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.