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?
31 October 2007
30 October 2007
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.
Now back to our regularly scheduled show.
From the Front Lines of the Pot Rebellion
In Oregon the medical marijuana excuse program spins madly out of control.
STEAL THIS BOOK
Ok, he took your invitation, what do you do now? Can you even file criminal charges?
I Thought Jail Breaks Like This Only Happened on TV or in Comics
However, they also apparently happen in Belgium.
23 October 2007
21 October 2007
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.
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.
18 October 2007
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?
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?
16 October 2007
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.
15 October 2007
14 October 2007
13 October 2007
09 October 2007
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.
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.
06 October 2007
04 October 2007
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.
03 October 2007
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).
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.
02 October 2007
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.
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.
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