CLTV: Basketball at Centre

Still working out the bugs. The comments don't show up completely if I type much in, but if you click on them the whole thing shows up.

BTW: If you really want to watch some fun games and you live in Kentucky, going to watch Centre play this year and last has been fun (and there ain't a bad seat in the place). It's a 3 hour drive each way for me, so I can't get there as often as I'd like.

I Didn't Even Think This Possible in the Modern World

A guy in Japan was arrested, tried, and convicted without the Japanese even knowing who he is or where he came from.

Comments

A while back, Mark asked why some blawgers moderate comments. Today, I came across the perfect example of why someone might.

In 2003 I was reading a book called The Prosecutors. I don't even remember much about the book anymore, but at the time a passage made an impression on me and I quoted and commented upon it. At the time it garnered no comments and I don't think it made much of an impression upon anyone.

This morning I was looking at the searches which have brought people here and came across this. Apparently, this Summer (2007) a couple people discovered the post and flamed the subject of it and me (I leave them up for now as an illustration, however I will delete them soon as violating one of my 3 rules). Now, Blogger is supposed to send me an email if someone posts a comment on my blawg, but it doesn't (probably because I use my own layout). I have almost 5 years of posts and it is hard for me to police all of them.

A flame war isn't even my worst problem. I have word verification turned on to keep most of the automated junk out. Nevertheless, there is some spam that gets through. Some companies actually employ live people to enter spam or have really good programs which can get past word verification. I've figured out patterns for most of those posts and catch a lot of them. Most annoying is when there's a post where I opined on a legal matter 3 years ago and I find legal advice under it or, even worse, something like "This is a terrible and dangerous thing to be put on trial for. We at THE SMITH LAW FIRM are experts on this and will help you in your fight against an unjust conviction." I periodically check certain of my old posts because of this. The actual advertisements have been a recent development and over the last 6 months or so I have deleted a number of these.

Still, I persist in leaving my comments unmoderated. Why? Because, when I post something at 5:30 in the morning I don't want to make people wait until 7 p.m., when I get back from work, to see their comments and the comments of others. As well, when I post that rare missive which brings numerous responses (yes, it has happened a couple times in 5 years) I want people to be able to respond to each other and not have to wait until I check my email and I okay 5 comments all at once. Moderation only works really well if you have constant access and I have to go to work occasionally or my boss will stop paying me.

Murder Rates Dropping

Pretty soon people might actually think it's safe to live in NYC and Chicago.

Dogs by the %

I Was The State talks to an expert witness on dogs.

The Pot Rebellion: A Warrior(ette) in Gray

"The criminalization of drugs is really the criminalization of thought."

She looks kinda creepy/Addams Family-ish on her website (here's Morticia, so you can compare), but she's actually kinda cute in the pictures on her (defunct) blog. And remember she's "LA's Dopest Attorney."

Too Cool!

Hey, there's a band out there named after me:

Athough, I'm not too sure why they're playing in front of a sign with the name of a comic book demon.

CLTV

If you've been reading this for a while you'll have seen videos up here before under different monikers - LexTv being the one I used the most. Well, they're back as CLTV. Not sure how often they'll be up, but I think the amount of time it takes will limit it to once a week or so.

Problems: I know I looked washed out in the video. I think that's because I have a "natural light" bulb overhead. Next time I'll try a regular frosted bulb.

RICO & bin Laden

A comment on my bragging about my High School's Basketball team post:

Ted Kane said...

Hi and sorry for the OT, but I really want to find something out from someone with criminal law experience, of which I have none:

Was the RICO Act used to indict bin Laden in 1998 in the embassy bombings trial?

I keep seeing this mentioned, but can't seem to substantiate it. The indictment doesn't include the name of the act, nor its section number.

Also, no authoritative source turns up in searches for this reference.

Again, sorry for something this random and thanks if you can help.
- TK

No problem. Probably would have been better as an email, but it's an interesting question, so I will, in my beneficence, overlook it (in other words, don't sweat it Dude, it wasn't anywhere as bad as the spam and blatant lawyer's ads which I clean out all the time).

TK Pointed out to me the indictment for bin Laden. To be clear, it's a superceding indictment for the 1998 embassy bombings, not 9/11; I don't think the feds have indicted him for that, choosing instead to treat him as an enemy combatant instead of a criminal.

I'll admit, I didn't read thru the entire indictment. The feds would have to write a fifteen page memo to say "It's raining", including an explanation of its atmospheric causes, chemical composition, immediate and long term effects, and alleging the participation of co-conspirators (known, unknown, and unindicted). I read the headers to see the indicted charges and did a search for "18" to check citations to the federal criminal code. He's right, there's no RICO in it that I can find.

What is criminal RICO?

RICO's primary statutes are under 18 USC sections 1961 (definitions), 1962 (criminalization), & 1963 (punishment). Basically, RICO is a secondary criminalization; it is the combination more than one of a long set of felonies for the purpose of making money. Under 18 USC 1962, the four RICO crimes are

(a) It is illegal to spend money which proceeds, directly or indirectly, from the listed felonious activities.

(b) It is illegal to gain or keep control of an organization thru the listed felonious acts or by collecting an illegal debt.

(c) It is illegal for those involved in an organization to further the organization thru the listed felonious acts or by collecting an illegal debt.

(d) Conspiring to do any of the three crimes supra.

I can't claim to be an expert on either bin Laden or federal RICO. However, I think it would be hard to make this case.

Each of the subsections has a defense and the most probable, combining (c) and (d), leads into a nightmare religious argument.

Defenses

(a) bin Laden is the son of an ultra-rich contractor. He was the source of funds for the organization, not vice-versa.

(b) bin Laden got and maintained control through his finances and demonstrated religious belief.

(c) bin Laden didn't do the bombings himself. However, the case that he was a conspirator can probably be easily made. The only problem is that this opens up a door to a religious argument I'm certain bin Laden would be happy to walk through. His argument would be that he wasn't acting for, or in the name of, al-Qaida. He was acting in God's name, for God's purpose. Do I think the defense would work? No. But why give him an excuse and stage to make such an argument? If the feds stick to a straight primary offense conspiracy (such as murder) whether he did it for God or al-Qaida is not relevant.

Why do people think bin Laden was charged under RICO?

There are a number of possible reasons people think there are RICO charges. From the beginning, attorneys have stated they expect it or that it is the most convictable offense. Putative co-defendants have been convicted under RICO. A civil RICO suit was filed against bin Laden.

The strongest source seems to have been a BBC documentary, The Power of Nightmares, which stated:

In January 2001, a trial began in a Manhattan courtroom of four men accused of the embassy bombings in East Africa. But the Americans had also decided to prosecute bin Laden in his absence. But to do this under American law the prosecutors needed evidence of a criminal organization, because, as with the Mafia, that would allow them to prosecute the head of the organization even if he could not be linked directly to the crime.

I've done as thorough a search of non-conspiracy theory websites as I could in a hour or so and I haven't found anything which indicates that, as part of the Trade Center bombing trial, bin Laden was charged with RICO violations or that he was tried in his absence. Federal prosecutors indicted him in his absence, but there's nothing surprising there - no defendant is present when a grand jury indicts him.

Maybe I'm wrong and there's something in the indictment I missed, but it looks to me that the RICO charge is a myth.

Bryan Station Defenders

My High School, Bryan Station, is ranked #3 in Kentucky. I think I'm going to have to drive up and watch a game this weekend.

Correcting Ken: More On Scalia & the Constitution

Mr Rozenberg, the author of the article I linked to in the last post, was kind enough to send me an email in reply. In pertinent part, it said, "I am sure you are right in your assessment of Justice Scalia's position: my only quibble is that I thought that was precisely what I reported him as having said."

I went back and reread the entire article and I'm now going to do something rare for a blog - I'm going to say mea culpa. Rereading the entire article, he did go thru most every point that I touched upon (if not all of them). My problem was that I got tunnel vision in the second to last paragraph and sat down to answer what I read therein.

Mr. Rozenberg has just stated that he is dubious of Scalia's Jacksonian declaration that his Harvard education and legal experience do not make him more qualified to make moral decisions than the average citizen. Then comes the curious sentence which I've read several times, becoming less certain of its meaning with every reading.

I would rather have a reasoned opinion from Justice Scalia than a bald assertion that something is illegal simply because the Founding Fathers had never specifically permitted it.

I believe he means that he would like Scalia to look to the equities of the case at bar rather than restricting his decision to whether the case is one which should be decided by a constitutional court and how much power the constitution grants. However, I apply this meaning to the sentence after rereading the last three paragraphs a few times and taking Mr. Rosenberg's email into account. Mr. Rosenberg should roll up a newspaper, walk over to his editor, and wop him upside the head. Anyone who writes much knows they will write a hard to understand sentence once in a while, but Mr. Rosenberg has the right to rely on his editor to catch such a thing.

1) Scalia's known for his intelligent writing. However, the tone he has adopted overshadows this and, while making him a favorite among the true believers, has limited his ability to persuade others.

2) The federal supreme court decides if things are unconstitutional, not whether they are illegal. Things can be illegal and still be constitutional. This is part of the argument in Moore which will be argued January 14, 2008.

3) Things aren't ever illegal/unconstitutional because the Founding Fathers never specifically permitted them. As I said yesterday, there is no Dillon's Rule for the federal constitution.

Scalia & the Constitution

Sir,

I am writing to put forth what I believe to be a more correct view of what Justice Scalia believes to be the way the US constitution should be interpreted and applied. Specifically, I would like to address your statement that "I would rather have a reasoned opinion from Justice Scalia than a bald assertion that something is illegal simply because the Founding Fathers had never specifically permitted it."

It is not that something is illegal because the US constitution does not permit it. There is no Dillon's Rule for the federal constitution. In fact, Scalia's position is more that there is a reverse Dillon's Rule applied to the constitution.

The position that Justice Scalia puts forth is that there are things which are not addressed by the constitution. They are neither constitutional nor unconstitutional; in other words, our forefathers, thru the constitution, took no stance on whether they should be allowed or disallowed. Therefore, they are not within the province of the constitutional court. They are matters for the citizens to decide, whether they decide by direct vote, or the vote of their various legislatures, or by changing the federal constitution itself (which is extremely difficult). When the court invokes its powers as the supreme constitutional arbiter, under a theory such as substantive due process, it is acting as a "superlegislature" and taking an issue forever out of the hands of the citizenry and its representatives unless they change the constitution.

It's something of the inverse function of Jacksonian Democracy: the belief that as much as possible should be decided by the citizenry or those as close as possible to the citizenry. The court should only recognize those things specifically noted in the constitution because to do otherwise thwarts the will and wisdom of the people.


Respectfully,
Ken Lammers

Ordering a Man to Give Up His Password

I think that Orin is probably right about the state of the law being such that the man can be ordered to give over his password. However, I think the guy would have to be nuts to give it over (contempt usually carries a lesser punishment than a couple hundred convictions for child porn).

Thermal Imaging to Spot Tossed Drugs

The dogs said it was there, but the police couldn't find it until the firemen gave them a thermal imager.

UK: Police Cocaine Theft

"A huge cache of cocaine has apparently been stolen from a Revenue and Customs store in the latest security blunder to hit the Government."

Israel: Drugs from a Soldier

IDF soldier sells drugs to kids.

I'd say that's shocking, except I think everyone over there is in the IDF.

Crime Makes People Money

People will profit from anything.

Metal Theft: Airconditioners

Because nobody'd think to guard them in the winter.

Pot Rebellion: Feds Spread the Threat

Threatening more people in Cali.

10 Husbands & 1 Wife

Y'know, that ain't legal.

Japan: Not Favoring the Officers Anymore

The courts aren't believing officers anymore.

Is It Abuse?

From Volokh:

Orin led a discussion of whether this was an appropriate use of a taser.

I've written previously about when I think taser use is appropriate.

Lithuanian Prosecutor Website

Not sure why Lithuania has an English language "Prosecution Service" website.

The Latest Law & Order

Special Letter Unit





Law & Order: Police and Muppets

Ok, the second's not as good as the first, but it makes up for it with the opening credits.

Strange Fish Outside the Prison

Fishing for drugs over the prison wall.

Stealing a Leg

No, not a rabbit leg, a human one - right off the living guy's body.

Stealing Firearms from Under the Policemen's Noses

"Police on Crete were yesterday questioning members of the Hania police gun club after unidentified thieves managed to remove 25 firearms from the high-security site while the alarm system was out of order."

Felony Firearm Use

Are you using the firearm when you sell it, or when you buy it?

Verizon Police-ish Theft

"Robbers stole computer equipment from a Verizon Business datacentre in London after persuading staff they were police chasing criminals they had seen on the building's roof."

Canada: So Sayeth the Supreme Court

Yep, murder is still murder when you're drunk.

People You Wish Weren't Using Drugs

Soldiers - Prosecutors - Police - Canadian Football Player

New Jersey Banishing the Death Penalty

"A special state commission found in January that the death penalty was a more expensive sentence than life in prison, hasn't deterred murder and risks killing an innocent person."

While Missouri Tries to Get more Death Sentences

The Governor asks for rape to be punished by death.

Live in the UK? Don't want to go to jail?

Just make sure you are "too much of a burden for prison staff."

India: Parental Neglect is a Crime

Imagine the Domestic Courts dockets when parents can bring charges if their kids don't call home for 6 months.

Wife Spikes Officer's Meatballs to Make Him Retire

But the NYPD didn't believe it.

Bears squat in the woods. The sky is blue. 2+2=4.

If you don't let youngins drink while parents are present they will drink more when the parents aren't around.

The Pot Rebellion: Governor Calls on DA to Enforce the Law

[Governor] Douglas said [State's Attorney] Sand had a blanket policy of sending all marijuana cases to the court diversion program, which if successfully completed will result in no criminal record for the defendant.

"The essence of prosecutorial discretion is making a decision based on the facts of an individual case. But when you say I have a blanket policy, I don't care what the facts are, this is how this is going to be treated, that's not an exercise of discretion," Douglas said.

Lagos Police Rape

[A] police officer attached to the Police in Ikeja, Lagos State, described their practice of raping professional sex workers, claiming that "this is one of the fringe benefits attached to night patrol."

Strange Thefts

1) Snowman in the act of boosting a car.

2) Grand Theft Pigeon.

3) Hospital hand sanitizers.

4) Parking meter covers? What the heck are you going to do with parking meter covers?

5) A Nativity Scene. Just sad, really sad.

6) Jackal Fraud ID theft.

Why Was the Officer Fired?

Because he had religious convictions or because he wouldn't use a tazer when he judged it was not needed?

I'm sure there's more to this story, because if there isn't I think the Austin PD might be in a lot of trouble.

Wanna Get Away With Murder?

Join the Russian Parliment.

Drug News

1) I think it's fairly appropriate to fire a police officer if he steals drug evidence, but Canada had to think about it.

2) "Gunmen have killed the police chief of a Mexican city bordering California, shooting him 50 times in an apparent revenge attack after police found a drug-smuggling tunnel under the border."

3) Send her to jail: heroin while pregnant.

4) You really shouldn't sell heroin near the detox center.

5) Street drugs look like Hersheys.

It's called DNA, Dummy!

1) Don't sell your bloody jacket to the neighbor of the house you broke into.

2) Don't leave a half eaten eclaire behind.

Marijuana

1) Asking for more heat than mere police can provide: tricking nuns into letting you grow marijuana in their nunnery.

2) We're not the only country with a pot rebellion, but at least we don't have open combat like Nepal.

3) "[A] survey of almost a thousand physicians by Brown University researchers showed that doctors are significantly less supportive of medical marijuana than is the general public.

. . .

[B]itter historical experiences, supplemented by decades of subsequent research evidence that smoke inhalation of all forms (even wood smoke) can cause acute and long-term respiratory damage, make many physicians wary of recommending a smoked medicine. A smoked plant has the further disadvantage from a medical perspective of not being pure (e.g., what if the plant had been sprayed with pesticide?) or of a standardized dose. This exposes the patient to risk of side effects, and the physician to risk of malpractice.

As the California Pacific research team noted, for example, obtaining the correct dose of cannabidiol through smoking marijuana would be virtually impossible. It would also of course cause THC's psychoactive effects (cannabidiol is not psychoactive), which some patients find aversive."

Judge Holds His Ground

This has got to be a tough day for a judge:

"[Judge] LaPera, who will retire at the end of the month, stuck to his sentencing commitment [30 years] even after prosecutor Mitchell Benson, Fox's family and a surviving victim in the case all spoke passionately against it. They said they won't feel safe as long as there's a possibility that Marshall could one day be released."

"LaPera said the brutality of the crime is not what defines first-degree murder. To prove first-degree murder, prosecutors would have had to show that Marshall murdered Fox, 57, while committing a burglary, and LaPera said there wasn't sufficient evidence of that. He said there also wasn't enough evidence to prove that Marshall committed first-degree assault when he hit Melville lawyer Cynthia Kouril with his car, hours before he murdered Fox."

'course the day wasn't exactly a day in the park for the family either.

Juvenile Issues

1) China's juvenile crime rate is up from 33,000 to 80,000.

2) Meanwhile, the age of criminal prosecution in New Zealand looks like it will stay at 14 rather than 10.

Metal Theft

Whatdoyaknow? Cardiff really exists, it's not just a Dr. Who thing.

Strange CrimLaw News

1) In Australia Santa can't call anyone a "Ho" anymore.

2) You're not supposed to break into a jail to get sex.

3) Teaching the family business: theft.

4) Ah, yes, the good old fashioned flower pot - porsche theft technique.

5) No, he's not a smart thief if he kept a diary.

6) Don't be a bike rustler in Kibaale - they will kill you.

7) Wales: Heroin leads to coffee theft.

8) Overstealing money for college.

9) Stealing from the bereaved - deserves to be caught by those ironworkers.

10) The ever-popular "I steal, but I don't kill" defense.

11) Somebody must have a really big cat.

12) A parking meter under your coat just might prove conspicuous.

13) Stealing Eucharist - pretty sure that's a one way ticket.

Metal Theft

1) Christmas could go down the tubes.

2) Passing more laws isn't stopping the theft.

Makes No Sense: No Electronics in Court

I get excluding cameras and phones, but PDA's?

Strange, Silly & Interesting

1) Okay, I understand stealing 180 kegs of Guinness, but 180 kegs of Bud too?

2) If you steal $20 worth of pizza in Eastpointe, Michigan they will summon SWAT to break down your front door.

3) Grandma / heroin kingpin fesses up that she hid the heroin on her grandchild.

4) The FBI gets its man, errr boy, in New Zealand.

5) Hey kids, if you sell your debit card and pin you will get caught.

6) Grand Larceny Tree.

7) In the UK organized crime operates on a whole different frequency: stealing discarded clothes.

8) Hiding under the floor won't fool the cops.

9) Texas guards now look fashionable.

10) Want to catch America's Top Ten? Draw them as cartoons.

We Just Ain't Gonna Arrest Druggies

Ummm . . . Alec the question is "What do the police in Edinburgh not want to say where it can be reported to the citizens?"

Reports from the Front: The Pot Rebellion

1) Courts are ordering both Colorado and California to violate federal law.

2) The Grinch got this guy's Christmas present.

3) And the Feds are still shutting down State sanctioned marijuana clubs clinics in California.

Yes, He Is Guilty

Beau Weston is a professor at Centre, my undergrad. I only took one of his classes because he didn't teach in the areas of my majors (Heaven forfend that I should have taken a class which delayed me from my three year, double major graduation – yeah, I was an idiot). It was a class which discussed Modernity and Post-Modernity and was probably the most interesting class I took outside of my majors.

He has a blog, Gruntled Center, which has been up for a while now and it's probably the only non-blawg that I try to make a point of checking in on fairly regularly. Its topics range from sociology, to religion, to politics, and even law. Most of the time I'm not really qualified to comment upon the subjects he raises – not that this always stops me (I am a blogger after all). However, last week (and in September also) Dr. Weston commented upon the trial and conviction of Warren Jeffs for rape. He implies that the conviction is on less than solid grounds and opines that it is "iffy" and "stretches the rape law beyond the plausible." This falls well within the area of my supposed expertise, so I thought I'd try to explain exactly why Jeffs is guilty.

One caveat: I am not an expert on Utah law so I will mostly rely on Virginia law and general legal knowledge to explain why Jeffs is guilty.

Facts:

Warren Jeffs is the leader of a religious group. As such, he ordered a 14 year old girl to marry a 19 year old boy. He was charged with rape as an accomplice, convicted, and sentenced to 10 years to life (two consecutive 5 to life sentences).

The Objection:

"What's wrong with this trial is the charge. Jeffs is charged with being an accomplice to rape for ordering an underage girl to marry, and presumably have sex with, a man who was a legal adult. The charge stretches rape law beyond the plausible. The prosecutors might lose, and Jeffs would slip away. Worse, they might win. If counseling people to marry, or return to a marriage, which presumably would include sex, could be legally construed as assisting rape, then anyone offering marital advice could be liable for prosecution."

Explaining the Conviction:

First of all, let's distinguish this case from marriage counseling. There are two factors which clearly distinguish the case at hand. First, there was no counseling here – it was an order. Second, and more important, is that the girl appears to be under the age at which she can consent to sex; this age varies from State to State, but 14 is almost always under the line (in Virginia sex with a 14 year old is actually “carnal knowledge” - sentence: 2-10 years).

Virginia law varies from the common law norm in that a person who caused a rape is a principal in the first degree (actual actor). However, since Jeffs was charged with rape as an accomplice, it appears that Utah has maintained the common law doctrine that only the person who accomplished the intercourse is a principal in the first degree.

In Virginia accomplices are divided into two groups: principals in the second degree and accessories before the fact.

Principle in the Second Degree

A principal in the second degree is one who, with the requisite mental state, is actually or constructively present at the commission of the crime assisting the perpetrator in its commission.

Accessory Before the Fact

An accessory before the fact is a person who, sharing the criminal purpose of the perpetrator, encourages or assists in the commission of the crime, but is absent from its commission.

Definitions from Criminal Offenses and Defenses in Virginia

I'm going to assume that Jeffs wasn't present when the sex took place. This makes it unlikely that he is a principal in the second degree. While being guilty as a principal in the second degree doesn't require actual presence, its constructive presence seems to require a contemporaneous act like being a lookout or getaway driver. Overall, it's an ill fit.

On the other hand, accessory before the fact fits like a glove. Assuming a traditional understanding of marriage, consummation is a part of marriage. The 14 year old girl is unable to consent to sex. The criminal purpose of her husband is to consummate the marriage. By ordering the marriage, Jeffs is purposefully assisting in the commission of the crime even though he will not be present when it occurs.

That's pretty solid ground for a conviction. Under Virginia law the punishment for being either type of accomplice is the same punishment as being the actual actor because of the causal relationship. I don't know if the same is true under Utah law.

Now, before some of you legal eagles out there start pointing out the potential flaws in this fairly basic examination of the law in this type of matter, let me fall on my own sword first. I see three possible major flaws in the analysis above. The first is that Utah's law may set the statutory rape age below 14. The second is that Utah's law may have a marriage exception. For example, under Virginia law if the man marries the 14 year old, she lives with him, and he supports her the case is stayed until she is 16 and then dismissed. The third is that Utah might have an unusually long 5 year proximity rule (most States do not make it illegal for those within 3 years to have sex).

If any of those flaws are true the case becomes far more reliant on facts rather than legal analysis. A conviction would require a demonstration that Jeffs' power was such that there was no possibility that the order to marry – and, by implication, consummate – could be disobeyed. If he had his religious group as tightly under control as Dr. Weston describes this might not be all that difficult a case to make. It would still be a solid accessory before the fact case and it might even rise to the level of a case of principal in the second degree under a theory that when the involuntary sex occurred Jeffs was at that time maintaining an atmosphere in the group which watched out for and condoned the man undertaking the actual act.

Certainly, this is an unusual case and an analysis actually using Utah's statutes and case law would bring variations upon the framework I've set out above (every State seems to deal with accessories a little differently). Nevertheless, there's a solid case here.

C.S. Lewis, Natural Law, Witches, & the Death Penalty

I've just started reading C.S. Lewis' Mere Christianity. So far, it's a series of short chapters about Natural Law, which Lewis refers to in various forms (Rule of Decent Behaviour, Law of Behaviour, Moral Law, &c.). At the end of one chapter there is a collateral discussion about the proper use of the death penalty:

"I have met people who exaggerate the differences, because they have not distinguished between differences of morality and differences of belief about facts. For example, one person said to me, "Three hundred years ago people in England were putting witches to death. Was that what you call the Rule of Human Nature or Right Conduct?" But surely the reason we do not execute witches is that we do not believe there are such things. If we did – if we really thought that there were people going about who had sold themselves to the devil and received supernatural powers from him in return and were using those powers to kill their neighbors or drive them mad or bring bad weather – surely we would agree that if anyone deserved the death penalty, then these filthy quislings did? There is no difference in moral principle here: the difference is simply about matter of fact. It may be a great advance in knowledge not to believe in witches: there is no moral advance in not executing them when you do not think they are there. You would not call a man humane for ceasing to set mousetraps if he did so because he believed there were no mice in the house."

Thanks

Hint: If you're going to sell drugs . . .

. . . don't walk around wearing a name tag.

Whodathunkit?

The NYT says the government kept files on Mafia guys.

Yeah, I'm shocked too.

A Judge Caught with Marijuana May Not be Convicted

But he sure won't be able to keep his job.

Stealing Wire Right Off the Poles

Okay, this takes moxy.

Hopefully, this will not become a trend. I live in a part of the world where copper theft is common and the mountains make it nearly impossible to bury the cable. Of course, the solution could be for the phone company to switch to fiber optics, but I'm not going to hold my breath waiting for that.

Metal Theft

We deal with plenty of people stealing wire here in the US, but I think that the Scots may have us beat. They're stealing road signs.

Infinite Creativity: Columbia

They're building subs to be towed under ships while filled with cocaine.

Height Challenged?

You could always use your innate shortness to help you con a couple churches.

Co-Offenders Killed in Robbery = Murder

"A BURGLAR has been charged with murder after the homeowner he was trying to rob shot and killed his two partners-in-crime."

Thief Steals Food He Could Have Gotten for Free

If he'd just knocked on the door and asked.

Plumbing for Profit

I guess plumbers must not be making enough money - now at least one guy is stealing.

The Justice Equation: UK

882 offenses = 32 months in jail.

Slow & Steady Doesn't Always Win the Race

Turtles might not be the first choice as cocaine smugglers.

OMG: Punishment for the Raped in Saudia

If a a lady who was convicted of being in a car with a male she was not related to appeals her case, she will get results. Bad Results.

Previous sentence: 90 lashes.

Sentence After the Appeal: 200 lashes, 6 months in jail, & her lawyer's license has been suspended.

New Zealand: Murder Confession Played on TV

The tape was supressed in court, but the tape was given to the press by the police.

Don't Steal from a Kenyan Church

80 cents is a year in jail.

Medicinal Heroin at Home

Honest, officer, the only reason I have it is to do a detox program.

Heroin in Magazines

If you mail drugs into a prison taped into magazines you will get caught.

Somebody Killed De Facto

"Murder of de facto."

Thief with a Heart of Gold

Or at least a fear of kids.

Civil Remedial Fees Fail in the UK

"A government scheme to force criminals to pay their victims is in disarray after forecasts suggest it will raise less than a tenth of its £16 million target."

Outlawry

Hmmm . . . You can't be an outlaw any more in Virginia:

§ 19.2-10. Outlawry abolished.

No proceeding of outlawry shall hereafter be instituted or prosecuted.

So, the first thing that runs thru my head is that this could prove problematic to prosecuting people who have acted outside the law. Things like this must be checked out.

The first step is a quick run to my trusty old three volume Webster:

Outlawry - 1a: the act of outlawing:the act or process of putting someone outside the protection of the law. b: banishment, exile. c: the act or process of making something illegal. 2: the state of living outside the law.

Aha! It seems that while it is possible that outlawry is the act of outlawing an act, the more likely and dominate use of the word is to be put, and live, outside the protection of the law. But wait, that can't possibly be allowed under the federal constitution, can it?

Well, a computer search of federal supreme court cases doesn't yield much. However, Green v. United States, 1958, 356 U.S. 165 is somewhat helpful. For one thing, it tells us that outlawry came from Ye Olde English law and was adopted by the Several States, but not the federal government. For another it gives a quick description of how it worked:

[A]t early English law, courts dealt with absconding defendants not by way of contempt, but under the ancient doctrine of outlawry, a practice whereby the defendant was summoned by proclamation to five successive county courts and, for failure to appear, was declared forfeited of all his goods and chattels. 4 Blackstone Commentaries 283, 319.

OK, way back when, if you were a 98 lb. weakling, the authorities summoned you to court for trial by combat against Mongo, the 6'8" man-giant (don't shoot him with that crossbow, you'll just make him mad), and you make the prudent decision not to participate you lost your land. Let's see what that evolved into under Virginia law.

Pulling out my trusty 1873 Code of Virginia, I find this:

When judgement of outlawry entered, or corrected, &c.; what judgment in outlawry to be rendered.

27. Judgment of outlawry shall be rendered by the court of the county or corporation in which the prosecution is, and may be reviewed, corrected or reversed, on motion, or by writ of errorcoram nobis.

28. When a person is outlawed, the same judgment, execution and disabilities shall ensue and be awarded as if he were convicted of the offence with which he was charged.

That doesn't say anything about failing to appear in court. However, the sections around it are mostly instructions on what to do when criminally charged parties fail to appear in court, so I infer that it is, as the federal supreme court stated, a statute dealing with someone who didn't come to court.

It's interesting that there seems to be a very serious concern with the possibility of error expressed under Code sec. 27 and that, under Code sec. 28, the remedy seems to have changed from the English version in which lands are grabbed to a conviction of outlawry carrying the same punishment as the crime a person couldn't be convicted of because he didn't come to court.

Basically, it's a failure to appear statute. Don't show up for court to face your bank robbery charge and we can't convict you of bank robbery. We can, however, make a judgment of outlawry and sentence you to 20 years on that instead. We still have a failure to appear statute, Va. Code sec. 19.2-128, but you can only get 5 years under it and must be present when tried - not quite as convenient as outlawry appears to have been.

I wonder why judgments of outlawry were done away with. I see a federal constitutional issue, or two, with that kind of action, but the statute was done away with before the federalsupremes started enforcing the federal constitution against the States.

Anyone out there got any insights? How about knowledge about how this has been handled in other States?

The Boss Gets Elected

No big shock here. Ron Elkins got 99.61% of the vote and is now the ELECTED Commonwealth Attorney of Wise County and the City of Norton. Actually, it's kinda hard to believe that .38% voted against him.

Congratulations, Ron.

How do you do this?

Stealing a 2 ton air conditioner on a bicycle.

Reports from the Front: The Pot Rebellion

1) Somebody's upset that the police arrested a guy for manufacturing who had a State license.

2) California may say it's legal, but those pesky Feds could always show up and close your $50 million MedMar clinic and take everything you own.

3) Even the RCMP are busting grow houses.

4) If you are an officer involved in a drug ring you should not rob your partners.

5) Things aren't going to turn out well when your grow houses are in the middle of California wildfires.

6) A Californian who ain't buying the MedMar excuse.

7) Urging Oregon to grow marijuana directly for MedMar sales.

8) Marijuana skirmish (actual shots fired) at the Mexican border.

9) Kid finds bag of marijuana at home and takes it to his teacher.

10) Ummmm . . . Sorry to break this to you, but MedMar is legal in Virginia.

§ 18.2-250.1. Possession of marijuana unlawful.

A. It is unlawful for any person knowingly or intentionally to possess marijuana unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq.).

Of course, I wouldn't hold your breath while you looked for a doctor who'd prescribe marijuana here.

11) Denver trying to pass marijuana no arrest law.

12) Can a boss fire someone for something the State says is legal, but the Feds say is illegal?

13) The Rutherford Institute fighting for pot as a religious right.

14) The only reason to do this is that you want to go to jail.

15) Robbery of a grow house.

India: Bad Cheque Requirements

You can't just tell someone that they passed a bad cheque, you must tell them the amount of the cheque.

Yeah, I admit it, half the reason that I posted this one is so that I could spell check the strange way they do where English is spoken instead of 'Merican.

100 Pellets of Cocaine Swallowed

A heck of a way to pay off a debt.

Snakes On A Bus

The disturbing part about this is that the postal inspectors figured out that the snakes were mailed, notified the local police, and they let the snakes be delivered to the guy and didn't pick him up until he finished riding the bus home with them.

You'd think the inspectors would have pulled them out as soon as they were spotted. At the very least you'd think the local police would arrest the guy as soon as he picked up the snakes at the post office.

Important safety tip if you ever plan on riding a bus in Indiana.

Shackled & On the Run

This guy is either real good at hiding or he knew a locksmith who was close at hand.

Run From the Police . . .

. . . while an officer is in your car and you won't get too far.

OJ: What Did the FBI Know and When Did it Know It?

Apparently, the FBI knew something was going on.

Local Judge Removed

"[T]his [Virginia Supreme] Court will order that James Michael Shull be removed immediately from the office of Judge of the Thirtieth Judicial District, pursuant to Article VI, § 10, of the Constitution of Virginia."

Things Police Officers Wish They Could Say

1. I'm sorry Ma'am, but with an unlicensed gun concealed in your purse, plus the DWI, you are a real criminal.

2. Hey John, get out of the car and come over and say "Thank You". We stopped the guy who pays our salary!

3. Yeah, I do have bank robbers to catch, but that might be dangerous, so I'm going to play it safe and write you this ticket.

4. Hurry it up? Sure, I'll hurry it up! I'll just go back to the cruiser and write the citation. Do you have food and water in the car? This shouldn't take more than six hours.

5. Do you know why I stopped you, or do you think like you drive?

6. What do you mean I won't believe you? Just because you've got 3-kilos of Smack and two bodies in the trunk, it doesn't mean there isn't a perfectly reasonable explanation.

7. No, you've got that wrong. I'm even tougher without the badge and gun.

8. Of course, you didn't do it. You just happened to start your wind sprints in the department store, the VCR was a training weight, and the security guards provided motivation.

9. She started it? That's the best you can do? My 4 year old does better than that when I ask why his sister is crying.

10. You have the right to remain silent. Do you have the ability?

Vacated (for a moment)

Sorry folks, last week was vacation (tho' not much of one - on day two I came down with a stomache flu) and the first couple days this week are jammed (as always after a week of not being in).

Now back to our regularly scheduled show.

The Governator and Pot

"It's not a drug, it's just a leaf."

And then the spin.

From the Front Lines of the Pot Rebellion

In Oregon the medical marijuana excuse program spins madly out of control.

Deserves Jail Time

Mom takes her 1 year old to a heroin party.

So Far, Scotland Yard is Stumped

The great miniature pony caper has left them all puzzled.

Deserves Prison Time

Woman puts heroin in baby's carriage in order to sneak it into a prison.

STEAL THIS BOOK

Ok, he took your invitation, what do you do now? Can you even file criminal charges?

They Suppressed the Coke

But he pled guilty anyway.

I Thought Jail Breaks Like This Only Happened on TV or in Comics

However, they also apparently happen in Belgium.

Eat a diamond . . .

. . . and they will get it out of you, one way or another.

Mona "The Hammer" Shaw

Yes, she broke the law, but sometimes it's just worth it.

Yep, I Changed the Template (yet again)

It's starting to get cold. I think I'm going to grow the hair back, so (in order to avoid false advertising) I took the picture down and that led to the 743,495,298th reworking of the template; you can go to wayback if you want to count for yourself.

I also went completely thru the links and those which hadn't had a post for 40 days or so got cut. A few had been abandoned and picked up by link farmers. More disturbing (at least to me) were those where the blog had been replaced entirely by an advertisement for the attorney which had originally authored it. Anyway, the links have been weeded and should all be good now.

P.S. I've even fixed it now so that it looks right on Firefox. Sorry bout that folks. I use Opera and it looked good on my browser. I checked it against the usual suspect, Explorer, and it looked good there. I didn't think that Firefox might be screwed up - previously, it had always seemed that if it worked on Explorer it worked on Firefox.

Why do we change the names?

An argument I had with defense counsel yesterday started me thinking about a strange thing that happens in legal terminology: the tendency of legal language to migrate toward obfuscation.

I had to prove that a person can be guilty of a misdemeanor as a principal in the second degree; he can't be an accessory and usually can't be convicted of conspiracy (there are statutory exceptions), but can be a principal in the second degree. The issue is so well settled that when I went to get a case to prove the issue the primary case was Hodge v. Winchester from 1929. The only bit of difficulty is that the case referred to "aiding and abetting" rather than being a principal in the second degree, which took a little bit of explaining.

Thinking about this, I started to wonder why in the world you would stop using a descriptive phrase "aiding and abetting" in favor of a phrase that is meaningless unless you either have training or have spent the time researching what "principal in the second degree" means. I can remember talking to clients about this concept when I was a defense attorney and I almost always had to switch to the "aid and abet" language for them to understand it.

Of course, there is an argument in favor of certain obtuse terms. Terms of art can be necessary because they are more precise. There is also a preference to keep language consistent so that meanings are understood. However, I don't really think that these are the reason for most of the obtuse language we use.

I suspect that most of the time obtuse language is used because that is what the lawyer has been trained to use and it's just easier for us to keep using the language once we've learned it. An example of the tendency to continue using the same language even after it has become improper is the continued use of lawyers and judges and lawyers in Virginia of nolle prosequi. A couple years back nolle prosequi in Virginia meant dismissed without prejudice while "dismissed" meant dismissed with prejudice. It had been so since the beginning of time. However, someone who hadn't been taught this in law school made a motion to dismiss when he should have made a motion for nolle prosequi and a case was lost. Consequently, the General Assembly changed the law. Now, per 19.2-265.6, a dismissal is not permanent unless it is a dismissal with prejudice. Effectively, this has made nolle prosequi and dismissal the same thing. However, none of the paperwork has been changed to reflect "dismissal with prejudice" and I've not yet seen a single defense attorney ask for it; they just keep asking for dismissal, expecting the same result and protections their clients received before. Personally, I believe a system wherein the two options are dismissal without prejudice or dismissal with prejudice as options is better than one that uses Latin and I think that's basically where we are now at. However, the courts and lawyers have not adapted to this changed reality.

Now, don't get me wrong, while I think the new language supra is less obtuse, it is the exception which proves the rule and it wasn't put in place by the General Assembly to make the language more understandable, it was done because someone lost a case on a technicality. In general, even common sense changes aren't made. Why do we use "capias" in Virginia rather than the more understandable "bench warrant?" More generally, why are lawyers the only people in the entire world that use impracticable to mean "not practical" when its synonym impractical is used by everyone else and carries the exact same meaning? It isn't because the terms are more precise, or because they are more understandable, or because they have magical powers (although, they can be fun to use in certain circumstances). Mostly legal language doesn't change because of inertia in the legal system and habit of the lawyers and judges.

Still, that doesn't explain the change from "aid and abet" to a more obtuse phrase. I must be missing something. Anyone got an idea?

Someone Thinks Bruce Wayne is a Bat?

Torn from the pages of BOL . . .

Who is Batman?

Scale of Punishment - Further Developed

Note: This is Virginiacentric. Remember that in Virginia there are truly discretionary sentencing guidelines (judge doesn't have to follow them and they cannot be grounds for an appeal). Also, if a jury trial is taken juries not only find guilt or innocence, they sentence. Juries do not get to see the sentencing guidelines and they cannot suspend part of a sentence. If the sentencing range is 20-Life a judge can (and usually does) suspend part of the 20 years; a jury cannot do this. Thus, the guidelines may call for a range of 7-9 years active sentence, but the jury has to impose the 20 years. A judge can suspend part of this, but most judges are hesitant to do so.

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Immoral but Legal (IL) - Things which the majority view as wrong, but do not make illegal. Sometimes this includes matters in which we would point someone to a civil remedy - i.e. 18 year old girlfriend talked 85 year old grandpa into changing his will so that she gets everything instead of his children and grandchildren. However, quite often the actions are too small or the person involved doesn't have the resources to pursue a civil remedy. It also includes things which don't have a civil remedy - i.e. Bob calling Joe on the phone and telling him he is a "thug" (and hurting Joe's feelings). Sometimes an act may be IL because of the circumstances surrounding it; in Virginia a threat against a non-family member can result in a conviction for assault, however a threat against a family member cannot because the domestic statute requires both assault and battery.

Tolerated Illegal (TI) - These are things which the majority of citizens tolerate as being illegal, but only so long as the punishment is not onerous. A lot of the crimes herein are "for your own good" statutes. They are tolerated, but not truly accepted by a large enough portion of populous. On the lower end they are things like fines for not having the proper tags on a car or general speeding. On the upper end are things like underage possession of alcohol or possession of marijuana - both of which (at least in Virginia) have the option for a first time offender to allow the defendant to complete some sort of probation and not get convicted.

Minor Punishment (MP1) - A little time in jail or some secondary effect on the rights of the convicted. The people you see coming and going from misdemeanor criminal court every day are facing these punishments. A weekend in jail, 8 days of trash pickup, 10 days with work release - all the way up to a few months in jail or a driver's license restricted or suspended. This is where the majority of misdemeanors are going to end up and where a lot of first time, non-violent felonies are going to be (probation, no incarceration).

Moderate Punishment (MP2) - 6 months to 3 years. Usually, this is a plateau reached by people who have received a number of minor punishments, whether they proceeded from misdemeanors or felonies or (most likely) a combination of both. However, some non-violent felonies start out toward the bottom of this range, such as possession with intent to distribute cocaine (which Virginia's guidelines start at 7 months). As well, some violent acts which are felonies fall within this range, such as battery of a police officer (for which the statute mandates 6 months in jail, but the guidelines begin at 7 months).

Heavy Punishment (HP) - 3 years to 8 years. This is where more serious or multiple conviction non-violent felonies end up. It is also where a lot of first time violent felonies (malicious wounding) are located.

Serious Punishment (SP1) - 8 years to 20 years. Combination of violent felonies (robbery, abduction, & use of firearm in a felony). Often, this level is reached because the defendant's prior record is significant. Non-violent felonies can reach this high if aggravated (massive prior record or multiple convictions for drug sales).

Severe Punishment (SP2) - 20 years to Life. Almost always serious violent felonies. In Virginia punishment at this level is often because the defendant demanded his jury trial and got sentenced by a jury to more than the sentencing guidelines call for or a judge would have given. A few non-violent felonies make it this far. In Virginia an example of this would be distribution of cocaine 3d offense, which carries up to life in prison.

Death - Self explanatory. Currently reserved for aggravated murders. May be extended to rape in the near future.

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The amount of time for MP2, HP, SP1, and SP2 are approximations based upon the reactions I've observed from defendants to potential and actual sentences. While there would obviously be variations from case to case, these are the levels where I noticed different reactions. MP2 does not draw extreme reactions in most cases; most defendants seem to see this just as part of their lives or perhaps as a cost for doing business. HP is where pushback begins. The Defendant figures that 3 years will probably mess up his life and 5 years definitely will. He will weigh his options much more carefully and is more likely to take a trial if he thinks there is a chance of winning. SP1 is where irrational pushback begins, particularly in the younger defendants. Older, more court/prison savvy defendants are more likely to make rational choices here. It's always the 18 to 24 year olds that think 10 or 15 years is an impossibly long period of time to do in prison and demand the jury trial despite being warned that the evidence is overwhelming and that the jury will probably punish him in the SP2 range. SP2 is where it is often rational to go to trial no matter what. If a 30 or 40 year old has guidelines which call for 30 years in prison he is facing a life sentence whether the sentence is technically "Life" or not. Often - perhaps the majority of the time - an SP2 sentence is the result of a defendant who would have gotten HP or SP1 if he had taken a plea offer or even made a bald plea of guilty, but chose to take a jury.

Punishment Scale

It's a work in progress. Comments?

They're Back

Some Days It's Great to Be In the Bluegrass

A Jury Trial

John Smith is charged with felony habitual offender, This means that he was caught driving twice after Virginia took his license away. It's a no brainer which is a sure conviction but I wasn't drooling over the prospect of trying the case. However, Smith was adamant that he wanted his jury trial.

The judge hits the bench and we are all given the list of jurors just before the jury is brought in. 20 jurors are sitting in the box and as I look them over I recognize pretty much every one of them. The jury pools here are kinda small and they seem to stay the same for a long time so, if you try a couple juries you recognize everyone. Before a single voir dire question is asked, I look at them and know three whom I will strike and one whom the Defense Counsel will strike. The judge asks all the regular, generic questions: “Is everyone over 18? Has anyone been convicted of a felony?” Then he turns the jury over to me for questioning.

I stand up in front of the jury and say something like “I don't think that I'm going to have many questions today because I think I've asked you all the questions I've got last time we were here. And I'm sure Mrs. Greene (the Defense Counsel's ex-partner's sister-in-law and good friend) and Mr. Jones (ex-police officer) will be glad to hear that they won't be questioned all day like they were last time.” I watch the panel's reaction and, for the most part, they chuckle. The I ask the only two real questions I have. “Has anyone had any dealings with Trooper Lopez before?” Mr. Jones raises his hand, but I don't ask any follow-up; everybody in the room (including him) knows he is going to be struck by Defense Counsel; the poor guy keeps getting called to the courthouse just to be the first strike for each defendant. “A lot of this case is going to be about court records. Does anyone have a problem with part of the case being proven by paperwork, such as orders of the court?” Nobody has a problem with that, so I thank them and sit back down. Defense Counsel is even quicker than I was. He has been in front of these jurors before as well, so the only question he asks is if anyone can think of a reason they would be prejudiced against his client. No one raises their hand.

Now it's time to do the peremptory strikes. The Defense Counsel gets up and walks out of the courtroom with his client and goes to the witness room across the hall; I stay seated at the prosecution table with Trooper Lopez. The deputy hands me a list of the jurors and I cross one thru and label it P¹. Then the deputy goes across the hall and the defense attorney marks one thru and labels it D¹. We go back and forth this way until both I and Defense Counsel have marked out 4 each. Then Smith and his counsel retake their seats in the court and the clerk reads the name of the 8 people; they go back to the jury room leaving us with 12 jurors.

I think I surprised Defense Counsel by leaving his ex-partner's sister-in-law in the jury. It was a calculated risk. She seemed to be smarter than the average bear, has been around lawyers, and knows Defense Counsel well. But wait, you say, Ken, if she is good friends with Defense Counsel shouldn't you strike her? Normally, yes. However, there are two things going on here. First, the vibe I get from her is that she will go out of her way to be scrupulously fair. Second, Defense Counsel is what I've referred to before as an “aw shucks” lawyer. He is blessed with one of those winning personalities which no one can dislike and juries tend to transfer that like from him to his clients. If we were going to be stereotypical, I'd say he's one of those people that Yankees come down here and think they can take advantage of – until the day he separates them from every penny they have, all their property rights, and the right to name their first born son. I figure that ex-partner's sister-in-law has been exposed enough to be immune to the effects of his charm.

Next we start opening statements. The lights are dimmed and I bring up a slide presentation. I knew Defense Counsel was going to use powerpoint in his opening so I had to have a presentation of my own. When I moved here, into the first jurisdiction where I've seen powerpoint presentations used in everyday criminal prosecutions, I quickly learned that if the other side uses it and you don't they get a large advantage (BTW, I actually use OpenOffice.org Impress which does everything I've seen powerpoint do and has the advantage of being free).

My opening is pretty simple. I show them the timeline that I plan to present and the document which shall prove each point of the timeline. I tell them that I will show them order declaring Smith a habitual offender, the warrant/order from the general district court convicting him of misdemeanor (first offense) driving as a habitual offender, and an order from the court giving Smith a six month restricted license (which Smith got three days after his first conviction). I then tell them that Trooper will get on the stand and testify that Smith came around a curve, saw a checkpoint, stopped in the middle of the road, backed back around the curve blind, and – after Trooper caught him - admitted he is a habitual offender. Then I sit down.

Defense Counsel gets up and starts his powerpoint presentation. He has put much more work into his presentation than I have (he's is a recent convert to technology in the courtroom and is showing a convert's zeal). The problem is that his presentation almost instantly becomes argument. I make a tactical decision to let him go on and he does. He goes on and on about how this is a status crime and how his client doesn't fit the status because he got his license restored by a judge. His argument is based almost entirely on this document:

The argument is creative. Looking at the order which gave the defendant a restricted license for six months Defense Counsel points out that it is styled “Order Restoring Driving Privilege – Habitual Offender” and under the section titled “It Is Therefore Ordered That”, while the section labeled “Petitioner is granted a restricted license” is checked, the judge noted restrictions to the license under the section above it that restores licenses with conditions (even though he didn't check that section). From this he argues that there is a reasonable doubt that, even though the defendant never went and got his license from DMV, his right to have a license was restored by the court and he was only driving without a license. Therefore, he couldn't be convicted of driving as a habitual offender because he no longer had that status. He tries to back this argument up with a letter DMV sent Smith after his first driving as a habitual offender conviction which tells him how many points the conviction takes from him and includes boilerplate language about how he should drive safely to protect his driving privilege.

It's a better argument than I had expected. I had thought that the argument would be that the defendant had gotten this order and thought that his license was restored and therefore didn't have the mens rea to be in violation of the statute. The status argument is a stretch. It would never work in front of a judge because a judge would know that the regular procedure is for a habitual offender to first get a restricted license and later return to the court a second time to get his license restored completely. However, it has a possibility of working in front of a jury which doesn't know the regular procedure in these matters. It also has the added advantages that if the jury believes it this argument makes the confession moot and doesn't require Smith to testify.

So we start the case. I get up and introduce the records I promised into evidence. I don't belabor them by having the document read because I've already shown the jury the pertinent parts in my opening presentation. At the same time Defense Counsel introduces his letter from the DMV. I call Trooper to the stand.

Trooper testifies that he and another trooper were working a license checkpoint. The checkpoint is up the street from a curve so that people will not see it until they have come around the curve but still have enough time to safely slow and come to a stop. Smith came around the curve and hit his brakes so hard that Trooper heard him and looked up to see that Smith had stopped his car in the middle of the road just on this side of the blind curve. Then Smith backed his car back thru the blind curve. Naturally, this caught attention of the troopers and they went after him. On the far side of the curve Smith had turned his car around and headed the opposite direction, but they caught him without much trouble and once they got behind him he pulled over. He had three kids in the car with him and told the officer a story about how he was getting ready to go fishing and had taken the kids to the store to get supplies. He also admitted he was a habitual offender.

Defense Counsel gets up and does a quick cross in which he gets Trooper to acknowledge that, because this case is over a year old and Trooper has handled thousands of cases since, Trooper has used his notes to refresh his memory. He then gets Trooper to admit it's possible that Smith told him something that he didn't write in his notes and doesn't remember – specifically, that Smith might have told him something about having some paperwork that says he wasn't a habitual offender. My rebuttal was basically two questions. “Wouldn't you, as a part of your regular procedure, note if the Smith had said something about having paperwork that proved he wasn't a habitual offender?” “Didn't Smith admit that he was a habitual offender that day?” Both answers were “Yes.”

With that I rest my case. Defense Counsel tells the judge that he has a motion and the judge has the jury go back to the jury room. Defense Counsel makes his motion to strike the evidence as being legally insufficient, which is basically the same argument that he made during his opening, but the judge refuses. Then the judge asks Defense Counsel if he has any evidence to present. Defense Counsel tells the judge that he needs a few minutes to talk to Smith and the judge lets them go out to the witness room. They're gone for ten or fifteen minutes. I am crossing my fingers that Smith will demand his right to testify. I know that Defense Counsel doesn't want him to, but I'm pretty sure Defense Counsel didn't want him to take a trial either and Smith demanded one anyway. If he testifies I have so much stuff on him that I will destroy him and Defense Counsel knows it. Eventually, they come back and Defense Counsel announces to the judge that he is not going to produce any evidence.

Then the judge brings the jury back out and reads them the jury instructions. We do our closings. Mine is basically a summary of the evidence presented. I point out that the order making Smith a habitual offender says he remains one until an order of the court restores his license and that the order only gave him a restricted license. Therefore, the only way he could be not guilty is if he mistakenly thought he had had his license restored and his actions on the day clearly indicated that he knew he is a habitual offender. Defense Counsel fires up the projector and does another powerpoint presentation covering much the same ground he did before. I think letting him get away with argument in the opening worked out tactically well because, while they politely listened, the jurors didn't seem to be affected much by his closing. Then the jury retires at 11:15. This is perhaps the quickest felony jury trial ever; we're going to be out of here by lunch.

At 1:00 the jury still hasn't come back with a verdict. We can hear them back in the jury room cracking up and having a grand old time, but they haven't come back yet. The judge calls them back in and sends them off to lunch. At 2:00 they come back and restart deliberations. 3:00 rolls by and by this time everybody is wondering what they're up to back there. At 3:15 the deputy comes to the court and announces that the jurors have a question. We all assemble in the courtroom.

The deputy brings the foreperson out (Defense Counsel's ex-partner's sister-in-law). She comes out and announces that they are having trouble deciding whether this is a felony or misdemeanor. Then she asks some question which isn't really clear about sections A thru G of the order which gave the Smith a restricted license (see above). This is kind of surprising because I know I told the jury – at least twice – that these sections aren't pertinent to whether he was driving as a habitual offender, they're just a description of how he became a habitual offender. Even Defense Counsel said the same sort of thing when he talked about the order. We both concentrated on explaining the “IT IS THEREFORE ORDERED” section to the jury. The foreperson also asks for more clarification about the statute Smith is charged under. The judge tells her that the charging instruction is an explanation of the statute and the jury should proceed from there. She goes back to the jury room not looking very satisfied.

Half an hour later they come back: Smith is guilty of misdemeanor habitual offender. The judge calls the attorneys to the bench where we all look at each other a little befuddled because you can't get there from here. Part of the charging instruction is that if the prior conviction isn't proven the jury should convict of the misdemeanor. However, all you have to do to prove the prior conviction is introduce a copy of it and I'd done that; I'd even pointed it out the jury during closing argument. The judge asks if there is any objection but I don't because a jury has the right to find the lesser included if it's in the instructions.

I have to run downstairs to the office in order to quickly type up misdemeanor punishment instructions. When I get back the judge asks if I have any evidence and admits copies of Smith's prior convictions. Then we go up to do sentencing arguments. I read off Smith's convictions: 4 distribution of drugs from the early 90's, a perjury from a little later, a contempt of court, his prior driving as a habitual offender conviction, and a driving suspended conviction from earlier the same year he got this driving as a habitual offender charge. Then I argue that this is not a case that deserves to have just a fine or a week in jail. I don't give the jury an exact amount of time, but list off the aggravating factors: kids in the car, stopped at one end of a blind curve, backed thru a blind curve, had been given a break earlier the same year when someone only charged him with driving suspended. I don't go after the felonies all that much because they are removed so much in time but I must admit that I got a little worked up over the fact that he endangered three kids to try to save his own hide. I end by saying that I don't believe fines accomplish much, that he endangered children, and that Smith already caught a break when he wasn't charged as a felon a couple months before he was caught driving again; “He's caught his break. I ask you to make his sentence heavier rather than lighter.”

Defense Counsel argues to the jury that Smith is a family man and that sending him to jail will take him away from his family so that he can't support them. Yeah, I know, I could have objected, but what kind of idiot stands up and yells “Objection, your Honor, facts not in evidence!” when the wife is sitting on the front row.

The jury goes back out and comes back in fairly short order. 6 months in jail and a $1,000 fine. The judge dismisses the jury, sentences Smith, and gives him until the next Tuesday to report to jail. Smith leaves the courtroom and I clean up the desk. As I leave the court to go back downstairs, Smith walks past me going back in. As we pass he says, “No hard feelings, man.” and the only thing I can think of to say is “Just doing my job.” Then I head back to the office at about 4:30.

Something Makes Me Think There Are Problems in Augusta

Football: Remember to Root for the Good Guys

Football tonight - And it's not too hard to choose sides when one side is a noble, and proud Wildcat and the other is an annoying, ugly bird with a profane knickname.

Y'know, a Prisoner Should Not Have a Say in Where He Will Be Held

However, it is counterintuitive to send the well behaved prisoners to another State (thus punishing them for behaving).

Leave your cell phone on . . .

. . . and the police can find you.

Justices Face the Crack Sentencing Disparity

Personally, not so much worried about this as I am that the court needs to open a dictionary and explain what the word "discretionary" means to federal appellate courts which continue to give all departures upward a pass and reject all downward departures.

Sniper: Malvo

Apology

My Riding Mower Gets Up To 5 mph

It might outrun a turtle, but not an officer.

Do Appellate Court Judges Lie For a Living?

Y'know, I've had petitions to appellate courts denied and come back with facts or law I thought extremely pertinent entirely ignored, but I'm not sure I've ever thought that an appellate judge posited a lie in order to deny my client his appeal.

Did Anybody Have Any Doubt What the ABA Would Say About Any Death Penalty?

Naw, they didn't in Ohio either.

Police Not There to Terrorize Your Child

Please don't do this.

Traffic Court

Joy of Joys

Reasonable Suspicion Attaches to the Person Patted Down

If someone walks into a second person's house he can't stop police from searching it, but he has a right not to be searched himself.

Robbery: It Pays the Bills

"Detectives determined that the robbery money was used to buy wedding rings, pay back rent and pay the woman's attorney for work done in a child custody case."

Robbery: It Pays the Bills

"Detectives determined that the robbery money was used to buy wedding rings, pay back rent and pay the woman's attorney for work done in a child custody case."

How Tazers Work

Haven't watched this yet, but it looks interesting:

US Supreme Court: Even More Moore

OK, while the rest of you have been obsessing on the federal supreme court accepting the lethal injection case, I noticed that a case which has been followed with some interest here has gained cert: Virginia v. Moore.

You'll recall that this is the case wherein the officers made an arrest which was not allowed under Virginia law and in the search subsequent found drugs. The trial court relied on Atwater and found that the arrest was illegal but not unconstitutional and therefore the search was constitutional. A three judge panel in the Virginia Court of Appeals overturned the trial judge relying on Knowles and saying that since there was no legally allowable arrest this was like a citation and therefore the search subsequent was unconstitutional. En banc, the Virginia Court of Appeals ruled that Atwater applied and the fact that the arrest was illegal but not unconstitutional meant that the search was constitutional. The Virginia Supreme Court took the appeal and ruled, 7-0, that the arrest was forbidden and the summons required was subject to the same rules as a citation per Knowles.

The federal supreme court accepted cert (06-1082).

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The difficulty here is that their is a continuum of activities which an officer can be allowed or required to do. As I see it, the continuum is something like this:

Citation - Required Summons - Discretionary Summons / Arrest - Required Arrest

Citations cannot give rise to a search incident. Arrests always give rise to the search incident. Summons aren't really a citation because the charge on the summons can lead to imprisonment (at least in Virginia). Summons aren't arrests because the officer does not take the offender into continuing custody (there is some custody in any involuntary police encounter - including those resolved with a citation).

I think I'm going to have to go back and reread the Virginia Supreme Court's decision in this matter. If the Va SCt found as a matter of State law that a summons under Virginia's statutory scheme is the same as a citation then cert may have been granted improvidently.

I'm reading the briefs for and against granting cert right now, so I hope to have more comment on this in the future - but probably not until after Monday because of a jury trial.

Here Are the Previous Posts on Moore (and Atwater)

Devenpeck - Just Plain Bad Reasoning

Reprecussions When Law Enforcement Breaks State Law

A Surprise From The Virginia Court of Appeals

Atwater 01

Atwater 02

More Moore

I am Evil Incarnate

You know you're a special kind of guy when the defendant's grandmother, in a case that I did nothing in except stand at the bench when the plea agreement was entered (all I really did was hand the paperwork to the judge), walks past you after a parole revocation hearing, turns, and hisses:

"I DON'T LIKE YOU!!"

The Nine

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 The Nine a 3: it is a well written but ideologically slanted look at the recent history of the federal supreme court.

********** ********** **********

I almost didn't write this review because of the 3 rules which govern this site.¹ However, upon further consideration I thought I'd give it the old college try.

It is well written and an easy read. The narrative has something of a gossipy quality to it and I found myself often wondering if the author wasn't engaging in some creative attempts at mind reading. Perhaps he was trusting the statements of others (most likely clerks) who were themselves engaging in some inferring (inferation, inferment?) as to their Justice's feelings. It's impossible to know for certain as the author interviewed unspecified Justices and clerks and wrote without attributing anything to them (by design).

There are clearly good guys and bad guys in this book and they are defined by where they fall on the ideological spectrum. As you read The Nine you cannot help but notice this. However, it is so blatantly obvious where the author stands that, if you have a smidgen of sense and a little bit of a stiff upper lip, even if you are of a different viewpoint than the author you can still find the book an interesting read. If you are of the same viewpoint as the author it will all be a no brainer and solid book.

Nevertheless, do not walk into this thinking there will be important revelations. There's not much of that here. There's no indepth review of competing legal philosophies and the portrayal of the justices is far from complete.² This is a book claiming to (and trying) to outline the decisions of justices in the court and their interactions as they make the decisions. It has a kind of shallow and newspaperish tone wherein the opinions are not discussed with subtlety and the ideals in which each Justice believes are distilled to left or right. Opinions delivered by the court are either A or Z, there's not a whole lot of room for the possibilities between. Judges may migrate one way or the other on the left-right spectrum, but they aren't seen as having a particular jurisprudence which cuts across both (as the reality often is). However, I'm not sure if the author could do these things without publishing a 9 tome history of the modern court. It's probably too much to ask of an author trying to write a popular book.

All-in-All, it's a good book, worth a read and an interesting spark for a discussion on the modern court. It's not going to become a must have book for those who want to understand the court; it's not The Brethren or Closed Chambers. Still, if you have an interest in the court you will find this book interesting.

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¹ 1) No politics. 2) Civility. 3) No politics.

² Noting what seems to be a lack of information about certain Justices, I suspect that he got frozen out in certain quarters.