your score on one section of the exam (because your answer was stolen).

9) Don't give your college professor your social security number unless you want him to ruin your credit.

10) You kill someone. You head for the border (probably a smart move). You bring along the bloody chain saw (not so smart). You cross at a border post (Darwin award time).

11) It's harder to prove a white collar crime than your basic shoplifting case.

12) Committing crimes bad. Committing crimes with mandatory minimum sentences particularly bad.

13) Is it kidnapping if it's consensual?

14) Want fame? Hire a prostitute in Oakland.

15) More comment from an appellate judge: "Judges are a lot like dogs - usually friendly and mostly attentive - but beware when they travel in packs. "

16) Banishment's back!

17) And it's always interesting to look at the most over the top prosecution website. However, if memory serves me, it seems to have toned down a little.

07 June 2005

Don't cook meth in your pants.
A Moment in Court

Client is charged with driving outside the allowances on his restricted driver's license. He's living with his cousin and was driving from work (restrictions allow driving to and from work).

Client comes up and pleads not guilty. Deputy testifies that he pulled my client over and Client told him he was driving to his cousin's house. Then it's my client's turn to testify.
Me: Where were you coming from that day?

Client: Work.

Me: And where were you going?

Client: Well, first I went to the bank and then I drove over to my cousin's house.

[Okay, that's a problem. The bank is not a sanctioned locale on the restricted license. Still, maybe the judge will forgive it if I show it was part of the trip home.]

Me: You live with your cousin?

Client: I do now, but at the time I was living with my parents.

Me: No further questions.

Judge (apparently surprised I stopped so quickly): What?

Prosecutor (trying very hard not to fall down laughing): He just admitted he was driving outside his restriction.
No, the fact that the magistrate put that you went into pretrial services on 11/15/04 and you actually went in on 01/15/05 does not mean the judge has to dismiss the capias for your pretrial violation on 03/27/05.

06 June 2005

DUI's and rationality.

via ComCon

A Moment in Court

As part of his 14 felonies and one misdemeanor, my client is charged with two counts of assault and battery on the same person - one a felony, one a misdemeanor. The prosecutor calls the complaining witness.

Prosecutor: "On 05 January, you were attacked by Mr. Smith twice?"

Witness (looking confused): "Ummm, no . . ."

Prosecutor: "Mr. Smith attacked you twice on the 5th, didn't he?"

Me: "Objection, your honor he's leading the witness . . ."

Witness: "Oh, yeah, he attacked me twice."

At this point we go through all the evidence of the felony A&B and then:

Prosecutor: "And Mr. Smith attacked you another time that night?"

Witness: "Ummm, no."

Prosecutor: "Didn't Mr. Smith throw urine on you earlier that night?"

Me: OBJECTION! He's leading the witness!

Judge: "How's that a leading question? He can ask him yes or no questions."

Me: "That's a highly suggestive question meant to get a particular answer."

Judge: "I don't think it's leading. Over ruled" [to the witness] "Try to remember better so the prosecutor doesn't have to lead you."

05 June 2005


The Houston forensic lab sent drug tests back confirming that the items seized were the drugs the police thought they were (no testing).

So, I guess these folks actually could have gotten convicted.

Wow. I don't think that our lab is doing this. Considering that it is taking our lab 4-6 months to get basic analyses back to the court, I think they're probably doing the work.
More Comment on the Tasing

The British Constable who originally posted about the tasing has an answer to an email he received panning his analysis of the police actions.
Recalling my posts, International Notice and Lack of Class - Stealing a Post, apparently I have now "taken back the flowers" (Nachtrag 1).

I'm just going to assume that the colloquialism of deflowering means something different in German.
You'll note that I have added a favicon to the site. The only problem is that with the programs I have I cannot get the background on the favicon to be transparent. I know it can be done (Yahoo does it) but I'm not sure how. Anybody out there got the know how? Here's the original picture before it was converted:

Work from home and you too could be an unknowing contributor to a criminal enterprise.

via CrimProf
One of my clients did this too.

My client didn't admit to making drugs. He was trying to get a court appointed lawyer and when the judge asked him how he made a living he answered: "Well, I guess since I'm charged with bank robbery in three counties, I must be a bank robber."
Should Indigent Defense Go To the Lowest Bidder?

Over at Have Opinion, Will Travel, the question above is raised because the Brits seem about to put there indigent defense up for bids. This is not the way it works in Virginia but I have some recollection of reading that it already happens in some States. I have vague memories that Texas, Louisiana, and Missouri have this sort of system.

Anyone out there from a State which contracts out indigent defense? Feel free to enlighten us as to how it works.

04 June 2005

Centre Rules

My undergrad's football team beat a football team made up of Britain's stars.

"[T]he taser has been used as a general tool rather then a less lethal form of firearm"

Over at Confutatis Maledictis Tom points out a page with video of an officer tasing a woman he is arresting at a traffic stop. The woman is refusing to put her cell phone down and get out of the car so she can be arrested for driving on a suspended license. Tom thinks it's an acceptable use of the taser.

At the blog where Tom found the video, The Special Constable, a British officer opines that it was more violence than needed. His is the quote which headlines this post. He goes further to comment: "If there is going to be misuse, this is where it will be prevalent."

I spent some time watching the videos and listening to the commentary from a training officer who was interviewed about this incident. Here's basically what happened:

The officer tells belligerent lady to put the phone down and get out of the car. She refuses, the training officer describes this as passive resistance (I think correctly) but she takes no act against the officer. At this point I think the officer is within bounds when he escalates to get her out of the car. He places a hand on her and she pulls away. His backup then scoots around to the passenger side of the car; at the same time the primary officer draws his taser and points it at the driver. He tells her to get out of the car or he's going to tase her.

His backup goes around to the other side of the car. It's difficult to make out but he appears to open the door and lean into the car. Driver is on the phone telling her mother where she is. Primary officer repeats several times "Get out or I'm going to tase you." There is an abrupt end to the phone conversation and then the officer tases her. Talking to her afterward, the officer goes out of his way to say she swung at the secondary officer after he grabbed the phone. You cannot see this on the video. The driver tumbles out of the car onto the ground. When she doesn't roll over to get handcuffed (she is screaming and wailing hysterically) the primary officer tases her again. Then they both descend upon her and cuff her.

I think the primary officer went too far when he pulled the taser. It would have been more appropriate to grab her arm and snatch her out of that car. The interviewed training officer even stated that this would have been appropriate but explained that the reason this would be avoided was because the driver could be hurt while being pulled out (could hit her head, etc.). This is not very convincing as hitting someone with 50,000 volts is going to cause a body's muscles to spasm; after all, it made this woman fall out of her car. The training officer - almost sheepishly - also tacks on an explanation that physically removing her could get the officer injured; this, of course, is the only logical reason for the taser's use.

However, I think this officer is within the margin of error (at least in the first use). It's easy to look at this with 20/20 hindsight and realize this was an inappropriate to pull the taser in a case wherein there is no indication of a physical threat and the "crime" is driving suspended. The officer was faced with a belligerent driver who jerked away from him. He then draws the taser but doesn't fire; that's an over reaction. When the secondary officer grabbed the phone I'm sure she either went to strike him or (more likely) instinctively grabbed to hold onto the phone. At this point another officer was in potential danger and he was correct to use the taser.

My question is: What the heck did the secondary officer think he was doing? Going to the other side of the car where he can observe and react to the driver seems obviously correct. Opening the door makes sense because it gives him the option of using his taser or capstun as opposed to having only a pistol which could penetrate from the car's exterior. But then he gets into the car. This makes absolutely no sense. It takes him out of a backup, observation and support role and puts him into danger for no reason. He puts himself into the vehicle with her where all sorts of things could go wrong. And then he grabs her phone. Why? Is this in some way meant to defuse the situation or get her out of the car? I don't see how that could in any way be helpful. This guy seems to have really screwed up.

What started me thinking about this is the fact that the training officer totally avoided all of the secondary officer's actions and the reaction of the primary officer in firing the taser. Why avoid the obvious justification for using the taser? Another officer in danger is a more convincing argument than "she wouldn't get out of the car." And it's not something he could have missed in the tape. The primary officer seems to be intent on making sure that the tape has the information as to why he shot her; he says it to her when they're all standing in front of the camera and then keeps the tape running when he calls his sergeant and tells him the same story.

Yes, this lady was a royal pain in the @@@. Yes, the officer who fired the taser appears to have been correct at that moment (assuming she moved toward the secondary officer). But the situation appears to have been, as a whole, a massive screw up.

If there are any officers who read this blog, I invite you to comment. I'm a lawyer, not an officer. I don't know police procedure. I'd really be interested in any explanation of the second officer's actions.

02 June 2005

We Defend and Apprehend

Is the 6th Amendment a Negative Right?

Mr DA comments on this post (about court appointed counsel) that:
Consider the 2nd Amendment. What good is the right to keep and bear arms if I can't afford a gun?

Consider the 8th Amendment. What good is a right against excessive bail when I have no assets and ANY bail is excessive?

My point is that the rights we take for granted are essentially negative rights as against the government. "Congress shall make no law. . . " ". . . the right of the People. . . shall not be infringed." "The right of the People . . .shall not be violated. . ." "No State shall make or enforce any law. . ." "The right of Citizens . . .to vote shall not be denied or abridged. . ." and so on and so on.

And the only duty the 1st Amendment places on government is not to unreasonably regulate public speech or assembly. It's still a negative duty.
And Tom McKenna adds:
Good point, Mr. DA... esp. reference the 2d amendment. The purpose of that amendment being the maintenance of a well regulated militia, that "right" to keep and bear arms really ought to be subsidized by the government. After all, as Ken so eloquently states, there is no right if you can't afford to exercise it. And just as a trial is "sponsored" by the government, imposing a burden on it to subsidize the right to counsel, so also the arming of a well regulated militia is an undeniable government function.
First, let me correct a misapprehension of Tom's. I did not state that "there is no right if you can't afford to exercise it." I said that a right, without a remedy for the denial or trampling of that right, is not really a right.

I find myself mostly in agreement with Mr. DA's point. Most of the rights in the Constitution are negative rights; they proscribe actions by the government. The 1st Amendment states "shall make no law"; the 2d states "shall not be infringed"; 3d - "No Soldier shall"; 4th - "shall not be violated"; 5th - "No person shall be held - nor shall any person be subject - nor shall be compelled"; and the 7th -"shall not be required." These are all limitations as to what the government can do.

However, the 6th Amendment is different. It sets out a positive rights for the citizen; the rights in it are prescribed: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."

Of course, the Amendment does not state who the prescription is meant to command into action. However, looking at the rest of the Amendment can shed light on this. The government provides the speedy and public trial. The government provides the jury. The government informs the citizen of the nature and cause of the accusation. The government must confront the citizen with witnesses. The government provides the compulsory witness process. I doubt anyone would argue these are not things the government is required to provide. Why would the last sub-section of this Amendment be different? Applying noscitur a sociis would require that the last sub-phrase be subject to the same requirements as the others.

Again, I realize this was probably not what the founders meant to write into the Constitution. I also realize that reading it as it is written is a wider interpretation than given to it by the courts. By plain reading and obvious interpretation the government should provide an attorney for every citizen who wants one - not just the indigent. Of course, that's not going to happen any time soon.

BTW: If anybody out there reading this is a serious ConLaw scholar, drop me a line and let me know if my reasoning is anywhere near the Supreme Court's actual reasoning. I'm curious, but I don't have the time to research.
"They took the position at the trial that she was not a dangerous person. She wasn't a danger then, why are they saying she is now?" Adler said.

"Unless, of course, they lied to the court in order to get a conviction, which raises all kinds of issues and questions about the fairness of his trial."

01 June 2005

I just watched the darndest thing. There was a 14 year old boy in circuit court pro se on a possession of marijuana charge (on appeal from juvenile court). Everybody in the courtroom was handling the case with kid gloves (although the judge got a little aggravated when the boy asked him if he could talk to his mother about whether he should testify). In the end the kid got 40 hours community service.

My Continuing Criminal Endeavors

You will all remember that I was served a summons a while back for not getting the county property tax sticker put on my car. So, I go, pay the car tax (which our politicians told us would be gone years ago), and put the new sticker on my Jeep. I even call the officer who served the summons and left him a voice mail telling him it is now squared away. In theory, having done all of this I am released from my obligation to go to court. In theory.

The court date rolls around on a day I’m supposed to drive to a juvenile detention facility where a couple of my clients have been transferred (a 3 hour drive each way). Out of an abundance of caution (or paranoia) I decide that the prudent thing to do before I’m 3 hours down the road would be to check to see if I’m still on the docket; I’ve had too many clients faced with failure to appear charges who have sworn they thought everything was squared away and they didn’t have to come to court. So, I swing by the courthouse to check before I head over the horizon. Yep, you guessed it, there’s my name on the 1 p.m. docket.

Great. Now I’ve got to figure out how to be in two places a couple hundred miles away from each other at the same time; this is the last date I have available to travel out to the detention center before the trial date and I’ve made the appointment. Hmmm . . . What to do? I could skip court and let the judge find me guilty in my absence. Somehow, I don’t thing that’s the optimal solution. I don’t so much mind the fine and costs but I just don’t want a judge before whom I sometimes appear to think I blew off his court. I go and talk to the prosecutor who’s going to be in that courtroom and, after he has a little bit of a laugh he tells me not to worry about it, he’ll just move dismiss it as complied with law (like any other complied case) without me having to be in court. Then I head out and drive 3 hours to Culpeper, spend a hour visiting my clients, and then drive back 3 hours. By the time it’s all done it’s already pretty late and I head home.

The next day when I check my messages there’s a message from the prosecutor telling me to call him. I jump online and check to see what happened. My court date was carried over until the next week. What!?! The info online doesn’t say why. I go back to the courthouse for some other cases and then go talk to the prosecutor. I ask him if the reason it was carried to a new date was because the judge was upset that I wasn’t there. No, it was because it was me and the judge didn’t want any appearance of impropriety; he rescheduled the case to be in front of a substitute judge.1

So the case carries over to the next week. I get to court late from other obligations and they can’t find the paperwork. My case is the last one called (there were only two left when I got to court). The substitute judge before whom I am standing is someone before whom I’ve tried more cases than the judge who recused himself (rumor has it that this sub owns 90% of the county and sits per noblis oblige). The prosecutor explains what’s going on and the clerk tells him they can’t find the paperwork. He waves his hand and looks at us like this is all silly, says “That’s going to be dismissed”, and sends me on my way.

Later that day I check with the clerk and the paperwork still hasn’t shown up. I joke with the clerk that Judge Smith is going to frame it and present it to me. The next morning I check again and it’s still not found (yes, I’m paranoid). Then, around the time of an 11 a.m. bond hearing I’m in court for the clerk finds me and tells me they found the papers and they bring them in and get the judge to sign them. And thus ends the Great Ken Criminal Caper of 2005.

If it ever happens again I think I’ll just pay the dang fine.

1 This is my current “bad luck” judge. If I have something to do in his courtroom and something can go wrong - it will. For the longest time there was a judge in the cicuit court who had this distinction. My car broke down on at least 3 days I was supposed to be in his court, every difficult client went before his court, and if I made a mistake in scheduling it was always his court. A while back this seemed to stop and I thought the curse was lifted; now I realize it was just shifting to a different judge.
I Hate Being My Own Private Investigator

I spent 3+ hours yesterday sitting in a courtroom waiting just to observe a case which effects the case of one of my clients. It was in a courthouse I don't usually go to and the judge there was slooooooooww. I had hoped to be there for only 30 minutes or so but I didn't get out until 6 p.m. (and then had to drive a hour back). Meanwhile, paperwork sits in my office undone, briefs sit unwritten, and client calls go unanswered.

In the end the guy who's case I came to see didn't show. An afternoon wasted.

The Right to Counsel

Rising from some interesting indigent defense questions raised in Mr. District Attorney a discussion began which then transferred to a Public Defender and then to Confutatis Maledictis - here and here; Gideon and Tom have been going back and forth as to whether the 6th and 14th Amendments require States to provide counsel for an indigent defendant. Gideon has been arguing caselaw but Tom is unconvinced because he doesn't see the requirement that the State provide counsel actually written into the constitution.

Here's the Amendment in toto:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Let me first say that I think Tom is right. There is absolutely no requirement that the State provide a lawyer for the defendant. Tom states what is probably the correct "original intent" of this section: "the concern of the 6th Amendment was to depart from the common law by ensuring that counsel would be permitted in all criminal cases." That said, the founders didn't write that into the Constitution. It doesn't say "an accused may have counsel in any criminal prosecution", it sets out a "right" to counsel.

Each American is guaranteed "the right . . . to have the Assistance of Counsel for his defence." There are no qualifiers such as "if he can afford it" (yeah, I know the founders would have said it fancier but I'm a plain spoken sort). So now we're faced with the conundrum - how do we deal with this plain requirement that the defendant has a right to an attorney for his "defence?"

There is no remedy section of the Constitution and the courts have had to fashion those over the years. The court could have tried to force all State Bars to require all members to serve pro bono publico in criminal defense cases; it could have ordered that all who cannot afford a lawyer have their cases dismissed; it could have required the government to provide counsel for indigents. The first two of these are pretty obviously unworkable; the third is a workable and just (always a bonus) solution. Still, it is a court created solution; maybe Tom has a better one?