Blogging Criminally For Over Ten Years
7/31/2005
Lex Radio 073105b
Click on the Logo to find the rss for the PodCast.
Click on the Title above it for a direct download.
HINT: Rather than downloading the entire post, go to Odeo (click the green box at the upper left corner of this blog). If you are so inclined I ask that you subscribe. However, even if you don't subscribe, you should listen to Lex Radio by clicking the play button under the picture. By doing this you will get streamed audio rather than having to wait for the entire mp3 file to download before you can listen to it.
Blog Posts Mentioned:
Sentencing Law & Policy
Public Defender Dude
Injustice Anywhere
Diary of a Criminal Solicitor
CBC News
Indefensible
DUI Blog
CrimProf 1, 2
SoCal Law Blog
Arbitrary & Capricious
7/31/2005
Lex Radio 073105
Click on the Logo to find the rss for the PodCast.
Click on the Title for a direct download.
Today's PodCast:
Item 1: Congress Approves Effective Heroin Treatment
Item 2: Dumb and Dumber Marijuana 1, 2 & 3
Item 3: Alcohol Anklet
Item 4: High Crime 1, 2, 3
Item 5: Ineffective Counsel Without Counsel
Item 6: Happy Slapping
Item 7: Not not guilty anymore 1, 2
[addendum] Well, I used FeedBurner to make the podcast feed (changing Atom into RSS). When I tested it with iTunes it didn't work. In fact, iTunes actually opened a pdf file when I clicked on it. I then downloaded iPodder. It downloaded the right file but when I tried to play it iTunes would come up as iPodder's default player. I went into iPodder's settings and reset it to send files to Winpows Media Player and it worked (the player would give me a generic error statement but when I clicked play anyway it did). Anyway, If anybody has any suggestions about fixing this I'm open to suggestion.
[addendum 2] Well, my podcast works fine over at Odeo. Not sure how it got there. Either the good folks at Odeo are really good at searching out new podcasts or someone out there was kind enough to submit it. Now I have to include this bit of code
My Odeo Channel (odeo/c15c2bd7828d11a6)
so that I can claim my own podcast channel.
7/29/2005
7/29/2005
Yelling Phone
The only problem was that while we were talking his friend was engaging in a running screaming match with somebody else. I couldn't hear half the stuff he said and I had to yell so he could hear me. Every once in a while there would be a lull in the screaming and Client would try to get his point across but the screaming always started back up before he could finish. Thankfully, a family member had called about a half hour earlier and told me what was going on so finally I just yelled out the answers over my cell phone and (during a final lull) he says that he gets it and goodbye.
7/27/2005
The question in Atwater was "whether the 4th Amendment forbids a warrantless arrest for a minor traffic offense, such as a misdemeanor seatbelt violation punishable only by a fine."
The court's answer: "We hold that it does not."
Now, CarPundit astutely points out that the rationale for this decision is not as broad as the holding. The rationale is that under the common law breach of peace misdemeanor arrests were allowed without warrants, as well as those arrests allowed under statutes passed by legislatures. Therefore, when Texas Code § 543.001 allows arrests for any violation of the Transportation Code it does not violate the Constitution.
I say again, the rationale is not as broad as the holding. Basically, this holds constitutional any arrest for any traffic offense and, through analogy, any other misdemeanor.
The court states that these are areas better left to States to legislate and cites statutes such as Va. Code §46.2—936 as proof that this is not a problem of constitutional magnitude. This section is, for lack of a better term, a catch and release statute. It requires that an officer to act in a specific manner:
Whenever any person is detained by or in the custody of an arresting officer, including an arrest on a warrant, for a violation of any provision of this title [Motor Vehicles] punishable as a misdemeanor, the arresting officer shall . . . take the name and address of such person and the license number of his motor vehicle and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice.The problem is that, at least in Virginia, this law is unenforceable. A blatant violation of this statute - such as bringing someone in for a weekend in jail for having tinted windows - has no remedy. Understand that without a remedy written into the statute no procedural law in Virginia really carries much weight short of the federal constitutional boundaries. There is no such thing as exclusion of evidence for violation of laws or rights under the Virginia Constitution (of course, this matters to me more than the 1983 action in Atwater). Along the lines of Whren, it is an excuse for allowing a shakedown. I've discussed this previously here.
But surely, an officer wouldn't violate the law. Yeah, right.1
The case on point in Virginia will be Moore v. Commonwealth. In Moore the officer made an illegal arrest leading to discovery of evidence of a more serious crime. The officer was required to issue a summons and release the defendant under Va. § 19.2-74(A)(1); instead, he expanded the detention into a full custodial arrest and performed a search subsequent to the arrest. The judge refused to throw the evidence out, explicitly citing Atwater.
A three judge panel overturned the conviction based upon Knowles v. Iowa, 525 U.S. 113 (1998)(citation is not enough to allow a search). Yasmeen discussed this here and here. However, the Court of Appeals has agreed to hear this en banc and whenever it does this in a case which favored the defendant the smart money is on a reversal of the three court panel. The real question might be how the Virginia Supreme Court handles this situation.
1 I say again, as I have said before, I don't lay this at the feet of the officers. Officers are trained to do their utmost to bring law-breakers to justice. The courts and legislatures determine how far the officers can go. The legislature here says officers can only go so far. The courts tell them they can go further and the courts are the ones who interpret and enforce the law. I've no gripes with an officer who does what the court tells him he can do.
7/26/2005
Finding a way to distinguish it - Now, that would have been impressive.
Just remember folks, thanks to Justice Souter it's constitutional to arrest you upon actions for which you cannot be arrested.
7/26/2005
Anyway, what grounds have I to complain? The Virginia General Assembly has allotted funds for a raise in the payment ceiling for felonies. For your basic felony Virginia now pays $428 instead of $395, thus paying for 4.75 hours of work on a felony rather than merely 4.39 (pay rate is $90 per hour). Of course, it's a step closer to the $445 that the law says I am to be paid. Va Code sec 19.2-163. That would pay for 4.94 hours of representation.
7/26/2005
Having stood in a courtroom with a 19 year old Black, male defendant and looked up at the twenty older, white, well-to-do jurors (OMG they can't all be bankers or banker's wives! Can they?), I understand the sentiment. I think it's probably a constitutionally infirm stance, but I understand the sentiment.
7/26/2005
7/25/2005
Unfireable Judge?
7/25/2005
Free Stuff for Pretending to be Simpson's Assistant
7/25/2005
Around the Web
2) Is punishing a person differently because of the number of friends and family he has justified?
3) If you go to prison for getting the drugs you need the prison will then provide the drugs you need. Who said we don't have socialized medical care?
4) Now, now Skelly. You know that your office is supposed to try every trial no matter how guilty the client is and how severe a tax he will pay for the trial. I mean, after 6 months or so of each attorney trying a jury or two a day you'll have made it through what would normally have taken a week or two and you can start filing all those speedy trial motions and 1983 motions for overcrowded jails. The prosecutors would probably have to stop prosecuting the smaller crimes just so they could make sure the rapists and murderers actually went to trial. Of course, this strategy gets a lot of people (at least in the beginning) much more prison time then they would have. If your Bar has any problems with you just refer them to the Good Father - he'll straighten them out.
5) Castration? UUUuuggghh. The word alone makes my spine shiver.
6) Killing helpless animals because you are too ignorant to know that they aren't all trained to fight.
7) You cannot remove a juror who does not want to convict just because he cussed at the other jurors.
8) What do you do when the Defendant tells you he is going to open the trial, argue the closing, and be his own expert witness?
9) Random checks are coming to the NY subways. "Random" will, of course, devolve into people who fit whatever a particular officer pictures a person in possession of drugs to look like (and those who look like bombers as well). There will be whatever number of checks of little old ladies and priests are needed to uphold the charade but the number of searches which turn up illicit items is going to be higher then what would happen in a random sampling.
10) SoCalLaw has started podcasting. Y'all will remember I toyed with both video and audio blogging a while back but stopped because it was just too time consuming. Maybe I'll go back to putting up a once a week video or audio post. If I do you can blame it all on SoCalLaw.
7/25/2005
Click on the radio for CrimLaw Radio
It takes a little bit to load. If anyone knows how I can get it to load and play at the same time I would appreciate the information.
7/24/2005
7/24/2005
Being a Tea-Totaler is a Sin
7/24/2005
| Your IQ Is 135 |
 Your Logical Intelligence is Genius Your Verbal Intelligence is Genius Your Mathematical Intelligence is Genius Your General Knowledge is Exceptional |
7/24/2005
Terror in Egypt
For all Egyptians and others who lost people in the bombings, may God bless you all.
Egypt, which has been on the front line in the war against terrorism much longer than we have been, was rocked by two, perhaps three bombs. 88 people, mostly Egyptians, were killed. The attack took place in Sharm El-Sheikh, a tourist town in the southern Sinai.
I lived in Sharm El-Sheikh for 6 months as part of the MFO. The locals are good people and hard working folk. There is also a battalion of U.S. Soldiers, an Italian Naval presence, Dutch MP's, and Egyptian forces.
It appears that the terrorists bypassed the military targets and set off one suicide bomb by running an exploding car into a hotel lobby. This was not particularly successful. The reason for this is probably because the hotels there are built spread out around a pool and restaurant. Hitting the lobby could only get the few people there - most of whom would be the Egyptian employees.
The second one was set off in the solely Egyptian part of town, in the market (Egyptians hang out at the markets shopping and going to coffee shops). This one killed far more people, almost certainly all Egyptians.
This is despicable.
Al-Qaida has claimed responsibility. Cowardly pigs. Yadrub bateikum.
7/22/2005
Boo! Hiss! Always a sad day when a promising blawg closes its doors.
7/22/2005
Thanks to J.M.
7/22/2005
Basketball Crime
All humor and ranting aside, Professor McCann has done what appears to be an interesting post on when in their careers NBA players have gotten in trouble with the law. It's too late and I don't have the brain power left to really focus on the post (I've spent the night working on a nasty appeal - my brain is fried). I'll have to revisit it tomorrow.
In the meantime, I suggest that all ya'll go take a look.
7/21/2005
Via KEMPLOG.
7/21/2005
7/20/2005
Contemporaneous Record & Crawford
The officer testified that the defendant admitted the marijuana was his.
On cross, the officer admitted that all he could remember the defendant stating several times "C'mon, gimme a break." He had no memory of any question on his part or any other statement by the defendant.
The judge, sua sponte, starts asking the officer if he is relying on his report and if he wrote the report the same time as he took the statement. The officer replies, "I wrote the report on the same day."
The defense tries to strike the evidence because the officer has no independent recollection. The prosecutor submits. The judge refuses to strike the evidence explaining that yes, the officer has no independent recollection but that the report was contemporaneous and therefore allowed into evidence as a hearsay exception.
I must admit that I sat there a little shocked; I'd never seen this exception used in this manner. After I finished my case I went down to the law library to look up this exception. The test for this exception is:
(1) The witness must have had firsthand knowledge of the event, (2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of [the event], (3) the witness must lack a present recollection of the event, and (4) the witness must vouch for the accuracy of the written memorandum.Let's examine that for a minute. I think that in this case the exception fails the 4th test. Taken literally, we already know that the officer cannot remember the statement and therefore cannot vouch for the accuracy of the written memorandum. A truly horrendous interpretation of the 4th test could interpret it to mean that the officer has to testify that he files honest reports. As if an officer is going to say, "Well, I don't know judge. Every third report or so I liberally infuse the report with a series of lies." This renders the 4th test a farce and is pretty clearly not what it is meant to reach.
In fact, the 4th test is the most likely limiting factor for this exception. It would have to be a case by case analysis but there is a perfect example of what this exception is supposed to reach in Bailey v. Commonwealth, 20 Va. App. 236 (1995). In Bailey the clerk from a store could not recollect in court what items had been stolen from the store. However, he was able to read from the police report the items which had been stolen. He was able to do this because after the break-ins he went through and inventoried the items with the deputy and told him all the items which were missing. He clearly recalled having done this and could testify to its general truthfulness because he had the memory of having done the specific inventory.
Now, compare that to the evidence allowed in above. The officer could not testify to the general truthfulness because he did not remember asking the specific question or receiving the specific answer. Basically what I'm saying is that the defense wasn't attacking him because he couldn't remember whether the defendant confessed to having "a bag of weed" or "the bag of weed" in the car. In such a case, the general recollection of having asked the question and gotten the answer would allow a fallback onto this hearsay exception for the exact wording from the report. The defense was raising the hearsay exception because the officer didn't even have a general memory of a question or statement.
And then there's Crawford. This is about as crystal clear a violation of Crawford as I can think of. To be fair, this issue was not raised before the judge. However, as applied today in court, this is a heck of a dodge to get around the right to confront.
Applied properly, as per Bailey, this exception doesn't greatly infringe upon the right to confront. I can cross examine the clerk in that case as to why he inventoried certain items, whether the deputy was suggestive, how he knew items were missing, &cetera.
Applied as I saw it in court today there is no way to actually cross examine. The officer doesn't remember a question or answer. I can't ask him anything pertinent. At best, I can ask generalities such as how the officer usually writes his reports. That's not a confrontation on the pertinent issue.
Now that I've lit into the trial judge's decision, let me say that I am impressed that the judge actually stated the reason for his decision. I disagree with it and I'm a little perturbed that the judge raised it and not the prosecutor (who was a very competent prosecutor - not someone who needs help from the judge). Still, any judge who states the reasons for his rulings is someone who should be complimented for it.
[addendum] Looking back over the 4 part test, I'm not sure the officer passes the first part of the test either. He wouldn't seem to have first hand knowledge of the possession.
7/20/2005
Dukes of Hazard
They look like clients (and let's face it the Dukes would be Frequent Flyers).
I am really looking forward to this movie.
7/20/2005
7/20/2005
Notorious B.I.G.
7/19/2005
via CarPundit
7/19/2005
7/19/2005
"In big crime cases there seems to be a lot of prep and discovery done. Why's that?"This was after I had commented about the limited discovery in Virginia.
First, let me say that in many - if not most cases - the only things which could be discoverable are the police report and witness statements. Some jurisdictions give these over (and still win their cases); other jurisdictions refuse. The law and Rules in Virginia allow a prosecutor to deny these to me. It's dumb and things would run a lot smoother if the law required them to be handed over but it's the way things are here.
In big cases there is more to discover. Rule 3A:11 of the Supreme Court of Virginia requires the exchange of reports (ie. ballistic tests, handwriting analyses, etc.). In lesser cases there isn't any of this (except the ubiquitous lab analysis showing the residue was in fact cocaine). The police and prosecutor's office just are not going to pour that kind of money into your client's bad check case. However, in murders, rapes, bank robberies, etc. the money will be spent; these reports will be available.
Furthermore, I think that in more important cases competent prosecutors will give far more evidence then required because of the seriousness of the case. They do this because getting a conviction to stick is more important than playing games. They know that if they convict my client appeals will follow and every moment of the case will be reviewed from top to bottom and it cannot be good for an elected official if a murder conviction is overturned (and, yes, it does happen - even in Virginia). The desire to make sure a serious case is handled correctly can also motivate the judge to make sure that discovery is broader than usual.
7/19/2005
No, it's not always feasible to know the answer to a question before asking it. However, I find that most of the time police officers are willing to talk before trial and between what the officer says and what your client says you can usually have a pretty good idea what questions are the ones you should ask.
Important Practice Point: Do Not ask that Perry Mason moment question of your client's ex-girlfriend. She will lie. She is emotionally committed to getting your client thrown in jail. She is also angry with your client because he dumped her for that *%^&^%. She will lie. I know the question is tempting to ask because if she gives the honest answer your client should be cleared. Leave the doubt in the air, don't give her a chance to tell some tale. A failure to prove can be potent (if used properly); a lie from the woman on the stand can be devastating.
7/19/2005
7/19/2005
7/19/2005
7/19/2005
Is She Too Pretty to Survive Prison?
This woman is charged with statutory rape of a 14 year old boy. The question which comes to mind is
WHY????
If she was determined to have an affair, I'm pretty sure that there was no shortage of adult males willing to accommodate her.
Apparently everyone is worried about publicity for the male. And now the defense appears to be insanity.
7/18/2005
CrimLaw v. BigLaw
Skelly skewers them. 123txpublicdefender123 has flashbacks. Gideon lights into 'em.
Y'know, I've seen BigLaw guys make forays into criminal court before. A guy comes in in the suit that looks like it cost more than I earned all of last month, he has diamond studded cuff links, and his hair is perfectly coiffed. He might as well tattoo "I don't belong" on his forehead. It can be pretty painful to watch as prosecutors {a} have a merry old time gently roasting him over the flames of Tartarus, or {b} get extremely upset because a 5 minute driving suspended case turned into a 45 minute fiasco and lash out.
I think I could transit to a job where I sit in an office and prepare briefs all day long at least that well.
7/18/2005
What They Didn't Warn Me About in Law School
It's Sunday night and I've just spent a few hours at my office prepping
for Monday. I head out with last week's accumulated trash (two
cardboard boxes and a hefty bag). The parking lot is dead quiet (it's
late and I'm the only idiot working on Sunday night). I pull around to
the other side of the building, park the car, and get out with the first
box of trash for the dumpster.
Out of the corner of my eye I see movement but when I turn to look
there's nothing there. All that I see is a dark corner and a sewer
drain. It must have been a cat or my mind playing tricks on me.
The dumpster's one of the smaller ones with the plastic tops you open in
order to throw things into it. One lid is propped open because someone
has piled that side full of computer boxes. I go over to the other
side, open it, and throw a box in. Then I go back and get the bag.
Again, I open the other side and I'm heaving the bag in
A HEAD POPS UP
I do a backward jump which would make the denizons of the Matrix proud.
The head had popped up right under the hand I was holding the lid with
and as I lept back, the lid came down trapping my bag of trash half way
in.
AND THE HEAD CONTINUES TO STARE AT ME.
There's a fence around the dumpster making the lighting bad so it takes
me a second . . .
It's a raccoon.
Which, of course, means there are others in and around the dumpster.
And, typical of many raccoons, it isn't the least bit frightened of me.
It just stays there staring at me. I ponder for a moment whether I
should find a stick and try to shove the bag fully in. However, there
are no sticks nearby and after a moment of picturing myself with a
couple raccoons latched onto my arm the HeMan instincts fade.
I walk back to my car, keeping an eye on the raccoon watching me from
the dumpster and the other on the sewer drain ('cuz I dang well know I'm
being watched from there as well).
And thus ends The Great Raccoon Incident of 2005.
7/17/2005
Virginia Driving Suspended
7/17/2005
Around the Web
2) Hmmmm . . . You know, I wouldn't mind if everyone who wanted to sit as a judge had to qualify by having tried at least 5 felony cases a year for the last five years (and at least one of those years as a defense attorney). Ahh, to dream the impossible dream . . .
3) PDD in a tough situation: Life or Death?
4) You can kill criminals in Kentucky as long as you don't stick them in the neck.
5) Here's a unique solution to illegal immigrants. Probably not a workable solution but unique.
6) Can you violate that restraining order by blogging?
7) Been there, done that. Except the last time a prison turned me away I had sent it all the paperwork. They just wouldn't admit I had. After I got sent back to my office I checked and I had the fax confirmation about the paperwork they required (a paper faxed by me so that I can confirm I am a lawyer).
8) 15 bank robberies = 7 years in jail. 7 years??? This man obviously had enough brains not to do any of them in Virginia. Also, he did all the robberies because was emotionally scarred by 9/11.
9) "[W]e should barter for sex with food and entertainment instead of doing a straight cash deal?"
7/15/2005
How Can You Try a Case if Your Client Doesn't Come to See You?
How can you put together a decent trial strategy if they don't meet with you?I was concerned that the answer which came to mind might not reflect the experiences of other lawyers so I read the question to another lawyer and asked his opinion. He laughed at me: "If you can't do that you can't do criminal law."
That's a little blunter than I'd state it but generally true (at least in Virginia). It is more true of misdemeanors rather than felonies and more true of some misdemeanors than others.
Basically, if you practice in a particular locality for a while you know the disposition of the most common misdemeanors: marijuana, trespass, petit larceny, &cetera. You meet with your client for a few minutes before trial and ask the important questions:
1. What happened? (By this time I usually know the officer's version of the event)Most of the time with this information you can handle the basic case. It's not optimal but you had best be adept at it.
2. How do you want to plead?
3. Are there any witnesses you want to testify? Are they here?
4. What's your background (family, job, school, &cetera)?
If anything comes up which requires further research, non-present witnesses, or anything else then you go before the judge and ask for a continuance. Sometimes the judge will allow it; sometimes the judge will require you to go forward anyway. As an aside: By far, the reason a client most often wants a continuance is "I can't go to jail today." He'll come to court on his 6th driving suspended charge and be upset when I tell him that he's going to get some jail time. Judges are particularly unsympathetic to clients offering this reason (which is why, if there is any other reason I will offer it instead).
The important thing to remember is that in Virginia no matter what the result is and no matter how your client pled in General District Court he has an absolute right to a trial de novo in Circuit Court. This is because the lower trial court has constitutional deficiencies (i.e no juries) which can only be solved by allowing defendants the option of a brand new trial in the higher trial court with all the constitutional protections. In effect this makes the trial in the lower trial court into a type of preliminary hearing. The judge has the option of dismissing the case and if he does it is finished (unlike a regular prelim when a prosecutor can direct indict). However, if the judge finds your client guilty your client has the option of accepting the sentence or taking his shot with a jury or judge in the higher trial court. At that hearing you've seen the prosecutor's evidence, talked to your client and have had time to prepare for your case.
Felonies operate generally the same way. It still surprises me how many of my clients who are facing serious prison time don't come to see me before their first day in court. It makes some sense in misdemeanors wherein most people who have had frequent contact with the court realize that these are handled "on the day"; I'd still rather have prior contact but I understand. However, when facing 20+ years in prison you need to go see your lawyer. YOU NEED TO GO SEE YOUR LAWYER!!! Even when I set appointments these guys don't come to the office. I had one guy fail to show up both on last Friday at 4 p.m. and this Monday at 4 p.m.
Still, most felony trials have a preliminary hearing in the lower trial court. In Virginia we don't have those month long prelims I see on CourTv; a prelim usually lasts about as long as a misdemeanor trial (longest I've seen was an afternoon for a multiple defendant murder prelim). Even if the client hasn't come to see me I can talk to him on that day and basically get a glimpse at part of the prosecutor's evidence. The actual trial is usually a couple months later and there is time to prepare in between. Hopefully Client will come to the appointment I set for him when you meet at the prelim (or at least give me a working phone number).
7/15/2005
Come Again
Women get away with some of the most outrageous clothing choices when they come to court. I think this is because male judges (who wouldn't hesitate to dress down a male dressed inappropriately) have the old fashioned notions that it is not their place to comment on a female's clothing. However, today I was in a court with a female judge.
A young woman walked into the court with a not quite see through blouse that looked like it had been painted on, no bra, and everything+ that a young woman is supposed to have. All eyes male in the room looked up as she walked up to the bench.
The judge was looking down at the paperwork as the young woman walked up. Then the judge looked up and this conversation took place:
Judge: To begin with, that clothing is not adequate for court. Where do you live?
Woman: Here in the county.
Judge: Deputy, how much longer are you going to be in court today?
Deputy: This is my last case.
Judge: Okay, what's your next court date?
Deputy: 25 October.
Judge: We're continuing this case until 25 October. Ms. Smith you will come back to court on 25 October wearing appropriate clothes. Good day.
7/14/2005
Huh? What just happened?
Background: Client was accused of attempted robbery and use of a firearm in a felony. On the day of trial, prior to the actual hearing on the facts, both co-defendant and I raise a motion to dismiss because the trial has not taken place within the 5 months allowed under Virginia law when a defendant is held in jail. The prosecutor argues that this should have been raised in a written motion pre-trial and is now barred. The judge agrees with the prosecution. Trial proceeds and my client is convicted of both charges.
Wednesday: The sentencing hearing takes place and it doesn't go well. The judge is one who is known for sentencing above the guidelines for anything that involves a a physical threat or attack. Of course, the guidelines already take those factors into account as part of the charge but, as the guidelines are completely discretionary in Virginia, there's not much I can do about that. Client gets three years on each charge for a total of six. It's about a two year departure over the guidelines.
After that's done I stand up and ask the judge to set an appeal bond: "Your Honor, you remember that we had a speedy trial motion prior to trial which you over ruled. As I'm sure you know, the law changed on 01 July so that it is what you believed it to be. However, the trial was prior to that date. Consequently, I feel that there is a solid issue to appeal. I'd hate for my client to spend any more time than he must in jail if the issue is as solid as I believe it to be."
I'm expecting the typical setting of a monstrously huge appeal bond or denial or the more recently popular denial plus "Mr. Lammers, if the appellate court accepts the petition you have the leave of this court to return and ask for a bond."
Then the judge states: "Mr. Lammers, if there's an issue here, we should discuss it in this court."
My head instantly snaps up from the podium to the bench; I'm pretty sure Tom's did over at the prosecutor's table as well. A little surprised, I tell the judge I'll file a motion to rehear within the allotted time. The judge offers not to issue an order in this case and bring us back in a month to reargue the issue. Then he asks Tom what his thoughts are about the matter. Tom was not the attorney at trial and is playing catch-up as the judge and I talk back and forth about arguments which were made on the motion prior to trial. He's not really in a position to do anything but agree to the judge's offer.
So the judge tells me he's not going to rule on my motion for an appeal bond, he's going to treat my motion on that as an oral motion for a rehearing, he's not going to issue the final sentencing order, we need to brief the issue, and that we'll reargue it in 30 days.
Eventually I leave the courtroom with what I'm sure was a look of wonderment on my face. If I can get results like that I need to ask for more appeal bonds.
7/14/2005
7/14/2005
7/14/2005
7/13/2005
Unconstitutional Vagueness
A. The Law
"At common law, it was the practice of courts to refuse to enforce legislative acts deemed too uncertain to be applied. A similar approach was taken by the United States Supreme Court in some early cases where the separation of powers doctrine was invoked to support the proposition that Congress, by the enactment of an ambiguous statute, could not pass the law-making job on to the judiciary. The Court has also reversed convictions under uncertain criminal laws on the basis that the accused was denied his right to be informed 'of the nature and cause of the accusation’ as guaranteed by the Sixth Amendment. However, today it is the void-for-vagueness doctrine which prevails: the due process clause[] of . . . the Fourteenth Amendment (when a state statute is involved) require[s] that a criminal statute be declared void when it is so vague that ‘men of common intelligence must necessarily guess at its meaning and differ as to its application.'" LaFave-Scott, Substantive Criminal Law § 2.3, 126 (1986)(multiple citations omitted).
The constitutional application of the vagueness doctrine to statutes which do not trigger First Amendment concerns considers two factors: (1) fair warning and (2) arbitrary and discriminatory enforcement. "[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939).
1. Fair Warning
The Federal Supreme Court has stated that "[t]he constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." Bouie v. City of Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 1701, 12 L.Ed.2d 894 (1964). However, the Court has treated this mainly as an aspirational statement allowing interpretations and limitations imposed by State appellate courts to bring unacceptably vague penal statutes back within constitutional limitations. Id. As well, "[w]ords of a statute . . . may [also] be considered sufficiently definite because they have a well-settled meaning in the common law, or because of their usage in other legislation." Lafave at 128 (citations omitted). It has been suggested that fair warning actually means fair warning that one needs an attorney to interpret the statute. Id. at 129.
2. Arbitrary and Discriminatory Enforcement
The Federal Supreme Court has stated "that the more important aspect of vagueness doctrine is not actual notice, but the other principal element of the doctrine--the requirement that a legislature establish minimal guidelines to govern law enforcement. Where the legislature fails to provide such minimal guidelines, a criminal statute may permit a standardless sweep that allows policemen, prosecutors, and juries to pursue their personal predilections." Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983)(internal citations omitted). A statute is "unconstitutionally vague on its face [if] it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute." Id. at 361.
7/13/2005
Aggravated Malicious Wounding
5. Mayhem
Virginia’s aggravated malicious wounding has its roots in common law mayhem. At common law mayhem was a misdemeanor. Commonwealth v. Lester, 2 Va.Cas. 198, 4 Va. 198 (1820). The law’s original intent was to preserve the combat ability of those freemen in the military service of the sovran. 53 Am.Jur. 2d, Mayhem and Related Offenses, § 1. The offense became statutorily defined in Britain and in most of the United States; in the process it became a felony. Id. but see Peoples v. U.S., 640 A.2d 1047 (D.C., 1994) & Moore v. United States, 599 A.2d 1381 (D.C. 1991)(D.C. retains common law elements of mayhem).
Prior to 1991 §18.2-51.2, the aggravated malicious wounding statute, read:
"If any person maliciously shoots, stabs, cuts or wounds any other person, or by any means causes bodily injury, with the intent to maim, disfigure, disable or kill, he shall be guilty of a Class 2 felony in any case where the victim is caused thereby to be totally and permanently disabled."Construing mightily against the plain language of the statute and the rule of lenity, the Court of Appeals held that “the term "totally ... disabled," as used in [1990] Code § 18.2-51.2, does not mean a state of absolute helplessness, but means the "inability to do substantially all of the material acts necessary to the prosecution of any occupation for remuneration or profit in substantially the customary and usual manner in which such occupation is prosecuted.” Branch v. Commonwealth, 14 Va.App. 836, 840, 419 S.E.2d 422, 425 (1992). In so doing it brought the law of Virginia more in line with the ancient common law standard that a conviction for mayhem requires some sort of impairment which would greatly restrict the usefulness of an individual to the society at large. It also brought the Virginia standard closer to the more modern common law standard that sees mayhem as resulting in “permanent injuries, which render[] a member or organ of the body either "wholly useless," or [] its usefulness "greatly impaired." Peoples.
In 1991 the Legislature changed the rather draconian plain language of §18.2-51.2 in a manner which seemed designed to bring the statute in line with common law elements of mayhem:
"If any person maliciously shoots, stabs, cuts or wounds any other person, or by any means causes bodily injury, with the intent to maim, disfigure, disable or kill, he shall be guilty of a Class 2 felony if the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment.Subsequent to this change of language the Courts Appellate of the Commonwealth have moved away from the common sense standard found in Branch. They have held that scars which do not impede function are sufficient to satisfy the requirement of "significant physical impairment." See Commonwealth v. Donker, 256 Va. 443, 507 S.E.2d 75 (1998)(four inch facial scar is significant permanent impairment), & Newton v. Commonwealth, 21 Va.App. 86, 462 S.E.2d 117 (1995)(“cosmetic disfigurement” is sufficient to satisfy the statute).
7/13/2005
What States Have Jury Sentencing?
7/12/2005
Gator Assassination
This year [the gators are] out in force. The places where I'd previously seen one a week started featuring one a day, sometimes two or three. They're also noticeably bigger than they were last year.
Anyway, one evening shift, my colleague Officer Rehnquist noticed a six-footer crouched by the side of the highway, waiting patiently to cross. As he watched, the gator waddled out into the middle of the traffic lane and stretched out on the asphalt. Rehnquist worried that the gator would get run over, and that the motorist would then get out of his car to investigate, thus becoming a snack. So he blocked that lane of the highway, and called the dispatcher to send Animal Control out.
Unfortunately, the creature was a little too big for Animal Control to handle, so the dispatcher notified the Southern State Department of Natural Resources, which agreed to page out one of its wildlife officers. The wildlife guy came from his house, driving his personal pickup truck with his two adolescent sons in tow, and Rehnquist later described him as a major redneck. Since Rehnquist is something of a redneck himself, I take his word as authoritative. Upon arriving, the wildlife officer promptly announced that he was going to shoot the alligator.
His reasoning for this? The sun was setting by the time he got out there, and he told Rehnquist he "didn't feel like" dealing with the thing after it got dark. So he popped the gator in the back of the skull with a .22, sending it into a thrashing death roll, then tossed the corpse into the bed of his pickup.
The reason he was legally permitted to take this course of action at all is because the alligator population has experienced a healthy resurgence in the last few years (as evidenced by the increase in gator activity around Devil's Island). This prompted the government to downgrade the alligator from "endangered" status to merely "protected". This is a positive development from a species-survival standpoint, but it certainly didn't shake out in this particular one's favor.
7/12/2005
Off Point: Insanity Thy Name is Ex-Girlfriend
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Reed, who testified during his trial against the wishes of his court-appointed attorneys, frequently went into profanity-laced tirades and told jurors he didn't care if they gave him life in prison.99 years.
"There's things I choose to do, like, if I go in a store and choose to take a Snicker's bar," Reed testified. "If you catch me, you catch me. If not, I'm going to go home and eat it up and go on about my business, dog."
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[none]
beeeeeeeeeep
This is a test to see if I can post to the blawg from
my new Sidekick.
This is only a test. Were this a real post you would
be directed to actual meaningful content.
beeeeeeeeeep
Visit my Legal Page at:http://crimlaw.blogspot.com/
7/11/2005
§ 22.1-142. There shall be set apart as a permanent and perpetual fund, to be known as the "Literary Fund," [funded by] . . . (v) all fines collected for offenses committed against the Commonwealth. The Literary Fund shall be invested and managed by the Board of Education as prescribed by § 22.1-145.So all those times I've urged judges and juries to go for a fine rather than imprisonment I've actually been helping school kids. I'll have to remember to point that out the next time the judge is about to send my client to jail. "But think of the children your Honor. You're not only harming my client and his family, your denying books to school children.."
Thanks to Tom for pointing this out.
7/11/2005
7/11/2005
No Unrecorded Juvenile Confessions in Wisconsin
The defense appeals three issues:
1. Was the confession voluntary?The Wisconsin Supreme Court is particularly troubled by the purposeful refusal to contact parents (in contravention of Wisconsin law) and cites its own precedent holding that
2. Should all confessions made outside the presence of parents be thrown out?
3. Should all interrogations of minors be electronically recorded in order to be admissible?
The failure to promptly notify [parents] and the reasons therefor may be a factor, however, in determining whether the confession was coerced or voluntary. If the police fail to call the parents for the purpose of depriving the juvenile of the opportunity to receive advice and counsel, that would be strong evidence that coercive tactics were used to elicit the incriminating statements."After addressing several other factors the Court finds
"Weighing the above personal characteristics against the pressures and tactics used by the police, we determine that the State has not met its burden of proving that Jerrell's written confession was "the product of a free and unconstrained will, reflecting deliberateness of choice." Rather, we conclude that it was "the result of a conspicuously unequal confrontation in which the pressures brought to bear on the defendant by representatives of the State exceeded the defendant's ability to resist." Accordingly, we determine that the written confession was involuntary under the totality of the circumstances."The Court then refuses to adopt a per se rule that all confessions without parental presence be excluded. In so doing it reminds the courts that this is to weigh heavily against the prosecution and it reminds the police of their specific statutory requirement to contact parents ASAP.
Then the Court moves on to electronically recording of juvenile confessions. Invoking broad supervisory powers which it has under Wisconsin's Constitution and precedent it states that excluding confessions which are not electronically recorded does not stop the police from getting confessions in this manner. Thus the Court is not requiring the police to do anything, it is merely putting forth a rule of evidence. It's hair-splitting but technically correct.
The Court then goes through several paragraphs of reasons as to why this is a good rule and points to a call from the ABA to establish rules such as this. Personally, I think this weakens the Court's argument because it makes it look like the court is legislating. One wishes the Court had merely stated
We find that without an electronic record a court cannot determine whether a minor's confession is voluntary or not due to the presumed immaturity of the child. In all cases of uncertainty, the Court is required to decide the facts in favor of a defendant. As this case has shown this rule has not always been adhered to. Therefore, we rule that such confessions must be taped in order for the court to review their circumstances.In the end the Court rules
"[W]e exercise our supervisory power to require that all custodial interrogation of juveniles in future cases be electronically recorded where feasible, and without exception when questioning occurs at a place of detention."Thereafter follows numerous concurrences and dissents about this last issue (everyone agrees the confession was inadmissible because it was coerced). They go heavily into Wisconsin's Constitution and precedent. I must admit to having not read all that and I leave it to you to decide for yourself whether this was a valid exercise of the supervisory power of the Wisconsin Supreme Court or improper assumption of legislative powers.
In the Interest of Jerrell C.J., a person under the Age of 17:
Wisconsin v. Jerrell C.J.
ADDENDUM: And Tom comments here.
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7/09/2005
Glitch
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90% doesn't really surprise me all that much. At least not for clients who are on the street. I think that 99% of the time I get to the jail and visit my client before each of his court dates. However, I must admit that this has gotten much harder over time as clients are stored at regional jails which makes visiting so very time consuming because of the long drives.
1 This is the only day of the week when I am certain that the courts wherein I usually practice do not have afternoon court (although one court has lately shown a disturbing tendency to have morning court go to 2 p.m. or later). I would rather take that time for myself or to go to visit clients at jail (with more and more of my clients being scattered around the Commonwealth in different regional jails I could really use Fridays for visits). However, I am trying to make sure that all clients have an opportunity to meet with me prior to trial.
7/09/2005
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7/09/2005
Well, duh. They spent money to prove that? The next ground breaking study will prove that you must be female to get pregnant.
Actually, the perfect look for an attorney probably involves being tall, solid but skinny, gray hair and a look of wisdom so that people just assume you know what you're doing. As a short, round guy from a family wherein hair just doesn't go gray, I'm pretty much doomed.
Well, at least I wear glasses; that has always made some people assume I'm smart. At least until they get a good look at me.
7/08/2005
Some make sense:
crim law
"preliminary hearing" "virginia"
Some I just don't have an answer for:
illinois criminal sentence guidelines for Class 2 Felony
MARIJUANA COMMUNITY SERVICE HOURS SENTENCING GUIDELINES GEORGIA
maximum punishments of speeding tickets in Kentucky
Some are just strange:
weblag kiss
older head shaved females
Opera Wand Password tool crack
And one should interest a certain prosecutor out there:
Complaints on Staunton, Virginia's Commonwealth attorney
7/08/2005
Too Cool: ABA Mention
7/07/2005
Are Bloggers Journalists & Does it Matter?
Question 1: In this day of bloggers, isn't everyone at least potentially a journalist? A law that allowed journalists to protect their sources might allow anyone to claim to be a journalist and refuse to disclose a conversation.Answer 1: I think whether we are journalists depends greatly on the definition of journalism. Webster online defines it as:
This seemed like a reasonable objection (or at least a complication) until it occurred to me, "So what?"
Question 2: As a practical matter, how bad would it really be if nobody could be compelled to disclose a private conversation? How often are there criminal cases where (1) a witness has to disclose what someone else said, (2) it was a private conversation, (3) it's admissible, (4) the witness doesn't want to testify, (5) but does so anyway (instead of refusing or lying), (6) out of concern for a contempt charge (rather than as part of a deal on another charge).
How often would anyone even know that the conversation took place? This seems like the sort of thing that could only come up in weird circumstances, such as the national security issues present in the Plame case, or when a journalist publishes information from the conversation.
1 a : the collection and editing of news for presentation through the mediaI think the basic underlying theme there is that a journalist is someone who gathers original content. Once original content is provided it would seem to raise a blog into a work of journalism.
b : the public press
c : an academic study concerned with the collection and editing of news or the management of a news medium
2 a : writing designed for publication in a newspaper or magazine
b : writing characterized by a direct presentation of facts or description of events without an attempt at interpretation
c : writing designed to appeal to current popular taste or public interest
For instance, when I reported on happenings at a Virginia CLE that was journalism (1a). When I write about anecdotal things which have happened in court I think it's closer but still journalism (1a).
Analysis which argues a thesis about matters currently of interest in criminal law is probably journalism (2c); an analysis of a matter which is more theoretical may not be. However, that's a mighty thin hair and I'm not exactly sure if it should be split.
When I write purely about what has happened to me (see the next post) that's probably not. Nor do I think it's journalism when I link to other blogs or news stories and maybe make a short comment.
Basically, that's a long-winded way of stating that I think that a lot of bloggers are journalists and a lot are not; you'd have to do a case by case analysis.
Answer 2: The problem with journalists is that the conversation isn't private. It is revealed - just without attribution.
Consider this example: Let's assume that members of a local gang started reading my blog and decided to feed me information about gang activity in the city of Richmond. I start reporting it here and put pretty much everything they and their associates tell me into print. One day the girlfriend of a member tells me that she saw Boo, Sling, and Trey "finish a bunch of White-Boyz [a rival gang] down on 27th Street cuz they was fighting over the meth." The next day I publish the fact that last week's unsolved ambush murders were done by the "27th Street Thugz."
Is my conversation with the girlfriend private? Not really; she knew when she told me that I would publish the information. She probably thought it would be good for the gang's reputation. However, she does expect that I won't sic the police on her for telling me the information.
Are there serious reasons that I don't want to disclose that information? Yes. I'd lose my sources. Other sources wouldn't want to deal with me. The girl's life would be put in serious danger. My life might be put in danger ("get the snitch").
On the other side is the strong need to solve 4 murders done in broad daylight, two blocks from the police station.
Can my conversation with Girlfriend be introduced into court? No, it's classic hearsay. Can the police arrest me for not cooperating in the investigation? Probably not; they could try to stretch obstructing justice but that's actually a statute which deals with physical obstruction or active lying. They may get a magistrate to sign off on it but I doubt it survives in front of a judge. However, they can get me in front of that investigating grand jury and cite me for contempt when I refuse to disclose the name of my source.
I think there are multiple reasons why we haven't seen more of these kinds of cases. First, some States have shield laws (I have no idea how many). Second, the press is going to crucify any local prosecutor who goes after a MSM reporter. An elected prosecutor is going to make sure he really needs the information before he goes after the reporter. After all, he already knows who did it; it would probably be easier to crash down on the 27th Street Thugz and get the info. Third, a reporter from the MSM is going to have a well-funded, well-prepared legal team which is going to fight all the way; this would tie up a number of resources the prosecutor badly needs elsewhere.
The second and third of these probably wouldn't apply to most bloggers if a prosecutor came after them. The first might even be a moot point if the blogger didn't have the money for a legal battle to uphold his shield rights. However, I think that most bloggers won't ever have to worry about this. In general, we aren't out developing sources; in fact, the only blog that readily comes to mind as having had sources was probably SL&P during the immediate aftermath of Blakely. There are undoubtedly political blogs that get original material from sources but I can't name any.
Does anyone out there know of a blogger who has been required to reveal a source?
[addendum: SoCalLaw points to a related type of case about a fight between Apple and an internet server in which Apple has tried to force the service provider to give it a blogger's identity.]
7/07/2005
Nobody in law school happened to mention to me the wonderful time I would have standing in a room copying papers both on my finicky copier and my fax machine (which doubles as a copier). Gotta love putting together multiple copies of petitions for appeals so that I can mail them all off to everybody under the sun.
7/07/2005
7/06/2005
Kill a Croc, Face Charges
Yesterday, a fisherman caught and killed the thing. It was almost 4 feet long and he clubbed it to death (although he states that he only meant to render it unconscious).
There has been a hue and cry because this man killed the creature. All the local news shows have been showing people talking about how harmless it was. One guy even told the news "I've been hunting for him (with a net) for three weeks but (if it hadn't been killed) tonight was the night I was going to catch him." Personally, the thing looked big enough to mangle a hand or do some serious damage to a foot or leg; I know I'd have wanted to put it out of commission if I'd caught it while fishing.
And now they're talking about federal charges. The fisherman's already hired an attorney (David Baugh, no less) so it could get really interesting.
The lesson here? If you think you have to kill an animal because it's a danger to you and others don't own up to it.
7/06/2005
7/05/2005
An Example of "Subject to Cross"
Prosecutor: Judge at this time we would like to move into evidence [weapon].
Judge: Mr Lammers?
Me: Your Honor, may I voir dire the witness on this matter?
Judge: You may cross-examine him on it.
Me: Well, before it's introduced into evidence . . .
Judge: I'll mark it for identification subject to cross-examination.
This is another part of the transcript I'm working with today and, much like the section noted in the last post, wasn't relevant in the end because a statutory argument carried the day.
7/05/2005
For the judges out there . . .
When you don't explain why the evidence is admissible and only tell me that my argument "goes to the weight of the evidence, Mr. Lammers", my first instinct is to interpret that as "yes, you're correct, it should be excluded but I'm not going to do it and I think the appellate courts are more likely to back me than you." I also take it to mean that that bit of evidence is going to carry every bit of weight the prosecutor wants it to carry with you.
I know it's a terribly unfair way to see things but you must remember that at that moment I am in the heat of battle and not seeing things in a fair light.
[addendum: What brought this to mind is that I am reading a transcript while writing an appeal and the judge did this. As I read it I can see the probable reason for allowing the item into evidence but I don't know if it was the judge's reasoning. All I know is that I was told my argument would only go to the weight (where I expected it to weigh about as much as a gossamer web). I was a wee bit upset at this; still, Client was found not guilty on the charge that evidence related to (on an unrelated statutory argument) so I cannot claim any harm.]
7/05/2005
7/05/2005
Why didn't the prosecutor ask for no bond? He's usually the guy in the room with a copy of the defendant's record.
7/05/2005
Subject to Cross
Here's how it works: A party has a witness on the stand and moves some sort of evidence into the case (physical evidence, a written confession, a report, etc.). The other party doesn't state an objection but notes that this is "subject to cross." The judge then enters the item into evidence and the questioning of the witness continues. When the witness is passed and the second party does his cross examination. During this cross examination the second party can inquire as to things such as chain of custody, validity of a test, accuracy of a report, etc. If the second party establishes some sort of error that party then moves to strike the evidence from the record. If the judge agrees it is stricken.
I don't particularly care for this procedure. It should be of very limited use, only for items which have absolutely no other effect on the evidence or testimony of the witness or case. It should never be allowed in a jury trial. Still, it seems to be the default position in a number of courtrooms for wider evidence. I know that I have stood and asked the judge to voir dire a witness as to certain evidence and been told that the evidence was being entered subject to cross and that I could address it during cross examination. Of course, the difficulty is that once that barn door is opened a whole lot of cattle might get through before you can close it again. Imagine a report coming in and an expert basing 2/3 of his testimony on it before you can get it thrown out on cross.
Is this just a Virginia procedure or does it exist out there in the rest of the country as well?
7/05/2005
Here's What Happens When No Law
I did a couple other things like going to see War of the Worlds (terrible, just plain bad), and then I still had time to kill. Sadly, when people are bored it is their critters who suffer:
7/01/2005
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7/01/2005
Borenstein’s Law: our clients are more likely than others to act in ways contrary to their best interests.It's an interesting theory but I don't agree with it. I do agree with Mort that it's not all about stupidity either. Sure, a number of clients are there because they did something stupid and were unlucky enough to get caught at it. However, as I've said before, I think that clients (1) don't fear jail all that much, (2) engage in a cost benefit analysis of a life where they take a number of risks for their own benefit(shoplifting, buying drugs, etc) and learn that most of the time they don't get caught, and (3) have been living in a world where people scam off each other often so that their first instinct is to try to scam their way out of it (talk to the police, make up their story with their cellmate, send a letter to cousin Al telling him what lies to say on the stand, etc.). I just wish they'd realize that trying to scam me generally doesn't do them much good. I'm the defense attorney; it's my job to be somewhat gullible. However, if someone swears to me that he was at cousin Al's and never talked to the police, it is devastating to the case when I find out (usually during pretrial negotiations but sometimes mid-trial) about the letter and the videotaped confession.
Actually, let me amend what I said above. Clients engage in self-destructive behavior. However, I think it is a matter of focus. Clients often have adopted a short term outlook. In their world it makes sense. However, when the techniques they have learned to use to good effect in the short term interact with the legal system they fail. In that way it is self-destructive.
7/01/2005
7/01/2005
7/01/2005
The Law Isn't What You Wish It To Be
"The law says X." "No, the law says Y." "No, you're wrong, the law says X." "No, the law says Y, and here's this copy of it that I printed out for you off the supreme court website." "No, you're wrong, it says X ..."This happened a lot more when I was first practicing (and still does with some clients). In particular, a number of my clients cannot seem to wrap their minds around the concept of principal in the second degree. Trying to rationally explain to my client that the fact he drove his buddy to the house and drove his buddy from the house - knowing his buddy was going to steal his aunt's priceless jewelry - means that he was a principal in the second degree and every bit as culpable can be painful. Often, the client will have read the law on that particular offense and we'll have a conversation along these lines:
"I didn't take nothing."Rinse. Lather. Repeat.
"You drove him there . . ."
"But I didn't even go into the house."
"You don't have to, you knew what he was going to do."
"But I didn't do it and they can't stick this charge on me!"
"Yes, they can. It's called being a principal. You helped him do it so you are as responsible as he is . . ."
"No! I didn't take anything. I didn't do no larceny!"
Ambush in Bartlette
Chapters 1 - 13
Chapters 1 - 13
Law & Theory
- LAWS
- Va.'s Versions of Mayhem (malicious wounding et al): 4 In One Statute ~ Graphic
- Aggravated Malicious Wounding
- The Moped Exception
- Rape by Lie: 1 ~ 2 ~ 3
- No Intent Needed
- Arresting in a House
- Common Law Trespass
- Certificate of Analysis Introduction
- Probable Cause: Car Passengers
- Obstruction of Justice Limited
- Stealing Electronic Items
- Stolen Value: Price Tags
- Stolen Value: No Price Tags
- Stolen Value: Electronic Items
- No Weekend Jail on Felonies
- Obstruction of Justice Limited
- No Trifurcation
- No More Beer at the Barbeque
- Respondeat Superior
- DUI & Reckless Driving
- Can You Steal From the Dead?
- Outlawry Outlawed
- Felony 2d Degree Murder
- Banishment
- Computer Fraud
- Insta-Deputy
- PROCEDURE
- Using Statements Made During Plea Negotiations: 1 ~ 2a ~ 2b ~ 2c
- Invoking Right to Attorney in Virginia
- Who Prosecutes Misdemeanors?
- Expungement
- Surrebuttal
- Virginia's Reasonable Doubt
- Reasonable Doubt II
- Instruction: Right to Arm
- Virginia Castle Doctrine1 ~ 2 ~ 3 ~
- Dismissed with Prejudice
- SENTENCING
- I. Limitations on Right of Judge to Alter a Sentence
- II. Limitations on Right of Judge to Alter a Sentence
- III. Limitations on Right of Judge to Alter a Sentence
- Probation & Suspended Time
- Advisement in Virginia
- Jury v. Judge (sentencing roles)
- Limits on Evidence Presentable to a Jury
- Jury Sentencing Possibilities
- &CETERA
- Witnesses & Writ of Actual Innocence
- Domestic Battery & Firearm Possession
- Domestic Battery & Testimony I
- Domestic Battery & Testimony II
- Domestic Battery & Testimony III
- Domestic Battery & Testimony IV
- Shall Doesn't Mean Shall
- Just Following Orders
- Lycurgus Not Welcome in Virginia
Practice Tips
Specific Cases
- Jones:Trespass = Search
- Shatzer:4th Amendment Expiration Date
- Gant: Limiting Car Searches
- Montejo: No more 6th Amendment Protections
- Padilla & the Prosecutor
- Ventris: Allowing Unconstitutional Questioning
- Carroll Doctrine
Legal Theory
- Best Way to Choose a Judge
- What's a Prosecutor?
- Defense Attorney Purpose
- Plea Agreement Actualities
- The Big 4: Why I can't Go To Jail: 1 ~ 2
- Liquor Use Laws
- How to Fix Va.'s Court of Appeals
- Punishment Scale
- Punishment Scale Explained
- Punishment: There but for the Grace of God
- Heavy Sentences (1)
- Heavy Sentences (2)
- Probation
- Change Felonies to Misdemeanors
- Do Justice?
- Kentucky v. Virginia
- Must Prosecutors Disprove Affirmative Defenses?
- Drug Schedules & Punishment
- Defendants & Situational Sincerity
- 1) Immorality in Pleading Not Guilty
- 2) Immorality of Pleading Not Guilty
- Posner v. Hart & Strict Liability
- More Posner & Strict Liability
- Pre-Stare Decisis
- Let Juries Find People Innocent
- Tell Jury Elements Pretrial
- Falsity of Malum Prohibitum (1)
- Falsity of Malum Prohibitum (2)
- Falsity of Malum Prohibitum (3)
- Brady
- Writ of Spite & Hatred
- Various Riot Acts
- Tazers
- Finding of Innocent
- No Appellate Oral Arguments
- CrimJustice Purpose
- Pro Se Defendants
- Misdirecting the Police
- Stress Seekers?
- Plea Agreement
- Faking Probable Cause I
- Faking Probable Cause II
- Faking Probable Cause III
- Faking Probable Cause IV
- Legalese: Name Changes
- How Could We Best Select a Judge
- RICO & Bin Laden
- Requirement of Defense Attorneys
- Should Lawyers Make Clients Confess?
- Crummy Hired Defense Attorneys
- Noble Defense?
Back When I was a Defense Attorney
FEB03
Jury
Jury
JUN03
A Week in the Life
A Week in the Life
JUL03
A Week in the Life
OCT03
A Week in the Life
DEC03
A Week in the Life
JAN04
5 Events
A Needed Sign
A Week in the Life
Trial Desperation
A Week in the Life
A Week in the Life
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FEB04
Supress Motion
A Week in the Life
A Week in the Life
MAR04
A Week in the Life
Closing Argument
APR04
A Week in the Life
A Week in the Life
A Week in the Life
A Week in the Life
MAY04
A Week in the Life
A Week in the Life
A Week in the Life
JUN04
Chocolate Chip Marijuana
A Week in the Life
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JUL04
A Week in the Life
Cripple v. Cop
01 Long Week
02 Long Week
03 Long Week
04 Long Week
05 Long Week
I'm a Narc
AUG04
Frustrating Day
Damn Yankee Defense
A Week in the Life
SEP04
Angry Relative
01 Long Week
OCT04
01 Long Week
02 Long Week
03 Long Week
04 Long Week
-----
01 Long Week
02 Long Week
03 Long Week
NOV04
Client Families
DEC04
01 Long Week
02 Long Week
03 Long Week
04 Long Week
05 Long Week
06 Long Week
Surprise at Prelim
Confronted
JAN05
A Sentencing Hearing
Sales Lady Visits
FEB05
Purse Search Brief
Violent Insane Client
MAR05
Affidavit of Truthfulness
Juvenile Detention Visit
Moments in the Life
Fail to Visit
APR05
Trial of the Century
MAY05
Transcript: Court Argument I Won
A Day in Court
Moments in the Life
Angry Jury Day
Angry Jury 02
JUN05
Eureka Sentencing Moment
My Own PI
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A Moment in Court
A Moment in Court
JUL05
Huh?
Raccoon Attack
AUG05
Picking on a Prosecutor Intern
Moments in the Life
SEP05
Victory by Speedy Trial
OCT05
Kicking Myself
A Day in the Life
Insane Client & 15 Deputies
Torture by Judge
A Federal Habeas
NOV05
Invisolawyer
Petition Freak Out
Moments in the Life
Moments in the Life
State Habeas
DEC05
Moments in the Life
JAN06
Jury Trial Fizzle
FEB06
A Bench Trial
Bittersweet "Victories"
A Prosecutor Tries to do Right
MAR06
What Just Happened?
Va. Worse than Conn.
Illness as a Defense Attorney
Failed Prison Visit
APR06
Heard in a Courthouse
Appellate Court Argument 01
Va. Court of Appeals
MAY06
Heard in Court
JUN06
Bad Press
Entire History of a Trial
Bad Press 02
JUL06
I Must be too Good
AUG06
Announce Becoming Prosecutor
The Last Life in a Week
Monday
Tuesday
Wednesday
Thursday
Friday
Client Communication
~~~~~~~~~~~~~~~
~~~~~~~~~~~~~~~
CYA Letter: Felony Client
CYA Letter: Appeal
-----
Dear Mr. Jailhouse LawyerConversation between Inmates about Lawyers
Innocent Client Pleads Guilty
Client Parents
Time as a Prosecutor
JAN07
The New Office
FEB07
Different Court Diferent Behavior
Competency
MAR07
Cats
Ma'am I'm the Prosecutor
JUN07
I know nothing
23 Felonies
JUL07
Cross
Cross II
2d Simplest Explanation
OCT07
Jury
FEB08
CrimLaw Prosecutorial Corollary #1
MAY08
Paranoia
JUN08
Why Not Drop?
JUL09
Buy Me Dinner First
AUG09
Jury Sentencing Argument
SEP09
Is Litter Patrol Jail?
OCT09
Paperwork Closing Argument
APR10
Bubonic Bob & the Creative Judge
JUL10
Finding the Perfect Witness
APR12
Small Town Cop : Big City Lawyer
JUN12
Maturity Ain't Orange
Criminal Law
Sentencing Law and Policy
FourthAmendment
Law of Criminal Defense
CrimProf
White Collar Crime Prof
4th Circuit
...
Simple Justice
Defending People
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Underdog
Indefensible
DUIblog
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Criminal Defense
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...
Seeking Justice
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day by day
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Sentencing Law and Policy
FourthAmendment
Law of Criminal Defense
CrimProf
White Collar Crime Prof
4th Circuit
...
Simple Justice
Defending People
a public defender
Underdog
Indefensible
DUIblog
Southern District of Fla.
Criminal Defense
Harris Co. Crim Justice
...
Seeking Justice
Crime and Consequences
The Chicago Syndicate
Patterico's Pontifications
The Magistrate's Blog
Trials & Tribulations
Charon QC
Changing the Court
Virginia Blogs
SW Virginia Law
Va Poli Blogs
Vivian Page
Bearing Drift
Not Larry Sabato
Worthwhile
Bloggingheads.tv
Gruntled Center
WindyPundit
day by day
The Faculty Lounge
Legal Scholarship Blog
PrawfsBlog
Justice & Drugs
Ernie the Attorney
Bag & Baggage
In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.
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