CrimLaw

Blogging Criminally For Over Ten Years

8/17/2006

A Week in the Life: Tuesday

Tuesday starts a little earlier than most. I meet Steve (the law student who sometimes posts here) at the office so that he can shadow me. Steve's been a police officer in the City of Cockney, a pretrial officer in the suburban County of Shire, and - until about a week ago - he spent the Summer interning at the Shire Commonwealth Attorney's office. Still, he's never really seen things from the defense side and he's never been out to a circuit court in a rural county. I have a full day and it's starting in Vangrove County, which is still about 85% rural (or at least feels like it is); he's going to shadow me.

At 9:00 a.m. court starts in Vangrove. My client is called first but it's not for me; it's so that a "paid" lawyer can move to be taken off another series of charges Client has. He starts by saying he has a "conflict." The judge isn't buying it so he goes further and says he needs to get out because Client has been lying and manipulating him. Wonderful.

After the judge lets the other attorney out of Client's case I get called up to defend her on today's charges: 4 counts of forging a public document (2-10 years each). She's accused of having signed her sister's name on 4 different forms when accused of driving suspended. She's also not the brightest person in the world and she's confused by the other lawyer doing what he did. So, just before the judge asks if the defense is ready she looks at me and asks a question. I look over at her and start to listen but about 5 seconds in I see the judge waving his hand to get my attention and not looking at all happy: "Mr. Lammers, are you ready for court today?" "Yes, Your Honor, she just asked a question." "Right now you're supposed to be listening to me Mr. Lammers." "Yes sir."

Client pleads not guilty to the charges and chooses a bench trial. The judge asks the basic series of rights questions with his special twists. The only thing which hangs up the process is when the judge asks how much time we have spent talking about the case. She tells the judge I've only talked to her for about a half hour total. The judge asks me if that's true and I tell him that we spent 30 minutes on the phone yesterday talking about the case. "Mr. Lammers, I don't need a blow-by-blow, I just need to know if what she said was accurate."

The officer sits on the stand and says that she signed the tickets but never showed up for court. Then, several months later he got a phone call and in response to that phone call investigated and realized who my client was and that she had signed a false name. The prosecutor introduces pictures of driver's license photos of both Client and her sister. I object; the judge over rules me. It comes out that he had dealings with Client between the date of the citations and the date he filed the forgery charges. He didn't act until the phone call (which, as hearsay, cannot come into evidence). I argue to the judge that it's obvious the officer is acting on the phone call, not on his own observations and that there's no one here to prove her sister isn't the person who signed the documents. The judge finds her guilty.

Next comes the kid from Lost Hope Juvenile. His guidelines call for between 2-3 years of imprisonment with a mid-point (usual sentence) of 2 years 6 months. The prosecutor points out his long record of violence and there is a victim impact statement which talks about how the lady had to go thru all sorts of medical treatment and suffered mental trauma. I stand up and point out my client's rather long list of mental issues and as delicately as possible point out that the judge threw out the co-defendants case. The judge was not impressed. He departed from the guidelines and gave him 5 years.

Then comes my client with the felony DUI 3d. His guidelines call for up to 6 months. I call him to the stand and he testifies about how he wants to just get this behind him and move back to Tennessee so that he can go back to work at a plastic factory. I point out to the judge that my client asked to be incarcerated when we were last in court so that he could get his time done and go back home and get his job back. I ask the judge to only impose the mandatory 100 days. This time the judge agrees and sentences client to 100 days. He also tells my client that if he leaves Virginia he won't have to report to a probation officer.

Finally comes the client who was sentenced to 10 years by the jury for possession of drugs in the prison. His guidelines (which the jury was forbidden to see) call for 3-6 months. The prosecutor basically stands up and asks the judge to affirm the sentence the jury has put forth. I stand up and argue that the only reason our jury system is even considered constitutional is because a judge has the ability to correct jury sentences which are so far out of the norm as this and ask him to suspend all but the time recommended by the guidelines. Then the judge asks Client if he has anything to say before he is sentenced. Client pulls out a sheaf of folded papers from an envelope.

Yes sir, I feel like there was something that wasn't brought out in my trial. At first they wouldn't give my attorney the tapes from the cameras in the section. Then the prosecutor told my attorney that the cameras were fake and therefore there were not tapes. Then during the trial they testified that the cameras weren't on when they came in to get me. This was never explained and that tape would have proven me innocent.

And then there was the letter from the warden to the prosecutor which said that my prison case number was one number and the other documents which showed the number to be a different number. They said that was a mistake but it wasn't explained.

And then . . .

At this point the judge interrupts:

Mr. Smith, you realize the decision in your case has already been made. We're not here to retry your case. You can press those issues during an appeal.

At this point Client stops talking and folds up his papers.

The judge gives a short speech wherein he allows that everybody knows there are drugs in the prison and that he might not have given such a heavy sentence (translation: he doesn't give heavy sentences for this sort of thing and often even goes below guidelines). Still, Client took his chance with a jury and knew the risks because the reason he is in prison for 15 years is that a previous jury he took gave him that sentence. However, "in this case I think the jury was a little too harsh. I'm suspending 5 years of the ten year sentence."

I stand up and start to make an objection based upon the fact that statistics show that juries aren't allowed guidelines, they oversentence, and judges do not correct the oversentencing thus rendering the sentencing scheme in Virginia unconstitutional because it punishes citizens for taking a jury trial by threatening them with harsher sentences for doing so.

Mr. Lammers, if you want to register that objection you can do so in writing. I'm not going to hear an oral objection now.

And thus ends a morning at Vangrove. We walk out of the courthouse and Steve looks like he is in absolute shock. I'm just pushing to get to the next courthouse.

We zip down the road and 45 minutes later we get to Shire courthouse. When we get to the circuit court there is still one case left prior to my 3 showcauses. I talk to the two clients who are coming to court from the street and then go into the back and talk to the one client coming from jail. Then my cases are called.

The first kid is there to show cause why he shouldn't get some of his suspended time imposed because he got a DUI-D. I put him on the stand and he testifies about how he has gotten back on the methadone treatment and that he's trying to get his own gardening service going. The judge tells him that he remembers being told the same thing the last time Client was in court and gives him 6 months in jail.

The second is a lady who is there to show cause because she failed out of the same drug program the second time (the last time he sent her back). She goes up to testify and it's going okay until she says, "I think this program has saved my life. I'm drinking a lot less now." As you might imagine, that went over like a lead balloon. Still there's not much time the judge can impose so he only gives her 30 days.

The third is a man who never reported to his probation officer when he got out of jail the last time. He testifies that he has learned his lesson. The judge remembers that he heard the same thing last time Client had a show cause (for exactly the same thing) and gives him a year in jail.

That ends the morning

In the afternoon it's back to Shire Circuit Court. Client is charged with possession of a controlled substance and failure to appear in court. The office testifies that he went into the city of Richmond in plain clothes. He sat at a gas station just inside the city boundary and was approached by someone offering to sell. They go to Client's apartment, in the city of Richmond, and Client calls someone to sell them drugs. They go to the dealer's apartment in Richmond and get some drugs. Then they go back to client's apartment and the arrest is affected - in Richmond. I argue that it has to be thrown out because the court doesn't have jurisdiction over Richmond. The prosecution argues that jurisdiction is under Code section 19.2-250. The problem with that is that whoever wrote the statute went out of his way to make it as arcane as possible.

[T]he jurisdiction of the authorities of a county adjoining the City of Richmond and having a population between 209,200 and 209,500 or a county adjoining the City of Richmond and having a population between 217,800 and 217,900, according to the 1990 census, in criminal cases involving offenses against the Commonwealth, shall extend one mile beyond the limits of such county into the City of Richmond.

That's right, instead of just naming the two counties which border Richmond the General Assembly thought it would be a good idea to make the prosecutor have to prove a particular county's census statistics in order to prove jurisdiction. Of course, the prosecutor has not done this (who would?) and we get in an argument over whether the judge can take judicial notice of census statistics. The judge is dubious of the prosecution's claim that he can and orders a brief. Then the judge and I get into an argument as to whether the failure to appear charge should fail if there was no jurisdiction on the original charge. The judge keeps saying, "They had authority to arrest him (not sure what he was basing that claim upon) and therefore he has to appear in court or get a failure to appear." I keep saying, "This court had no jurisdiction to call him before it and therefore he cannot be convicted of not showing for a case because the court couldn't require him to be here." We go a few rounds and the judge orders me to brief that. The judge orders argument for 31 August 2006, the day I am supposed to leave for Wise County.

And thus ends Tuesday.

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Ambush in Bartlette
Chapters 1 - 13

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Va.'s Versions of Mayhem (malicious wounding et al): 4 In One Statute ~ Graphic
Aggravated Malicious Wounding
The Moped Exception
Rape by Lie: 1 ~ 2 ~ 3
No Intent Needed
Arresting in a House
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Certificate of Analysis Introduction
Probable Cause: Car Passengers
Obstruction of Justice Limited
Stealing Electronic Items
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Stolen Value: Electronic Items
No Weekend Jail on Felonies
Obstruction of Justice Limited
No Trifurcation
No More Beer at the Barbeque
Respondeat Superior
DUI & Reckless Driving
Can You Steal From the Dead?
Outlawry Outlawed
Felony 2d Degree Murder
Banishment
Computer Fraud
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Using Statements Made During Plea Negotiations: 1 ~ 2a ~ 2b ~ 2c
Invoking Right to Attorney in Virginia
Who Prosecutes Misdemeanors?
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Surrebuttal
Virginia's Reasonable Doubt
Reasonable Doubt II
Instruction: Right to Arm
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II. Limitations on Right of Judge to Alter a Sentence
III. Limitations on Right of Judge to Alter a Sentence
Probation & Suspended Time
Advisement in Virginia
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Limits on Evidence Presentable to a Jury
Jury Sentencing Possibilities
&CETERA
Witnesses & Writ of Actual Innocence
Domestic Battery & Firearm Possession
Domestic Battery & Testimony I
Domestic Battery & Testimony II
Domestic Battery & Testimony III
Domestic Battery & Testimony IV
Shall Doesn't Mean Shall
Just Following Orders
Lycurgus Not Welcome in Virginia

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Back When I was a Defense Attorney

Client Communication
~~~~~~~~~~~~~~~

CYA Letter: Felony Client
CYA Letter: Appeal

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In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.

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Everything herein is copyrighted by Kenneth Frank Patrick Lammers Junior. License for use of particular posts is granted so long as this site is linked to and credited. Serial republishing of all or the majority of posts on a separate website from CrimLaw is forbidden.

8/17/2006

A Week in the Life: Tuesday

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