Evil Day

There's a disturbance in the Force - it feels as though an entire ship of Vulcans have died - an ill wind is blowing through the Shire

What could possibly be causing all these strange, wretched omens?

NNNNOOOOOOOOOooooooooo!!!!!

SoCal Law has bitten the dust.

An Oldy But Goody: Mayo v. Satan

54 F.R.D. 282

------
UNITED STATES ex rel. Gerald MAYO

v.
SATAN AND HIS STAFF

------

Misc. No. 5357

United States District Court

Western District of Pennsylvania

Dec. 3, 1971

Gerald Mayo, pro se.

MEMORANDUM ORDER

Weber, District Judge.

Plaintiff, alleging jurisdiction under 18 U.S.C. § 241, 28 U.S.C. § 1343, and 42 U.S.C. § 1983 prays for leave to proceed in forma pauperis. He alleges that Satan has on numerous occasions caused plaintiff misery and unwarranted threats, against the will of the plaintiff, that Satan has placed deliberate obstacles in plaintiff's path and has caused plaintiff's downfall.

Plaintiff alleges that by reason of these acts Satan has deprived him of his constitutional rights.

We feel that the application to file and proceed in forma pauperis must be denied. Even if plaintiff's complaint reveals a prima facie recital of the infringement of the civil rights of a citizen of the United States, the Court has serious doubts that the complaint reveals a cause of action upon which relief can be granted by the court. We question whether plaintiff may obtain personal jurisdiction over the defendant in this judicial district. The complaint contains no allegation of residence in this district. While the official records disclose no case where this defendant has appeared as defendant there is an unofficial account of a trial in New Hampshire where this defendant filed an action of mortgage foreclosure as plaintiff. The defendant in that action was represented by the preeminent advocate of that day, and raised the defense that the plaintiff was a foreign prince with no standing to sue in an American Court. This defense was overcome by overwhelming evidence to the contrary. Whether this would raise an estoppel in the present case we are unable to determine at this time.

If such action were to be allowed we would also face the question of whether it may be maintained as a class action. It appears to meet the requirements of Fed.R. of Civ.P. 23 that the class is so numerous that joinder of all members is impracticable, there are questions of law and fact common to the class, and the claims of the representative party is typical of the claims of the class. We cannot now determine if the representative party will fairly protect the interests of the class.

We note that the plaintiff has failed to include with his complaint the required form of instructions for the United States Marshal for directions as to service of process.

For the foregoing reasons we must exercise our discretion to refuse the prayer of plaintiff to proceed in forma pauperis.

It is ordered that the complaint be given a miscellaneous docket number and leave to proceed in forma pauperis be denied.

Orin Kerr, the 4th Amendment, and My Opinion

Professor Kerr has put out an exposition in which he tries to explain the Supreme Court's jurisprudence in the area of the 4th Amendment. The first part of the article attempts to explain 4 competing models which the Justices use to explain various, and not necessarily compatible, decisions under the 4th Amendments umbrella:

Probabilistic: "[A] reasonable expectation of privacy exists when a sensible person would predict that he will maintain his privacy."

Private Facts: Is "the information obtained [] sufficiently private, revealing, and worthy enough for its disclosure to trigger Fourth Amendment protection?"

Positive Law: "[A]n expectation of privacy becomes reasonable when individuals must violate the law to defeat it."

Policy: "Normative policy preferences govern the reasonable expectation of privacy inquiry."

It's an interesting and thought provoking break down. Of course, it suffers from the same problems as any attempt to explain 4th Amendment jurisprudence. The reasoning in cases often bleed over into one another and as you read his examples offered as proof you can often think that it would better fit as proof of something else. Still, as I step back from the minutiae and look to the general model offered I only really have one critique.

I don't think that the "Private Facts" model stands up under scrutiny. I think it is better suited as a subsection of the "Policy" model. Or, perhaps I should say that I think there are two policy questions in every 4th Amendment analysis. There is the pre-examination "Legitimate Expectation" policy question and the post-examination "Balancing Test" policy question. The overall model I envision looks something like this:

In this model the Legitimate Expectation policy test is the gatekeeper of the 4th Amendment. If your alleged violation isn't a legitimate one it merits no further examination. The examples which come to mind are prisoner searches in prisons and dog sniffs. However, if your expectation is "legitimate" it then merits closer examination as to its reasonableness.

Before determining whether there is a reasonable expectation of privacy there is some initial test which would determine whether initial analysis will be probabilistic or under under positive law. While in the vast majority of cases the two analyses would overlap there are any number of times they will not. We know from the case Orin cites, California v. Greenwood, that the fact something is illegal does not make it normatively unconstitutional and we can infer from Atwater v. Lago Vista (although it is a seizure case) that the fact some act exceeds normative expectations does not always matter if it is legal. However, I don't know what the test is.

Once run through the probabilistic or positive law sorters the act contested is tentatively tagged as exceeding or falling within the bounds of whichever constitutional test was applied. It then moves on to the Balancing Test policy examination. Many, if not most, of the contested acts should breeze right through that section because their effect will be relatively minor. Those acts exceeding the initial constitutional tests will cause evidence to be excluded. The other acts will result in constitutionally admissible evidence.

Nevertheless, there will always be those cases which would result either in a major change in the way law enforcement operates or a major change in the understood constitutional rights of citizens. In such cases the Court must engage in a more serious examination of the expected end result. On one hand, one would hope that the Court would weigh things more heavily in favor of liberty. One the other hand, I agree with Justice Jackson that it is not the Court's job to turn the Constitution into a suicide pact through unwavering, fanatical 4th Amendment absolutism. See Terminello v. Chicago. During this point an act which is putatively unconstitutional under the probabilistic or positive law tests may flip to constitutionality if it is the only practical way to stop the next 50 major terrorist attacks. As well, an act which is putatively constitutional may fail if it would result in 1 out of every 10 random citizens having their houses searched every month.

So that's the overall model which I threw together in reaction to Professor Kerr's Article. I don't have time to do a critique of the second part or even to engage in much discussion of what I've put together (I've got a couple of real nasty jury trials coming up) so I'm going to ask you all to send your constructive critiques to Orin's original post over at The Volokh Conspiracy.

Sites of (dis)Repute

As you go thru the web you find all sorts of strange sites having to do with criminal behavior. I thought I'd list a few of them:

StopSnitching.com - A well put together site dedicated to the proposition that people shouldn't report crime or admissions thereof.

Who's a Rat - A site dedicated to outing those who inform the police of illegal activities.

Alibi Network - Just in case you need an alibi.

The Prisoner's Handbook - Just in case the alibi doesn't work.

BTW: I don't know if any of these sites are for real. The Alibi site strikes me as the perfect sting operation for the feds. They could just hang out a shingle and let people trying to establish an alibi come to them after the fact - it would make for some pretty powerful evidence.

Bengal Begone?

Chris Henry has gotten himself in trouble yet again. He's a good receiver but you gotta wonder how much longer the Bengals are going to put up with this. Of course, the NFL seems to be on the verge of taking the decision away from the team soon.

Ken Lammers For Attorney General

It has been moved that I become the new Attorney General of the United States. Any seconds?

Remember, I have experience on both sides of the bench and I pretty much guarantee that I have more time in court than most senior attorneys in the government. In any event, if my first campaign to become a Justice of the Supreme Court is any indication it'll probably be an uphill battle. People in the federal government just don't seem to understand why I would be such a great asset. Of course, if I agree to take the position I'll want assurances that I will be the next Justice. I think I can make everyone happy; if you hyphenate me enough I can be a truly unique first __________ on the Court. I could be the first Germanic Ancestry, Catholic, Appalachian based, Arabic-language trained , Military Intelligence Veteran, height-deprived, skinniness-challenged, Kentucky/Ohio/Virginian (depending on if you classify me by birth, raising, or place I'm usually found) American with degrees in Religion, International Studies and Law as Attorney General (and later Justice). I defy you to find another with all those qualities (and I'm sure I can think of something else if I have to).

Anyway, I'd make a great Attorney General. I may not be the smartest guys in the world, but I'm pretty sure I'd have plenty of Attorney Colonels, Majors, and Captains to keep things rolling.

Some Day a Paper Will Be Interested in a Case I Win

So, my jury trial yesterday was lost because of a case which was decided recently by the Virginia Supreme Court. Okay, that sort of thing happens. Of course, this morning my case was the lead story in the local newspaper:

"Abuse, neglect charges dropped"

Oh, great - can't I make the paper someday when I win a case? Still, I must admit, it's probably the best factual coverage of a case I've been involved in:

PROSECUTION OPENS

At the start of the trial, Lammers told the jury that Smith's children playing in the road was a "catastrophe that almost was."

The twin boys were playing and jumping in front of cars, Lammers said. When people began to stop their cars to get the boys off the road, their sister, who was naked, joined them on the shoulder, he said.

Concerned citizens took the children to Smith's trailer, Lammers said.

When police responded they found Smith, asleep and naked, in bed with a man, according to Lammers.

After several minutes, police officers were able to wake her, he said.

Lammers described Smith as being bleary eyed and having slurred speech after she awoke.

BTW, the "road" was a 4 lane highway (and the article does point this out previous to this point). The author does a good job of setting out a lot of the even worse facts which came out during the trial and then how the judge struck the evidence based upon a case out of Albemarle County (Morris v. Commonwealth).

I'd link to the article but the local paper has decided not to share anymore.

Now, I go to prepare for my post-lunch, "single-larceny doctrine" argument.

Another Jury Trial

Yet again another jury day. So, my review of the Riches will have to wait until tomorrow.

Solving the ASL Non-Mascot Problem

Ask a Ninja

I've been putting some thought into what Mascot the Appalachian School of Law should have. It's an interesting problem since most law schools are stuck with the same mascot as the undergrad school they are attached. ASL is an independent school so it ain't stuck with somebody else's choice. I really don't think the Gruntin' Grundys will work so I thought of suggesting Fighting Whities just for reasons of equity. However, I realized that there are plenty of fighting whitey mascots out there already (Vikings, Norsemen, Knights, Fighting Irish, &cetera) so I kept looking.

And, I think I found it! Try this on for size - the ASL Ninjas! As a totally neutral observer, I think this would be an awesome mascot (and I'd be able to drive over to Grundy and see the Ninja when he makes good on his promise to visit any school which adopted a Ninja as a mascot).

And Then There's Steve

Looking all dapper as he sallys forth to argue in the national moot court competition, helping his ASL team to beat Wake Forrest, Florida State, and GW before falling to Georgetown (this year's national champs) in the final four.

BTW, does anybody know if ASL has a mascot? The Gruntin' Grundys maybe?

Virginia Court of Appeal (Jan07)

Flowers v. Commonwealth, No. 2158-05-3, Opinion: Judge Humphreys, Trial Judge: Malfourd Trumbo

Evidence is sufficient to establish reckless endangerment of a minor when a person discovers that a child appears to be in distress from taking a drug and does not arrange for immediate medical treatment or contact the nearest parent and inform that parent of the problem.

Phelps v. Commonwealth, No. 2739-05-1. Opinion: Judge Beales, Trial Judge: Samuel Powell

The reckless driving statute, Va. Code sec. 46.2-817(B), requires that "a" person be endangered and applies even if the only person endangered was the driver.

Bishop v. Commonwealth, No. 1382-05-1, Opinion: Judge Kelsey, Trial Judge: Samuel Powell

When the defendant's DMV record shows him declared a Habitual Offender (driving) in 1997 and shows notice in 2001 of the date of declaration with the note "FOR HO DETERMINATION" there is enough evidence to find the defendant has had notice that he has been declared a habitual offender.

The fact that Obstruction of Justice can be charged as a misdemeanor under Va. Code sec. 18.2-460(B) or a felony under Va. Code sec. 18.2-460(C) for the same facts and circumstances and therefore gives the prosecution broad prosecutorial discretion does not render the statute a violation of the due process or equal protection clauses.

Our New Judges

Our new judges. On the left is Circuit Court Judge Carico and the right is General District Court Judge Dotson. I had planned to put up video of part of their investiture from last week but my camera screwed up - so you'll just have to take my word for it.

I didn't know we had that type of investigator

Just had to take a picture of this when I ran across it in the parking lot.

In jury trial . . . More Later.

Around the Web

1) Yet again, people start to think that the difference in punishment between crack and powder cocaine (in the federal system) might be equalized.

2) The court refuses to jail Marion Barry.

3) When you wade in with pistols in each hand, blazing away, you might be found liable - even if you are an officer.

4) Yo! Adrian! They found my hormones!

5) Nope, the judge just isn't buying it. Female teacher having sex with a 17 year old student = 6 months in jail. Go straight to jail, do not pass go, do not collect $200. You have to wonder how many male teachers who have sex with 17 year old girls walk into court expecting to get 30 days home incarceration.

6) Stealing your dead wards' info to get money from the government isn't a good idea if someone counts heads.

7) A judge who is honest enough to admit that he will punish you for exercising your right to a jury trial.

8) If you are going to use your position as an officer to steal from illegal immigrants you might want to make sure that one of them isn't actually another law enforcement officer.

9) You face a dilemma. You can either face the wrath of your wife because you missed your child's birth or you can face the wrath of the judge because you will get your 4th speeding ticket. This guy chose to risk the judge.

10) If your toaster/meth lab goes up in flames driving to the Wal*Mart to buy a fire extinguisher might not be your best course of action.

Should the Death Penalty be Expanded?

The Supreme Court long ago decided that the death penalty could only be applied to those who had killed someone else, but several States don't seem to believe the Court will stand behind their decision.

Hearsay Sing-Off

On the left we have the always popular Lego Hearsay Song. On the right we have the newby Law Student Rap.

We present, you deride.

A Plea Agreement

Every prosecutor's office does plea agreements a little different. I've been to a jurisdiction where all 20 prosecutors use the same generic form; I've been to a single prosecutor jurisdiction where the plea agreement includes 3 or 4 pages wherein the defendant has to acknowledge all the questions the judge would ask before he accepted the guilty plea; I've seen plea agreements which are pretyped with blanks so that the actual agreement conditions could just be hand written.

Around here, each prosecutor has his own version of a plea agreement. I thought I'd share the form that I've developed. This is a plea agreement for someone who is charged with 4 counts in two indictments and who has enough of a record that the guidelines call for a sentence between 7 months and 1 year and 1 month with a midpoint of 10 months.

--------- ---------- ---------- ----------

VIRGINIA:‭

IN THE CIRCUIT COURT OF PITCAIRN COUNTY/CITY OF SHIRE

---

COMMONWEALTH‭ v. JOHN SMITH

Case No:‭ ‬F06-123 & F06-124

---

PLEA AGREEMENT

Come now the Defendant,‭ John Smith‬,‭ ‬his legal counsel,‭ Joe Jones‬,‭ ‬and the Commonwealth Attorney and,‭ ‬pursuant to‭ ‬3A:8‭(‬c‭)(‬1‭)(‬C‭) ‬enter into the following plea agreement.‭

Charges:

A. Maximum Sentence: In total, the defendant faces up to 50 years in prison.

B. Indictments and Counts:

F06-123

Count 1: Forging a check, carrying a penalty of up to 10 years
Count 2: Uttering a check, carrying a penalty of up to 10 years

F06-124

Count 1: Grand Larceny, carrying a penalty of up to 20 years
Count 2: Possession of cocaine, carrying a penalty of up to 10 years

The Commonwealth:

A. Amendments: The Commonwealth agrees to amend the following counts.

F06-124

Count 2: Amended to possession of marijuana, carrying a maximum penalty of up to 12 months.

B. Motion for Nolle Prosequi: The Commonwealth, after the defendant has pled guilty to indictment 123 count 1 and indictment 124 counts 1 and 2, agrees to move for nolle prosequi of indictment 123 count 2.


The Defendant:‭

A. Plea: The defendant agrees to‭ ‬plead guilty to‭ count 1 of indictment F06-123 and counts 1 and 2 of F06-124.

B. Stipulation of Facts: The defendant stipulates that jurisdiction is appropriate and the facts which the Commonwealth would show at trial are sufficient to convict him beyond a reasonable doubt.

C. Sentence: The defendant shall serve an active sentence of 10 months incarceration and have a suspended sentence of 5 years.

1. On the sole count of check forgery (indictment 123 count 1) the defendant shall be sentenced to 5 years incarceration under the supervision of the Virginia Department of Corrections with 5 years suspended.

2. On the sole count of grand larceny (indictment 124 count 1) the defendant shall be sentenced to 5 years incarceration under the supervision of the Virginia Department of Corrections with 5 years suspended.

3. The sentences imposed in the forgery and grand larceny convictions shall run concurrently.

4. On F06-124 count 4 (possession of marijuana) the defendant shall be sentenced to 10 months incarceration in the Pitcairn Regional Jail.

D. Probation: After serving the period of incarceration, the term of probation shall be for‭ 5 ‬years under the following conditions:

1.‭ Supervised Probation: ‬The defendant shall submit to no less than two years of supervised probation. After two years the defendant may be removed from supervised probation at the discretion of the probation officer.


a. Defendant acknowledges that he shall not be released from supervised probation until court costs and fines have been repaid. If defendant does not make regular payments his probation officer can require him to participate in the work program to pay fines and costs.


b. Defendant acknowledges that he shall not be released from supervised probation until he has paid restitution in the following amounts:

Smith Market $350.00


Jones' Shoeshine $75.00

The probation officer shall determine the amount of restitution which shall be paid each month.


2. Unsupervised Probation: The defendant shall serve the remainder of the 5 years on unsupervised probation.

3. While on probation the defendant shall remain drug free and subject himself to any drug test required by a probation or law enforcement officer. If the defendant fails a drug test he shall be, at the option of the judge,

a. Sentenced to no less than 1 year of his suspended time imposed, or


b. Required to enter and complete the Day Reporting Center drug treatment program.

4.‭ ‬The defendant shall keep the peace,‭ ‬be of good behavior,‭ ‬not violate the laws of Virginia,‭ ‬her Sister States,‭ ‬or the federal government.

a. If the defendant is convicted of larceny or forgery while on probation he shall be sentenced to no less than 2 years of his suspended time imposed.

b. No sentence imposed pursuant to this subsection shall be resuspended or run concurrent with any other sentence.

5.‭ ‬From the date of this agreement until the completion the probation period,‭ ‬the defendant waives all search and seizure rights as they pertain to his or her person,‭ ‬automobile,‭ ‬residence,‭ ‬etc.,‭ ‬and shall permit law enforcement officers to search same without first establishing probable cause.

E. Further Stipulations:

1.‭ ‬The defendant understands that‭ ‬possession of a firearm is a felony and unlawful possession of a firearm within 10 years of this conviction will result in a mandatory prison sentence.

2.‭ ‬The defendant agrees that he or she is‭ ‬satisfied‭ ‬with the services of his or her‭ ‬attorney and that‭ ‬no circuit court judge has participated‭ ‬in this agreement.

3.‭ ‬The defendant understands that the defendant‭ ‬waives the right to a‭ ‬public and‭ ‬speedy trial by jury,‭ ‬the right to‭ ‬confront witnesses and the right to requirement of‭ ‬proof beyond a reasonable doubt.

4.‭ ‬The defendant‭ ‬pleads guilty without threat or promises from any source other than this plea.

The following parties all agree to this plea agreement:

[signatures]

Defendant‭         ‬                 ‬   ‬‬         ‬ Date‭


Defense Counsel‭         ‬          ‬ Commonwealth Attorney


         ‬ Judge

I Hate New Blogger

New Blogger just ate every single last one of my links.

I was forced to shift over to this (I tried to do something one day and it started the shift). I was forced to open a google mail account in order to shift over to this. I am forced to have that cheesy, unprofessional looking black bar at the top of my blog - I went to transfer it to my own site (so at least the bar would be gone) but it won't let me because I was a blogspot+ member.

I thought about moving it over using Wordpress or Typepad, but neither works with New Blogger. I found a Wordpress method of transfer, but never was able to get it to transfer more than 12 months. I made multiple tries and usually only got three or four months.

So, I'm stuck. This cruddy background (all the selectable backgrounds are cruddy), will be gone as soon as I can rebuild a decent template and I will rebuild my links as soon as I can.

I apologize to everyone whose links were lost.

It's fixed. Hopefully, I won't do anything stupid and break it again. Any comments on the new design?

Of Cats and Men

Cats. They seem to cause all sorts of acrimony between people. Since I've been a prosecutor, I've talked to a number of citizens who are arguing over cats and want the prosecutors office to do something about it. Some make sense, i.e. "The lady in the trailer next to mine has at least thirty cats, they're in bad shape, and it stinks.", and some are things like a person upset that his neighbor's cat walks on his truck's hood. Generally, I refer them to animal control and defer to the officers' decisions over there; I'm sure they have a better handle on what the local animal control ordinances are than I do and are better able to decide what's a valid complaint.

Last week I'm sitting at my desk fighting the paperwork battle and one of the secretaries sticks her head in my office: "There's a lady on the phone who wants to know if a town can force her to keep her cat on a leash." Ummm . . . What do you say to something like that? "Tell her they can if the General Assembly has said they can." It was an accurate statement of the law because Virginia is a strict Dillon's Rule State. It also expressed the limit of my knowledge on that question (I must admit, I don't spend my time perusing the sections of the code having to do with leash laws since they don't usually come up in felony trials).

So, I did a little research and it turns out that a local town has passed an ordinance requiring that pets be under control at all times.

The ordinance makes it against the law "for any person to allow animals or poultry to run at large" within the corporate limits.

"Running at large means to roam, run, self-hunt or move in an unconfined manner while off the property of its owner or custodian and not under its owner's or custodian's immediate control," reads the ordinance.

I did a little more research. The General Assembly has allowed localities to require cats to be licensed. The General Assembly has also allowed localities to pass ordinances requiring dogs to be on a leash or otherwise restrained. However, I can't find an enabling statute for the ordinance passed by the town. I'm not sure that means it doesn't exist; the throwing in of poultry in the ordinance makes me suspect that the town lawyer may be relying on some sort of enabling statute allowing a "no farm animals in town" ordinance.

All I know is that I plan on moving back over the mountain sometime this Summer and, despite the fact that I've met a number of good people from that town, I can't move there now. My cats don't listen to me about much of anything. I have three purposes in life as far as they are concerned. 1) I open the door: to let them in when I get home and to force them to go out in the morning (it gets a lot like the Flintstones around here when it's a cold morning; one of my cats has actually mastered the art of spinning in mid-air as I toss her out and bounding right back in the door). 2) I provide food (and not just that dry cat food stuff; more than once I have gotten distracted watching TV and turned back around to find a cat's face in my glass of milk). I pet them (in fact, if I ever lay a book down while I'm reading a cat will come over and lay on top of it to make sure I know my priority is petting him, not entertaining myself). There's no way I can exercise the level of control the town wants me to over my cats.

Searches: How people get here

Every time I look at the search terms people look at to get here to CrimLaw I see some interesting things. Today is no exception.

an english perfect circle lammers I have no idea what that's all about

informants and snitch list for utah And why would I have that? And I sure as heck wouldn't publish it.

dismiss without prejudice nolle prosequi Same thing under Virginia law

proximate cause felony murder In Virginia you should probably go look at the murder cases involving res gestae (but not the hearsay exception) for an explanation of this

how did people find the February 2007 Bar exam Well, I don't know how they found the 2007 Bar exam, but in '99 yours truly found the Bar Exam by getting the address from the Bar and looking at a map.

Bryan Station Wins First Round

Bryan Station won its first round in the 11th regional playoffs yesterday 65-50 and moves on to face the winner of the Tates Creek / Madison Central Game on Saturday.

I also need to apologize to the Madison Central folks out there. Depending upon which news article I read over the last couple days Madison Central is also a top ten team (or in the low teens). So, that makes 5 of the best teams in Kentucky playing for the one slot to the Sweet 16 from the 11th Region.

Strange Stuff

1) If you can afford $75 a day, maybe you can buy the best jail cell available too.

2) Stealing hair from combs (in people's luggage) can get your probation revoked. Who knew?

3) What kind of sicko tells his two year old son, "Stab mommy"?

4) Don't tempt the reaper - or at least don't cuss out the judge. Bad things can happen thereafter.

5) You know, the only house I can remember from old sitcoms is the Brady residence. However, this guy obviously was looking for something a little Moore newsworthy.

6) Is there now a YouTube channel for catching criminals?

7) Trying to hire someone to kill the head of the NYPD = not a smart idea. Trying to do it while you're in jail and because of something you had nothing to do with = time for a mental exam.

8) Duuuude! If you're going to carry, like, a ton of marijuana up I-95 you probably don't want to crash into that parked State Trooper.

Basketball: The world is not a fair place

Today my high school (Bryan Station) plays its first game in the 11th regional playoffs. Kentucky has 16 regions and the winner of each region goes to Lexington to play in the Sweet 16 (the Commonwealth's championship tournamet). It's a system which guarantees teams from around the Commonwealth get to play, but it doesn't guarantee that the best teams are playing.

Take Bryan Station's region. Assuming that the higher ranked teams win tonight and tomorrow (yes, I know that's a dangerous assumption), the final 4 teams playing on Saturday will all be ranked in the top ten of the Commonwealth. #1 Scott County will play #7 Lexington Catholic while #3 Bryan Station will play #8 Tates Creek (it's actually kind of appropriate that the two teams everybody accuses of recruiting will play each other followed by a contest between the two teams everybody knows are home grown). In the end, three of the best teams will be out of the running. However, it should make for a heck of a regional tournament.

Virginia Supreme Court (Oct-Dec06)

As usual, I will not discuss sufficiency of the evidence arguments or arguments which the courts throw out on objection technicalities unless there is something highly unusual.

REVERSAL - Dupree v. Commonwealth No. 060216: Justice UNK

If a witness unexpectedly testifies in an adverse manner the party who called that witness can impeach him with prior inconsistent statements. It is not harmless error to deny the party who called the witness this right to impeach.

Molina v. Commonwealth No. 060267: Justice Lemons

When the rape statute refers to mental incapacity it is not refering to permanent incapacity but only incapacity at the moment.

Walker v. Commonwealth No. 060162: Chief Justice Hassell

If a set of facts is presented to the fact finder and the defendant is found not guilty of robbery he is not shielded from an abduction conviction by double jeopardy even if the detention would have been incident to a robbery. There are no double jeopardy concerns when one trial is for both charges.

REVERSING VaApp(en banc) - Bristol v. Commonwealth No. 060263: Justice Keenan

A person is not under arrest when an officer tells him he is; he is under arrest when the officer physically restrains him or he submits to the officer's assertion of authority. Therefore, an officer telling Bristol he was under arrest at the hospital, having Bristol's blood drawn, and then leaving Bristol at the hospital is not an arrest (Bristol did not go into custody until after he was indicted - 2 months later). Since Bristol was not placed under arrest within the statutorily required three hours of driving his certificate of blood analysis (showing BAC) should not have been admitted at trial and the heavy weight given to certificates under Virginia law means that such an error cannot be harmless.

REVERSING VaApp(per curiam) - Gillespie v. Commonwealth No. 060034: Senior Justice Russell

The Commonwealth is only allowed to introduce the defendant's convictions during the sentencing portion of a non-capital jury trial. It may not introduce any information concerning the sentences imposed for prior convictions (except in rebuttal if the defendant raises the prior sentences).

REVERSAL - Morris v. Commonwealth No. 052654: Senior Justice Stephenson

Felony Child Neglect requires that a person must purposefully act or omit an action in a manner so reckless as to foreseeably cause risk of injury or death. When a door is double locked and the 5 year old and 2 year old get outside without supervision anyway while the mother is sleeping so soundly that a police officer has to yell for several minutes to wake her it does not rise to gross recklessness even if the neighbors have had to return the unsupervised children to the house several times on different occaisions. Therefore, it is not child neglect.

Jones v. Commonwealth No. 052533: Justice Agee

Keeping a child in a house where drug dealing is taking place and unsupervised in a room with a bottle of heroin and a plate with cocaine residue is grossly reckless and the Felony Child Neglct conviction is sustained.

Gunn v. Commonwealth No. 052242: Justice Kinser

Proof that a teacher spent her own funds for student activities is not relevant to whether or not she misused or misappropriated a $30 check which should have been paid to the school.

REVERSING VaApp(en banc) - Moore v. Commonwealth No. 052619: Justice Carrico

An officer may not make an arrest unless authorized to do so under Virginia statutes and any evidence found pursuant to an unlawful arrest violates the 4th Amendment and must be excluded.

REVERSAL VaApp(unpunblished opinion) - Workman v. Commonwealth No. 052411: Judge Lemons

Prosecutor opens his file to the defense. Police learn, while investigating a different offense, of hearsay exculpatory evidence which they neither forward to the prosecutor nor investigate. Post trial, the defense learns of the evidence and investigates the evidence turning up at least 3 incidents which would badly impeach the prosecution's main witness. The conviction is reversed because the defense was entitled to rely on the "open file" for all Brady material and could have used the non-disclosed evidence to attack both the investigation of the crime and the prosecution's main witness.

This is a complex decision and good explanation of Brady requirements. It's worth reading in its entirety.

Dimaio v. Commonwealth No. 052556: Chief Justice Hassell

When company officers testified as to the monetary value of stolen computer files and stolen, paper non-compete contracts their claim that the value of each set of items is over $200 proves the monetary requirement for grand larceny and computer fraud.

Next Week: The decisions so far this year.

Moments in the Life

1) The receptionist tells me there's someone who wants to talk to a Commonwealth. I come out and there's a really nice older lady and her young-adult grandson; I take them into my office. Very quickly, I realize that they want to talk to me about his felony case. I stop them and tell them they need to have his attorney call me.

Lady: We haven't hired one yet. How much would it cost to hire you?

Me: (pause) ummm . . . Ma'am, I'm the prosecutor.

Lady: Oh, so that's what a Commonwealth does; I didn't know.

At which point I re-emphasized that they really needed to get a defense attorney and put him in touch with me.

2) I'm sitting in court when the judge calls a civil suit. I don't really know what it was about - some sort of trust issue, I think - but a girl who is obviously in high school walks up to the bench by herself.

Judge: Why aren't you in school?

Girl: Um, I don't know.

Judge: You are breaking the law right now. Go back to school and come back here at 3:30 when school lets out. I'll still be here.

Never seen a judge do that before and I've got to admit I was impressed (if for no other reason than that the judge would be willing to reopen his court at 3:30 to make sure this girl would go to school).

Time to See What the Court of Appeals has Been Up To (Oct-Dec06)

As usual, I will not discuss sufficiency of the evidence arguments or arguments which the courts throw out on objection technicalities unless there is something highly unusual. The judge in bold name is the author.

Bean-Brewer v. Commonwealth No. 1614-05-4: Judges Elder, Humphreys and Senior Judge Fitzpatrick

When a Commonwealth certified day care operator contravenes regulations by entrusting the care of young children to her 11 year old daughter and 8 year old son it is gross negligence and therefore her conviction for child negligence is affirmed.

Tynes v. Commonwealth No. 0754-05-1: Judges Kelsey, McClanahan and Senior Judge Willis

In order for the excluded evidence to be considered by the appellate court the lawyer must proffer what he expects it to be and how it admissible and relevant. Also, when a trial judge says “You have your objection on the record. Next question.” he doesn't really mean it and the lawyer should just keep on talking.

And I'm sure the trial judge will be sooooo understanding of why you are ignoring his directive to move on. Just ask Judge Kelsy to write you a get out of jail free card and I'm sure the trial judge will reconsider your contempt conviction.

Wright v. Commonwealth No. 2183-05-3: Chief Judge Felton, Judge Petty and Senior Judge Coleman

If the Virginia Code mandates conditions which are not included in a plea agreement the judge shall impose the conditions in addition to the plea agreement.

Mason v. Commonwealth No. 1466-05-4: Judges Elder, Humphreys and Senior Judge Fitzpatrick

1. Because 18.2-374.1(A) defines "'sexually explicit visual material' as 'a picture, photograph, drawing, sculpture, motion picture film, digital image or similar visual representation' depicting lewd conduct or sexual activity", a charge of possessing juvenile pornography can be brought for every single picture.

2. The appropriate jury instruction for lavascious is, "The word lascivious means a state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite." The descriptions of lavacious in prior cases are not exhaustive and therefore listing them would not create an accurate jury instruction.

Perry v. Commonwealth No. 2060-05-1: Judges Elder, Frank and Haley

No exclusion of evidence if Virginia law enforcement doesn't follow the knock and announce rule.

REVERSAL - Scott v. Commonwealth No. 2023-05-1: Judges Elder, Frank and Haley

If more than one crime is described in a statute a defendant cannot be charged with one crime and convicted of another. Under 18.2-91 burglary can be either breaking and entering at any time or merely entering at night (both with intent to commit a felony). Defendant cannot be charged with entering at night and convicted by evidence proving he borke and entered during the day. Reversed and indictment dismissed.

This could have been solved by the prosecutor amending the indictment during the trial. I think the prosecutor can just go back and reindict him under the Virginia Supreme Court's interpretation of double jeopardy.

Alston v. Commonwealth No. 0951-05-2: Judges Benton, Clements and Beales

The Virginia statute which requires a judge to add between six months and three years of supervision to a sentence if the judge did not suspend 6 months of the defendant's sentence, 19.2-295.2(A), is not a violation of Apprendi, Booker, et al. because it does not require a finding of fact to increase the sentence beyond that imposed by the jury.

This is a wierd statute. It reads like the General Assembly was trying to impose extra suspended time, but the statute never actually comes out and says that. All it imposes is supervision for a period of time. That being true, the only remedy for violation would be the judge finding the probationer in contempt.

REVERSAL - Eberth v. Prince William County No. 0406-05-4: Judges Elder, Humphreys and Senior Judge Fitzpatrick

Virginia statute allow localities to designate private roads with 100 lots public highways and to ticket cars without inspection stickers operating on them. PWC passed an ordinance designating private roads with 100 or more private lots or residences public highways and another ordinance allowing cars which park on public highways to be ticketed for not having inspection stickers. Both violated the powers granted by the General Assembly and therefore the ticket written for a car parked at an apartment complex is dismissed.

REVERSAL - McLaughlin v. Commonwealth No. 0250-05-3: en banc

The entire court adopts the panel's decision that CD's scattered in a car which are home burned and in slim cases are not sufficient grounds to commence a search.

Yeesh! If that's all it took there plenty of times officers could have searched my vehicle. Before I bought my Creative Zen, I used to have burnt CD's scattered all over my car. And before that there were the years and years of using tapes . . .

REVERSAL - Askew v. Commonwealth No. 1966-05-1: Judges Kelsey, McClanahan and Senior Judge Willis

The trial court does not lose jurisdiction to set bail during an appeal after the defendant notes his appeal or after the 21 day post trial period has passed.

Brooks v. Commonwealth No. 2195-05-1: Judges Elder, Frank and Haley

If a defendant does not notify the court or prosecutor that he wants to examine the expert who prepared a certificate of analysis (as required by Virginia statutes) before trial the defense waives its constitutional right to confront the expert.

McDuffie v. Commonwealth No. 0995-05-1: Judges Elder, Frank and Haley

Property in Wife's name is not co-owned by Husband. Therefore, Husband can be convicted of unauthorized use of Wife's car and destruction of her vehicle. Any property rights he might have in the vehicle do not vest until divorce.

Cost v. Commonwealth No. 2835-05-1: Judges Frank, Kelsey and Beales

If, during a Terry pat down, an officer feels pills in a pocket it is not enough to take the pills out of the pocket. However, the defendant reached for the pocket the pills were in twice and said “You can’t search me, but you can pat me down.” Therefore, the officer reaching into the pocket and seizing the pills (heroin) was valid.

I wouldn't rely on this decision too much until the Virginia Supreme Court has spoken (or refused to speak). It looks to be wrong. Reaching for the pocket is the reason for the Terry pat down; it doesn't justify a more intrusive search. Asserting one's 4th Amendment right doesn't justify an intrusive search either. And the officer even admitted the pills could have been legal drugs.

Villafana v. Commonwealth No. 2258-05-1: Judges Frank, Kelsey and Beales

In Virginia both the judge and jury consider the voluntariness of a confession. If the judge decides a confession is voluntary it is admitted into evidence. The jury considers the voluntariness when determining what weight and/or credibility to assign to the confession. Therefore, an instruction requiring the jury to disregard a confession if it finds certain factors is not valid.

REVERSAL - London v. Commonwealth No. 1224-05-3: Chief Judge Felton, Judge Petty and Senior Judge Coleman

"[W]here appellant continuously insisted that [Retained Attorney] would represent him at trial, where his family had actually retained [Retained Attorney] sixteen days prior to the scheduled trial date, where the trial court was notified by retained counsel of that event four days later, and where no prior continuances had been granted at his request, the trial court abused its discretion in failing to grant appellant’s motion to substitute [Retained Attorney], his retained counsel of choice, as his trial counsel, and in failing to grant him a reasonable continuance to prepare for trial. Code §§ 19.2-159.1(B) and 19.2-162."

And that's it for the last three months of 2006.

Upcoming Posts

Monday afternoon: The Virginia Court of Appeals October thru December 2006
Tuesday afternoon: The Virginia Supreme Court October thru December 2006
Wednesday: Of Cats and Men

Failed Attempt to Get Incriminating Evidence on a Defense Attorney

Police cannot find witnesses they need to prosecute a case (including the victim). They then listen to tapes of the defendant talking to his girlfriend and mother while in jail.

An officer swears out an affidavit for a search warrant to recover evidence tending to show that the defendant's lawyer is obstructing justice. The warrant is based on an affidavit stating that the jail tapes "discuss comments [the defendant, girlfriend, and mother] attribute to [the defense attorney] in which she said prosecutors would have to dismiss the charges if their witnesses fail to come to court."

Holy crud! If that's all it takes every defense attorney in the world can have a search warrant sworn out against him. Everyone who has done defense work has had a conversation go something like this:

Client: If my old lady doesn't come to court they can't make this charge stick can they?

Attorney: Probably not, but they'll subpoena her to be in court.

Client: I'll just tell her not to come.

Attorney: If you do that you'll be obstructing justice and catch another charge. And probably all it'd accomplish is cause the judge to grant a continuance, issue a capias, and make her testify or go to jail for contempt.

Client: What if she comes but refuses to testify?

Attorney: She'd go to jail. So would you if you told her not to. Joe, you can't tell her not to come to court or not to testify. Now let's discuss the police officer's statement . . .

Client: What if she never gets the subpoena?

Attorney: C'mon Joe, we have to assume she's going to be in court. And if you do anything to keep her out you have to assume you'll catch another charge on top of this one. It's not worth it. Now, we need to talk about what this officer says he saw . . .

Variations on that discussion happen every day between an attorney and his client. There's no way that this alone is enough to justify a search warrant.

The officer then calls the defense attorney and pretends to be one of the people whom the police cannot find. Assuming she tell him something wrong, he asks if he should avoid court. The only problem is, the defense attorney does the right thing: she tells him she's not his attorney and that if he has a subpoena he must come to court.

Oops.

I've had real versions of those conversations too. I can remember several times when a witness was so persistent that I told her, "Look, I'm not going to tell you to break the law. In fact, I'm obligated to tell you that if you have a subpoena you have to come to court. You are required to come to court."

The Vermont Defense Bar is outraged. On top of that, unless there's a lot more here than this article lays out (and anyone who has seen one of his trials described in the news knows that is entirely possible), the judge and investigating officer have a lot of egg on their faces.

link via: Law of Criminal Defense

If You Need to Advertise Your CrimLaw Firm

You can go to Spot Runner and use their premade ads (search for criminal law).

Personally, I think the Wildebeast ad is the best.

Basketball

Well, Center won against Capital on Friday without too much trouble. It's prize? Saturday night it got to play the #2 NCAA III basketball team. The first 10 - 15 minutes were pretty good, but then Wooster took the lead and just kept going.

Congrats to the Basketball Colonels for a great year.



Bryan Station (#3) played Scott County (#1) on Friday night. I spent a frustrating 45 minutes or so trying to find it being streamed on the net, but the radio station which got to play the game was such a low level channel that it didn't even have a stream. So, all I got to see was 5 seconds on the 11 o'clock news. Scott County won 74-69. Now on to the Regionals for both teams where, hopefully, Bryan Station will get one more shot and finally take Scott down.

It looks like the unpopularity of Tubby may finally be catching up. UK has slowly faded from a top tier national team to a second rate team in the SEC. Sure, they win a lot of games, but they are no where near a NCAA Final Four finish. Smith would be considered an amazingly good coach at any second tier school, but his record wouldn't be acceptable at any of the top level programs.

Of course, no coach is ever going to live up to the demands of Kentucky fans; they want the Final Four every couple of years and a championship at least twice a decade (and I'm not sure they'd be happy with that). Not sure there are many people who are suicidal enough to want to step into that situation. I think Smith will weather this storm and have a year or two more to try and right the ship.

Let it Snow, Let it Snow, Let it Snow!!

Fred (my lab) was pitching a fit and trying to bust in my front door this morning and I quickly realized why - it was snowing big time. I jumped up, grabbed my camera and took a bunch of pictures of the snow.

After I realized that the first set of pictures were all blue (still not sure why), I reset my camera and ran back out but the snow had slowed considerably so the pictures aren't a s dramatic.

It snowed for at least a hour more but not as heavy and nothing stuck. Still, snow in March is cool.

A Question of Qualification

If a chief of police falsified parts of his resume in order to get his job does it invalidate arrests he made?

Would your answer change if you found out that the city's police dog has degrees from the same school as the police chief?

Gang / Drug Econ 101

Warning: Language - Among other things, at the end of the video this nerdy, white professor guy uses the word that white people are forbidden to use. He's reading a gang member's statement as part of an example proving a point. Still, those easily offended may want to close their ears.

The model proposed by the professor is an interesting one. I think it's somewhat flawed - maybe because it's dated, maybe because it's a localized example.

The major flaw that I see is that he probably understates the situation of the lowest level dealers. He points out that the actual rate of pay is less than minimum wage. That's quite possibly true. However, I think there is more to the "indentured servant" angle than he discusses. Often, the lowest level dealers are dealing as much to support their habit as to make money.

In an extremely simplified example, the bottom rung guy buys (or is fronted) five rocks with the intent to use two and sell three. He buys all five for $100; he spends the night hanging out on the street and sells the three for $40 each. Thus he gets a $20 profit and he gets to get high. McDonalds could probably offer him more money and even a higher chance at promotion (although, let's be honest, it is harder work). However, flipping burgers doesn't give him crack for his own use. He's going to go back again and again to the same mid-level dealer so that he can earn some money and feed his addiction.

Found at Tom's Place

Bryan Station moves on to the District Championship

Bryan Station destroyed Sayre last night 84 - 29.

Next up is #1 ranked Scott County.

Go Defenders!!