31 January 2006
Meter Maids Get Tough...
Drivers who tamper with meters to get free parking are getting noticed by the Washington D.C. Police Department. Police made three arrests in 90 minutes Monday for meter tampering on a two-block stretch of a downtown street. The practice costs the city about $400,000 a year
Podcasting Law School
Here we find the American law student podcasting away about what his professor thinks criminal law is about.
30 January 2006
Ken's "Barney Fife" assessment proves correct...
It is uncanny how Ken can accurately describe events!
I'm a nearly egalitarian, almost hierarchical, Individualist
| Individualism You scored 92% individualism, 24% fatalism, 44% hierarchy, and 40% egalitarianism! |
| You strongly adhere to the culture of Individualism. Individualists believe that everyone should be given a fair chance, but people should be allowed to succeed or fail based on their merit. Competition -- in the marketplace, in elections, or elsewhere -- is your forte. Individualists think nature is resilient, like a ball at the bottom of a cup, and therefore competitors can be given free rein to exploit it. |
 |
My test tracked 4 variables How you compared to other people your age and gender:
|
| Link: The Scientific Cultural Theory Test written by Stentor on Ok Cupid, home of the 32-Type Dating Test |
via Dappled Things
29 January 2006
Imagine owing the government $76,000 - for TOLLS
Texas woman who owed $76,000 for unpaid tolls pleads no contest.
A driver who racked up about $76,000 US in charges for cruising through toll booths without paying has pleaded no contest to three misdemeanour citations.
A driver who racked up about $76,000 US in charges for cruising through toll booths without paying has pleaded no contest to three misdemeanour citations.
DA puts on S & M
Lawyer dons leather mask for closing arguments in Massachusetts dominatrix case.
A prosecutor put on a black leather mask and re-enacted a bondage session Friday at a dominatrix's manslaughter trial, telling the jury the woman did nothing to help her client when he suffered a heart attack.
A prosecutor put on a black leather mask and re-enacted a bondage session Friday at a dominatrix's manslaughter trial, telling the jury the woman did nothing to help her client when he suffered a heart attack.
28 January 2006
Y'know, when I was in law school I just don't remember any of my crimlaw courses talking about Medieval Latin.
27 January 2006
A Word of Advice...
Ouch... advice to anyone convicted of an underage drinking offense: do not go off to college, take lots of pictures of you and your co-defendants downing shots, then post them on a web page with captions such as "FU judge Martone." Story here with a hat tip to Howard Bashman.
A Barney Fife
As Steve was kind enough to point out, one of our beloved Virginia Legislators has decided to apply for the job of deputy in Mayberry, North Carolina. Of course, in N.C. they'll limit him to one bullet and make him keep it in his shirt pocket, but that's probably a good idea for someone who fires off an accidental round in his office in the capital.
Let's go through what must go wrong in order for this to happen. First, a round must be chambered. Second, the safety must be off. Third, his finger had to be on the trigger; I suppose a poorly designed pistol might set the round off if the user slipped while trying to clear the weapon and released the bolt, smashing it down on the round (hopefully a legislator would have a better weapon than that). Fourth, he had to be holding the weapon up and aimed at the door of his office. If you're going to clear a weapon - and you're not able to point it at the ground - it is always a good idea to have a bucket of sand around to point it into (a coffee can works).
Delegate Reid, maybe the answer is to go for the handheld weapons. For instance, I am pretty well stocked up to handle matters at my office:
Well, you might want to avoid the khanjar. It has to be unsheathed and that does leave the possibility of pulling it out too quickly or with too much force and causing it to fly across the room. I think you should probably avoid anything that complex for the time being.
Let's go through what must go wrong in order for this to happen. First, a round must be chambered. Second, the safety must be off. Third, his finger had to be on the trigger; I suppose a poorly designed pistol might set the round off if the user slipped while trying to clear the weapon and released the bolt, smashing it down on the round (hopefully a legislator would have a better weapon than that). Fourth, he had to be holding the weapon up and aimed at the door of his office. If you're going to clear a weapon - and you're not able to point it at the ground - it is always a good idea to have a bucket of sand around to point it into (a coffee can works).
Delegate Reid, maybe the answer is to go for the handheld weapons. For instance, I am pretty well stocked up to handle matters at my office:
Well, you might want to avoid the khanjar. It has to be unsheathed and that does leave the possibility of pulling it out too quickly or with too much force and causing it to fly across the room. I think you should probably avoid anything that complex for the time being.
25 January 2006
More on the Coleman DNA results...
Living and attending law school in Grundy, Virginia, I've heard a LOT about the Roger Keith Coleman execution and subsequent debate as to his self-proclaimed innocence. With the recent release of the new DNA testing results, the area is again abuzz with talk of the case. I've attached a link to the local (weekly) Grundy paper's account of the trial and its aftermath- as told by those who were involved in the case. Tom Scott, one of the former prosecutors in the case (and now in private practice and an associate law professor) gives an interesting insider's view. Other interviews include family members of both convict and victim. This was the last murder in the little mountain town of Grundy before the law school massacre in January, 2002 that left three people wounded and three others dead.
Virginia CrimLaw News...
1. RICHMOND- Murder trial of VCU student to begin May 30 in Mathews County
Taylor Behl murder suspect Benjamin W. Fawley this morning was assigned a court-appointed lawyer during his first appearance in Mathews County Circuit Court. Click HERE for additional information and background on the case thus far.
2. SPOTSYLVANIA- Man gets 10 years in boy's death.
Sentence follows a plea bargain as the mother of the 3-year-old victim begs to know the location of son's body.
3. ABINGDON- Charges dropped against doctor's assistant in drug probe.
A federal judge dropped all charges against an assistant to a Roanoke pain doctor for cooperating in a federal drug prosecution. The assistant originally faced 57 charges and pleaded guilty in August 2003 to reduced charges of knowledge of illegal distribution of narcotics. Her former boss was sentenced to five years probation last week.
Taylor Behl murder suspect Benjamin W. Fawley this morning was assigned a court-appointed lawyer during his first appearance in Mathews County Circuit Court. Click HERE for additional information and background on the case thus far.
2. SPOTSYLVANIA- Man gets 10 years in boy's death.
Sentence follows a plea bargain as the mother of the 3-year-old victim begs to know the location of son's body.
3. ABINGDON- Charges dropped against doctor's assistant in drug probe.
A federal judge dropped all charges against an assistant to a Roanoke pain doctor for cooperating in a federal drug prosecution. The assistant originally faced 57 charges and pleaded guilty in August 2003 to reduced charges of knowledge of illegal distribution of narcotics. Her former boss was sentenced to five years probation last week.
Question of the Day
Lately, I've had a spate of clients with unreasonable demands. The demands are invariably for a deal which is unrealistic. Client is arrested for her 6th grand larceny and wants "this little charge" to disappear with time served at the preliminary hearing date. Client has a simple possession charge but a long history of convictions for violent felonies and tells me he won't do anything longer than 6 months. Client has multiple possession with intent charges and wants a plea bargain for 6 months1. Of course, all this is part of the job, but it set me to wondering . . .
Why 6 months? Why is it that no matter how serious the offense or how long the client's criminal record is he always thinks his case should settle out for - at most - 6 months or less?
Rather than spinning out a theory of my own I thought I'd throw this one out to ya'll. Anyone got a theory?
1 None of these are actual fact patterns from current cases.
Why 6 months? Why is it that no matter how serious the offense or how long the client's criminal record is he always thinks his case should settle out for - at most - 6 months or less?
Rather than spinning out a theory of my own I thought I'd throw this one out to ya'll. Anyone got a theory?
1 None of these are actual fact patterns from current cases.
24 January 2006
The Writ of Mandamus Lives
As I commented about here and here, a Fairfax Circuit court recently ruled that the prosecution in a death-eligible case could not pursue the death penalty against a defendant because police neglected to advise him after his arrest of his right under the Vienna Convention to contact his consulate. The judge ruled that barring the Commonwealth from seeking the death penalty was an appropriate remedy for this omission.
Now the Supreme Court of Virginia has reversed the judgment of the lower court. A threshold issue was whether the Commonwealth could seek pretrial relief from the Supremes in the form of a "writ of mandamus." Ordinarily, pretrial appeals by the Commonwealth are restricted to appeals of suppression orders based on Constitutional violations, orders contravening mandatory sentencing provisions, and adverse bond decisions in certain cases.
Other attempts by the Commonwealth to appeal adverse rulings (such as a trial court sua sponte witholding findings of guilt, imposing punishments on a defendant, and then dismissing the case upon completion of the punishment) have been unsuccessful, because "when the act to be performed involves the exercise of judgment or discretion on the part of the court of judge, it becomes a judicial act and mandamus will not lie.”
So in this case, there was a serious question of whether the VSC would even entertain a motion for a writ of mandamus in the face of a trial judge's purported exercise of discretion in excluding a particular sentence before trial to punish the Commonwealth for violating the Vienna Convention.
The Court traced the history and precedent of writs of mandamus before concluding that mandamus could lie in a case such as this, because the capital sentencing statutes do not allow for exercize of judicial discretion until the jury has found the requisite factors of future dangerousness or vileness. Only after that finding does the Code provide for judicial discretion in imposing either death in accord with the jury recommendation, or life imprisonment. Thus, the VSC concluded:
Now the Supreme Court of Virginia has reversed the judgment of the lower court. A threshold issue was whether the Commonwealth could seek pretrial relief from the Supremes in the form of a "writ of mandamus." Ordinarily, pretrial appeals by the Commonwealth are restricted to appeals of suppression orders based on Constitutional violations, orders contravening mandatory sentencing provisions, and adverse bond decisions in certain cases.
Other attempts by the Commonwealth to appeal adverse rulings (such as a trial court sua sponte witholding findings of guilt, imposing punishments on a defendant, and then dismissing the case upon completion of the punishment) have been unsuccessful, because "when the act to be performed involves the exercise of judgment or discretion on the part of the court of judge, it becomes a judicial act and mandamus will not lie.”
So in this case, there was a serious question of whether the VSC would even entertain a motion for a writ of mandamus in the face of a trial judge's purported exercise of discretion in excluding a particular sentence before trial to punish the Commonwealth for violating the Vienna Convention.
The Court traced the history and precedent of writs of mandamus before concluding that mandamus could lie in a case such as this, because the capital sentencing statutes do not allow for exercize of judicial discretion until the jury has found the requisite factors of future dangerousness or vileness. Only after that finding does the Code provide for judicial discretion in imposing either death in accord with the jury recommendation, or life imprisonment. Thus, the VSC concluded:
No statute, however, authorizes Judge Alden to exercise such sentencing discretion in a pre-trial context. In other words, the action taken by Judge Alden was not within her discretion.... The mere fact that Judge Alden made her decision when ruling on a motion does not render the decision discretionary.The Court did not comment on Judge Alden's underlying contention that the Vienna Convention confers judicially enforceable rights. The Court simply ruled that her remedy of pretrial exclusion of a particular penalty was not within her discretion. The writ of mandamus, which seemed to be essentially moribund in Virginia for prosecutors, is still alive.
Furthermore, by directing the Commonwealth’s Attorney that he may not seek the death penalty if Pham is found guilty of capital murder, Judge Alden performed an executive function and exercised discretion that resides solely in the Commonwealth’s Attorney. See Va. Const. art. 3, § 1.
...The discretion of the Commonwealth’s Attorney to choose the offense for which a defendant will be charged includes the discretion to decide whether to seek the death penalty when capital murder is the charged offense.
Excellent advice from Blonde Justice about courtroom etiquette for the friend/loved one of a criminal defendant:
"Dress like you would for a job interview (but not an interview to be a stripper)"
Don't come "if it's a domestic violence charge and you still have a black eye."
"Don't eat, don't drink, don't chew gum. Don't sleep. Don't snuggle, kiss, or make out with anyone. No, this is not cute."
"Leave the kids at home. Yes, I know you're probably thinking, 'Maybe if the judge sees that he has these little kids, he'll let him out to take care of his kids.' Most judges are really thinking, 'God, what kind of parent brings their kids into this building built for dealing with criminals?' or 'What kind of parent wants their kid to see daddy in handcuffs?' or 'I really don't want to let him out to keep doing these kinds of crimes if there's a next generation that's going to be learning from him at home.'Sit quietly and patiently: "There is nothing worse than someone who lets out a big sigh after each case is called. Or does that clucking the tongue thing. Or rolls his eyes. Or sighs and says, "Oh god!" Or throws up his hands. Or slams down his hands. Or makes any sort of visible reaction to each and every case name called, obviously frustrated that each case isn't his loved one's. And if you really can't control your eye rolling and sighing, at least sit toward the back of the room so you're not doing it right in the judge's face."
21 January 2006
A Unique Punishment
Nathan Mallett did something stupid at a football game and got body-slammed by player. Now the judge gets her turn.
He is to spend Superbowl weekend in jail and not have any access to a TV or radio during the game. He is also banned from all Browns' games for 5 years.
He is to spend Superbowl weekend in jail and not have any access to a TV or radio during the game. He is also banned from all Browns' games for 5 years.
At least he's got some legal connections...
The 18-year-old son of the Virginia Supreme Court chief justice was placed on additional monitoring yesterday while he remains free on bond on pending charges for burglary, grand larceny, and embezzlement.
Drive without a License- Go to Jail?
Legislation proposed by a Maryland state delegate would add jail time as a possible punishment for driving without a license. According to the delegate, unlicensed drivers are a public safety hazard. Under current law, offenders are fined $315. The bill would punish first offenders with 90 days in jail and multiple offenders with up to a year.
No Moratorium in VA...
In Virginia, a state Senate committee killed a bill calling for a moratorium on the death penalty "until scientific testing on evidence is so standard that there's no chance innocent people are executed". The bill died on a voice vote.
20 January 2006
Stop Yelling in My Ear
Yes, I believe you when you say the deputy is lying. Quit yelling it in my ear while I'm trying to listen to the deputy testify. The lie he's telling is going to make the prosecution lose its case and I need to hear it.
Shilling the Seat Belt Pretext Stop
In Virginia it is illegal to drive a car without a seatbelt. However, it is an offense which cannot be the primary reason for a traffic stop. Every year someone introduces a bill in an effort to change the law so that police can stop drivers because they aren't wearing belts and - so far - it has gotten shot down every time. Members of the General Assembly have actually been fairly plain spoken about why they have blocked the passage of this change. They have basically stated that this would just be another basis for a pretext stop and the police have enough of those. It's not stated in the exact terms which I would use in a courtroom but it's the reason given.
Now, just imagine how obvious a pretext setup a law must be not to pass muster in Virginia where the General Assembly is probably 60% Republican, 20%, conservative Democrat, and 20% other (those figures are guesses - go ask a poliblog if you want the real figures). Anyway, this year it's been presented yet again by Delegate Thomas Davis Rust (whom I believe is a NoVa delegate). He offers the bill with this struck:
In a pretext stop an officer pulls over a car for some trivial traffic violation because he has some sort of suspicion which does not rise to the level that he could constitutionally justify the stop. Favorite reasons given are things hanging from the rear view mirror, cracks in windows, loud music, license plate lights which are out, etc. Once the stop is accomplished the officer subjects the car to the "plain view/plain smell" test. If nothing jumps out at him he may stall for the time it takes to do a canine non-search of the vehicle (or, more likely, the dog was there when the officers pulled the target vehicle over). If that doesn't work the officer issues a warning so that a "reasonable person" would know that he's free to drive away from the officer standing 6 inches from his driver's side window and then immediately launches into this conversation:
If they were truly serious about making this a primary offense but limiting the scope of its effect the language offered should be something like this:
Hopefully the General Assembly will reject it yet again and for at least as many years as it takes to make sure language such as I offered above is added.
via 750 Volts
Now, just imagine how obvious a pretext setup a law must be not to pass muster in Virginia where the General Assembly is probably 60% Republican, 20%, conservative Democrat, and 20% other (those figures are guesses - go ask a poliblog if you want the real figures). Anyway, this year it's been presented yet again by Delegate Thomas Davis Rust (whom I believe is a NoVa delegate). He offers the bill with this struck:
No citation for a violation of this section shall be issued unless the officer issuing such citation has cause to stop or arrest the driver of such motor vehicle for the violation of some other provision of this Code or local ordinance relating to the operation, ownership, or maintenance of a motor vehicle or any criminal statuteand this put in its place
A law-enforcement officer may not search or inspect a motor vehicle, its contents, its driver, or any passenger solely because of a violation of this section unless supported by probable cause or consent.The new language is obviously an attempt to quell the fears that this law will be used as a pretext. It's also perhaps the most ineffectual statement of law I've ever seen. For all intents and purposes it just says the officer can't violate the 4th Amendment of the federal constitution. Of course, that's not how pretext stops work.
In a pretext stop an officer pulls over a car for some trivial traffic violation because he has some sort of suspicion which does not rise to the level that he could constitutionally justify the stop. Favorite reasons given are things hanging from the rear view mirror, cracks in windows, loud music, license plate lights which are out, etc. Once the stop is accomplished the officer subjects the car to the "plain view/plain smell" test. If nothing jumps out at him he may stall for the time it takes to do a canine non-search of the vehicle (or, more likely, the dog was there when the officers pulled the target vehicle over). If that doesn't work the officer issues a warning so that a "reasonable person" would know that he's free to drive away from the officer standing 6 inches from his driver's side window and then immediately launches into this conversation:
Officer - You don't have any guns or drugs in your car, do you?None of this runs afoul of the language offered for the statute.
Driver - No, sir.
Officer - Then, it'll be okay if I search the car?
If they were truly serious about making this a primary offense but limiting the scope of its effect the language offered should be something like this:
An officer who has stopped a driver pursuant to this statute may not expand the scope to investigate any other activity.On the other hand, I've whined enough on this board about appellate courts in Virginia relying on legislative intent. Since it is obvious that the intent here is to address the concerns that legislators have about the use of this statute for pretext stops, perhaps the courts will find that an expansion upon a seatbelt stop - except when a violation is in plain sight - is a violation of the 4th Amendment because it was the intent of the General Assembly to have it be a violation of the 4th Amendment. However, I'm not going to hold my breath waiting for that opinion to be issued.
Hopefully the General Assembly will reject it yet again and for at least as many years as it takes to make sure language such as I offered above is added.
via 750 Volts
19 January 2006
If you are a member of a political party which favors Basque separation
(1) Don't give a favorable speech at the funeral of a separatist who blew herself up, and
(2) Don't lose your parliamentary immunity.
(1) Don't give a favorable speech at the funeral of a separatist who blew herself up, and
(2) Don't lose your parliamentary immunity.
18 January 2006
In regards to yesterday's SCOTUS assisted suicide case, Gonzales v. Oregon, some commentators see the stars aligning well for criminal defendants given that Chief Justice Roberts apparently is aligning with Justice Scalia's judicial philosophy:
I would add Kyllo v. United States to that list: a case that really bothers me, since I can't tell any difference between the passive detection of heat from a home and the passive detection of drug odors from luggage or vehicles, which the Court has expressly upheld in Illinois v. Caballes (a case that really bothers Ken).
[F]rom the perspective of a criminal defendant, a Supreme Court filled with justices like Antonin Scalia would not always be so bad because Justice Scalia's constitutional vision sometimes leads him to liberal results: consider Justice Scalia's work in Blakely, where he boldly asserts that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment," and Justice Scalia's work in Sullivan, where he argues that judges in some cases should not be permitted to affirm convictions by declaring certain constitutional violations harmless.
I would add Kyllo v. United States to that list: a case that really bothers me, since I can't tell any difference between the passive detection of heat from a home and the passive detection of drug odors from luggage or vehicles, which the Court has expressly upheld in Illinois v. Caballes (a case that really bothers Ken).
17 January 2006
Say goodbye to the "year-and-a-day rule"...
A Vermont judge scrapped an ancient legal ruling that a person can't be charged with homicide if the victim dies more than a year and a day after the attack. The result is that a murder charge will stand against a man charged with a 1971 shooting that caused the death of another more than two years later.
Supreme Court Upholds Oregon Suicide Law
"The court's ruling was not a final say on federal authority to override state doctor-assisted suicide laws — only a declaration that the current federal scheme did not permit that. However, it still could have ramifications outside of Oregon. "
16 January 2006
Couple With Explosives Takes Lawyer Hostage
Police in Georgia evacuated buildings and cordoned off part of a town after a lawyer and two secretaries were taken hostage Monday morning by a couple involved in a custody dispute who claimed their car was packed with remote-controlled explosives. The secretaries have since been released.
EgoSurf
Here's a wonderful way to waste all sorts of time. I plugged in a number of bloggers (whose names I was sure are meant to be public) to see where they stood:
The Big Dogs:
Howard Bashman How Appealing 10393
Orin Kerr The Volokh Conspiracy 8786
Chad Dotson Commonwealth Conservative 8290
Me:
Ken Lammers CrimLaw 7781
Others:
Steve Minor SW Va Law 5082
Donald Caster All Deliberate Speed 3592
Joel Jacobsen Judging Crimes 2441
Tom McKenna Seeking Justice 871
Strange Results:
Glenn Reynolds Instapundit 3622
Steve Dillard Southern Appeal 576
From Mobuzz
The Big Dogs:
Howard Bashman How Appealing 10393
Orin Kerr The Volokh Conspiracy 8786
Chad Dotson Commonwealth Conservative 8290
Me:
Ken Lammers CrimLaw 7781
Others:
Steve Minor SW Va Law 5082
Donald Caster All Deliberate Speed 3592
Joel Jacobsen Judging Crimes 2441
Tom McKenna Seeking Justice 871
Strange Results:
Glenn Reynolds Instapundit 3622
Steve Dillard Southern Appeal 576
From Mobuzz
I haven't really looked at Virginia law on this issue (not yet had a case providing me a reason to), but I always thought duress was an affirmative defense: "Yeah, I robbed the bank, but only because that wacko tied a bomb to my back."
15 January 2006
In the News...
1. Dumb Crook News (Part I):
If you're going to make drunken prank calls - try not to dial a judge!
2. Dumb Crook News (Part II):
A real pain in the butt!
3. Dumb Cop News?
Federal Prison Guard Arrested for Giving Marijuana to Inmates
4. This story just keeps getting worse.
Two men accused of killing seven people in Richmond are also suspected of a New Year's Eve stabbing in Arlington.
If you're going to make drunken prank calls - try not to dial a judge!
2. Dumb Crook News (Part II):
A real pain in the butt!
3. Dumb Cop News?
Federal Prison Guard Arrested for Giving Marijuana to Inmates
4. This story just keeps getting worse.
Two men accused of killing seven people in Richmond are also suspected of a New Year's Eve stabbing in Arlington.
Had to Pass This Along
From the always interesting Lexington-Fayette County Commonwealth Attorney page:
Does this mean they're "Public Pretenders?"
Does this mean they're "Public Pretenders?"
14 January 2006
Sure, Now You Tell Me
You scored as Engineering. You should be an Engineering major!
What is your Perfect Major? created with QuizFarm.com |
via Dappled Things
13 January 2006
Suicide by Cop
A 15 year old boy brought a pistol to school. He was trapped in a restroom by law enforcement and
[addendum: As pointed out in the comments the boy survived and went to the hospital. However, it's now being reported that he is brain dead]
"At one time he held the gun to his neck. As the deputies attempted to establish dialogue, he raised the firearm and lethal force was used by the sheriff's office."Sad.
[addendum: As pointed out in the comments the boy survived and went to the hospital. However, it's now being reported that he is brain dead]
12 January 2006
DNA Tests Confirm Guilt in Executed Rapist & Murderer
Roger Keith Coleman was executed nearly 14 years ago. He claimed to the end that he was innocent. After much controversy, Coleman's guilt was confirmed by new DNA testing. The results were announced today by Virginia Governor Mark R. Warner.
11 January 2006
In the News...
1. Kids and Crime (Part I):
Should 16-year-olds automatically be considered adults for criminal trials?
2. Kids and Crime (Part II):
Charlotte-Mecklenburg, NC police investigated 12 homicides of children younger than 18 last year.
3. Coaches and Crime:
The Ohio Highway Patrol stopped using posters promoting safe driving following the drunken driving arrest of Ohio football coach Frank Solich. Solich was convicted in November, only months after he'd been chosen to appear in the poster campaign.
4. Killers and Crime:
Serial Killer, Angry at Sentencing Delay, Stops Cooperating
Should 16-year-olds automatically be considered adults for criminal trials?
2. Kids and Crime (Part II):
Charlotte-Mecklenburg, NC police investigated 12 homicides of children younger than 18 last year.
3. Coaches and Crime:
The Ohio Highway Patrol stopped using posters promoting safe driving following the drunken driving arrest of Ohio football coach Frank Solich. Solich was convicted in November, only months after he'd been chosen to appear in the poster campaign.
4. Killers and Crime:
Serial Killer, Angry at Sentencing Delay, Stops Cooperating
Reflections on Batson after a jury trial
I make no secret that I think the Batson principle is wrongheaded as a constitutional matter (for reasons not important to elucidate here); nevertheless, I fully and freely acknowledge that the broader principle of Batson is unassailable as a moral and even as a trial matter: that strikes should not be made solely on an improper racial motive. A case in point is the jury trial I concluded yesterday. I took pause at one point during this serious bank robbery and attempted murder case to reflect that almost by chance the jury was incredibly "diverse." I say by chance because I certainly couldn't give a damn about diversity for it's own sake, since I assume that even 12 white males can fairly hear a case.
In this case, however, our jury when picked consisted of a majority of women, including one black woman and one woman clearly of Asian ancestry. We also had one young black man. The jury foreman was a woman.
This good cross-section of our community (a mostly white, mostly conservative suburb of Richmond with a growing number of black middle-class professionals) heard a serious case, involving a black defendant who robbed a white bank teller and took a very deliberate shot at a black bank customer in the parking lot. Identity was the primary contested issue, and though they left me sweating for two hours, the jury found the defendant guilty.
What surprised me pleasantly was that despite the defendant's age (51) and the mandatory minimum sentences the jury had to impose for the various counts (33 years), this group recommended a sentence of 53 years.
I reflected afterwards that what mattered to me most in picking these jurors was not race, but other facts such as apparent education level, job status, and personal appearance. I kept the black woman on the panel because she was a professional woman, who was well-dressed, and appeared interested in the proceedings. I kept the young black man on for much the same reasons. Yet I struck a young white male because he was a student and was not as well dressed, and looked a little scruffy.
As a prosecutor, very aware of the Batson issue, it is a pleasure to see so many educated, middle-income, home-owning (this info is provided on our jury pool list) black residents of my county to choose from. I find them to be quality jurors, and their availability makes Batson issues moot for the most part. It was as it should be; race was not a part of the trial at all, either in the jury selection, or in the case in-chief, or in the sentencing. I doubt even ten years ago, when I started prosecuting, that this would occur so easily. Hopefully ten years from now, it won't be noteworthy enough to merit a posting like this one.
In this case, however, our jury when picked consisted of a majority of women, including one black woman and one woman clearly of Asian ancestry. We also had one young black man. The jury foreman was a woman.
This good cross-section of our community (a mostly white, mostly conservative suburb of Richmond with a growing number of black middle-class professionals) heard a serious case, involving a black defendant who robbed a white bank teller and took a very deliberate shot at a black bank customer in the parking lot. Identity was the primary contested issue, and though they left me sweating for two hours, the jury found the defendant guilty.
What surprised me pleasantly was that despite the defendant's age (51) and the mandatory minimum sentences the jury had to impose for the various counts (33 years), this group recommended a sentence of 53 years.
I reflected afterwards that what mattered to me most in picking these jurors was not race, but other facts such as apparent education level, job status, and personal appearance. I kept the black woman on the panel because she was a professional woman, who was well-dressed, and appeared interested in the proceedings. I kept the young black man on for much the same reasons. Yet I struck a young white male because he was a student and was not as well dressed, and looked a little scruffy.
As a prosecutor, very aware of the Batson issue, it is a pleasure to see so many educated, middle-income, home-owning (this info is provided on our jury pool list) black residents of my county to choose from. I find them to be quality jurors, and their availability makes Batson issues moot for the most part. It was as it should be; race was not a part of the trial at all, either in the jury selection, or in the case in-chief, or in the sentencing. I doubt even ten years ago, when I started prosecuting, that this would occur so easily. Hopefully ten years from now, it won't be noteworthy enough to merit a posting like this one.
NJ Halts Death Penalty
The NJ Legislature has halted all death penalties and set up a commission to "make a sweeping review of the use of executions in New Jersey, including whether they are applied fairly and without discrimination and whether 'the risk of an irreversible mistake is acceptable.'"
09 January 2006
Ed Barber: Political Rumblings
South of the James discusses a Republican member's apology and the affect of the Barber accusations on the Decmocratic Party of Chesterfield County.
06 January 2006
Jury Trial Fizzle
Sometimes the Trial of the Century just doesn't happen. Yesterday was one of those days. Client was charged as a felon in possession of a firearm. I had set up all my intra-trial traps and it was the trial date - and then, just before the potential jurors were called to the courtroom, the prosecutor dropped the case. How could things go so far and then fizzle right at the end? Well, let me tell you . . .
Let's start a few months ago at the preliminary hearing. Client shows up in a fluorescent blue Hawaiian shirt, which is the same shirt he was supposedly wearing on the date of the offense. The case is called and the prosecutor calls his sole (non-officer) witness; she comes out of the lockup in a nice orange jump suit and the entirety of her testimony is that she saw another guy bring a pistol to the trailer park and he handed it to Client, who looked at it and then handed it back. It comes out on cross that she was the one found with the pistol. She was the one who had it hidden in her car. She's charged as a felon in possession of a firearm and concealment in this county. In another county she's charged with stealing the firearm and breaking and entering to steal it. I try to convince the judge not to certify it and he looks skeptical but he sends it to the circuit court anyway. After I walk out of that I was accosted by another witness whom the prosecutor had subpoenaed (but not called) who spends the next 15 minutes fussing at me about how it wasn't my client whom he saw with the gun. It took me a while to calm him down and make him realize that I wasn't the guy who had subpoenaed him.
The next date we come to court is the docket call date. Client shows up at that date and decides he wants a jury. He is, by-the-bye, wearing the same fluorescent blue Hawaiian shirt. We get the court date set.
Miraculously, Client is one of those few who actually works with me to prep for the trial. He gets me names and addresses of people whom he wants subpoenaed. I spend a good amount of time talking to folks and finding all about the feuds and politics of the folks in the trailer park. Divorces, child custody battles, thefts, lies, a baby's daddy, &cetera. I defy anyone to to write a script with all that, throw in people accusing each other of a felony for any of 6 reasons, and submit it - even a soap opera would refuse it as too unrealistic.
Then comes the week before trial. I prep up the case, rereading all the pertinent statutes, checking the prior conviction, going over the jury instructions, and going out to buy a new suit. Yep, that's right, I buy a new suit before a jury trial. Or at least I do when my old suits look as ragged as the ones I had in my closet did. It's sad; the salesmen at Men's Wearhouse all get really happy when I walk in the door and they even know me well enough to remark that if I'm at the store I must have another jury trial. And I always walk out a much poorer man.
I've met with the prosecutor beforehand and he's been as reasonable as it's possible for a prosecutor to be. He tells me that if the only witness to be in court for him on the trial date is the one he had at the prelim he will move to have the charge dismissed. However, he has hopes that a second witness will be in court on the trial date and help him make his case.
Then Client misses the appointment we were supposed to have the Friday before court. A little nervous, I spend some time getting back in contact with him and finally track him down the day before trial - he's moved to the mountains of North Carolina. Anyway, we touch bases but I must admit I was wondering whether he would show up for court the next day. I needn't have feared . . .
The jury is set for 1 p.m. I finish up a fairly nasty showcause at about 9:15 and head down to the law library to do some last minute prep and about 9:30 a deputy directs Client, who has shown up 3 1/2 hours early, to me in the library. And, yet again, he's wearing the same fluorescent blue Hawaiian shirt. His parents drove him up to the courthouse and dropped him off while they went to the trailer park to try and visit their grandchildren. I sit and talk with Client for a while about the trial. Then Client's parents come back and tell me that the mystery prosecution witness is my client's brother's ex-wife, with whom they are involved in a long and nasty custody battle - and, she made a point of telling the parents that she was coming to court today.
So, 12:30 rolls around. It looks like I've got 2 third party witnesses, my client's girlfriend, and client's mother as my witnesses. Then, one of my witnesses shows up and has driven my client's ex-sister in law to court with her. She then corners me and tells me in no uncertain terms that "I don't have contacts and I couldn't see anything that day because I don't have contacts." The other third party witness shows up and is good to go. Of course, the girlfriend and Mom are ready. So, I'm ready to get the trial started.
Then the prosecutor's witness comes over and tells me that she needs to speak to the prosecutor. I direct her to the prosecutor's office and head upstairs to the courtroom. I see the prosecutor and go over to tell him I sent his witness to his office. We talk for a little bit and then walk around the corner to the courtroom. And there's his big witness standing there talking to my client and his witnesses, all friendly like.
The prosecutor takes his witness off to talk with her. They're gone for a little while. Then they're gone for a little while longer. Then they're gone for a long time. Finally, the prosecutor comes back and tells me that his witness doesn't remember seeing my client with the pistol and he's going to move for nolle prosequi.
So, we all go into the courtroom and the judge comes out. The prosecutor explains how his one witness is stating that she never saw my client with a pistol and his other witness isn't capable of carrying the case by herself. He then moves to dismiss the case and the judge asks me if I object. I hesitate for a millionth of a second with that thought of asking for a dismissal with prejudice but decide that since the prosecutor is being a stand up guy it probably wouldn't be appropriate to harass him by making a motion I know I won't win. So the judge grants the motion and then calls the jury pool in, explains it all to them and dismisses them.
Client is ecstatic and for some reason seems to now think that I walk on water; it's amazing how just being around when things go your client's way can make him extremely happy with you - even if you didn't really get a chance to do your bit. His family even asks me at least three times if I'll step into their domestic case, but I decline. The prosecutor is not all that upset but he makes the usual noises that all prosecutors make about prosecuting the witness who wouldn't testify in the manner he expected. In fact, after Client and everyone else has left, the prosecutor, police officer and I walk down the hall chuckling a little over all the silliness in the case.
And that's how a jury trial which looked like it was going to be a very nasty exploration of the lives and motivations of a bunch of folks at the trailer park fizzles. Oh well, there's always my jury scheduled for the 8th of February . . .
Let's start a few months ago at the preliminary hearing. Client shows up in a fluorescent blue Hawaiian shirt, which is the same shirt he was supposedly wearing on the date of the offense. The case is called and the prosecutor calls his sole (non-officer) witness; she comes out of the lockup in a nice orange jump suit and the entirety of her testimony is that she saw another guy bring a pistol to the trailer park and he handed it to Client, who looked at it and then handed it back. It comes out on cross that she was the one found with the pistol. She was the one who had it hidden in her car. She's charged as a felon in possession of a firearm and concealment in this county. In another county she's charged with stealing the firearm and breaking and entering to steal it. I try to convince the judge not to certify it and he looks skeptical but he sends it to the circuit court anyway. After I walk out of that I was accosted by another witness whom the prosecutor had subpoenaed (but not called) who spends the next 15 minutes fussing at me about how it wasn't my client whom he saw with the gun. It took me a while to calm him down and make him realize that I wasn't the guy who had subpoenaed him.
The next date we come to court is the docket call date. Client shows up at that date and decides he wants a jury. He is, by-the-bye, wearing the same fluorescent blue Hawaiian shirt. We get the court date set.
Miraculously, Client is one of those few who actually works with me to prep for the trial. He gets me names and addresses of people whom he wants subpoenaed. I spend a good amount of time talking to folks and finding all about the feuds and politics of the folks in the trailer park. Divorces, child custody battles, thefts, lies, a baby's daddy, &cetera. I defy anyone to to write a script with all that, throw in people accusing each other of a felony for any of 6 reasons, and submit it - even a soap opera would refuse it as too unrealistic.
Then comes the week before trial. I prep up the case, rereading all the pertinent statutes, checking the prior conviction, going over the jury instructions, and going out to buy a new suit. Yep, that's right, I buy a new suit before a jury trial. Or at least I do when my old suits look as ragged as the ones I had in my closet did. It's sad; the salesmen at Men's Wearhouse all get really happy when I walk in the door and they even know me well enough to remark that if I'm at the store I must have another jury trial. And I always walk out a much poorer man.
I've met with the prosecutor beforehand and he's been as reasonable as it's possible for a prosecutor to be. He tells me that if the only witness to be in court for him on the trial date is the one he had at the prelim he will move to have the charge dismissed. However, he has hopes that a second witness will be in court on the trial date and help him make his case.
Then Client misses the appointment we were supposed to have the Friday before court. A little nervous, I spend some time getting back in contact with him and finally track him down the day before trial - he's moved to the mountains of North Carolina. Anyway, we touch bases but I must admit I was wondering whether he would show up for court the next day. I needn't have feared . . .
The jury is set for 1 p.m. I finish up a fairly nasty showcause at about 9:15 and head down to the law library to do some last minute prep and about 9:30 a deputy directs Client, who has shown up 3 1/2 hours early, to me in the library. And, yet again, he's wearing the same fluorescent blue Hawaiian shirt. His parents drove him up to the courthouse and dropped him off while they went to the trailer park to try and visit their grandchildren. I sit and talk with Client for a while about the trial. Then Client's parents come back and tell me that the mystery prosecution witness is my client's brother's ex-wife, with whom they are involved in a long and nasty custody battle - and, she made a point of telling the parents that she was coming to court today.
So, 12:30 rolls around. It looks like I've got 2 third party witnesses, my client's girlfriend, and client's mother as my witnesses. Then, one of my witnesses shows up and has driven my client's ex-sister in law to court with her. She then corners me and tells me in no uncertain terms that "I don't have contacts and I couldn't see anything that day because I don't have contacts." The other third party witness shows up and is good to go. Of course, the girlfriend and Mom are ready. So, I'm ready to get the trial started.
Then the prosecutor's witness comes over and tells me that she needs to speak to the prosecutor. I direct her to the prosecutor's office and head upstairs to the courtroom. I see the prosecutor and go over to tell him I sent his witness to his office. We talk for a little bit and then walk around the corner to the courtroom. And there's his big witness standing there talking to my client and his witnesses, all friendly like.
The prosecutor takes his witness off to talk with her. They're gone for a little while. Then they're gone for a little while longer. Then they're gone for a long time. Finally, the prosecutor comes back and tells me that his witness doesn't remember seeing my client with the pistol and he's going to move for nolle prosequi.
So, we all go into the courtroom and the judge comes out. The prosecutor explains how his one witness is stating that she never saw my client with a pistol and his other witness isn't capable of carrying the case by herself. He then moves to dismiss the case and the judge asks me if I object. I hesitate for a millionth of a second with that thought of asking for a dismissal with prejudice but decide that since the prosecutor is being a stand up guy it probably wouldn't be appropriate to harass him by making a motion I know I won't win. So the judge grants the motion and then calls the jury pool in, explains it all to them and dismisses them.
Client is ecstatic and for some reason seems to now think that I walk on water; it's amazing how just being around when things go your client's way can make him extremely happy with you - even if you didn't really get a chance to do your bit. His family even asks me at least three times if I'll step into their domestic case, but I decline. The prosecutor is not all that upset but he makes the usual noises that all prosecutors make about prosecuting the witness who wouldn't testify in the manner he expected. In fact, after Client and everyone else has left, the prosecutor, police officer and I walk down the hall chuckling a little over all the silliness in the case.
And that's how a jury trial which looked like it was going to be a very nasty exploration of the lives and motivations of a bunch of folks at the trailer park fizzles. Oh well, there's always my jury scheduled for the 8th of February . . .
05 January 2006
04 January 2006
Ed Barber: The Pretrial Hearing
Yesterday, Ed Barber had his pretrial hearing. In Virginia a pretrial hearing is when a judge makes certain the accused knows of what he is accused, checks to see what he's going to do about an attorney, and decides what bond is needed.
Judge Robbins set a $100,000 bond, but refused to impose a gag order on the participants in the trial (although he did order parties not to reveal the girl's name). The bond's a little high for the two reasons that bond is supposed to cover: to assure the accused will return to court and not be a danger to the community. After all, (1) Mr. Barber is a highly unlikely candidate for flight, (2) is not someone with a history of bank robberies, and (3) the bond was gone by a friend so there's no bondsman out there who is incentivised (word?) to keep a close watch on Mr. Barber and sic bounty hunters on him should he flee. Still, Judge Robbins is a fair judge and I wasn't there so I'll defer to his expertise (like he cares about my opinion).
Ned Mikula is representing Mr Barber, Sandra Sylvester is the prosecutor out of Prince William County who came down to do the prosecution, and the preliminary hearing is set for 13 April 2006 (3 months?). I imagine the hearing will be closed because of the involvement of a minor.
Judge Robbins set a $100,000 bond, but refused to impose a gag order on the participants in the trial (although he did order parties not to reveal the girl's name). The bond's a little high for the two reasons that bond is supposed to cover: to assure the accused will return to court and not be a danger to the community. After all, (1) Mr. Barber is a highly unlikely candidate for flight, (2) is not someone with a history of bank robberies, and (3) the bond was gone by a friend so there's no bondsman out there who is incentivised (word?) to keep a close watch on Mr. Barber and sic bounty hunters on him should he flee. Still, Judge Robbins is a fair judge and I wasn't there so I'll defer to his expertise (like he cares about my opinion).
Ned Mikula is representing Mr Barber, Sandra Sylvester is the prosecutor out of Prince William County who came down to do the prosecution, and the preliminary hearing is set for 13 April 2006 (3 months?). I imagine the hearing will be closed because of the involvement of a minor.
02 January 2006
Politics and Accusation: Ed Barber
From South of the James: Members of the Republican party are pushing for Mr. Barber to no longer be the head of the county board.
01 January 2006
More On Ed Barber and The Sexual Charges
As discussed earlier, Ed Barber, the head of my county's board of supervisors, has been charged with sexual assault on a minor.
Here's And Another Thing's discussion about Mr. Barber's prior history.
Here's a more indepth discussion about the charges (thanks Milbarge), to which the defense seems to be that it's the outcome of a family fight. I don't yet know whether this is going to be a case with actual physical evidence or one of those where it goes in front of the jury on the theory of "Why would she lie?"
Here's And Another Thing's discussion about Mr. Barber's prior history.
Here's a more indepth discussion about the charges (thanks Milbarge), to which the defense seems to be that it's the outcome of a family fight. I don't yet know whether this is going to be a case with actual physical evidence or one of those where it goes in front of the jury on the theory of "Why would she lie?"
Around the Web
1) All the death penalties in California which reached the State supreme court were affirmed.
2) Now English courts are text messaging fines.
3) Underneath Their Robes is back.
4) The NSA has been handing out the information it has been gathering per the president's order have been handed out to other agencies.
5) Taking property without a DUI conviction.
6) Yes, I've been to Saudia and I can testify that this sort of punishment actually takes place. The Saudis tried to get us to come out to a beheading but the Army forbade us.
7) Ignorance. I started to dissect this a couple times but, really, I think most of us have understood the concept of innocent until proven guilty since that 7th grade civics course. BTW - don't believe the .08 BAC number is based on anything other than the fact that it is the lowest the prohibitionists have been able to get passed into law. via WP
2) Now English courts are text messaging fines.
3) Underneath Their Robes is back.
4) The NSA has been handing out the information it has been gathering per the president's order have been handed out to other agencies.
5) Taking property without a DUI conviction.
6) Yes, I've been to Saudia and I can testify that this sort of punishment actually takes place. The Saudis tried to get us to come out to a beheading but the Army forbade us.
7) Ignorance. I started to dissect this a couple times but, really, I think most of us have understood the concept of innocent until proven guilty since that 7th grade civics course. BTW - don't believe the .08 BAC number is based on anything other than the fact that it is the lowest the prohibitionists have been able to get passed into law. via WP
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