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).
---------- ---------- ----------
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.
28 September 2007
26 September 2007
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!!"
"I DON'T LIKE YOU!!"
25 September 2007
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.
========== ========== ==========
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.
24 September 2007
Bully for Arizona!
The Arizona Supreme Court has held that federal lawyers without Arizona licenses are the same as all other lawyers without Arizona licenses. They don't have the privilege of walking before a State judge whenever they want to.
Dumb Criminals of the Month
Stealing copper from a building the police are using in a K-9 exercise might not be the brightest thing in the world. However, I think the lady who wore the fake bomb to the airport is stupider.
What Can a Man Do?
This poor guy keeps getting arrested because a thug out there has the same name and date of birth.
India: Supreme Court Overturns Contempt Charge
The Indian Court admonishes its lower courts for being too sensitive.
Geez, Rich People Are Spoiled
If your kid commits burglary (breaking into a school to steal tests) should you get upset if all he's facing is a misdemeanor without the threat of jail?
Priests are Sinners Too
Of course, that's just common sense. Nevertheless, you do not expect one to break a bottle of wine over a woman's head.
Law Trumps Doctors
A court says that no matter what the State medical board says, if the law says a doctor must be present at an execution a doctor must be present at an execution.
Fake Bomb at Airport: Art or Stupidity?
Well, she's an MIT student, so she shouldn't be too dumb. However, wearing a fake bomb to an airport makes you wonder if she was trying for a Darwin award.
21 September 2007
KL: KrimLaw?
Y'know, looking at the new graphic with my initials behind CrimLaw, it strikes me that I could have called this KrimLaw.
Hmmm . . .
Naw, too late now.
Hmmm . . .
Naw, too late now.
20 September 2007
Death by Rodrigo
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 Death by Rodrigo a 1.8: it had a core story which could have gotten very interesting if it had been explored - instead it concentrated on peripheral clutter and the story died.
The story is about two lawyers who get themselves in trouble when they agree to represent a foreign drug dealer in federal court, basically taking a lot of money on the promise that they would get him a bond. They can't and credible death threats follow. They also have a local client whom they represent who has his entire criminal enterprise rolled up and is extremely interested in keeping them alive.
At its core, this is a very interesting concept. The problem is that it ends up being an excuse. The focus is on the dysfunctional attorneys. We spend far, far too much time being told of the homosexual lifestyle problems of the primary attorney. I kept wanting to scream "I don't care, get back to something pertinent to the story!" We spend nearly as much time reading about the other attorney's relationships with women. The way the lawyers are described was offensive - one failed the bar twice, the other only failed it once and neither of them bother to keep tabs on the law or write their own briefs (and these were attorneys who looked down their noses at the court appointed attorneys). What they're good at is manipulating the judge. The ads for this book talk about how funny it is, so I guess this stuff was supposed to be caricaturized and bigger than life to add humor to the book It did not work.
I think that this is supposed to be the first book in a series. Hopefully, in the future the author will back away from the descriptions of the characters' lives and concentrate on the story at the core. I kept waiting for it to happen in this book. I knew that, as in all books of this type, I was going to have to wade thru some setup as the characters were introduced. I almost didn't make it, but I kept looking forward tot he moment the story would actually break thru and I'd be reading about the dealer who has threatened to kill them and the local crime lord who is trying to keep them alive and how all that would play out (especially with a smart crime lord who gets an ace in the hole). Had this book been edited to throw out about half the personal stuff and the author been pushed to elaborate on the drama at the core it could have been very good.
17 September 2007
You expect this at a place with a name that ends in Mart
Not at Tarjay (that's Target for those who don't pretend that they know French or that Target is a snooty place to shop).
14 September 2007
Email Request for Help
This request was in my email when I opened it this morn:
John,
Please be advised that I am now a prosecutor and you should take anything I take with a grain of salt. Also, (I have to say this) THIS IS NOT LEGAL ADVICE, I have neither done any research nor spoken to anyone about the facts which will be determinative in your case. This is entirely off the cuff and you may want to ask a defense lawyer before you proceed.
That said, if your county has one, I'd advise going to your local law library and getting a look at one of the books containing statutes (or maybe a law school library). They usually have short synopses of cases after the statute which give information about how courts have done things in the past. If you don't have a law library near, you might look through Virginia's free listing of cases (which can be found thru FindLaw) or you might try one of the online legal services. WestLaw and LexisNexis are probably too expensive (might as well hire a lawyer) but I think that a service like Versuslaw might be affordable (the only reason I site it by name is because I used it when in private practice, there are others which might be better, I don't know); you would probably have to search for "reckless driving" and spend time slogging through a whole bunch of cases. Personally, I would recommend going to a library if at all possible.
If you cannot afford a lawyer, you may want to ask for a court appointed attorney. The advantage there is that he knows the law and the judge and the prosecutor. He'll know if the argument you want to make has been tried 17 times and shot down by the judge each and every time, or if the judge has kicked out 3 cases in the last week for the exact same reason as you think yours should be thrown out. That kind of knowledge can't be gained through research, you just have to be the person who's in court every day.
ken
Hi KenMy answer:
I came across your blog today in researching reckless driving, specifically the charge: 46.2-852.
Do you know how I can research case law on overturned or dismissed reckless driving cases for this Virginia code section? What I did was not reckless driving and I would like to argue this myself. I just don't have the funds to pay for an attorney to defend me on this.
I know I want to read Powers v Commonwealth and Kennedy v Commonwealth, but do you know how I can find more cases to help me build a defense?
Sincerely
John Smith
John,
Please be advised that I am now a prosecutor and you should take anything I take with a grain of salt. Also, (I have to say this) THIS IS NOT LEGAL ADVICE, I have neither done any research nor spoken to anyone about the facts which will be determinative in your case. This is entirely off the cuff and you may want to ask a defense lawyer before you proceed.
That said, if your county has one, I'd advise going to your local law library and getting a look at one of the books containing statutes (or maybe a law school library). They usually have short synopses of cases after the statute which give information about how courts have done things in the past. If you don't have a law library near, you might look through Virginia's free listing of cases (which can be found thru FindLaw) or you might try one of the online legal services. WestLaw and LexisNexis are probably too expensive (might as well hire a lawyer) but I think that a service like Versuslaw might be affordable (the only reason I site it by name is because I used it when in private practice, there are others which might be better, I don't know); you would probably have to search for "reckless driving" and spend time slogging through a whole bunch of cases. Personally, I would recommend going to a library if at all possible.
If you cannot afford a lawyer, you may want to ask for a court appointed attorney. The advantage there is that he knows the law and the judge and the prosecutor. He'll know if the argument you want to make has been tried 17 times and shot down by the judge each and every time, or if the judge has kicked out 3 cases in the last week for the exact same reason as you think yours should be thrown out. That kind of knowledge can't be gained through research, you just have to be the person who's in court every day.
ken
12 September 2007
Found on Craigslist
Hello,
I have 420 shrubs for sale. They are from Arizona and have a very nice pungent smell and citrus like flower to them. Available by the quarter acre plot for 60, half acre plot for 100 and whole acre plot for 180. Also would consider BARTERING for finer shrubs. No phone. Please email.
Thank you
Juan
Four twenty, four twenty
Location: near Trenton, NJ
Why not just put an ad in saying "Please come arrest me." Police can read and use the internet, y'know.
I have 420 shrubs for sale. They are from Arizona and have a very nice pungent smell and citrus like flower to them. Available by the quarter acre plot for 60, half acre plot for 100 and whole acre plot for 180. Also would consider BARTERING for finer shrubs. No phone. Please email.
Thank you
Juan
Four twenty, four twenty
Location: near Trenton, NJ
Why not just put an ad in saying "Please come arrest me." Police can read and use the internet, y'know.
We're in Good Company
It looks like human males aren't the only ones who do stupid, dangerous, and illegal things to impress females. Chimps steal in order to give gifts to and get attention from "females of reproductive age."
They're Rewriting the Iowa Criminal Code
Because, unlike Virginia, they didn't perfect it prior to the signing of the constitution.
11 September 2007
Confession is Privileged
As long as it is to your priest, but not if it is to God by way of a journal.
Accidently Poisoning an Officer
An officer arrested a McDonalds worker after she "spilled" so much salt on his hamburger that it made him sick.
I don't know if it's provable, but we all know why the officer arrested her. Officers and criminal attorneys get paranoid about where they eat. As recently as yesterday I was warned not to get food from restaurant X and last week I stopped going to my favorite breakfast place because of one person now employed there (the same sort of thing used to happen when I was a defense attorney). If you ask around, I pretty much guarantee that you can scare up stories about offender Smith working at restaurant X and putting stuff in food meant for an officer or attorney.
I don't know if it's provable, but we all know why the officer arrested her. Officers and criminal attorneys get paranoid about where they eat. As recently as yesterday I was warned not to get food from restaurant X and last week I stopped going to my favorite breakfast place because of one person now employed there (the same sort of thing used to happen when I was a defense attorney). If you ask around, I pretty much guarantee that you can scare up stories about offender Smith working at restaurant X and putting stuff in food meant for an officer or attorney.
Overruling the Jury: Federal Sentencing for Not Guilty Offenses
Yeah, I know, it sounds pretty dang unconstitutional to me too. Especially now that it seems abundantly clear that "discretionary" federal sentencing means the discretion to increase a sentence, but not decrease it.
Hmmm . . . Don't Judges Have Sovran Immunity?
I must admit, I've never considered suing a judge because he made a ruling against me.
Recent Meme: It's too expensive to punish those who break the law
Y'know, the same folks who are griping today about the rate and cost of incarceration will being screaming bloody murder 15 years from now after the sentencing laws have loosened and the crime rate increases.
Thief With a Conscience
Never seen any case wherein the thief gets a case of the guilts and returns the stuff (without being caught).
10 September 2007
FREEZE!!! You're Under Arrest! (oops, our bad)
The police didn't do anything wrong here, but if somebody called and reported I was a bank robber, I'd want to know who and why.
No Religion in Prison
Ordered to remove all the religious literature unless it is "approved."
Hmmmm . . . Is that a prohibition on "the free exercise thereof?"
Hmmmm . . . Is that a prohibition on "the free exercise thereof?"
Taping Attorney-Client Conversations
The article is a little unclear, but it appears a prosecutor ordered the jail to tape all the defendant's conversations. There's no clarification whether the prosecutor meant to get the attorney-client conversations or whether he just assumed the jail would know he meant tape all legally tapeable conversations.
Gotta say that the remedy I see here is a special prosecutor, not a dismissal.
Gotta say that the remedy I see here is a special prosecutor, not a dismissal.
07 September 2007
Judge Humphreys is da Man!
Jay Martelino, with whom I used to practice in many of the same courts, called me yesterday with the good news - He had finally gotten a court to listen to reason in its interpretation of Virginia's burglarious tools statute.
Despite its moniker, this statute criminalizes more than just burglary tools. It was a most annoying statute because it also criminalized tools, implements, and outfits used in a larceny. Consequently, every shoplifter who stuck a shirt in a plastic bag got charge with both the larceny and possession of a burglarious tool (the plastic bag). Although the majority of burglarious tools charges were bargained away fairly quickly by the prosecutors, I can remember arguing (back when I was a defense attorney) several times that the statute didn't apply to items of general use (such as a shopping bag), but items of specific purpose (such as a screw driver). Usually, the prosecutor would point to the one case from the court of appeals in which an offender was convicted of burglarious tools because of his pants. I would point out that the pants were specifically altered and that's the reason for the conviction. I lost every time. Unfortunately, I was never able to get that statute before an appellate court on appeal.
Jay did. And he convinced Judge Humphreys, who wrote an amazing opinion which is spot on.1 It was almost the exact same argument I made over and over in court, except the portion about legislative history. That part was pretty obscure and a good catch by whoever found it.2
1 Yeah, I know, I shouldn't be happy about this now that I'm a prosecutor, but you have no idea how much the application of this statute annoyed me. Anyway, nobody out here uses it, so we're not losing a common charge like we did when obstruction of justice was gutted in Jordan.
2 No, I'm not saying I now agree with legislative intent arguments (which is what a legislative history argument basically is). I just think that somebody through through hard work or luck - probably a little of both - made a good catch which strengthened the textual argument.
Despite its moniker, this statute criminalizes more than just burglary tools. It was a most annoying statute because it also criminalized tools, implements, and outfits used in a larceny. Consequently, every shoplifter who stuck a shirt in a plastic bag got charge with both the larceny and possession of a burglarious tool (the plastic bag). Although the majority of burglarious tools charges were bargained away fairly quickly by the prosecutors, I can remember arguing (back when I was a defense attorney) several times that the statute didn't apply to items of general use (such as a shopping bag), but items of specific purpose (such as a screw driver). Usually, the prosecutor would point to the one case from the court of appeals in which an offender was convicted of burglarious tools because of his pants. I would point out that the pants were specifically altered and that's the reason for the conviction. I lost every time. Unfortunately, I was never able to get that statute before an appellate court on appeal.
Jay did. And he convinced Judge Humphreys, who wrote an amazing opinion which is spot on.1 It was almost the exact same argument I made over and over in court, except the portion about legislative history. That part was pretty obscure and a good catch by whoever found it.2
1 Yeah, I know, I shouldn't be happy about this now that I'm a prosecutor, but you have no idea how much the application of this statute annoyed me. Anyway, nobody out here uses it, so we're not losing a common charge like we did when obstruction of justice was gutted in Jordan.
2 No, I'm not saying I now agree with legislative intent arguments (which is what a legislative history argument basically is). I just think that somebody through through hard work or luck - probably a little of both - made a good catch which strengthened the textual argument.
06 September 2007
UK: DNA Them All, Let God Sort Them Out
After all, the only people it'll used against is the criminals and if you're not a criminal you don't have anything to worry about.
Or do you?
Or do you?
HOW STUPID CAN YOU BE?
If you commit the perfect murder, you do not write a "fictional" book explaining how you did it.
Federal Judge: No Retroactive Application of Ohio's Sex Offender Restrictions
The judge says that offenders convicted before the law went into place can't be kept from living in places the law forbids.
Court to Feds: You WIll Play Nice
You are deemed to have done what the cooperation agreement implies you would do, even if you didn't.
Sex Offenders
Yet another study showing sex offenders are less likely than most offenders to reoffend.
Mark talks about how all this has caused an irrational - and probably unhealthy - shift in the way children are taught to deal with men and men learn to behave toward children. He blames this, at least in part, on a misperception of what a male is.
I have a hard time judging all this. I know that my experience in criminal law has colored the way I view the world. Personally, I used to love to babysit and play with kids; now, I still love playing with kids, but I don't feel comfortable being left alone without at least one (preferably two) adult witnesses nearby.
Mark talks about how all this has caused an irrational - and probably unhealthy - shift in the way children are taught to deal with men and men learn to behave toward children. He blames this, at least in part, on a misperception of what a male is.
I have a hard time judging all this. I know that my experience in criminal law has colored the way I view the world. Personally, I used to love to babysit and play with kids; now, I still love playing with kids, but I don't feel comfortable being left alone without at least one (preferably two) adult witnesses nearby.
Use of the Internet Does Not Automatically Mean It was Interstate
Ummmm . . . Okay . . .
I guess it's possible that information packets only traveled within the State. Highly, incredibly unlikely, but possible.
I guess it's possible that information packets only traveled within the State. Highly, incredibly unlikely, but possible.
UK: Man Avoids Prison: Newspaper Doesn't Make it Clear Why
Because he'd been arrested and held in jail on other charges he can't get time on this charge?
Anybody know why? Had an SOL run?
Anybody know why? Had an SOL run?
05 September 2007
Pony Theft
Okay, as someone who grew up watching Westerns, I know the appropriate way to handle horse thieves involves a hangin'.
If it's a pony are we only supposed to hang-em half way?
If it's a pony are we only supposed to hang-em half way?
Suckered: $180 and the Informant Didn't Get Drugs
Somebody in the drug enforcement division took a lot of ribbing for turning in 5.9 grams of bread crumbs to the lab.
Thieves Get a $10,000 Bicycle
No, not a motorcycle, a bicycle.
For $10,000 a bike had best pedal itself and make the owner irresistible to the opposite sex.
For $10,000 a bike had best pedal itself and make the owner irresistible to the opposite sex.
The BLADE MENACE
What happens when they take away the guns? The "Blade Menace" replaces the gun problem.
What happens when they take away the knives? The "Stick Situation" replaces the blade menace.
What happens when they take away the sticks? "Ferocious Fists."
Et cetera
What happens when they take away the knives? The "Stick Situation" replaces the blade menace.
What happens when they take away the sticks? "Ferocious Fists."
Et cetera
Assault by Client
And he even finished the case.
I must say I admire that, but wonder if it doesn't set up a perfect habeas.
I must say I admire that, but wonder if it doesn't set up a perfect habeas.
Ummm . . . Smooth Move Slick
Calling the judge and threatening him before the sentencing doesn't get you a new judge - it could, however, convince the judge that you are a danger to society who needs to spend a long time in prison.
Preacher Robbed
Because the sin of theft wouldn't get the offender condemned to H3ll quick enough - he wanted the upgrade.
04 September 2007
No More "Missing Staple" Appeals
Yes, it is time to say goodbye to the cherished ability to appeal a case because a staple was missing.
DNA Clears Death Penalty Convicts
The DNA evidence was excluded at trial, but the Thai Supreme Court isn't having it.
Fourth Amendment.com
Three interesting posts:
Corroborating non-illegal details is not enough to say that the illegal part of a statement is true - search warrant bad.
If you put the person you are questioning in the police car it becomes an arrest.
Can't search someone when you are only able to issue a civil citation.
Corroborating non-illegal details is not enough to say that the illegal part of a statement is true - search warrant bad.
If you put the person you are questioning in the police car it becomes an arrest.
Can't search someone when you are only able to issue a civil citation.
Yard Sign: My Neighbor Deals Drugs
It might drive him out. Then again, it might bring every druggie in town to your street.
Return Address Adress
If you have your picture published in the newspaper because the police are looking for you,it might not be a good idea to put a return address on the envelope when you write the editor to complain.
Persistence Doesn't Pay Off
3 times they've charged her with murder and three times the judge has shot it down.
Texas: Loosening the Law, but Maybe Not Enforcement
Just because you give the officers an option to issue a summons doesn't mean they will.
Not Terribly Shocking: Murder Victims Usually Have Records
I know that, to those of us who work in criminal law, this seems as much a truism as "water is wet" or "ice is cold." However, apparently it's a revelation to USA Today.
Figure the odds of ever seeing this as the first line of an article in a US paper
"POLICE bungling has forced a judge to throw out video evidence of a man telling Perth police it was possible he had done something to the eight-year-old girl he is accused of raping and murdering."
Holy crud! Not so fond of the police in Australia.
Holy crud! Not so fond of the police in Australia.
Brazil: The Courts Are a Little Different Here
The Supreme Court indicts 40 people on corruption charges.
Donated Phone and 911 Crank
Ever wonder why some places send an officer first before they deploy other emergency vehicles and personnel? It's because people like this guy placing 2,000 fake 911 calls using a phone donated to the homeless.
Double Jeopardy and the Hung Jury
Three days of deliberation isn't enough. There must be proof that the jury hung or double jeopardy applies.
Sue the Guy in Prison
Two officers sue the kid who stabbed them while he's in the middle of his imprisonment.
ZDo you think the lawyer is working for a percentage? Probably not much money there.
ZDo you think the lawyer is working for a percentage? Probably not much money there.