30 April 2007

Yet Another Attempt to Understand Justice Thomas

When's the last time the Washington Post ran an article talking about the dysfunctional elements and aspects of the family relationships of a white justice?

Not that any of the Justices should be off limits, but this meme got old a long time ago.

via CrimProf Blog

25 April 2007

Running from Court

It's actually kind of amazing that you don't see more guys trying something like this. I've been in any number of courtrooms where the defendant could have bolted and once he got out of the courtroom had about an 80% chance of getting away.

23 April 2007

Around the Web

1) There's a reason that car-surfing is stupid - for the driver as well.

2) Is Venezuela putting up a balloon to track drugs or to become Big Brother?

3) Showing your ass in court.

4) What happens when the police catch their lab faking drug tests?

5) Shooting the judge and asking to get killed.

6) Story 1 - It was a dungeon he built to keep girls captive. Story 2 - The girls stole drugs from the hole where they were hidden and told the police they were raped because they were scared he would hurt them for stealing it. Which would you believe?

7) Ummm . . . When you work at a jail and get an court order via fax from a grocery store with spelling and grammar errors - you might want to think twice before you let the prisoner go.

8) If you are a policeman and steal money during a raid you might want to dump the money somewhere before your supervisor orders all the people who participated searched.

9) Milwaukee going down hill fast - "aggravated assaults are up 86 percent in Milwaukee."

19 April 2007

A Tech Professor from New Zealand Tries to Explain US Gun Philosophy

"Virginia is still a southern state and has a southern state mentality. There are many Americans who believe that if they were more liberal and there were more guns then these incidents wouldn't get out of control."

"A lot of people believe that the terrorist hijackings of 9/11 could have been prevented if passengers were carrying firearms. That's their logic."

Skelly Finds a New Hire

Skelly has found a new guy he wants to hire, because this god who walks among men would single-handedly solve all the problems that Skelly and his ilk (y'know the factory rejects who wouldn't even know how to get to the courtroom if the secretary hadn't sewn a map on the back of their ties) cause for their clients by not being trust-fund babies with 4.0 GPA's from Yale.

And I'm sure the only reason he refused the drug test was on principle . . .

Yeah, that's the only reason . . .

There couldn't be any other reason; at least I can't think of one.


1) A father scalds a kid to death and it keeps out her claims of rape against mother's boyfriend. Now he'll get sentenced for the murder.

2) A guy dug out and built a room under his house so he could keep his rape victims captive there.

Ever Wonder What the Easter Bunny Does the Rest of the Year?

A guy sticks his hand down a rabbit hole and finds drugs - while the police are on the scene recovering a stolen car. The judge says he doesn't believe the guy knew the drugs were there because no one would be that stupid. But when the guy then tried to keep the drugs . . .

18 April 2007

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 Courtroom 302 a 3.99. I didn't start to reread it instantly, but it is the best description of a busy courtroom that I've seen portrayed and it's written in a style which drives home the realities of such a court.

If you read some of the reviews at Amazon you will get the impression that this book carries a bias. I think that's right. It carries a bias toward the courtroom ideal which we all wish existed. A courtroom where there is plenty of time to explore each case in depth, where the court actually has the ability to solve the underlying problems which cause crime, where those who do a crime are always punished appropriately, and where everyone leaves the courtroom satisfied. Of course, it just doesn't work that way. Every court in the country worries about its docket and a lot of cases are concluded without anyone taking a look at the case in much more than a superficial manner. The prosecutor reads through a police report and makes an offer, the defense attorney talks to his client and conveys the offer, the defendant takes the offer because his only real concern is getting out of jail, and the judge approves the deal accepting at face value the facts as stipulated by the parties (which are the facts as the prosecutor would explain them). Then they move on to the next case. It's the way things work in the real world.

Author Steve Bogira sometimes conveys how everyone is in this system together. At other times he picks at inconsistencies he finds between the statements made by various parties and the way the way things have actually been done in the courtroom (he calls people on the kind of throwaway comments we all make which don't match so well with reality); he is able to do this because he talks to various parties involved and he often has a fuller picture of what happened then anyone else in the courtroom.

Bogira talks to and about the various people in the courtroom including defendants, victims, deputies, prosecutors, defense attorneys, and the judge. Sometimes he just accepts what people tell him and sometimes he delves more deeply into potential motives. Low level defendants did not seem to have their stories examined as closely – probably because most of them were uncheckable – but he does follow up on their failures post trial. Attorneys on both sides get a fair amount of attention as to their acts and motives. However, by far the person who receives the most attention is the judge. The reason for this is apparent; he's the person involved in almost everything that happens in the courtroom. Additionally, the judge is coming up for re-election and has a nasty, emotionally charged trial with political implications just before voting will occur. It makes for great drama, a lot of innuendo and implications as to why this or that is happening, and some directly conflicting statements as to what actually did happen between the judge and the attorneys. And, oh yeah, throw in a Mob family to boot.

Altogether, it's a very good read which I recommend to both lawyers and lay persons.

16 April 2007

Should There Be Oral Arguments on Appeal

HOWT's posting on the grading of appellate arguments brought a question to mind: Should there be oral arguments in appellate courts?

After a little thought, my answer is that there should not. My primary argument for this is that appellate court decisions are supposed to be dispassionate, considered, legal decisions. An oral argument is necessary in an actual trial because the time is not available to write out legal briefs for every issue that comes forward during a trial. However, appellate courts and parties do not face this dilemma; they have months to research and brief pertinent legal arguments. Basically, an informed, intelligent, and full argument is better made on paper instead of in front of a panel of judges.

Why do we have oral arguments in the appellate courts? With my imperfect understanding of the evolution of Ameri-English jurisprudence, I think they are a relic of times long past when they were necessary. In my head I see a peasant whom the sheriff has decided owes 6 loaves of bread a week as tax going in front of the local nobleman and "appealing" this decision on the one day a month the nobleman has set aside for this sort of thing. Or, perhaps it comes from a time when a trial took place in one corner of a province and the court which sat in appeal was in the center, without reliable mail service and days away by horseback, so that the attorney actually had to travel to the appellate court and make his argument in person.

Whatever the reason that oral arguments came into being, the main reason that attorneys still like them is that they convey prestige upon those who are called to argue in front of the judges. By implication when an attorney is called before the appellate panel his arguments have intrigued the judges or he's put forward an issue of significant legal importance, or the attorney is so well respected that his name alone carries sufficient weight to cause the judges to docket it; in reality, all three probably weigh in to every decision to accept an appeal (this is, of course, not counting those courts required to take appeals). In any event, they are basically rewards; a notification to other attorneys that this guy is significant enough to argue in an appellate court. Don't believe it? Walk into the office of any attorney who has argued in the federal supreme court and see if he doesn't have a white feather around.

Why don't the judges push to do away with oral arguments? I'm not sure. Perhaps it is because they are lawyers too and have been trained to unquestioning adhesion to procedures as they have always been. Perhaps because life as an appellate judge could get mighty boring without oral arguments; they'd spend all day, every day in a law library or in front of a computer without much contact with anyone.

My secondary argument against oral arguments is that they don't seem to have any positive effect. I remember reading a quote from a Justice when asked if oral argument had won a case that none had, but that some had lost the case. I've only argued one case in front of an appellate court, but I've seen a number of others. I've never seen a case where it didn't seem like judges/justices hadn't already staked out a position prior to the beginning of argument. In the modern era of attacking judges even if only one or two have chosen a position an attorney isn't going to get the chance to persuade anyone; he will be hectored from the moment he starts with questions.

In the end the question really is: What's the point? Setting up and carrying out an appellate oral argument which end up being incomplete snatches of the argument as a whole makes little sense. Appellate courts would run far more efficiently if they relied solely on briefs or if there was a presumption against oral argument which could only be overcome if 2/3 of the judges on a particular panel voted to have one (of course, think of the prestige that would attach to an oral argument in that system). Oral argument fits far better in a trial court where there are arguments of the moment and attempts to sway the fact finder(s) as to what the actual facts are. In an appellate court, where the facts have already been pre-decided, it would be better to rely upon well briefed, complete arguments in a written format.

*** Of course, this is a step back and consider it all argument. If the federal supreme court should decided that I will have the privilege of arguing in front of it I'm not going to turn them down. ;-)

Flood '07

I woke up yeaterday to find that half my yard was flooded. You can see where it was particularly deep, but as I walked out into it everything from about ten feet from the house had about an inch on it.
Here you can see Spot, who's not exactly sure what to do about all the water.
Thankfully, the water didn't get totally out of the banks of the stream in front of my house. However, as you can see, it had maybe an inch or two more before it would have been entirely out of its banks.

11 April 2007

Beware the Bat

I was looking for something else and found a fan made trailer for the very first Batman movie ever made.

It brought to mind my favorite fan film, another Batman genre trailer, Grayson. It is great and I suggest actually going to Untamed Cinema and downloading the video to watch it instead of the YouTube copy. Just imagine this story if DC bought it and got someone like Industrial Light and Magic to do the effects. They'd probably have to trim it a little as I suspect that all the plotlines which are suggested by the trailer would take at least three hours to play out, but at core it is an very good concept.

And, finally, I include this video solely for Steve (possibly the world's biggest Batman fan). It's a pirate video of the a trailer for the next Batman movie. It's primitive because they haven't added any of the special effects in yet, but I knew Steve would want to see it anyway (and maybe so will some of you).

10 April 2007

Analyzing the Prosecutor Friendly Judge

Just because a judge usually hands down harsh sentences doesn't mean he's on the side of light and goodness:
Mob leaders [in Chicago] had long advised their allies on the bench to favor the state in most cases. . . Murray Humphreys, the mobster in charge of corrupting public officials in Chicago from the 1930's to the 1960's, encouraged mob-tied judges to cultivate reputations as hanging judges. Then . . . such a judge could do a favor for the mob, and if someone critisized him, he could just say, "Look at my record; look at my statistics. You can't pick out this one case."

Courtroom 302
That's a little disturbing no matter what side of the bench you stand on.

09 April 2007

Around the Web

1) Richmond police are arresting people who cam from NYC. Not really shocked by that. I represented any number of people who came to the Richmond area from NYC or New Jersey. They were the ones who were absolutely shocked that Virginia would expect them to actually serve time in prison on their 17th felony.

2) Apparently they're trying to outlaw spanking in New Zealand and the organizations pushing it are starting to feel the backlash.

3) A man who is lucky to be alive gets 16 years in prison (that many drugs that fast and he's lucky that the only thing he did was regurgitate).

4) Your pretend gun doesn't work too well when the store owner has a real one.

5) On Thursday, the Supreme Court of Kentucky will hear a "suicide by court" case.

6) Risk your own life. But if you kill a kid you deserve the maximum punishment.

7) Y'know, we don't use Craigslist around here much, so I never knew about the teenage hookers.

8) Hey! All that grading stuff was supposed to end when edumication were finished - ain't no Supreem Coort Judge gonna grade me (probably because I doubt I'll ever see the inside of the court building).

9) I think my biggest worry in elementary school was not letting the teacher catch me cutting line. These kids have raised it to an entirely new level. I'm not even sure I would have known how to when I was that age.

The Purpose of the Criminal Justice Process

I am a taking a criminal justice class and just cant seem to put a an answer to this question:

If we believe that the purpose of the criminal justice process and the trail is to get at the truth (convict the guilty and acquit the innocent) why do we allow defense attorneys to remain quiet about the evidence that proves his client is guilty?

Can you please help me with this question if possible.

dallas johnson

Our judicial system was created with a healthy amount of distrust for the government built in (after all, a lot of out founders were smugglers). Therefore, we did not set up the criminal justice system with an eye solely toward separating the guilty from the innocent. We set it up with a strong bias toward protecting the rights of citizens and particularly those accused of a crime.

There are a number of different protections built into the system which we take for granted: juries composed of citizens, double jeopardy protections, unanimous convictions, &cetera. If our system was only concerned with sorting guilty from innocent we could have set up a system wherein judges make all the decisions, the prosecution has the right to appeal improper trial court decisions and retry someone if the trial judge was wrong, and a conviction could occur if only 7 of 12 jurors (a simple majority) found the evidence sufficient. There is a clear bias toward the protection of the defendant.

Before I examine your specific concern, let me first lay out what I think a defense attorney must do and what he cannot do. A defense attorney has a duty not to disclose anything which occurs between the client and himself. However, there are exceptions to this. A defense attorney is obligated to report to the authorities any illegal act which the defendant tells him he will do in the future. A defense attorney cannot hold physical evidence which his client has given him - he must turn it over to the authorities unaltered; he doesn't have to tell them who gave it to him, but if he's representing only one axe murderer and he turns over a blood spattered axe they'll probably figure it out. As well, a defense attorney must not lie to the judge or jury. In other words, if the defendant has told his attorney that X happened the attorney cannot tell the judge or jury that Y happened; he may walk a fine line,asking officers why they didn't investigate Y and asking the jury why the officers didn't, but he cannot assert that Y happened. It's the difference between asserting that law enforcement and the prosecution have failed to prove their case by eliminating all reasonable doubt and asserting a falsehood.

However, you are absolutely correct, a defense attorney has an obligation to sit on his hands and say nothing if he knows something which will undoubtedly prove his client guilty but the prosecution doesn't. This is part of the protections offered to citizens against the government. I think the strongest argument is probably rooted in the 6th Amendment requirement that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." The constitutional duty of the defense counsel is toward the defendant, not the court or sorting out who is innocent/guilty. If the defendant cannot tell the defense attorney the truth because the defense attorney is going to disclose information which the defendant gives him that is indicative of guilt then the assistance of counsel which the defendant is constitutionally guaranteed is denied him. Basically, it would mean that many defendants would have their right to force the prosecution prove its case beyond a reasonable doubt denied them if they were honest with their attorney.

08 April 2007

I'm a Staatsanwalt

Y'know, it's always cool to see something like that in a different language. It almost sounds like the name of a superhero: Ken Lammers is Staatsanwalt Man, fighting for Truth, Justice, and the Virginian way!

Errr, maybe not . . .

03 April 2007

Georgia: Fighting to be Unethical

Prosecution for various and sundry things, including the mailing of a video of a political opponent doing things he shouldn't ought to have been doing with people he probably shouldn't ought to be doing them with (wait isn't that protected political speech?).

02 April 2007

Around the Web

1) Now, I'm not a fan of cock fighting, or dog fighting, or bear baiting, or even boxing, but I gotta say I wonder if the cocks raised to fight are living much worse lives than the chickens I've driven behind which are stuffed in trucks so tight they can't move on the way to the butcher. Are we being hypocritical when we enjoy that meal from Lee's, KFC, or Popeyes and we fuss about cock fights?

2) I don't care how crowded your car is, you can't stow two of the kids in the trunk.

3) Who should get more time in prison the guy who was quicker on the draw or the guy who was slower?

4) The lesson here? Civic involvement by elementary school kids is not welcome.

5) Ummm . . . There might be something more valuable to steal at a platinum mine.

6) Because criminals are so effectively stopped by beams of light . . .

7) That's not the purpose of the drive up window.

8) A strip club in New York getting extorted by the Mob. Isn't that like pointing out that it rains in the rain forest?

9) More New Orleans defendants ordered freed from jail.

10) If your husband comes home while you're having sex with your boyfriend and you scream "Rape!", guess who gets the murder charge?

11) Cool! If the judge brings his dog to court that means I can bring mine too. Right?
link via SW Va Law

12) Being a State senator must be nice - especially if you can get paid for 3 jobs without ever showing up for a day of work.

13) And here's the big story of last week (although not really crimlaw): students suing because their papers are being used in their entirety without their permission (and, according to the Buzz Report PodCast, they even copyrighted the papers before turning them in).