The New Look

Here's your chance to comment on the new look for the favicon and the blawg in general. For comparison, here's Wayback's list of prior versions of the blawg. If you don't like the new look I'd appreciate if you'd tell me which one you preferred.

Apparently, I am the World's Worst Lawyer

I already felt pretty crummy about a jury trial I had over an allegation that my client had cocaine in a prison. Client found guilty and got the max from the jury.

Then I find out that the local paper featured the trial on its front page. I avoided that paper that week. Of course the only way to see it now is in the archives (which are non-linkable and don't have anything more than the first couple paragraphs).

Here's what's online:

Inmate's cocaine possession lands him 20 more years

By Darrell Elder
Staff Writer
Powhatan Today

Tuesday, a jury of 12 Powhatan residents added 10 years to a Powhatan Correctional Center inmate's current prison sentence.

[John Smith] pleaded not guilty to possessing cocaine on July 10, 2005. Commonwealth's Attorney [Mike Jones] told the jury during his opening statement that the case is a simple one. Defense attorney, Ken Lammers Jr. told the jury during his opening statement that he does not have a crystal ball. He added that the four defense witnesses are also prison inmates therefore they will not be as eloquent as the corrections officers, who will testify for the Commonwealth.

Ummm . . . I know I came out of that trial feeling like a pretty cruddy lawyer, but I'm pretty sure the jury didn't sentence my client to twice the max (the max being ten years). And I know the crystal ball semi-quote makes me seem like an idiot, but I didn't just stand there and say I don't have a crystal ball. There were actually other lines around that which made it make sense - at least I thought so. It wasn't even a major part of my opening statement. I also didn't say that my client's witnesses would be less eloquent because they were inmates. I said they wouldn't have written reports to review and would not have been able compare notes like the guards could and therefore would have more variance in there versions of the events.

AAaarrgggg!

Wonderful

My county supervisor pled guilty to two charges of misdemeanor sexual battery (reduced from felonies) and got community service. He doesn't plan to resign his political position but he's lost his teaching job.

No Misdemeanor Prosecutor for Appalachia

The Commonwealth Attorney for Wise County has stopped being the misdemeanor prosecutor for the town of Appalachia.

Because he doesn't have the time to do it anymore . . .

Yeah, that's the reason. Really. No kidding.

Now that's an interesting county.

I Blame Steve

Steve, who on the odd occasions blogs hereabouts, got an i-pod as a gift from his better half. I've never seriously thought of getting an i-pod or one of its competitors and I really didn't think about buying one when I saw Steve's. Then came yesterday. I was over by the mall and stopped in at Circuit City. I went in with the intention of buying a new digital camera because my old one is screwing up about half the pictures I take. However, the cameras I was interested in were all about $200 more than I was willing to spend.

As I am wont to do, I started wandering the store. After checking out TV's and computers I'm not going to be able to buy, I wandered past the MP3/hand-held video player section. I stopped to look and see all the gadgets and add-ons that I'm sure Steve has started buying for his i-pod. Still, I wasn't particularly interested in the Apple products.

What caught my eye was the $100 cheaper Creative Zen. For those of you who don't know, Creative has been trying hard to break Apple's near monopoly on MP3/video players. As the number two company often does, it has, IMHO, better products at cheaper prices. Creative's problem has been that it doesn't seem able to make its players as purty as them there i-pods. It also doesn't have the world's most successful distribution website exclusively for its product (i-tunes). Neither of these things matter to me all that much. The Creative Zen M is purty enough and I really don't need Apple to aggregate what I'm going to download to watch. So I got sucked in and bought one.

It's PC based, so it uses divx, xvid, and wmv instead of H264 and m4v. It's a little hinky on the videos. WMV loads fine, but divx and xvids have to actually end in .avi to load up. That's annoying since a lot of places just use .xvid and you have to change the name of the file. It also claims to use mpeg-4, but after trying for a while I looked on line and found out that there are actually 3 different versions of mpeg-4 and the one Creative supports ain't in use anymore. That's annoying because the mpeg-4 capability was a pretty big selling point to me.

Still, most of my videos are in PC formats and they work beautifully. I loaded Blogging Heads, TWIT 28, Command-N, and a couple other videos on the Zen. They're impressive and nary a problem in playing them. The sound is also very good.

I like my new toy; still, it is proof that I should never, ever be allowed in Circuit City without someone to grab me by the arm and drag me out when something shiny catches my eye. And I never would have looked at it if Steve hadn't shown me his new toy. So, it's all Steve's fault. I wonder if I can get him to pay half?

Over at my favorite vidcast, MobuzzTV, Karina Stenquist is talking about things we need to keep an eye on here in the States: Breathalizer telephones and guns which can only be used if you know the code.


Y'know, I should probably feel guilty about posting something about Miss (Ms.?) Stenquist and Mobuzz. I get several hits a day from having reviewed Mobuzz and Ms. (Miss?) Stenquist a while back. I just keep picturing panting fan-boys trying to get their 5 minute fix of a cute, skinny, witty young woman and coming up with a blawg written by a short, round, old guy who writes about stodgy things like the law. I'm afraid this post might lead to even further misdirection.

Oh well, to quote my role model, BWA-HA-Ha-ha-ha-ha!!!!

Chinese CrimLaw

1) News hit the press that the Royal Canadian Mounted Police are cooperating and exchanging information with the Chinese in matters criminal.

2) In a story which is probably (hopefully) unrelated, a Canadian citizen who had been given asylum from China in Canada was caught in Uzbekistan trying to get his kids out of China. He is now being returned to China to be killed for illegal political activities.

3) Billions of dollars walk out the door of a Chinese government bank.

4) China kills 27 drug dealers to commemorate international anti-drug day, but it's not stopping the drug trade and its effects.

5) Finally, China is gearing up to keep kids from having access to the internet during their Summer break.

The problem with truly discretionary sentencing guidelines

For those of you who don't know, Virginia's sentencing guidelines are discretionary. Now, I don't mean discretionary in the federal sense where all the departures downward are rejected by the appeals courts and all the departures upward are rubber stamped. No, they are truly discretionary and the only time the judge has to answer for them is when she has to go back before the General Assembly every so many years, hat in hand, and ask for her job back.

Generally, I am content with this system. Departures are relatively rare. The one thing I notice is that I've never seen downward departures take more than 2 years off a recommended sentence while upward departures are almost universally massive.

Case in point: A car-jacker is recommended to get between 7-12 years in prison. It's a nasty crime and he definitely deserves the upper end of the guidelines - maybe even a departure upward by a few years (let's say up to 20 years). The judge allowed the prosecutor to put on evidence of a murder charge the defendant is facing, but which hasn't gone to trial yet. Then the judge says the magic words for the record: "I won't consider the evidence of the murder charge in sentencing." Gotta make sure that's in the record because otherwise there might not be sufficient cover for the appellate courts to say she didn't consider it. And why would there be concern that the appellate courts are going to need cover to uphold this sentence? Because the judge then departed upward 31 years.

Yeah, she never gave that murder charge a second thought.

Superman Returns: The Review

5 Second Review: It sucks.

30 Second Review: Superman has a child out of wedlock, abandons those who counted upon him, comes back and becomes a home wrecker, is a peeping tom, and is too stupid to realize that Lex Luthor will have kryptonite somewhere nearby when confronted by the Man of Steel. And the new uniform sucks.

2 minute review: The best scene in the entire movie is a special effects bonanza near the beginning when Superman saves a space shuttle and the plane which was carrying it after an EMP pulse causes a malfunction which fuses the two together and shoots them into space. It is an amazing scene. The bad guy with a chain gun and pistol scene is also good. Unfortunately, they're the only things worth seeing in the movie.

The plot by Lex Luthor, Superman's most dangerous, capable, and intelligent foe, is imbecilic. Still, it's not the battle between good and evil which we're supposed to focus on - we're supposed to focus on the relationship issues caused by his return. The biggest plot device of the movie is that Superman has just returned from a worthless and meaningless five year round trip to see Krypton's remains (we'll not ask how he survived all the kryptonite). The main point of the movie is what happens between him and Lois Lane.

Whoever wrote and/or directed this just doesn't get it. Superman, while not as much a Boy Scout as the Big Red Cheese (who, BTW, apparently has his own movie in the works), is supposed to be about Truth, Justice and all that is right in the world (I don't suppose we can say The American Way anymore). He is about inspiration of the masses and doing the right thing, even when it is hard. You don't try to make him more gritty and "real." He wears bright reds, blues, and yellows - not that horrendous dark blue and maroon thing they had him in. He would never try to break up a family - which he clearly attempts in the movie. I don't know who that guy on the screen was but he wasn't what I picture when I think of Superman. And, oh yeah, Superman wouldn't look like an underdevloped 17 year old kid either.

Don't waste your time and money. Stay home and watch episodes of Lois & Clark or Smallville or the old serials or Superman I & II.

Chad's Still Hiring

This position is still available in Wise. It's a beautiful area and the cost of living there is low enough that the pay for a Commonwealth Attorney is more substantial. As one guy I know put it: "When I left Wise and came to Central Virginia to take another prosecution job I earned more but had less money."

Title: DEPUTY COMMONWEALTH’S ATTORNEY
Firm: The Wise County/City of Norton Commonwealth’s Attorney’s office
Date Posted: 06/02/06
The Wise County/City of Norton Commonwealth’s Attorney’s office has one opening for a Deputy Commonwealth’s Attorney. Must be a member of the Virginia State Bar. Criminal prosecution or defense work is desired, but not a requirement. Responsibilities include extensive trial work in all courts in the prosecution of felony and misdemeanor cases. Send resume to Commonwealth’s Attorney, P.O. Box 69, Wise, VA 24293. Deadline for receipt of resumes is June 30, 2006. EOE.

"Police search for home invaders, arrest victim"

Ummm . . . Is that the way events are supposed to unfold?

Want to go to religious services in Brunswick CC?

Better be prepared to get strip searched afterwards.

Y'know, it's a rational policy, but they might want to consider moving the services inside the secure area so they can stop doing this.

No Evidence from Hopewell, Virginia has a Valid Chain of Evidence Going Back Years

Apparently, the police aren't cooperating with the prosecutor's office:

"This hearing is for Ms. Martin to examine the police officers because the commonwealth doesn't have the information to give."

And what a hearing it was. Under examination by defense attorney Mary Martin, Jean Cameron, the former property and evidence technician for Hopewell, testified that there were problems inventorying the items under the control of the Property and Evidence office, that as many as six people had keys, that the door had been found open several times, that evidence had been stored improperly in the accessible outer office, civilians have been know to roam the police station, and that she once found the juvenile son of the chief of police playing in the evidence storage area.

To quote the judge:

"Quite frankly, I don't know what exculpatory evidence could take the taint away from that room."

Do you realize what it takes to get a Virginia judge, who must eventually face the Virginia General Assembly and humbly ask to be allowed to keep his job, to say somwething like that? Every conviction for years will come into play and the Court of Appeals will have to spend whole minutes thinking of reasons for denying petitions of actual innocence. All the current cases which rely on any type of evidence are up a certain creek with no paddle for miles.

Articles here & here.

Goofy Crime

1) If you are robbing a store in the middle of the night, and the owner returns, you may not want to hide under the owner's bed, drink some beer, and start snoring.

2) Why'd the robbery fail? Probably because the clerk was rolling on the floor laughing at the diaper the robber was wearing on his head.

3) If the last prosecutor asked the judge to dismiss charges as a favor for his secretary, Mr. New Prosecutor cannot revive them.

4) What kind of jerk steals a lady's wedding dress?

Melissa Hooper's bridal gown - shown in the photograph she's holding - was stolen recently from her car in Newport News. Her wedding veil, in the bag in the background , was found in the middle of the street.

5) The great mini-motorcycle chase of 2006 took place in Lake Crystal, Minnesota. Police yelled at the driver to pull over, pulled in front of the mini-motorcycle, and shot a taser at the driver (what, no spike strip?). The chase ended when an officer got out of his car and pushed the driver off the mini.

6) If you go to the trouble of faking your death to get away from a federal drug investigation - don't have your wife renew your driver's license!!

7) Ummm . . . If I go get arrested, can I get bonded to a luxury super yaught too?

DUI Videos

Here's how we check to see if you are DUI in the States.

The Scottish have a much easier method.

And then there's the NYC police and the "Santa Claus Incident."

Does anybody think this guy passed his breath test?

Off Point: Treed Bear

Yeah, it has nothing to do with criminal law but I just couldn't resist. The best part is that when the bear climbed back down the cat chased him right back up another tree. I may actually have to buy this print from AP.

Profile of a Rapist

"He is a person who is driven by a ritualistic fantasy, and a key component of that is that he wants to have a relationship with his victim."
. . .
"His fantasy drives him to believe that this relationship is that of a lover, a partner, and he will quite often comment, in general terms, on the comfort and the needs of the victim."

[He] want[s] to finish the relationship on a good note.

"He perceives, his fantasy drives him to believe, that it's going to be a relationship where the victim by the end of it quite likes him, and had the circumstances been different, they would have been quite a good couple."

Just Weird

Kicking cute girls with nails in your shoes.

You can't make this stuff up.

Oops . . .

So sorry you spent 4 months in jail accused of raping a 4 year old only to have it disproven by DNA evidence.

Oregon decides to try to prevent rape

"Young women between the ages of 14 and 24 are most at risk. In a group of 30 women, about five of them will understand what it means to be forced into sex -- either by a stranger or, far more likely, by someone they know."

"Most will keep the experience to themselves, or they'll tell a friend or counselor instead of the police."

"This culture of silence is wearing on the advocates and law enforcement who work with crime victims. They've realized it's time to double their efforts in rape prevention, rather than spending most of their energy working within the boundaries of the courtroom or counselor's office."

Hmmm . . . You don't really need to know the date of your appeal

"The Wellington lawyer for a New Zealander serving 20 years in a Cambodian prison for raping five young employees plans to ask the New Zealand Government for money to fund his appeal."

"Graham Cleghorn, 58, was convicted of rape in 2004."

"This year, he won the right to a second appeal after successfully arguing that the first appeal hearing was unfair as neither he nor his lawyers knew about it until it was over."

"The new appeal date has been set for July 10."

"However, the defence received another setback this week when Cleghorn's lawyer in Cambodia, Dy Borima, quit the case, citing "frustration" at the corrupt court system."

Sex Offender Registration

North Carolina is losing its sex offenders.

Juvenile Guards and Inmates

9 guards arrested for relations with underage juvenile inmates,

Rapes Down 85%

The downtrend has been so long and so steep that almost everyone believes it to be true. The question is - why?

The Inside Joke: Anonymous Lawyer

Book rating scale:

5: Touched by God - a work which makes Shakespeare look infantile
4: Amazing - Instantly began rereading it and quoting it to friends
3: Worth Every Penny - a solid, interesting read, inspiring some thought and discussion with people who share similar interests
2: I Paid For It So I Finished Reading It - Some interesting parts but if I lose the book I'm not buying another copy
1: Couldn't Force My Way Thru and Burnt the Book in order to send it to the Hell it deserves

I rate Anonymous Lawyer as a 3. It's too much of an inside joke for anyone outside of the law community to get it.

========== ==========

If you've been reading blawgs for a while you probably read some of Anonymous Lawyer. When it first started people were insanely obsessed with it. It wasn't unusual to see several hundred comments per post (here's one with 550). It was the exact stereotype of what everyone in law school and with offices outside the downtown towers believes life in a large firm to be. There was a huge, ongoing, and rather heated argument about whether it was actually written by a biglaw partner or was a scam by a student, associate, or other.

I would go by every so often, but never really got into it too much - probably because there is about as much chance that I will be working at BigLaw as there is that I will serve on the federal supreme court. Then one day I noted that the author had been announced by a newspaper (can't remember which) as Jeremy Blachman, a law student.

Now comes the book. It follows the life of a partner at some generic BigLaw firm through his emails with family members and others as well as his posting on a blawg he has started. It's black humor basically laying out a life of slaving away for the firm, to the exclusion of all other things, in the battle to become the managing partner of the firm. The author derides the associates and summer associates. The author fights a battle with another partner to see who can so damage the other that he cannot become the managing partner. It is the embodiment of obsession as evil.

I'll admit, I chuckled at parts and thought it was worth reading. However, there's no way this book has a wide appeal. You can't really tell the stories in the book to someone who hasn't gone to law school - he won't get it. Thankfully, the book is an extremely easy and quick read; if it plodded just a little bit I'm not sure I would have finished it. It's a one note tune, but it's quick enough that you finish it before you realize you've grown tired of the note.

Anyway, Jeremy Blachman has an excellent personal blog which I recommend to everyone.

Police Gone Wrong

It's all fine and dandy for Scalia to talk about improved professionalism among police forces and how that justifies walking away from traditional protections of your rights. It's just another indicator that he really has no clue about anything in the criminal justice system. It's not the 95% of officers who are doing their job honestly and with the highest level of professionalism that the Constitution is meant to protect us from. The Constitution is meant to protect us from officers who are cutting corners, pushing limits, following improper orders, or just acting out-and-out illegally.

CATO @ LIBERTY has an absolute nightmare of what happens when a group of officers cross the line en masse, beat the crud out of some guy at a party, and have the responding officers arrest the guy who was beaten.

No Self Defense for You

A couple days back I posted about the right of defendants in Washington to get their defense fees from the State if they were found not guilty by reason of self defense. This prompted an email from another practitioner about the practical effects of this law.

I just saw the post on the Washington statute that requires the state to pay when it loses a criminal case on self-defense grounds. Interesting story on that. When I first started working [as a lawyer], I took a call from a Washington attorney whose client had been acquitted of some kind of homicide (I forget the details). This attorney related that the judge in her case refused to instruct on self-defense, but the jury acquitted anyway. She claimed that since R.C.W. 9A.16.110 went into effect, Washington judges had gotten very stingy on self-defense instructions out of concern for the state fisc. It actually makes a kind of bizarre sense, if you're not too hung up on, you know, basic fairness: If the jury returns a not guilty verdict without a self-defense instruction (either because they think it was self-defense even without an instruction, or for some other reason), the defendant is in good shape (albeit perhaps deeply in debt to his counsel). And if the jury returns a guilty verdict, the lack of a self-defense instruction is reversible error on appeal (assuming a self-defense instruction was really warranted). So the defendant can appeal and get a new trial. No harm, no foul . . . well, er, kinda . . .

A perfect example of the law of unwanted consequences. The Legislature out there needs to include a section stating that self defense instructions shall be given.

Thanks MR.

Gunfight at Federal Prison

FBI agents went to arrest several guards at a federal prison and the ensuing gunfight led to the death of one guard and one FBI agent.

Ignorance is Bliss

You can tell how few times Justice Scalia has been in a domestic relations court by his almost humorous naivette in Davis v. Washington.

In Davis Scalia elevates the res gestae hearsay exception above the constitutional right to confront one's accusers. The basic assumption of the res gestae is that a statement is so much a part of the happening that it is reliable. It is the reason that "Somebody yelled, 'This is a bank robbery'" is allowed into testimony without putting the co-defendant who allegedly said it on the stand. In situations like that it is a common sense rule.

However, if it is expanded much further it becomes a rule which can be scammed by someone who wants to punish the accused. Domestic 911 calls are a potent breeding ground for such scamming. I don't know all the facts in the Davis case but look at the 911 call:

"911 Operator: Hello.

"Complainant: Hello.

"911 Operator: What's going on?

"Complainant: He's here jumpin' on me again.

"911 Operator: Okay. Listen to me carefully. Are you in a house or an apartment?

"Complainant: I'm in a house.

"911 Operator: Are there any weapons?

"Complainant: No. He's usin' his fists.

"911 Operator: Okay. Has he been drinking?

"Complainant: No.

"911 Operator: Okay, sweetie. I've got help started. Stay on the line with me, okay?

"Complainant: I'm on the line.

"911 Operator: Listen to me carefully. Do you know his last name?

"Complainant: It's Davis.

"911 Operator: Davis? Okay, what's his first name?

"Complainant: Adran

"911 Operator: What is it?

"Complainant: Adrian.

"911 Operator: Adrian?

"Complainant: Yeah.

"911 Operator: Okay. What's his middle initial?

"Complainant: Martell. He's runnin' now."

Contrast that with a statement such as:

Female Voice: Help! Help! Adrian's beating me...

Male Voice: Hang up the phone, B/tch!

CLICK . . .

The statement in Davis is meant to direct police to Davis; it is not a part of the ongoing activity like the second. It may have been emotional but how many of us have seen people lie with emotion - especially in domestic cases.

Do we know if she called Davis over and then attacked him in a drunken rage leading to her injuries as he fought her and her hair dryer, knife or lamp off (yeah, I actually had the first case and saw the others)? Was there a dispute over child custody and the possibility Davis was never there and this was a set up? The latter is unlikely, though not unheard of (some claim that up to 80% of domestic violence accusations are false), but, unfortunately, the former is not terribly unusual.

Scalia tries to justify the use of the 911 recording by stating "No 'witness' goes into court to proclaim an emergency and seek help." True, but from the defendant's point of view the witness isn't making that 911 call to proclaim an emergency and seek help. She's making that call to seek to harm him. And whether Justice Scalia believes it or not people in domestic disputes make statements all the time, whether in court or out, with the intention of hurting one another.

Judge throws out rape case after prosecutor late to court

A judge who threw out a rape charge when the prosecutor was 45 minutes late for court said on Tuesday that she won't handle the case if the defendant is re-indicted.

A Court After Tom's Heart

The Japanese Supreme Court overturns a life imprisonment sentence because it was too lenient.

No Peers for You!

Here's a unique argument: My client can't get a fair trial 'cuz she's 79 and cannot get a jury of her peers. Everybody called for jury duty is too young.

Commonwealth Finds a Loophole to Violate Federal Privacy Laws

Virginia, constrained by federal law from violating the privacy of students who have enrolled in a school, is trying to get around the law by requiring colleges and universities to turn over the information after the school has offered admittance but before the student has accepted.

Everybody out there who actually believes the claim that Virginia will look at this info once and then get rid of it please raise your hand. AG McDonnell please put your hand down - I think you're required by law to say you believe it.

What else can you do if your throne is taken away?

You could run a gambling and prostitution empire.

Yep, It Costs a lot of money . . .

. . . to impliment those pesky Supreme Court mandates about when the State can kill people.

Was I a Felon?

Y'know, I can't recall actually cheating to better my grades but I can remember not covering my paper while sitting next to members of the football team in High School and that cute redhead I sat next to in my Junior year of High School science could have asked me for a lot more than the answers on my test. Under the theory of this case was I a felon?

Confusion in Kentucky

David seems confused that faith could lead a conservative Kentucky governor to believe in adequate defense for indigents.

24% of one Arizona county's jury trials are DUI's.

A right without a remedy.

The notorious Japanese beer-bomb.

Letter to the Editor

In your article on Mr. Mukuria you seem to lay the blame for his actions at the feet of the Judge Rockwell in Chesterfield County. This is unfair.

Judge Rockwell was faced with a young man who had apparent family support, was already serving a year in jail, and had an obvious drug problem. He could have ignored these facts and just rubber-stamped a prison sentence. Anyone with familiarity with the system can tell you how that turns out: after serving a couple years in prison Mr. Mukuria would have returned to the streets and resumed his addiction driven crimes.

Instead, Judge Rockwell tried to stop this addiction driven merry-go-round by ordering Mukuria into an intensive drug treatment program which lasts at least a year. With daily counseling and drug tests the Day Reporting Center isn't some month long program which can be scammed; it is an intensive probation and treatment program. If Mukuria had succeeded in this it would not only have benefited him it would have saved us untold taxpayer dollars because we would not be convicting and imprisoning him over and over again. The judge also reserved to himself a massive punishment which he could impose as an incentive for Mukuria to adhere to the law.

The failure here lies squarely and solely at the feet of Peter Mukuria and he shall surely pay dearly for this failure. Of the many thousands of cases Judge Rockwell has decided it is misleading to focus in on the one where the defendant has metaphorically spat in the judge's face. Judge Rockwell tried to fashion a result which benefited the long term interests of both the Commonwealth and the convicted; such a judge is someone to be treasured - not taken to task.

Law Prof on Citizen-Lawyers

"Though few of them participate in clinics, those that do are more
likely to be interested in pro bono after they start practice."

I think that might be more reflective than causitive.

Law Prof on What Makes a Good Citizen - Lawyer

How can we lawyers better people? More touchy-feeliness in law school
and clinics. We must teach law students to value themselves and find
meaning and purpose through social conciousness.

Big Firms and Pro Bono

It was just asserted that BigLaw pro bono is supplanting legal aid as
the primary aid for the poor in big cities where BigLaw exists.

Anybody who can comment on the verity of this?

Other Things I Oughta Do

Oh yeah, I should also be spending time involved with the Bar.

Things I Should Be Doing

I'm sitting here listening to how I should be doing pro bono work,
volunteering my legal services to the community, etc. Because I don't
really need sleep. At least not all that often.

Lawyer as Citizen

The guy speaking in a warm, quiet room is droning on, reading a prepared
statement about how we all need to be virtuous lawyers.

Second Day

I am at lunch the second day. I skipped the first CLE today because I
realized that I am going to have to go to another CLE after this one and
couldn't make myself go to a hour and half on IP law. I did go to the
advertising class; these are always fun because of the infinite variety
found in advertising bad taste. The highlight of the section were ads
by some guy who calls himself "The Hammer" and has an actor scream that
he's the reason people hate lawyers. Unfortunately, even my T-Mobile
wouldn't connect so I couldn't blog and actually had to pay attention.

Now I'm waiting for the education seminar to start.

No Charges for Kate Moss

Kate Moss, caught on videotape snorting some substance, shall not be prosecuted because the prosecutors cannot prove what the substance was.

Civil Law and Chancery

Unfair!!!

They have done away with the difference between law and chancery. I had
to learn two sets of procedures to pass the bar. All you young
potential lawyers are getting it too easy.

Whippersnappers!

Civil Law

You cannot get emotional distress damages if your dog is hurt in the car
wreck but you were not (physically).

Crimlaw

Just finished listening to the crimlaw part. Not much I did not already
know but I wanted to pay attention anyway.

About the only thing I learned was that Virginia's Supreme Court
overturned the Court of Appeals and ruled that in a motion for a new
trial the reasonable diligent inquiry reason, for which most of these
motions are dismissed, only applies to the lawyer - not defense experts.

Agrotourism

Aqrotourism? AGROTOURISM?!?

I can see it now: That there is a cow. And that there is a deer, a
John Deere.

And if they post a sign that has about 10 sentences thay can avoid
liability for things that go wrong (Bessie eating somebody's hand when
they pay to go cow tipping?).

Going Again

No power yet but they decided to start back up.

Guess what. Both the Virginia bills meant to limiy Kelo died. I am
shocked, SHOCKED I SAY, that the government has not chosen to give up
powers.

Power Down

About 10 minutes into the real estate presentation power went out in the
building. We have light through the picture window and the speaker can
speak loud enough for us to hear her but they will not go forward
because they cannot tape it to play at later CLE meetings.

We wait . . .

Divorce Law

If you write the prenup in Virginia and get your divorce in Virginia,
but got married in the Virgin Islands, and signed the prenup just before
the marriage, the law of the law of the Virgin Islands applies.

In the Paper Again

Great. I like to think I do good things for the majority of my
clients. Do any of those cases make any paper? Nope.

I got a voicemail from another attorney telling me that my jury trial
from Monday is the biggest story on the front page of the weekly county
paper. Why was it important enough to make the front page? Because the
jury sentenced Client to about 5 times the appropriate sentence per the
guidelines. 10 years. How wonderful.

Who thought it would be a good idea . . .

. . . to stick estates law after lunch?

Yeeeesh . . . Well, we are now moving on to family law.

Lunch Time Massacre

We are back. Or perhaps I should say about half of us are back. Not
sure where everybody dissappeared to. Maybe they all went out to the
beach.

Now I am listening to a gentleman talk about whether estate taxes will
go away or not. He does not think they will.

Tax Law

For those of you who need to know, selling your lottery winnings does
not allow you to pay capital gains tax rather than income tax.

Tax Law Waiver

Now on tax law section and just found out that Virginia has set aside
three days in August without sales tax for back to school items. 20
dollar limit for each item other than clothes. 100 limit for each item
of clothing.

Alcohol Law

Not sure why we covered it under Business Organizations but Virginia has
passed the following laws.

Wine and beer tastings are legal.

Alcohol Vaporizing Devices are illegal.

Alcohol can be served at sidewalk tables outside a restaurant.

Residents of care facilities can drink alcohol they buy.

Business Organizations

The most interesting thing covered is the fact that if you jump thru all
the hoops to register your name and marks with the Commonwealth another
pre existent company which uses the same name or marks has a superior
claim.

Yeah, I know it is not thrilling, but if I do not keep typing I think I
might fall asleep or be forced to start a caffeine IV.

Commercial Law

Boy, they are not happy that a debtor paid what she thought she owed and
put on the check "Acct. paid in full" and the Virginia Supreme Court
backed her when the bank took her house because it claimed she owed
more. Not that it matters much because the banks got the law changed by
the legislature.

Repo

You sell somebody that $75,000 car and he stops paying. You send your repo guy out and he gets it back. A week later former owner declares
bankruptcy. The bankruptcy trustee can and will come after you for the
$75,000 rather than the actual car. I did not know that.

Cannot discharge student loans

Duh. Well, okay, the case we were told about was one where there was no
real chance that the lady would ever be able to pay it back. Not enough
for the 4th Circuit to allow a discharge of the debt.

Car Towing

We are now being taught about the fine points of towing statutes.

Creditor and Debtor

Well, we are all now ethical. We have now moved into debt enforcement
and, theoretically, debt defense.

Ethics Section

We are in the middle of the ethics section and we have gone thru all the
changes in the Rules. Not the most thrilling thing in the world.

Now we are going thru all the cases wherein people have been punished by
the bar for various offenses. Distasteful.

Arriving at the CLE

Well, I am waiting for the CLE to start. They have us in a massive room
with big glass windows facing the ocean so there will be something to
watch when we get bored by someone presenting on issues we do not use in
our practice. This should be fairly common for me as the CLE is about
changes in all areas of law and most of it seems to be commercial law as
expounded upon by Mr Lawyer from Big Name Law Firm. There is a crimlaw
section but it is at 3 45 p.m.

I had thought I might kill some time cruising the internet but the wifi
does not seem to work here. I am doing this via my sidekick and while
it works with the internet it is slow and the screen is just a little
small. Anyway, it is starting and if anything interesting happens I
will try to post it but this does not look like a target rich
enviroment.

Virginia State Bar Conference

I drove down to Virginia Beach today in order to attend the Virginia State Bar's annual conference. Basically, it has two days of CLE's and I haven't done any yet this year so this was a good way to catch up. There are other events as well, but I'm just not all that political so the main thrust of the event as far as I'm concerned is the continuing legal education.

It's a good thing I'm not here for the warm weather and beautiful ocean. The remnants of a tropical storm/depression swept thru the area today and it's wet and when the breeze blows (constantly) it's rather cool. Maybe it'll get better tomorrow.

Not a single person with whom I regularly practice is coming to this. Most of them dismissed it as "a biglaw thing." Maybe they're right. When I pulled up in the parking lot I walked past a group of about 10 people in suits, ties, the whole nine yards. They hadn't even loosened their ties. It was a bunch of lawyers and they were getting a "limo" (when did vans become limos?) so they could go some bar. These were not the working lawyers whom I'm in court with every day - even the most uptight of us at least loosens the tie. I almost felt self conscious in my kinda tattered khakis, rugby jersey, and beat up old baseball cap - almost.

Lawyer Speaks Out

After the two Mob-Cops were convicted in NYC they hired new lawyers. Nothing new there. The new lawyers try to get a new trial. Nothing new there. The new lawyers list every possible error, real or imagined, which the old lawyers committed. Nothing new there.

The old lawyers responding, now that's interesting:

"I was just so personally offended," Cutler said. "One day you’re begged to come in, and the next day you’re knocked by the client, who to me is delusional in a certain respect. He’s certainly ungrateful and shameless."
. . .
"He’s desperate — who else can he attack?" Hayes said. "I am surprised, however, since I didn’t think he was like that."

"They started off blaming the government and the prosecutors, blaming this and that," Cutler said. "Who’s left? Us. I am rankled and angry."
. . .
"I don’t want to hurt Lou, and I certainly don’t want to hurt Steve," Cutler said. "But I will be heard."

Maybe I should have titled this, "Things I Have Wished I Could Say but Worried the Virginia Bar Would Sanction Me For."

Open and Shut

If you send someone a text message, "I feel bad, sorry I raped you", there's not much reason to have the trial.

Proving Rape in China

How do you prove rape in China?

After the child is born you do a DNA test.

Who Needs the 4th Amendment?

It's just so darn inconvenient when police actually have to get a warrant. It takes time, you have to show probable cause . . . Life would just be that much easier if we just let the police get all the stuff they want whenever they want it.

"The Supreme Court is not infallible"

"But the greatest sin of the Supreme Court is in its refusal to admit it made a mistake if it does make one. Is it out of pride or out of fear that it would lose credibility if it admitted committing an error?"

"In this sense, the Court acts like a dictator. It can overturn decisions of the President and Congress, but the latter two cannot overturn the Court’s decisions. If it says black is white or that a line is straight even if it is crooked, they stay white and crooked in the record books. The boy who said truthfully that the emperor had no clothes would have been clamped in jail for contempt if there had been a Supreme Court in his time."

Oh, he's not talking about our Supreme Court? Oops.

DeathLaw in New York

The NY Senate appears to have passed a death penalty statute but the Assembly killed it in committee.

Protestants Rally for Death Penalty

In the Philipines.

Unlucky Number 13

I can't really say I'm surprised to hear of an illegal immigrant with 13 aliases. The use of multiple names is common enough that around here the person you go and talk to if you need to figure out the actual name of a client with a page and half of aliases you go talk to the Spanish speaking lawyers.

6th Circuit - No Need to Research Family in Death Case

As I understand it, in most death penalty cases it is standard practice to research the defendant's family in order to establish events in his life, medical conditions, etc. which might mitigate the sentence.

What happens when the attorney doesn't take this step and his client is sentenced to death? According to a divided 6th Circuit panel, nothing.

Yeesh

I just can't picture any police force down here in Virginia publishing this statement:

The New York State Court of Appeals has done the people of New York City a great service by permanently removing Laura Blackburne, a notorious cop-hater, from the Queens Supreme Court bench.

Can't she just run and get elected again?

Atlanta, the Garden Spot of the South

Violent crime is down.

The Difference Between US and British Police

An officer shoots a terrorist suspect during a raid. Later, the suspect demands an apology. The Metropolitan London police apologize.

Federal Marijuana

It looks like the feds may be growing their own stash - at the federal courthouse.

How many of my clients would get away with the excuse that marijuana just happened to be in the filler dirt they bought? It's a pretty weak excuse.

Virginia's Newest Fully Accredited Law School

Appalachian School of Law

Congratulations!

Pink Prosecutors

OMG! I just walked into the newly refurbished waiting room for the
office of the prosecutor and it has brand new pink wallpaper.

A College Girl in Jail

A video of a white college kid getting the full on troublemaker treatment at jail. The trouble is, she is the prosecutor's daughter.


I got this link from another blog but can't remember who. Sorry. Drop me a line and I'll give you credit.

Blonde Justice Violates Freedom of Speech

The joys of our work:

YOU CALL YOURSELF A LAWYER? YOU'RE VIOLATING MY FREEDOM OF SPEECH! I GOT FREEDOM OF SPEECH! THAT MEANS I CAN TALK TO YOU AT YOUR OFFICE IF I WANT, I DON'T HAVE TO TALK TO YOU ON THE PHONE!

Mighty nice of the witness to explain that nuance of constitutional law.

Guess What Happens . . .

when you dress like this:

Thanks Rob.

Off Point: Cars

I usually treat myself to one movie a week. So far, this has been a sparse movie Summer and, judging from the truly awful artwork (some people should be kept away from computers) and plot summaries I've seen of Superman Returns, it ain't gonna get better. X-3 had plenty of special effects and a "plot" which, well, wasn't. The other big opening was a movie wasn't a revival of a gnostic heresy. Honestly. For real. C'mon, it's fiction - it can't possibly cause people to get interested in ideas which Christianity rejected as pure fiction, oh say, almost as soon as they were promulgated - long before Saint Boniface convinced my forefathers that they should be Christians. I went to see Over the Hedge that weekend. There was Poseidon, which I figure might be worth watching when it hits cable (for some reason I think I might know how it turns out). This week was The Omen. No thank you. I went to see Cars.

It was actually pretty good. Mind you, the storyline is canned: jaded big-city guy gets trapped in small town against his will and becomes a better person for it. Think Doc Hollywood. Still, the story is fun and, oh yeah, all the characters are cars. And the race scenes are dead-on hilarious. If you are part of a NASCAR family pack up the rugrats, grab the overworked spouse and head to the movies. There are even rubber balls on the track. If you're not a NASCAR family pack up the rugrats, grab the overworked spouse and head to the movies - I'm not a NASCAR guy (where I grew up racing involved horses) and I was rolling. Be aware, as an adult the parts of the movie you'll laugh at might not be the same as your kids. But everybody will enjoy it.

Second dancer told police Duke rape charges were "a crock"

According to police, the other dancer in the Duke lacrosse case told them early in the investigation that allegations of rape were a "crock" and that she was with the accuser the entire evening except for a period of less than five minutes.

Virginia's First Elected Blogger is Hiring

Title: DEPUTY COMMONWEALTH’S ATTORNEY
Firm: The Wise County/City of Norton Commonwealth’s Attorney’s office
Date Posted: 06/02/06
The Wise County/City of Norton Commonwealth’s Attorney’s office has one opening for a Deputy Commonwealth’s Attorney. Must be a member of the Virginia State Bar. Criminal prosecution or defense work is desired, but not a requirement. Responsibilities include extensive trial work in all courts in the prosecution of felony and misdemeanor cases. Send resume to Commonwealth’s Attorney, P.O. Box 69, Wise, VA 24293. Deadline for receipt of resumes is June 30, 2006. EOE.

I've seen Wise and it's beautiful country. Ya'll could do worse.

Ken Want!

Unfortunately, the New Zealand company which made this whiskey went out of business about 9 years ago. Of course, if anybody has some and wants to make a donation I'll be forever grateful.

Rich White Kid Syndrome

I'm driving to my office from the courthouse yesterday when I hear the local talk radio guy ranting about the latest item which he is just stunned an outraged about. It's something called intermittent explosive disorder (IED). I don't pay too much attention to it, it's just something silly he's found a rant about. Then I get home and I find the same topic on Dvorak.com. Apparently, according to some researcher, 16 million Americans just randomly become violent without provocation. Anyone wanna take bets on whether I'll be able to use this in court?

Actually, this reminds me a lot of oppositional defiant disorder (ODD). ODD is a disorder found in teenagers and is described as having the following symptoms:

A pattern of negativistic, hostile, and defiant behavior lasting at least six months during which four or more of the following are present:

1. Often loses temper
2. often argues with adults
3. often actively defies or refuses to comply with adults' requests or rules
4. often deliberately annoys people
5. often blames others for his or her mistakes or misbehavior
6. is often touchy or easily annoyed by others
7. is often angry and resentful
8. is often spiteful and vindictive

The disturbance in behavior causes clinically significant impairment in social, academic, or occupational functioning.

Of course, since this pretty much describes being a teenager I'm not really sure if any of us went thru our teenage years without suffering from ODD.

One day, as I was sitting juvenile domestic relations court, another defense attorney leaned over to me and described this as "rich white kid syndrome." What he was talking about is the fact that the only people that seem to get diagnosed with this are kids who belong to upper-middle-class families and above. These kids get in trouble and their parents go out and hire a psychiatrist who diagnoses them with ODD. However, if you are a poor kid from the trailer park or from the slum apartments when you get in trouble you're just a bad kid. Nobody steps up with a diagnosis which calls being a bad kid a disorder.

Tasers for New Zealand?

In New Zealand they're debating whether or not to introduce tasers as a law enforcement tool. Personally, I'm not sold on tasers as a law enforcement tool.

It's not that I don't think they can play a valuable role in ensuring officer safety, I question the role they are being placed in. The way I believe tasers should be used are as substitutes for firearms. Now I realize that when a bank robber comes out of the bank a taser is not going to do the same job as a shotgun. Rather, it's for the confrontation where a suspect or a green warrant is standing there with a knife in the officer's only previous option would have been to use his firearm.

The problem is that I don't think this is how officers are being trained to use them. From a couple of conversations I've had, officers seem to be getting trained to use tasers in situations where previously they would have laid hands upon the individual or cap - stunned him.

Anecdotal evidence of fatalities due to the use of tasers continue to make its way around. While I'm sure there's some truth to these, I'm not sure if the death toll is as high as some articles claim. I also lack a marker to compare it against. If you tell me that 150 people over the last five years in the entire United States were killed by police officers using tasers you must give me something to compare it against. How many fatalities have there been in the use of the various types of maces? How many fatalities from the laying on of hands on other physical force? Give me something to compare.

In any case, it appears that tasers have the potential of being deadly force for certain individuals. This leads to the conclusion that they should not be a step up from or substitution for physical contact, they should be a step down from the clearly deadly force of a firearm.

Mind you, I've yet to have a case where an officer has actually used a taser. It's something that still slowly making its way into the system and I suspect the anecdotal evidence of multiple deaths may be causing some officers to be cautious in the use of this item. After all nobody wants to be sued because he jumped the gun and used a taser at a typical traffic stop when there is no call for it.

Defendant Gets Paid for Going to Court

According to Skelly, if your defense is self-defense in Washington (the state) and you win you get paid.

Today's CrimNews

1) The ACLU is suing Alaska over its law restricting the personal use of marijuana.

2) Paroled after DNA testing eliminates him as the rapist, a Virginian fights for a pardon.

3) Police who worked as Mob hitmen likely to get life.

4) It appears that Dillon's Rule doesn't exist in Colorado. At least not where gun bans are concerned.

5) A 17 year old British girl's plan to rob and kill an elderly lady is found while she is in juvy, yet it still happens.

6) I bet they never thought they'd actually find a CSI situation when they took that CSI class.

7) Prison crowding isn't unconstitutional.

8) Apparently, slave traders have set up shop in UK airports.

9) Worried about kids cheating in school? So is China. That's why it's sending them to jail.

History of a Trial

03 July 2005: A young man by the name of John Smith is brought before the General District Court of Pitcairn County. He's an 18 year old ward at Lost Hope Juvenile Detention Facility, which is the place where Virginia sends people under the age of 18 whom it has given up on and keeps them until they are 21 or commit a felony inside. He's before the court because he is charged with two misdemeanor assault and batteries. This means he is accused of either assaulting another juvenile ward or he has committed a minor assault upon a guard. His court date is set for the 13th of October 2005 and since I'm sitting in the courtroom the judge assigns me to take the case. Before I can speak to him he is hustled out of the courtroom, put in the van, and shipped back to Lost Hope. Before I leave the courthouse, the judge calls me back to the bench and tells me that the date they've given me is incorrect, the client's court date is actually the 12th of October 2005.

So I have to arrange to go visit him at the juvenile detention facility (as well as about four other people I'm representing at Lost Hope). Lost Hope isn't as hard to get into some of the prisons I go to, but you still have to give notice a day ahead of time and it's at least a 45 minute drive from my office and further then that by at least half an hour from the courthouses I'm usually in. I have some trouble arranging for a visit during the day because, believe it or not, that's what I had to be in court. Thankfully Lost Hope has visits at night and that's when I end up doing. First I tell the young man his actual court date. Then, we talked for about 10 to 15 minutes, and I left not too terribly concerned over the charges.

24 August 2005: Young Mr. Smith is back before the General District Court of Pitcairn County. This time he's charged with knowingly and willfully injuring a guard -- a class five felony carrying up to ten years in prison. I'm not in court at the time but because I represent him on the other charges I am assigned to represent him on this charge. Therefore, the preliminary hearing for this case is set for the 12th of October 2005. I make plans to go out and see him at Lost Hope. However, before I can get out there Mr. Smith makes one more trip to the General District Court and I'm assigned to represent him in another case.

15 September 2005: Mr. Smith is brought yet again to the Pitcairn General District Court. He has received another charge of knowingly and willfully injuring a guard (class five felony). I am assigned to represent him on this charge as well. However, this preliminary is set for the 23rd of October 2005. I travel out to Lost Hope one more time and discuss the serious charges of which Mr. Smith has been the recipient. We spent some time talking and when I leave I have marching orders.

12 October 2005: Well, I'm in court and Mr. Smith has been brought from the juvenile detention facility. However, none of the prosecutor's witnesses are in court. The prosecutor moves for continuance and I object. However, the prosecutor gets a continuance until 23rd because we're all coming back to court then anyway.

23 October 2005: Only one of the prosecutor's witnesses shows up for court. The prosecutor can probably get a continuance for the felony witness who hasn't shown up because this is a first calling for that case. So the prosecutor agrees to drop the two misdemeanors and not bring them back as direct indictments as well as dropping one of the felonies to a misdemeanor assault and battery if Mr. Smith will plead guilty to it and take 12 months with six months suspended. Mr. Smith jumps at this deal. However, the witness who was supposed to be there for the felony preliminary hearing on the 12th of October has shown up this time so we have a preliminary hearing in that matter.

Officer Vincent is called by the prosecutor and testifies that Mr. Smith was pressing a call button in his pod and that when she went to stop him he grabbed her on the face, palming it like a basketball, and shoved her down. She then stated that he kicked her four or five times in the upper leg before being pulled away by a couple of other wards. The injuries she sustained were a strained back and a bruise. There was never any real doubt as to whether or not this would be certified to the grand jury and it was.

20 December 2005: This is both the day when the prosecutor takes his ham sandwiches to the grand jury and cases are docketed. Mr. Smith's case is set for the 18th of January 2006 and through dint of earnest effort the prosecutor manages to somehow miraculously get Mr. Smith indicted.

I try to go visit Mr. Smith out at Lost Hope, but I find out that he has been moved into the adult system. The people at the juvenile detention facility don't seem to know where he is, but they do know that he's been moved into the adult system. When I ask why, one of the guards opines that was probably because the last time he went to court the judge asked him why he was in Lost Hope; he told the judge that he was in Lost Hope because the last time he was in juvenile court he threw a clip board at the judge. The guard tells me that the very next day after he told this to the judge Mr. Smith was moved to the adult system.

Anyway, I have to track down where Mr.Smith is myself. Luckily, the Department of Corrections has a web site where it tells you where all the inmates are located. Unfortunately, Mr. Smith apparently hasn't been in the adult system long enough for me to find him in that way. So I wait a week and, sure enough, he pops up on the system. He's even in the same county; they just moved him down to the classification section of Pitcairn Correctional Facility.

So I jump through all the hoops and go to Pitcairn Correctional Facility, which (much like Lost Hope) is about 45 minutes from my office; however, it is more difficult to set up an appointment at Pitcairn Correctional because all visitation ends at 3 p.m. Because of a screw up, I go to the wrong part of the prison first (general population) and spend about 45 minutes there until they figure out I'm in the wrong place. I then drive around to the other side of the prison. Technically, when I get there I am too late to get in the visit Mr. Smith but they know about the screwup and bend the rules to get me in. The visit doesn't last all that long, it's pretty much just to confirm what I have spoken to Mr. Smith about before. I always try to meet with the clients before the trial date even if they have told me they are going to plead guilty because sometimes they change their minds. I also go over the questions I expect the judge to ask them. Before accepting a plea, judges in Virginia ask questions to determine whether guilty or not guilty pleas are voluntary and the defendant understands the consequences of his actions. I prefer to go over these with the client just before we walk into the courtroom because they forget or become antsy about their answers; however, in Pitcairn County I rarely have the opportunity to do this because clients tend to be delivered late to court, I usually have a number of cases, and the judge has my cases called one after another.

18 January 2006: I'm in court but somebody forgot to tell the circuit court clerk's office that Mr. Smith had been shipped from Last Hope Juvenile to Pitcairn Correctional Facility. Consequently, the case gets carried to the next docket call to set a new date when they can get him to court. As required by the speedy trial statue I note Mr. Smith's objection to the continuance. Yes, I know that it's silly for me to object to a continuance which is not in any way attributable to Mr. Smith, but the courts will use any technicality they can to get around the purpose and spirit of this statute. So I object.

13 February 2006: Docket call. Client's court date is set for 19 March 2006.

16 March 2006: I go back to Pitcairn Correctional Facility in touch base with Mr. Smith again about where we stand.

19 March 2006: This time they get Mr. Smith to the courthouse. Of course, they get him there so late that I did speak with him all of a minute before we go into the courtroom. We start the process. The clerk of the court stands up and reads the charge to Mr. Smith: "John Smith, you are hereby charged that you did, in the County of Pitcairn, against the peace and dignity of the Commonwealth of Virginia, assault and batter Mary Vincent, an employee of Lost Hope Juvenile Detention Center, with a knowing and willful intent to injure the same. How do you plead, guilty or not guilty?" "Guilty."

Then the judge starts to lead Mr. Smith through a series of questions. "Has anyone promised you anything to plead guilty today?" "No." "Has anyone threatened you or coerced you to force you to plead guilty today?" "No." "Do you know what the maximum sentence you're facing is?" At this point Mr. Smith starts to falter. He looks at me, so I prompt him and he answers "10 years."

"Mr. Smith, how much time as Mr. Lammers spent with you discussing your case?" "About 15 minutes." The judge fixes his gaze upon me, "Mr. Lammers, is that an accurate representation of how much time is spent talking to your client?" "Your Honor, I think it was more like an hour. There hasn't been much of a question of what was going to be done in this case." Then the judge asks him what his sentencing guidelines show. "I don't know." The judge looks suspiciously at me. "Has your attorney explained sentencing guidelines to you?" "No." At this point I'm doing what I normally do in this situation, I have chosen a point to stare at on the far wall and I'm chewing on my tongue. So the judge turns to me. "Mr. Lammers, have you discussed the sentencing guidelines with your client?" "Your Honor, I know that question is coming in this courtroom so I make a practice of discussing the guidelines with each of my clients." "Did you discuss those specifically with Mr. Smith?" "Your Honor, I remember discussing the guidelines with him, but I must admit I don't have a note my file saying that I gave him his specific guideline range." And to be honest, at that moment I can't remember whether I did or not. "Mr. Lammers, this court is going to be in recess for 10 minutes. During that time the probation officer is going to do the guidelines and you're going to take them to your client."

The judge leaves the bench and Mr. Smith is taken to the lockup area. I huddle with the probation officer and we figure out that Mr. Smith's guidelines are between six months and one year, with a midpoint of nine months. I go to the lockup area to tell Mr. Smith. He's not actually downstairs in the cages; they have him in a witness waiting room next to the court room along with DOC guards. Before I can even tell him his guideline range he blurts out, in front of God and everyone, that he's now going to plead not guilty for a reason having nothing to do with the guidelines. The guards are sitting there with looks somewhere between snickering, pity, and bemusement. Mr. Smith and I have a brief and rather intense discussion. However, he has made his decision and he is going to plead not guilty and take a jury trial.

We go back in the court room. "Your Honor, at this time my client would like to change his plea from guilty to not guilty." The judge looks at me like I am an absolute loser. He has the clerk re-arraign Mr. Smith. After Mr. Smith says that he's going to plead not guilty and take a jury the judge continues the case to the next docket call because there are no jurors available.

On the way back to my office I remember with crystal clarity the discussion I couldn't remember when I was speaking with the judge. I spend the rest of the day kicking myself because maybe if I'd remembered it clearly Mr. Smith wouldn't be taking a jury trial in a very conservative jurisdiction where, if he's found guilty, the jury is likely to sentence him to at least five times the amount of incarceration he would've gotten otherwise -- if they don't give him the maximum.

14 April 2006: Yet another docket call date. This time Mr. Smith's court date is set for the 28th of May, 2006.

23 - 25 April 2006: I have my secretary call the prison and set up an appointment for me to visit Mr. Smith. She spends a couple of days playing phone tag with the prison but eventually gets an appointment set up for the 27th.

27 April 2006: I'm actually in Shire County courthouse that day and I leave it to drive directly to Pitcairn Correctional Facility. The drive takes about 1 hour and 20 minutes. I drive around to the processing center, take everything out of my pockets except my wallet (without money), my keys, a couple pens, and Mr. Smith's file. I walk up to the gate and take my ID out of my wallet. The guard tells me I have take my wallet back to the car. By the time I get back from my car the guard has figured out that Mr. Smith was moved that very morning to Nehwon Correctional Facility, which is three hours in the other direction. Of course, nobody bothered to call until my office or me. Thankfully, it's only a 45 minute drive back to my office.

OK, so now, from my office it's going to be about a 2 hour drive to visit Mr. Smith and prepare him for the jury trial. Like most prisons, Nehwon Correctional Facility doesn't allow any visits after 3 p.m. I set up one visit but have to scratch it because a court schedules me for a trial and there's no way I can get to Nehwon Correctional before 3 p.m. So I set up another meeting which will be early enough in the morning so that I can hopefully get back in time for my afternoon cases.

15 May 2006: I get up, jump in my car, and drive down to Nehwon Correctional Facility. It's not a terrible drive - just a long one. I travel so far to the southwest that I'm pretty sure at one point I must have gone into North Carolina (wait, was that Asheville?). Anyway, I finally get there at around 10 a.m. We talk for two hours and I leave about 12:15. I call everybody by under the sun let them know I'm going to be late for court in the afternoon, eat that wonderful lunch of crackers, bottled water, and fig bars (which I buy at the local gas station) on the way back, and only arrive 40 minutes late for court.

The Weekend Before: Saturday I spend a good portion of the day finding and printing out the cases which I intend to use to support my arguments in the courtroom. By the time I'm done I've printed out six cases in triplicate (one for me; one for the judge; one for the prosecutor). I also finalize my opening argument and practice it a couple of times.

Sunday I spend a good portion of the day prepping up my voir dire questions and putting together the various jury instructions I might need. I also make a trip to the local Wal-Mart and spend an hour buying Mr. Smith a decent shirt, a good pair of pants, black socks, and a pair of shoes. I do this because the Supreme Court of Virginia decided sometime in the last year or so that it is per se ineffective assistance of counsel to allow your client to go to a jury trial in prison garb. Of course, the Supreme Court didn't say who was supposed to give the client clothing, but I suspect that the prison, prosecutor, and Judge are not going to have clothing for Mr. Smith. After I finish this I go home and work some more on jury instructions until my home printer runs out of paper somewhere around 11:30 p.m. I finish typing out the last couple of jury instructions but save them on my USB thumb drive so that I can go into work early the next morning and print them out.

28 May 2006: I get up early and go into the office so that I can print out the last couple of jury instructions. Then I leave early for the courthouse. I get there over half an hour early; of course, none of my clients are there yet. I leave the lockup area and about 10 minutes later my one client coming from off the street shows up. I talk to him for a while and then I go back to lock up area. My two clients in lockup have finally been delivered. I speak to both of them about their cases and explain to Mr. Smith that I have brought him clothes in the sizes he requested. I walk around down in lockup area and in the sheriff's area next to it trying to find someone to give the clothes to but there's no one there. Eventually I give up and go back up to the courtroom, where court has begun.

Immediately after the case before the judge ends, the judge calls me up and asks where I was at nine o'clock when court began. I tell them I was down speaking with my clients and he fusses at me for not being in the court room at nine o'clock when he started court. Then we try my first case. After that case the judge asks me if everything is prepared for the jury trial. When I tell him that I wasn't able to give Mr. Smith his clothes the judge orders the deputy in the court room to make sure Mr. Smith gets them. Then we try and my second case of the day. When that's finished the judge has a couple of civil cases he needs to call before Mr. Smith's jury trial begins.

I run down the lockup to see Mr. Smith. He's in the civilian clothes, but they have put him back in full shackles. His legs are shackled. His hands are cuffed. He has a chain around his waist to which the handcuffs are attached and a chain attaching his leg shackles to the chain around his waist. So I know what my first motion is going to be when we see the inside the courtroom because if it is per se ineffective assistance of counsel to allow Mr. Smith to be tried in prison garb because it's indicative of guilt I'm pretty sure that the chains are indicative of guilt as well. After we discuss things for a few minutes I head back up to the court room. The first civil case has just ended. Then starts a lengthy argument about quieting title to some realty in the county.

After about five minutes of this titillating subject I step back outside the court room where I see the chief prosecutor. He tells me that he doesn't think Mr. Smith's case is going to be tried today because their witness isn't here. He has sent the state trooper who investigated this case to call the witness. Then, as we are standing there the state trooper comes back with a pained look on his face. He has called the witness and she told him that her car was broken down and she wasn't coming to court unless he came to get her and also drove her kid to childcare.

About 20 minutes later the realty case ends. The judge takes a 10 minute break and I walk up to the assistant prosecutor who is actually trying the case. No one has told him that his witnesses is missing. So it falls to me and the trooper to tell him. After he digests this for a moment he offers to drop the charge to a misdemeanor with a sentence of six months, if he can convince the judge to waive his policy of no plea deals once a defendant has demanded his right to a jury. His other option is to nolle prosequi the case and reindict. I know how the second option works. They will recharge Mr. Smith with the same offense. Meanwhile, they will charge the guard with failing to appear in court. Her trial be scheduled after Mr. Smith's trial to make sure that she actually appears in court. After she has testified against Mr. Smith her charge will be dropped as long as the prosecutor is satisfied. I've never seen a person brought to court under those circumstances who didn't testify the way the prosecutor wanted her to.

So I go back to lock up again and discuss the offer with Mr. Smith. He's tickled pink and happily agrees to take the deal. So 10 minutes later we are in court in front of the judge.

The prosecutor explains to the judge that he realizes the jurors are already here but he can't go forward with his case today. His witness isn't here and he can't continue the case because of speedy trial concerns. He tells the judge that he realizes that it's contrary to his policy but the prosecution wants to do a plea bargain - misdemeanor assault and battery with six months in jail - because its other option is to drop the case.

The judge asks where the witness lives. The prosecutor tells him that the subpoena was served at Lost Hope Juvenile Correctional Facility and that he has an address for the witness which is somewhere in Richmond but he's not sure if it's accurate.

Judge: "You're sure that you don't want to send a cab to pick her up and bring her to court? Or maybe you can send the trooper to go get her?" For a second I thought he would ask the prosecutor to mobilize the National Guard. However, the prosecutor stands gamely in the crosshairs and tells the judge again that he doesn't think he has the right address and doubts the witness would be there anyway.

The judge still looks unconvinced. He asks Mr. Smith how much of an education he has. "GED." He asks Mr. Smith what he's been doing to improve himself. "I'm taking carpentry classes at the prison so I can get a job when I get out." He asks Mr. Smith where he plans to live when he finally gets out. "With my mother." He asks Mr. Smith how he got himself in deep enough trouble that he ended up at Lost Hope. "I fell in with the wrong crowd."

Judge: "What did you say?"

Mr. Smith: "I fell in with the wrong crowd."

Judge: "Did you say you start using crack?"

Me: "No! Your Honor, he said he fell in with the wrong crowd."

Mr. Smith: "Yes Sir. The wrong crowd Sir."

Judge: "Oh, okay."

At this point the judge decides he's going to allow the deal. He lectures Mr. Smith about taking advantage of the break he is getting today. Then he allows the prosecutor to amend the felony to a misdemeanor and sentences Mr. Smith to six months in jail. I go down to lock up with Mr. Smith, get the civilian clothes back, and make sure he understood everything that happened in the court room.

And thus ends another thrilling courtroom saga.

Indefensible - The Book

Book rating scale:

5: Touched by God - a work which makes Shakespeare look infantile
4: Amazing - Instantly began rereading it and quoting it to friends
3: Worth Every Penny - a solid, interesting read, inspiring some thought and discussion with people who share similar interests
2: I Paid For It So I Finished Reading It - Some interesting parts but if I lose the book I'm not buying another copy
1: Couldn't Force My Way Thru and Burnt the Book in order to send it to the Hell it deserves

I rate Indefensible a 3.7. More than worth the money I spent to purchase the book and it reveals a good deal of the universal feel of practicing criminal law while giving glimpses into the realities of New York courts.

========== =========== ==========

Mr. Feige is also known for his blawg of the same name.

I have to make a couple of admissions before I go forward. First of all, I have already used the book as a way to tweak someone.

Second, David, while checking up on his publisher, offered me a copy of the book a while back. I didn't take him up on it because I wasn't sure how much I'd like the book and I knew I'd feel like pond scum if I was gifted the book and then panned it; it would be downright rude. Admittedly, I was concerned because I think that David and I are very different persons. He appears to be much more of a "true believer" than I am and I think I'm more along the line of those whom he describes in his book as believing in the system (at least as it should be). Keep that in mind as you read my review.

FORMAT

If you're expecting some sort of meta-story you will not find it here. The book barely follows its proclaimed "day in the life" narrative. It's more of a stream of consciousness exercise very loosely linked to the events of a single day. I found the format distracting. It often felt like reading the book was like talking to a slight schizophrenic who starts out to tell one story but tells twenty or thirty along the way because everything triggers a memory.

However, therein also lies the book's strength. Anyone who has read his blog knows that David has a talent for writing short, powerful pieces. He delivers the same in the book. While it may be an unexpected tangent when he veers off to discuss his first experience with an abusive judge or his first murder case, you are quickly sucked into each of the short stories. Each of the stories is interesting and well told. Perhaps the reason that the book's strength is in the little stories and not the BIG story is because that's what life as a criminal defense attorney is like. We deal with all the little stories, not the big ones. Day after day, individual after individual, every attorney accumulates a hodgepodge of little stories which attach themselves to the heart or head (or both). This book feels a lot like sitting at a table with a bunch of criminal defense attorneys listening to their free flowing war stories.

CONTENT: Comparing the Virginia Experience to David's

Reading this was like getting a glimpse at an alien planet. Criminal procedure in New York bears little resemblance to the way things are done down here in Virginia. However, I now understand why all the New Yorkers who come down here think I can snap my fingers and get them a continuance. From reading the book I get the impression that in New York if anybody just decides to carry a case to another date it gets continued. Here in Virginia, even the prosecutor needs a reason if he's going to get a continuance - it might be a reason I'd never get away with, but the prosecutor does have a reason. A second continuance for the defense requires the apocalypse and for the prosecution a solid reason. Continuances for a couple years are entirely foreign to me.

It also stood out that there were no officers present. I don't recall any part of the book wherein David is dealing with an officer, either interviewing him or cross examining him. I don't set foot in a courthouse without dealing with police officers. I suspect the difference is that they probably deal with things initially thru the police report. In Virginia the officers are scheduled to be in misdemeanor court at least once a month and the summons/warrants they issue are scheduled to be heard that day. For felony trials they are subpoenaed to be in court on the trial date. If I were brave enough to write a book such as this a good portion of it would be about the daily interaction with the police.

David's office is also much more of a social services office than I've seen anywhere. However, as he explains, they set out to make it an office of that sort. I also suspect that David, as a senior attorney, has more time than others in his office to devote to this sort of activity. My social services activities are mostly limited to fighting to get my clients in Pitcairn County and Shire City into court approved programs X, Y, & Z. I've tried to get people into other programs but the judges are extremely skeptical of those programs; there are programs which are acceptable in Richmond of which I've heard judges snort derisively when I suggest them in Pitcairn or Shire. Judges in more rural settings like Florin and Guilder counties won't even listen to any of this new-fangled, alternative programs nonsense.

The one point which floored me was when David described passing contraband (cigarettes) to one of his clients. It was a casual mention, as though it was just part of everyday business. Maybe it is up there. Down here, since I'm the only one allowed contact visits with my client it would be pretty easy to figure out where the contraband came from. Additionally, some jails make a point of searching Client after each visit; in fact, the regional jail where most of my clients are located does a strip search every time there is a contact visit. I don't know anybody who passes things to clients. I know it's happened. The local jail has banished at least one lawyer who passed something (never could get the full story); if you can't go into the jail it's mighty hard to meet with your client and prep. The regional jail went on high alert for 6 months after some idiot smuggled something in during a visitation. Consequently, every time we went to visit a client instead of the normal wanding or pro forma pat down the guards were searching our shoes, taking any paper clips in our files, and doing a "pat down" which meant the guard searching me knew more about my anatomy than some women I've dated. Not to mention I can't do much good if the Bar took my card and I don't have a real hard time envisioning the Virginia State Bar doing that.

We practice in different worlds.

On the other hand, some things are the same. Judges who were prosecutors before coming to the bench. The good relations which David has with corrections officers tracks with the type of relationship that those of us constantly in court develop with the deputies who run the building, and lockup, and the jail. The dread of getting a bad prosecutor and a bad judge on the same day. Getting pushed into deals you and your client don't want so you can get him out of jail. The homeless, helpless, frustrating clients whom you can't do much for as they cycle thru the system over and over again. The clients who call over and over again when there is absolutely nothing to talk about in their cases - as David points out, some of these can be humorous and some frustrating. The jailhouse lawyers. They're all there - just arranged differently.

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I'm in the Paper

Do they concentrate on the case wherein my client's felony was reduced to a misdemeanor with six months to serve? Nope. They concentrated on this case:

Click on picture to enlarge

Actually, the guard testified that the 6 wards were in her sight the entire time (lined up next to the wall), that the door was in her sight the entire time, that the she never saw the door open, she never saw a ward enter the pill room, that she never saw an attack on the nurse, she heard the nurse call for a supervisor, and that the issue which they addressed was the fact that the nurse didn't give my client all the medication he was supposed to get. There was no "I don't remember" and no way she "didn't see it"; she was positive about what had not happened that day. Under questioning from the prosecutor, the guard testified that slightly prior to the alleged incident she had had a confrontation with my client. It wasn't relevant, but I let it go for use in closing argument as evidence that the guard had no reason to lie for my client; in fact she had reason to be biased against him.

An 3d party witness with reason to be biased against my client testifies it didn't happen.

Verdict: guilty.

Client was convicted of felony knowingly and willfully causing bodily injury (alleged hitting the nurse with the door and dislocating her jaw) and misdemeanor sexual battery (claimed grabbing of private areas when door opened).