31 October 2005

Around the Web

1) I begin to suspect something has been done about nominating a new Supreme Court Justice.

2) If we have to start making arguments in Latin Tom is going to start trouncing me.

3) In an era when it is considered cool to be acerbic and display cutting wit in opinions, it is impressive that the Supremes praised the appellate judge for putting it all thouroughly on the record.

4) Consent to search is not consent to search and destroy.

5) SoCal Law's favorite podcasts. (Hmmmm . . . I wonder why I would point this out).

Does It Happen?

Candy which is poisoned or has razor blades is an urban myth from as far back as I can remember. Is there anything to it? "Well, it's mainly bunk."

Halloweenies...

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Hundreds of people were arrested over the weekend in Madison, Wisconsin during Halloween celebrations. Police used pepper spray to disperse the crowds in attendance. The mayor suggested canceling the festivities next year.

Man admits killing 3, entombing bodies in concrete A Chicago man plead guilty to killing three teenagers in 2003 to avoid the death penalty. He says that he buried their bodies in freshly poured concrete in his apartment building's basement.

Officials Cancel Halloween Celebrations in Massachusetts Elementary School amid protests from some parents. School officials sent out a notice Friday that Halloween activities were being canceled because some parents found them offensive to religious beliefs.

30 October 2005

Around the Web

1) Orin asks how long the government should be able to hold a seized computer before it violates the 4th Amendment.

2) Either somebody is really dumb or doesn't like his on-probation friend.

3) Yeah they tried to do away with local rules in Viginia too, but it didn't take. I think the General Assembly even passed a law.

4) A State PD trying to get evidence. Federal PD's for the same defendant don't want it. Their rationale? It might be accidently released and upset the victims' family.

5) Somebody stole the Weasley's car.

6) If you bought your winning ticket with a stolen credit card you don't win.

7) Your cell phone is not an FBI tracking device.

8) What's the difference between a false declaration and prejury?

9) Mike makes the case for my elevation to the Supreme Court.

10) Did all the police who failed to do their duty in New Orleans actually work for the police department?

11) Lawyer fish?

12) From Lex Communis:
Mayor Jay at Pro Ecclesia is spreading a meme, the rules of which are:

1.Go into your archives.
2. Find your 23rd post.
3. Post the fifth sentence (or closest to it).
4. Post the text of the sentence in your blog along with these instructions.
5. Tag five other people to do the same thing.
Ok here it is:

At least this gentleman tried.

Tagged: SoCal Law, Have Opinion, Will Travel, Arbitrary and Capricious, Seeking Justice, SW Va Law.

29 October 2005

Is a State's Tax on Porn Constitutional?

Kansas lawmakers will look at a special state tax on adult entertainment businesses to study before the next legislative session. If the state can impose taxes on tobacco and alcohol, why not on pornography?

Judge and DUI Unconstitutionality

You'll recall that I discussed this in my last full length lawcast.

A judge in Fairfax general district court is not allowing the presumption of guilt from the DUI statute. When I commented upon this I was reacting what I had seen published and RUMINT. I said the judge is right in ruling this unconstitutional but wrong in dismissing cases solely because of it. Well, it appears that he's not dismissing cases out of hand. According to this WaPo article, he's just making the prosecutors prove their case without the presumption of guilt. Of course that's a terrible thing if you're MADD or don't believe in the constitution.

Reactions here, here, here, here, & here.

Officer Truthfulness

The vast majority of my practice is in State courts. Most of the time the officers and troopers who come to court to testify know they are going to see (and be seen by) the same judges, prosecutors, and defense attorneys over and over and over again. As such, it is usually in their best interest not to deviate too far from the truth too often. It just makes sense and all but a small number seem to get it. Nevertheless, some few don't and when an officer gets a reputation for not being truthful he quickly becomes less effective in court.

There are signs. Other officers will not corroborate first officer's version of the events. Officer2 won't say the Officer1 is being untruthful. However, Officer2 "didn't hear the confession because he was out of earshot", "was at the other end of the car with the another suspect during Officer's search of the suspect", or was "calling dispatch when Officer1 got permission to search the car." Prosecutors start trying to call other officers who were at the scene rather than Officer1 and sometimes just stop asking him questions when he's in the middle of his testimony (usually after an amazingly juicy bit of testimony). And you can really tell when a judge catches on. I've seen judges who never doubted an officer before suddenly start asking if there was a recording of the statements against interest and finding people not guilty in swearing matches with a particular officer (around here nobody wins a swearing match with an officer). I've seen judges focus in on incredibly minor errors in the prosecution's case and dismiss (rather than taking judicial notice or reopening for correction). I've seen judges dismiss on minor technicalities for which I'd be laughed at if I argued for dismissal based upon them.

However, much as Mike points to in federal court, I've never actually seen a judge bluntly tell an officer that he is lying. But that doesn't mean that anyone in the courtroom, including the officer, doesn't understand what just happened.

I Can't Remember

You know, once upon a time I wouldn't have believed it when I was told that someone could actually assert an "I am so busy I don't remember these little things" defense.

Nowadays, with umpteen dozen cases in the works at any one time and a memory which can't remember three weeks ago if I don't have the file in front of me, I believe.

When did it happen?

R. Kelly's prosecution moved forward after the prosecution changed the period of time in which it alleges the acts occurred.

More on Restrictive Phrases

Windy Pundit takes up where I left off in the discussion of whether "which" can be used to begin a restrictive phrase. He quotes Strunk and White as basically stating that the rule is "that" should be used to start a restrictive phrase and "which" should not be so used, but that this rule is not followed in the real world.

Then WP moves on to the test which Bryan first talked about in a comment to my post and I posited was probably the better test - the use of commas as markers for descriptive phrases (not present in restrictive phrases). He agrees that this is a better test than the judge's offered that/which test. He quoted Strunk and White (and I may have to go out and buy the book because the example is dead on for my purpose), however, since I've yet to travel to my local brick and mortar, I'll quote from my 1896 Higher Lessons in English:
The adjective clause, when not restrictive, is set off by a comma.
In plain language I think the difference is this:

The puppy, which is a beagle, is cute.

The puppy which is a beagle is cute.

In the first sentence you are describing the only puppy in the room to someone. In the second sentence you are at a pet store staring through a window at 20 puppies and are describing the specific puppy you are talking about. The first doesn't modify the meaning of the sentence; whether you include ", which is a beagle," or not you are talking about the same dog. The second does modify the meaning; "which is a beagle" defines which - of 20 puppies - you are talking about.

With that, I'm off to my local brick & mortar to purchase an English text published more recently than 1894.

Former bar owner sentenced for patron's death after allowing "drinking game".

The former owner of a Kansas bar has been sentenced in the death of a customer following a reported drinking contest. The victim had a .430 blood alcohol content.

The drinking game was called "Stoplight Challenge" where those participating consume three drinks: one red, one yellow and one green. If the patron can remain coherent for thirty minutes afterward, they were refunded the $15 cost of the drinks - and awarded a free T-shirt.

The bar owner was charged with involuntary manslaughter.

27 October 2005

I thnk the Judge is Wrong

I read this eagerly because I am trying to put together a petition for the Virginia court of appeals wherein I point out (as politely as possible) that a former decision of the court makes no sense under the plain reading of the statute because of a restrictive dependent conjunctive clause. The judge is spot on in his definition of a restrictive clause:
A restrictive clause identifies a subset of the object described and directs the meaning of the sentence to that subset.
However, he then goes forward with the idea that "that" introduces restrictive clauses but "which" should not. In this I think he is wrong.

There are three words which hold the grammatical position which the judge describes. "Who" is for people. "Which" is for things and creatures. "That" is for people, animals, and things. As far back as 1896 (and probably as far back as the 1877 first printing) Higher Lessons in English and Word Building states:
That is almost always restrictive. However valuable it may seem to confine who and which to unrestrictive clauses, they are not confined to them in actual practice.

The wide use of who and which in restrictive clauses is not accounted for by saying that they occur after this, these, those, and that, and hence are used to avoid disagreeable repetitive sounds. This may frequently be the reason for employing who and which in restrictive clauses; but usages authorizes us to confirm (1) that who and which stand in such clauses oftener without, than with, this, these, those, or that preceding them, and (2) that they so stand oftener than that itself does. Especially may this be said of which.

Pages 176-178
For a more modern confirmation, here is the pertinent definition of "which" from Webster Online:
2which
3 -- used as a function word to introduce a relative clause; used in any grammatical relation except that of a possessive; used especially in reference to animals, inanimate objects, groups, or ideas
usage see THAT4
The pertinent section of "that" referred to is the one describing "that" as introducing restrictive clauses:
4that
1 -- used as a function word to introduce a restrictive relative clause and to serve as a substitute within that clause for the substantive modified by the clause

usage That, which: Although some handbooks say otherwise, that and which are both regularly used to introduce restrictive clauses in edited prose. Which is also used to introduce nonrestrictive clauses. That was formerly used to introduce nonrestrictive clauses; such use is virtually nonexistent in present-day edited prose, though it may occasionally be found in poetry.
Which can be restrictive or not. If the judge were to state that the usage of "which" to introduce a restrictive clause is an unfortunate choice because it might lead to ambiguity he would be correct. However, using "which" and "that" to determine whether a clause is restrictive is an incorrect usage of the words and has been for at least 100 years.

lv SW Va Law

Suicide Mistaken for Halloween Decoration

A little off topic, but I thought I'd post it- in the spirit of the season

Miers Withdraws Supreme Court Nomination

Supreme Court nominee, Harriet Miers withdrew her nomination today after a torrent of opposition and vocal criticism about her qualifications to be a justice.

President Bush said he reluctantly accepted her decision to withdraw.

26 October 2005

WindyPundit acknowledged that my commercial was okay, but challenged me to better this one.

Holy cow! That's hilarious. It almost makes me want to move to Austin and bill 2,500 hours a year. Almost.

Anyway, I can't compete with that. I'm just one guy putting things together himself. Heck, I don't know if that many people have even stepped into my office - much less that many at one time. And I'm surely not going to license the music to Rocky. Still, the gauntlet has been thrown . . .

BTW - Perhaps even more hilarious than the video is the reaction here. Some people just have no sense of humor at all. Here's a hint: if the first thing you do when you view the video is start counting who's in what group - you've had an anti-discrimination practice for too long

For Me? You Shouldn't Have!

Well, I got my very first federal habeas today. Joy of Joys.

It's nice and typed, unlike a State habeas, and uses a lot of language which reads like I would have imagined lawyers wrote when I was in the 7th grade: "Therefore the heretofore said fact thusly set forth previously . . ." And apparently I did a lot of things ironically. i.e. "Said counsel ironically chose to be imcompetent" (repeated in multiple variations).

I don't think I should discuss the meat of the accusations but I'll leave you part of an actual quote:

"In the instant case subjudice, Petitioner, while raising various substantive claims of the underlying judgment being imposed without judicial jurisdiction and otherwise subject to collateral attack, also configurates the claims herein upon the ineffective assistance of counsel forum . . ."

For those of you who are wondering, configurate is actually a verb. It means "to give or assign a form to." Subjudice means "before a judge or court." I'd seen subjudice before (although probably not since law school), but until I looked it up I didn't really believe configurate was a word.

Petitioner obviously had a jail-house lawyer do this for him. How do I know this? Because Petitioner (previously Client) is actually quite bright and probably would have written a better document if he'd done it himself.

Hard drive of missing procescutor found

The computer hard drive of a missing prosecutor has been found damaged in a river. Ray F. Gricar has been missing since April 15.

Off Point: Lessig on TWIT

Just a quick bulletin to let anyone who is interested know that Lawrence Lessig was in this week's TWIT episode.

Download it here.

25 October 2005

Comparing the Nations

Most Murders per capita: By far the most is Colombia. The United States is #24. How other nations fared.

The United States is the nation with the most confidence in its police though none in this list dip below 50%.

Norway, Switzerland, and New Zealand have higher per capita drug offense rates than the U.S.

The U.S. doesn't even make the top twenty-five list for embezzlement.

Nor is the U.S. among the top 25 in number of police per capita.

The U.S. is - by far - the nation which per capita incarcerates more of its citizens.

In overall crime the U.S. ranks #8 per capita.

The U.S. is 20th in per capita use of the death penalty.


And there's a bunch of other stats which I don't have the time to list.

Its always the lawyer causing trouble...

Law and Order: Criminal Intent star, Vincent D'Onofrio became agitated recently when NBC had a mandatory "workplace harassment" seminar for the show's cast and crew. D'Onofrio got hot under the collar when a lawyer conducting the training started giving hypothetical scenarios about work place sexual harassment.

24 October 2005

Judge Signs Death Warrant for "Crips" Founder

An L.A. judge has signed a death warrant for "Crips" gang co-founder, Stanley "Tookie" Williams. Williams is scheduled to die Dec. 13 at San Quentin prison. In additon to being a co-founder of the "Crips", Williams was nominated for the Nobel Peace Prize for his children's books.

Free Speech?

Does the display of an effigy of a U.S. soldier with a noose around its neck constitute free speech or hate speech?

Supreme Court Justices

Y'know, I've looked people who practice criminal law in the face and told them that their greatest enemy on the Supreme Court is not Scalia. Maybe now they'll believe me:
The only Justice to use the rule of lenity often and distinctively is Justice Scalia, who applied it in ten of the last eleven cases where it was made an issue. This helps explain why Scalia’s votes in statutory cases tend to favor the government less often than his votes in constitutional cases, for there is no rule of lenity in constitutional law.
Scalia disappoints us all on occasion. Whren is an abomination for defense attorneys who see the constitution violated day after day after day under its auspices. On the other hand, prosecutors scratch their heads over the Kyllo decision and its curtailing of the emanations argument. In general, you can count on Scalia calling them as he sees them and not engaging in the torturing of statutes that we usually see so that the appellate courts can keep from "construing the statute strictly against the Commonwealth."1



1 The Virginia version of the Rule of Lenity. Despite being among the oldest canons of statutory construction, it is perhaps the most debased canon in Virginia law. It is often just stated and ignored in favor of some "legislative intent" argument which is usually, ummm, creative and almost never states authority for the legislative intent which the court is assuming to exist.

23 October 2005

Torture by Judge

Client comes into court facing a charge of misdemeanor trespass and misdemeanor failure to appear in court. She walks out of lockup and the judge reads the charge and Client pleads not guilty on each.

The evidence goes forward and the prosecutor calls the owner of the house. Owner testifies that Client lived there with his son. Son is currently serving time. Owner states that several times in the past year he told Client that she could no longer live there. However, he admits that she has lived at the house, on-and-off, at times since he told her to leave. He says that about three months ago Client got out of jail and came back to the house drunk; she says "I'm home!" and heads back to "my son's and her room." Owner says he told her to get out that night. Four days later Owner went to the magistrate and swore out a warrant for trespassing. He's the only person who testifies (on either side).

First we take care of the failure to appear charge. I point out to the judge that the underlying trespass warrant does not have the sections checked which indicate that the misdemeanor warrant was served on Client as part of her arrest or that she was served the warrant and told to come back for a pretrial hearing (the FTA is for missing the pretrial hearing). I also point out that the section which she is supposed to sign if the warrant is served and she is released is blank: no signature or indication of refusal to sign. I tell the judge that there is no evidence that client was ever even served the warrant and therefore cannot be held responsible for failing to appear. The judge hems and haws about this for a little bit; it's pretty clear he doesn't want to dismiss. I explain it to him a couple times and he gets it - he's just not happy about it. Finally, the prosecutor asks to see the underlying warrant. She checks to make sure it is as I've described it and then moves to dismiss. At this point the judge is satisfied and dismisses the failure to appear.

Then we move on to the argument about the trespassing. My argument basically boils down to one thing: if Owner had gotten the warrant on the first day Client would be guilty of trespass. However, Owner waited four days to swear out the warrant and swore it out for the fourth day. In the meantime he has acquiesced to her presence and waived his right to pursue a criminal charge of trespass; he should have pursued a civil eviction. It's a weak argument and the judge and I engage in this conversation:
Judge: "Mr. Lammers, he told her she couldn't be there."

Me: "Yes sir. On the first day. However, when he left her on the property and did not pursue a remedy he waived that claim."

Judge: "Mr. Lammers, as soon as she came on the first night he told her to leave. He never told her she could stay - she imposed herself."

Me: "On the first day that's correct. However, he let her stay there for four days. At some point allowing her to stay becomes approval for her to stay. When he did not act on the first day he approved her remaining at the residence in the room he himself called 'his son's and her room.'"

Judge (grinning): "Mr. Lammers, I just don't see how your argument makes sense. He told her she couldn't stay. Trespass is a continuing offense."
This argument circle repeats for several minutes. It's crystal clear how he's going to rule. Finally, I answer the question one last time and finish saying something like this: " . . . and, sir, if that's not persuasive I fear we are not going to have a meeting of the minds." He grins at me again and finds my client guilty. He then gives Client a sentence which is basically time served.

It was the end of the docket and he could see I was grasping at anything to argue my client's contention that she was not trespassing. I think the first round of argument he was listening; after that I think he was having a little fun with me - seeing how many times he could turn me on the spit before I would say, "Enough!" At the time I was a little exasperated but even I could see the humor of it. I went back into the lockup with my client to explain and when I came out the court personnel were smiling because they knew what had just happened.

Well, at least he didn't have the power to make me faint mid-argument.

FBI Pushing for Spy Efficient Internet

The government wants to force internet providers to put all information through choke points so that it can spy on us easier. And it wants the providers to pay the billions which this will cost (via judicial mandate).

Welcome to China.

22 October 2005

Miers' answers lead to more questions...

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Supreme Court nominee, Harriet E. Miers submitted her answers to a questionnaire to the Senate. Some on both sides of the aisle say she had little to say- especially on Constitutional issues.

The Case Against Delay

As time goes on, and the facts develop, it seems like the case against Delay gets weaker. Of course the judge needs to recuse, and of course venue needs to change. But of course this is Ronie Earle's version of what is fair.

Men Shouldn't Rape

I'm driving from Richmond to Roanoke, Virginia. Somewhere about Lynchburg I see a billboard up by the side of the road with a bunch of guys telling me that rape is bad. I kid you not.

Then I'm driving from Roanoke to Lexington, Virginia. I look up and there's the same billboard.

I'm confused. Was there ever really in question?

Kansas Supreme Court Stikes Down "Moral Disapproval" Laws

The Kansas Supreme Court struck down a state law that punished underage sex violations more severely, if the violation involved homosexual activities.

Rape Suspect Makes Victim Write Him A Check...

From the "How dumb can you get" files- a man who broke into a woman's home and raped her at gunpoint, forced her to write him a personal check (made out to him!) for $1,400 before leaving.

Mother Arrested in Murder of 3 Children Pleads Not Guilty

A woman seen dropping her children into the San Francisco Bay pleads not guilty to three counts of murder with special circumstances.

20 October 2005

Arrest made in death of Daniel Horowitz's wife

A sixteen year old boy has been arrested in the murder of criminal defense attorney Daniel Horowitz's wife Pamela Vitale.
Does broken window policing work?
We're #1! We're #1! - Oh, wait, that's not a good thing. . .
Australia is considering a $10,000 fine for scalping tickets on ebay.

Australian Anti-Terrorism Bill

In Australia an anti-terrorism bill is being called a "draconian police-state plan." Different news organizations are concentrating on different parts of the bill. It contains provisions allowing police to shoot to kill. The bill allows the punishment of news reporters for outlining the other side's beliefs. The government would gain the power to immediately and indefinitely detain a person without recourse to the courts.

I did a quick search but didn't find articles which were in favor of the bill.

Former House Majority Leader Booked...

I know Ken's #1 and #3 Rule is: NO POLITICS. However, when a former House Majority Leader is fingerprinted and has his mug-shot taken, it's news (regardless of party affiliation!). Take a look at his booking photo and arrest warrant.

New Zealand Crime Reports

1) Apparently, it's against the law to carry counterfeit US money from Australia to New Zealand.

2) Police swoop down on drug dealers/fences.

3) If you pay $5,000NZ you can have the illegal copies of your products confiscated as people come into the country.

4) Criminal gangs are leaning on small governments in the pacific.

Burglars break INTO jail...

Two men were caught trying to break into a jail in Brooklyn... they didn't realize that there are security cameras - even in jail!

19 October 2005

Defense Attorneys Accuse Prosecution of Dirty Tricks in Trial of Former Governor

Defense attorneys in the corruption trial of former Illinois Gov. George Ryan complained prosecutors generated negative publicity about their clients...

Judge throws out murder conviction after 14 years in prison

A New York judge threw out a murder conviction of a man who had spent 14 years on prison after new evidence was introduced.

The Magic Wand: Or How the Law Would Be Practiced if D&D Were Real

The trick, you see, is that they don't give you your magic wand in law school - you have to buy it. And they don't advertise to those whom prophecy reveals will practice criminal defense. I got lucky and just happened to hear the two guys a carrel over talking about the sale (they were prophecied to become obscenely wealthy working their way through BigLaw). So I snuck over and used my roomate's name to get my very own wand. It's great, I pull it out and "presto-change-o" prosecutors and judges become reaonable people.

The problem is that once I started to use it the prosecutors went out and started buying magic resistant armor. Of course, the prosecutors favor black and the federal prosecutors get armor which is a little bit of an overkill. And nowadays, judges all have protection hex t-shirts.

So, if anybody out there needs mine, I'm not getting any use out of it anymore. I think I'm going to have to change over to a kettle and eye of newt.

Inspired by Arbitrary and Capricious.

Curious

You must wonder how long a blog by a federal prisoner, who cannot post directly, will last.

18 October 2005

Emotional victim lashes out at turkey-tosser and pals

A woman who was almost killed when a prank went horribly wrong blasts her attackers after their sentencing.
Yeesh! The lesson here is to be extremely careful where you smoke your dope after the local hurricane shelter has kicked you out (probably for smoking weed).

BTW: Check out the rest of Camp Katrina, a blog by SPC. Phil Van Treuren, Legal Specialist, Ohio National Guard JAG Corps.

Ken Lammers for Supreme Court Justice

For those of you who weren't convinced that I should be elevated to Justice, my campaign headquarters has come up with a new commercial in order to urge you along the right path.

Remember, call your Senator today and tell him that he should "Vote Ken or Vote No!"

enChanting Client

Client was arrested for obstruction of justice and battery of a police officer. I've spent a fair amount of time trying to square away the fact that the police charged him under somebody else's name and met with Client a few times. He doesn't seem much different than a typical, fairly friendly, frequent flyer.

After I spend a week getting the identity squared away, we have a bond hearing. Client's bond was set at $10,000 originally because he wouldn't admit he was the guy whom they claimed he was and that guy had a sexual offense history. I show the judge a picture of the other guy from the sex offender website and point out that he's not my client. That gets Client's bond dropped to $5,000 and his real name amended to the warant as an AKA. I point out it's not an AKA - it's his real name - but the prosecutor and judge both insist on leaving the name he was charged under and putting his real name as an AKA. Client is clearly disappointed but doesn't do anything disruptive.

Then comes the date of the hearing in the general district court. As I walk into the building every deputy I pass tells me that Sergeant is looking for me. When I get to the courtroom itself a deputy meets me at the door and calls on the radio for Sergeant. Sergeant gets there and tells me that Client has been difficult. They had to fight him to get him out of the jail into the van. He head-butted another inmate in the van. They had to fight to get him from the van into lockup in the basement. He's going to be the last person called on this morning's docket because they are worried about security.

Okay . . . I go off and take care of a couple other cases and then come back and talk with the prosecutor. The prosecutor offers to reduce the felony A&B to a misdemeanor with 6 months (actually 3 to serve) and 30 days (actually 15 to serve) on the obstruction misdemeanor. Client has already banked a couple months and if he takes the deal it would be less time than he is going to serve waiting for the felony trial date. I go down to the basement to try to talk to Client but they can't bring him to the attorney meeting room because there is only one deputy and won't deal with Client with less than two. So, I tell them that I will talk to Client when they bring him upstairs; the second to last case is finishing upstairs so we're next.

I go back upstairs and go to the upstairs lockup. It takes time because they are having trouble getting him into the elevator. The deputy in upstairs lockup tells me that they have to drag him to the elevator. The elevator opens and Client is laying on the floor, mumbling. There are 4 extra deputies in the elevator. One of them asks Client if he's going to make them drag him and Client stands up. He looks disoriented and they walk him up to me with deputies on all sides.

I try to focus him: "Mr. Smith!" He looks at me for a second and then says, "Illah" and starts chanting nonsense. "This is blue, I am green, a white man with glasses, this place is yellow, I'm not yellow, green, green . . ." One of the deputies immediately puts Client's right wrist in a lock hold. Client keeps going and going and going and has a thousand mile stare going on. There is no way I can put this guy in front of a judge and claim that he is competent.

I go out to the judge and tell him that I need a mental evaluation: "I'm sorry, your Honor, if I'd realized it was needed before today I'd have asked for it sooner."

Judge: "Well, Mr. Lammers, Client seemed pretty lucid when we had that bond hearing a last week."

Client (loud enough to be heard from the soundproofed lockup area): "Blue is now, Green has been, Hair is good . . ."

Judge: "Mr. Lammers, I'm going to order evaluation for competency and sanity at time of the offense. And if you think he's so dangerous that he can't go to trial, I think I'm going to have to revoke his bond."

I see the judge look behind me and glance back. There are 15 deputies standing in the courtroom waiting in case the other 5 have to bring Client from out of lockup.

Me: "I don't know that Client is dangerous - although it appears that others may have concerns - I just cannot vouch for his competency."

The judge orders the evaluation and revokes Client's bond. I go in the lockup and two deputies are standing on either side of Client, holding him down as he sits in a chair. He's still going strong: "This place is purple and she is brown and brown with glasses . . ." I try to get his attention but fail. Sergeant gets his people ready to escort Client back down the elavator. I tell Sergeant to wait a second, I have to say the words to him even if he doesn't understand right now because he might later. So I tell Client what is going on but he just keeps staring a thousand miles out and chanting away. Then the deputies let him up and escort him to the elavator and I hear the chants fade away as the elavator doors close and the elavator goes back down to the basement.

Thus ends a rather confusing morning.

17 October 2005

Woman Sentenced in Scalping of Teen

An Idaho woman who was convicted of scalping a teenage friend was sentenced to 10 years. Read more here.

Around the Web

1) A Blawger conference in Chicago. Gotta admit that I wonder how many people will actually make the trip.

2) Okay, I hate spam as much as the next guy, but there seems to be something wrong with using warrants to put someone out of business. I wonder why this guy was still doing anything in the States. Why didn't he find out where Pirate Bay is located and get servers in that country?

3) Money is lacking but there are plenty of untrustworthy lawyers.

4) Great, not only are DUI laws draconian, they are also profitable.

5) No comment.

6) C'mon. Bragging about having done 6 trials in a year? That's impressive in what universe?

7) Serving warrants at 0-dark-30 on a Sunday morn. There are many days I'm so glad I'm not an officer.

8) Are the prosecutors in L.A. trying to kill more people?

9) It looks like the gloves may be coming off in white collar crime and defendants will be tried just like everybody else who is pushed through the system.

10) Imagine for a second being a prosecutor. Officer Smith drops by with some good news: "We finally cracked the massage parlor prostitute ring." You're thrilled, until you ask how.

Make sure you click through and read the actual "Affidavit of Probable Cause."

11) Leave it to the Japanese to fight crime with cell phones.

16 October 2005

UPDATE: Suspect says Behl's death an accident

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Various reports are now saying that murder suspect Ben Fawley, 38, of Richmond has admitted that he accidentally choked 17 year old Taylor Behl to death during an intimate encounter.

Follow the investigation by clicking here.

A New Lexcast: Presumptions of Guilt and DUI's

This week's episode discusses the constitutional interpretation and the presumptions under Virginia's DUI laws. I discuss why a Virginia judge is right when he says the statute is unconstitutional but wrong when he dismisses cases based upon the constitutional error.

Here's the video
. Go over to the left column and click Lex Radio to go listen to audio on Odeo.

Alleged Child Molester Pressures Victims from Jail

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An alleged pedophile awaiting trial for pursuing underage boys up and down the East Coast was charged Friday for calling his victims from Rikers Island and pressuring them not to testify against him.

Click here for more.

Critter Arms Race

When cats arm themselves their prey has to take steps to protect itself:


The wife of Daniel Horowitz, a defense attorney who appears on CourTv, was found slain in the doorway to their house.

Neo-Nazi March Causes Riots

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A riot broke out in Toledo, Ohio Saturday, when protesters at a white supremacists' march threw rocks at police and vandalized vehicles and stores. Some in the crowd claimed to be upset that the town allowed the group to march in the first place.

Click here for more details.

15 October 2005

AND SO IT BEGINS . . .

Those of you from civilized portions of the country (Kentucky, Indiana, Kansas, North Carolina) know that last night marked the beginning of the season. Sure it's only practice so far, but soon . . .



And, this year I'm also obligated to watch the team which is hosting the Coach Heir-Apparent:



And, who knows, if Tubby can't deliver soon maybe a new coach will be needed right quick. BTW - Wouldn't you hate to have a job where you were acknowledged to be among the very best and still get complained about by a yahoo like me who couldn't coach his way out of a paper bag? Tubby's got a job where a whole State full of yahoos do this. A couple of years without a national championship? Off with his head!!!!

14 October 2005

Sometimes I'm so happy that I have a Sidekick rather than a Blackberry.

Welcome to the Fold

Another eager, young Virginia professional has been suckered into the er, I mean, has been welcomed into the fold.

May all his opponents remain civil, all his judges be pleasant, and all his appeals be in front of Benton.

"For Service, Speak English."

The owner of a bar in Mason, Ohio has come under fire for posting a sign that says: "For Service, Speak English." But is he breaking the law? Some think so... Click here for the full story.

13 October 2005

What's it Take to Get a Habeas Denial Overturned?

Well, the Roberts' court will probably hold you to such a stringent standard that when you base your decision on the fact that a document is not in the record, the document had best not be in the record.

via Objective Justice and SL&P

Man accused of smoking pot at courthouse.

A Pennsylvania man was arrested for lighting up a joint... inside the courthouse!
Click here for the story.

12 October 2005

A guy loads a plane with his friends and steals it. Bothersome. But the truly disturbing part of the article:

Authorities also revealed that the incident was not the first time a plane has been stolen from the Saint Augustine Airport.

Murder Mystery...

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This local murder investigation has taken on a life of its own and even gone national with the key players making the rounds on talk T.V.

I must admit, however, this case does have it all: A beautiful young teenage girl missing; her 38 year old boyfriend/prime-suspect arrested on child porn charges; a body found... sounds like an episode of C.S.I., but its all too real.

Click here for the full/developing story.

11 October 2005

From Ann Althouse:
Harriet Miers is associated with no theory of constitutional interpretation. She appears to have never shown any interest in constitutional analysis at all.

Who is this Harriet Miers, this practicing lawyer, who presumes to go on the Court and write the opinions we [professors] must spend our lives reading and analyzing?
. . . [S]he is just an attorney. The very idea!

Thinking about it that way has begun to thaw my opposition to Miers. . . . Perhaps the Court is harmed by an excess of interest in the theoretical. A solid, experienced lawyer like Miers, with no real background in constitutional law, might look at the text, the precedents, the briefs, and use the standard lawyer's methods to resolve the problem at hand. What is wrong with having that style of analysis in the mix? We need a safeguard against the excessively theoretical.
Cool! If we take that a step further we should try to get someone on the court who spends all his time in court actually trying cases.

Wait, that's me!!!



And here's my campaign poster:



Contact your Senator today. Remember it's advise and consent. All we have to do is convince 51 Senators that the only consent they will give is if the President takes their advice and nominates me.

[addendum] For those of ya'll coming here via Orin's direction: I, perhaps to the detriment of my candidacy, have a paper trail on the issue of Reasonable Articulable Suspicion of a Criminal Activity.

Posts (in order): 1 - 2 - 3 - 4 - 5 - 6
AAaaarrrrggggg!!!! I put together a new lawcast reviewing a new show on the WB "Just Legal" and was putting the final touches on it by checking some stuff about Don Johnson (one of the stars) and found out it's been cancelled.

10 October 2005

To Change the Jury

Ethan Leib, of Prawfsblawg fame, has put out a work in progress in which he proposes supermajorities rather than unanimous decisions for convictions and simple majorities for acquittals.

I haven't yet read the actual article but must say my gut instinct is to oppose this sort of change.

(A) There's no problem to solve here. Both from my personal experience and discussions with other attorneys, I believe there are very few hung juries. Juries almost always come to a unanimous conclusion.

(B) The objective of the system is to put the onus on the government. Not requiring the government to prove its case to the satisfaction of 12 citizens is a step back from the burden of proof. In effect, it gives the government extra strikes from the jury pool. If the required number for conviction is 8 the opinion of the last 4 is irrelevant. The government gets the benefit of the 8 jurors it would prefer present (the convictors) and gets to ignore the remaining 4, basically discharging them from their duties because they do not agree to convict.

But wait, you say, the defense gets this same benefit! In effect it gets 5 extra strikes in cases wherein the jury votes to acquit (7 being the number needed for a majority out of 12). Yep. But there's no lessened burden of proof because the defendant has no burden of proof. And, let's be honest here, how often is the holdout minority a couple of convictors when the rest are for acquittal?

Additionally, as a matter of judicial efficiency, there's a good argument for simple majority acquittal: A simple majority for acquittal would benefit a system which requires the government to prove its case by keeping the government from retrying weak cases.

Anyway, I suggest that ya'll go download and read the article. For all I know it blows my reservations out of the water. I'll try to comment on the article as a whole when I get a chance to read it.

Welcome a New Blawg

Indigent Journal is a new blawg out there about criminal defense. Currently, he's going nuts over an article published in The Champion (the National Association of Criminal Defense Lawyer's magazine) which besmirches those who remain in a public defender's office too long. Apparently the author reasoned that those who remain in the government's employ as PD's eventually become too close to the prosecutors and judges and, as a direct consequence of being too familiar, do not take enough cases to trial.

My Take: I am no longer a member of the NACDL. I was at one time but all I got out of it was the nicely put together glossy magazine - the same magazine which Indigent Journal is upset about. And it used to upset me the same way on the same sorts of issues. Nothing which any of us did as indigent defense attorneys was good enough. Sometimes I wondered if they'd even be satisfied if I did this:

08 October 2005

Feddie On NPR

Steve Dillard was interviewed on an NPR segment about the latest nominee to the Supreme Court.

Jailed for Being Creepy

You'll have to listen to panda mating habits talk for about thirty seconds but then you can find out how a wierdo can get thrown in jail in Scotland for engaging in free speech. Here's the same thing in Spanish.

BTW: I really like mobuzz, probably because it's humorous and the announcerettes are pretty hot. Karina Stenquist, who does the English version, is hilarious; I got hooked when I ran across her squidcast. Iria Gallardo does the Spanish broadcast; I don't speak Spanish but somehow I still got sucked in (I think it's because I'm male).

06 October 2005

A Day in the Life of a Criminal Defense Attorney

8 a.m. - I roll into the courthouse for my first case of the day. It's going to be a good start to the day because I know it's a slam dunk win. The case is called and my client is brought from lock-up. He's being show caused for not paying restitution in 2001. The district court only kept him on probation until 2003. The prosecutor's office asked for a capias to arrest him for not paying the restitution in 2004, a year and nine days after the court had lost jurisdiction. He was arrested in another jurisdiction this year and the capias was served on him.

Before the case starts I make a motion to dismiss, pointing all this out to the judge. The judge disagrees, stating that Client was supposed to pay the restitution in four months, didn't pay, and therefore the court has jurisdiction. I point out that the court had limited its jurisdiction and that this time had run a year and nine days before anybody did anything about it = the court doesn't have jurisdiction. "But Mr. Lammers, he didn't pay the restitution within the four months so the court retains jurisdiction." The judge and I go round and round about this and I get no where. As a last ditch effort I try pointing out that under the judge's interpretation the court would retain jurisdiction for all time (obviously not proper). At this point the prosecutor joins the argument comparing the unpaid restitution to an unserved warrant for someone not coming to court. I point out that that makes no sense but the judge isn't having any of it. He denies my motion and finds my client guilty.

Then comes the sentence. The judge revokes my client's suspended time and resuspends all of it except 30 days. He then sets as the sole condition of the remaining suspended time that Client pay the restitution and puts Client on probation for three years. Just little perturbed, I have to bite down hard on my tongue to keep from saying "Your Honor you've just proven my point. If you actually believe that in matters of restitution the court retains infinite jurisdiction you wouldn't have set a time limit for probation based solely on payment of restitution." I ask for an appeal bond and the judge sets it in the amount of the restitution.

Then I go back into lockup and talk with my client. I am not happy and want to appeal this to the circuit court so badly I can taste it. Client has served more than the 30 days and will get out today if he accepts the judge's decision. Anyone out there want to guess whether I got to appeal the case?

8:45 - I go over to the next courtroom for my next case. It's a show cause (for failure to complete community service and failure to pay restitution) and a misdemeanor failure to appear in court. We come out and plead guilty. I explain that client believes that he had done all of his community service but that the last six hours weren't credited to him because he signed in but forgot to sign out. I point out to the judge that Client has already served over a month and that he has a job ready when he gets out so that he can start paying the restitution. I suggest that the judge give him a total of a month in jail. The judge states that he believes Client is not taking any of this seriously and revokes Client's suspended time and resuspends all but six months. "Mr. Lammers, I may look favorably upon a motion to reconsider if the restitution is paid."

9:30 - I go to the circuit court for a de novo appeal of a trespassing case; it's a citizen complaint which means warrant did not issue on the sworn statement of an officer but on the word of a citizen. In general district court my client was convicted of trespassing but the judge low-balled the punishment, taking Client's case under advisement for a year (to be dismissed if no further trouble). Client insists he is innocent and demands an appeal. The first appeal date he missed court and the judge issued a show cause. When I get up to the courtroom I find out that Client has been arrested that morning when he arrived in court; when they were unable to successfully serve the summons for the show cause the judge changed it to a capias. I give the prosecutor a chance to back out before trial but he declines.

The case gets called. Client pleads not guilty to both the trespass and the show cause for failure to appear. The prosecutor calls his only witness. She's about 50+ and slowly hobbles up to the witness stand, leaning heavily on her cane. She wheezes a little, coughs every so often, and seems to be trying to look pitiful. She tells how Client used to date her daughter but doesn't anymore and that he's now banned from her property. She tries to get off point to raise all sorts of other things but after a couple objections she stays on point (with some herding by the prosecutor). Then she says that she was awake in the early morning hours of 15 January 2005 and saw my client drive his car into her driveway. At the door, she saw my client, he saw her, and he pulled out and drove away. The prosecutor asks her what time this happened and she stated 3:44. The prosecutor tries to see if there is any play in this but she holds fast. She saw the time on the kitchen clock when she went to wake others in the house, she noted the time on a tape recording she made to turn over to the police (the officer called refused to go swear a warrant), and the clock is never wrong about the time. She also states that she was the only one to see Client.

Then I cross her. She admits that she was 150 feet from the vehicle she saw it. She admits that the headlights were on. Finally, she clarifies that the event actually occurred the night of the 15th and morning of the 16th (meaning it actually occurred on 16 January 2005 at 3:44 a.m.). At first she repeats that it happened on the 15th "because we went to the magistrate on the 16th." I ask her if she went to the magistrate when she woke up the next day and she says "Yes" and agrees that this meant the event actually occurred on the 16th.

Next comes my turn to call witnesses. I call my client's former boss. She testifies that my client was working as a pizza driver and worked a double shift on the night of the 15-16th. She has records (which I move into evidence) showing that he clocked out at 3:54 on the 16th.

The prosecutor crosses and it comes out that in order to clock in Client had a number and code to enter into the computer but that only a manager could clock him out after he finished work and turned in all his money.

With that, I close my case. The prosecutor waives his opening argument. As I stand up to close the judge asks me about the failure to appear. I start to proffer that Client had mixed up a couple court dates but the judge starts asking indepth questions so Client has to go the stand and testify that he had a date for a speeding ticket and a date for this court, he went to the wrong courthouse, and he was really upset when he found out he'd missed the last date.

Then I get to argue. I point out that client was at work and couldn't have clocked out without his manager, that there was no way he could have driven from his job in the middle of Richmond to the complaining witness' suburban house in less than 30-45 minutes (if he sped), and that he got off work after the alleged incident had occurred. The prosecutor gets up and starts hammering away at the fact that the manager of the pizza place wasn't in court to say he saw Client at work; all we had were records which could have been entered by anyone. I object to the prosecution's insistence that the defense produce the manager: "Your Honor, it's the prosecution's job to prove guilt." The prosecutor then mops the floor with me for a couple minutes, pointing out that an alibi is an affirmative defense. He starts goes on and on about how his office had no notice of this defense; I start to object (they had notice because it was the same defense relied upon in general district court) but I let it go because the argument doesn't look like it's getting any traction.

The the judge rules: "Mr. Prosecutor, I tend to agree with you." At this point my head pops up. My client has won; if Client were going to lose the judge would have started out by telling Client what a great job his defense attorney had done. "I think there is a strong suspicion, no, a strong probability that Client did what Ms. Smith says he did. However, as we all know, that's not the standard. Therefore, I find Client not guilty. I also find him not guilty of the failure to appear in court. His story is suspicious but nothing rebutted it." He then warns Client not to go to that property ever. Client's thrilled but still has to go over to the jail for processing (because the capias was served on him) before he can be released for the day.

And so ends another Day in the Life.

Around the Web

1) A judge comments on the judicial disciplinary process.

2) Professor Groot was one of the best professors at W&L. I learned the common law definitions of several crimes because of him. Not because I was in his class, mind you, but because my roomate was and he was so terrified of Groot that he would spend hours drilling on the common law crimes until all of us could recite the elements in our sleep.

3) Imagine if you found out the girl you just bought a drink for is that client who hasn't returned your calls or come to see you. Now imagine that the charge you've been assigned to represent her for is underage drinking.

4) Can your client's other lawyer be as annoying as his relatives?

5) Traffic cameras cause more crashes. No surprise there. Traffic cameras are a scam to make the city a lot of money. Sadly, no surprise there either.

6) What's the fun in making the stripper stay so far away? I mean, isn't this unduly prejudicial to short-sighted people? That's got to violate the 14th Amendment.

04 October 2005

Open Thread

OK, I haven't cleared this with Ken, but, let's try it. Harriet Miers is unqualified to sit on the Supreme Court. Discuss ...

Bet on Delay

If I had to bet, I'd bet on The Hammer. The indictment is flimsy, the prosecutor's got a history, and the defendant has retained one of the finest defense lawyers in the country, Dick DeGuerrin (who, incidentally, licked the same prosecutor about 10 years ago when Kay Bailey Hutchison was the victim of a similar politically motivated indictment). Yep, bet on The Hammer here and give the points.

Moments You Wish You Could Have Back

I'm at a show cause hearing for a client who has been reported by probation for not reporting in and not completing community service. It quickly becomes apparent that my adversary for the hearing is not the prosecutor, it's the judge. I call my client's mother and the prosecutor declines to cross her; the judge then spends 15 minutes going back and forth with her either (a) trying to discredit her testimony, or (b) trying to convince her that her daughter deserves to go to jail (not sure which exactly). He does the same thing when Client testifies.

Then comes argument. The prosecutor waives opening and I stand up and point out that much of the problem stems from the fact that Client lives at the far end of the next county over, has no phone, and cannot drive. I then point out that if we could get things transferred over to that county's probation office Client would be able to complete his responsibilities because Mom can drive him to something in the county. I also point out that Client got a good job a couple months back and has voluntarily entered drug treatment (despite the fact that she's never had a drug charge).

At this point the judge interrupts me and says, "That's all good counsel, but you need to tell me a reason I shouldn't send him to jail." Then I go off. I point out forcefully that this is a kid who is trying to get his life together and she'll lose her job if she's incarcerated and that we need to help her along the path. I ended with, " . . . and this Court would do well to help her along the path to recovery rather than just warehousing her at taxpayers' expense."

It was incredibly cathartic and satisfying and when I sat back down at the table I start kicking myself because I know it wasn't helpful for my client. The judge gave her 60 days in jail. I doubt I could have done anything to change how much time Client got (I think the judge had decided before we even started the hearing). Still, I'd like to have that minute or so back in order to try to - at the very least - make that argument a tad bit more tactfully.

01 October 2005

Yep, if you cannot develop a dark sense of humor you probably shouldn't practice criminal defense. The three options are laugh, cry, or go insane. I shudder to think about what some of the people sitting next to a table full of defense attorneys think about the ghoulish stuff which passes for humor among us.