"I don’t have the patience to listen to incessant whining about . . . how the DA is out to get you . . . The DA does not know or care who the hell you are much less spend a lot of time devising ways to ruin your life."
Okay, who spilled the beans? Who told a defense attorney that I actually have 150 felony files and that I don't spend all my time - every single second of my day - trying to make his particular client's life miserable? How am I supposed to maintain my veneer of pure, unadulterated, power-mad megalomania if defense attorneys (and, by extension, their clients) start understanding that I don't know the defendant from Adam and I'm just trying to make an appropriate offer. Oh! The Humanity!
Well, if we're going to go down this route, there is one note I'd like to make for defense counsel. Let's call it CrimLaw Prosecutorial Corollary #1.
CrimLaw Prosecutorial Corollary #1: Catching me in the hall to talk to me about a case more than 3 days in the future is a useless endeavor. I've got about 150 files with cases constantly coming in and going out. I've prepped for the 5 felonies I have today. I've probably prepped for the 7 felonies I have for tomorrow. The Greene case is 45 days down the road. Unless I have the file in front of me, or your client is Harold "Gory" Greene (the Bank of Pitcairn axe murderer), I don't have the Greene case anywhere near the thinking part of my brain. In any event, I'm not going to agree to anything without looking at the file. Even if I did, without the file there to write notes in I wouldn't remember any agreement. So, just stop. Please. And this goes double for those out there who think it's a good idea to stop by my table during lunch and ask me about a couple cases. I'm a simple man; my brain disengages during lunch. I'm of no use to anyone at that time. Honest.
29 February 2008
28 February 2008
CLTV 15: Best of the CrimLaw Web
Contempt, Confessions, Clients, & the DEA
And this week's Fave Five are . . .
27 February 2008
Woke up this morning and the world was white (whatdoyaknow, the weatherguys got it right). Boss blackberried me just before I left to tell me not to come to work. And it's still coming down.
It's a little hard to see the snow above, but you can clearly see it all over Spot (great dog, but not necessarily smart enough to get out of the weather).
26 February 2008
Herr McGruff Gets New Shoes
Due to recurring paw injuries the German police are outfitting their dogs with blue shoes.
25 February 2008
CLTV 14: Strategic Objections
Today's CLTV addresses whether prosecutors or defense attorneys are better at making objections.
24 February 2008
Weekend Sports Brag
My High School, Bryan Station, which was ranked either 3d or 4th in Kentucky, finished its season by beating the #2 ranked Mason County.Bryan Station now starts its post season by playing Sayre, which should be a fairly easy win. However, even though ranked 4th (or maybe higher now), the odds are against the Defenders making it to the Sweet Sixteen because Kentucky pulls 16 teams from 16 regions to play these games (16 teams come to Lexington and spend a week determining who is best). Considering that almost all of the top 25 teams in Kentucky are in Lexington and Louisville and counties nearby, most of the top ranked teams don't make it. Bryan Station will have to defeat both Scott County, also ranked in the top 5, and Lexington Catholic, ranked #1 in Kentucky. Bryan Station and Scott County traded games this year, but the Defenders haven't played the Knights. Somebody isn't going to make it.
Centre College, ranked #2 in NCAA III, finished out its season 23-1. Its only loss was an inexplicable loss to Rust, 11-13, in the very first game of the year. Now they head into the SCAC tournament. Even though they've won every game in the SCAC in the regular season there are teams who are capable of pulling the upset: definitely Millsaps and Depauw, maybe Oglethorpe or Trinity. Still, it looks like Centre is a lock for the NCAA tournament.
22 February 2008
Steal a dog?
No, I'd never steal a dog (well, except for the one sitting on my lap that cost me my job as mayor).
SMSing Your Local Officer
Just imagine what life would be like for the officer. All day long his phone is going off every three minutes as people from all over text him about a stray dog or panhandler.
20 February 2008
The Labrador Retriever Anti-Theft System
Even dogs fear thieves.
The guy whom I rent from puts out food for stray cats twice a day, every day. I don't mean a plate. He must go through 20 pound bags every two days. Which is fine as far as I'm concerned, but my dogs aren't quite so happy about it. The problem is that it ain't only cats coming down the hollow to get food, there are possums and all the stray dogs for miles and who knows what else at night. Oh, and let's not forget the guy who is raising chickens up on the mountain across from my house (which seem to come down the mountain at least once a week to hunt worms in my yard).
Obviously, this has made Fred paranoid. No matter how much food I give him the first thing he does is dump the bowl and bury it in the gravel of my driveway. It may not be the best protection in the world, but it seems to work.
Of course, that might also be because there's better tasting cat food just 250 feet down the road without the three (40, 40, and 80 lb.) dogs which bark at anything that comes near my house.
(That's right, it's now up to 3. A neighbor moved in with some sort of hound. The dog adopted mine. The neighbor moved on. He left his dog behind.)
The guy whom I rent from puts out food for stray cats twice a day, every day. I don't mean a plate. He must go through 20 pound bags every two days. Which is fine as far as I'm concerned, but my dogs aren't quite so happy about it. The problem is that it ain't only cats coming down the hollow to get food, there are possums and all the stray dogs for miles and who knows what else at night. Oh, and let's not forget the guy who is raising chickens up on the mountain across from my house (which seem to come down the mountain at least once a week to hunt worms in my yard).
Obviously, this has made Fred paranoid. No matter how much food I give him the first thing he does is dump the bowl and bury it in the gravel of my driveway. It may not be the best protection in the world, but it seems to work.Of course, that might also be because there's better tasting cat food just 250 feet down the road without the three (40, 40, and 80 lb.) dogs which bark at anything that comes near my house.
(That's right, it's now up to 3. A neighbor moved in with some sort of hound. The dog adopted mine. The neighbor moved on. He left his dog behind.)
18 February 2008
#2 = Centre College Basketball
Centre is 21-1, with 2 games left. The former #2 team, the UW-Whitewater Warhawks, got massacred by the UW-Stevens Point Pointers. So, Centre moved up from #3 to #2.
Conventional wisdom is that Centre is over-ranked and, with their propensity for comeback wins, I wonder how far they will go in the tournament (there are some teams you just can't let get a significant lead). Of course, convential wisdom is created by the Northophiles and the SCAC seems to me to be a pretty strong conference (Centre and Millsaps in the tournament and Depauw on the bubble). It'll be interesting to see how things play out in the tournament.
Statutese - Attempt
From the Social Services Fraud section of Virginia's code:
AAAarrrrgggggg!!!
§ 63.2-522 - Whoever obtains, or attempts to obtain . . . public assistance or benefits . . . to which he is not entitled . . . is guilty of larceny.So, this preempts attempt under both § 18.2-26 (felony attempts) and § 18.2-27 (misdemeanor attempts). The only problem here is that if the attempt convicts a person of larceny he can't be punished. Larceny under both § 18.2-95 (felony larceny) and § 18.2-96 (misdemeanor larceny) requires that a certain amount of money be stolen in order to punish.
AAAarrrrgggggg!!!
14 February 2008
Blogging Since 1973
Hmmm . . . Not sure how Mark figured out I was blogging back in 1973, but I was. It was tough back in those days since I had to build my computer and modem out of my Radio Shack electronics kit.
Eventually, things got much better when I got ahold of, and hacked, an Atari 2600 (the folkes thought I was wasting all that time playing Missile Command).
Eventually things got ridiculously easy once I got a Commodore 64, tape drive, and 300 baud modem.
And the rest is history as we know it.
Eventually, things got much better when I got ahold of, and hacked, an Atari 2600 (the folkes thought I was wasting all that time playing Missile Command).
Eventually things got ridiculously easy once I got a Commodore 64, tape drive, and 300 baud modem.
And the rest is history as we know it.
New CLTV
A bit of bragging about Centre College's basketball team (like I did anything to help) and the Fave Five for this week.
Bonus points to anyone who can name the bugle call when my Blackberry goes off.
Bonus points to anyone who can name the bugle call when my Blackberry goes off.
12 February 2008
Who Wants an Unrepresented Defendant?
Not me.
I know. I know. You're astounded. "But, Ken, won't they throw you out of the Prosecutor's Club if you don't swoop in like a vulture over the defenseless corpse of an unrepresented defendant?"
Not really. Whether ya'll like to hear it or not, most of the time you defense attorneys make things run much smoother in a courtroom (oh, great, I just sent all the true believers off to burn their Bar cards and withdraw from all their criminal cases). Sure, ya'll can be pesky with your constitutional arguments and insistence that I provide proof that your client is guilty. However, therein also lies the great advantage of having a defense attorney present. You know the law; you know procedure; you know the judge; you know a good deal when it's offered. Even if we can't agree on a disposition, I know that when I try a 30 minute reckless driving bench trial with you it will be a 30 minute reckless driving bench trial.
What do I gain if there's no defense attorney? Not much. Most of the time my case has been investigated by officers and investigators who were at the scene. My evidence isn't going to change much whether the defendant is represented or not. That's not to say there aren't any possible issues. Maybe ProSe doesn't raise a constitutional issue. Maybe ProSe will miss a statutory right, like Virginia's speedy trial statute. Maybe ProSe won't object if I break an evidentiary rule.
Of course, experience teaches that none of these things happen (at least not for me).
Pro se defendants, particularly those in jail/prison, raise all sorts of constitutional arguments. The problem is that often they are asserting constitutional rights which you, I, the judge, and even the Founding Fathers never heard of. They'll raise constitutional arguments which were fought over and well settled 25 years ago (against their position). Of course, sometimes the 40 page, hand-writtendiatribe "motion" has something in it which looks like it might be an actual issue. What, you missed it? It's on page 17, sandwiched in between his objection over the judge's denial of his subpoena duces tecum to have an entire physical cell brought to court on his day of trial and his assertion that he has the right to subpoena the Governor of Kansas because he was wrongly convicted of gambling there in 1991. So, the prosecutor and judge have to spend time trying to figure out what exact issue the defendant is raising. Meanwhile, ProSe doesn't want to talk about the sole actual constitutional issue he may have raised; he wants to re-argue his motion to subpoena Governor Kathleen Sebelius (despite having lost this argument 4 times already).
The same sort of thing happens with statutory rights. It's not uncommon to receive painstakingly hand written motions asserting that 18 USC 1234 gives defendant this procedural right or that, per State v. Smith, 2011 WY 12, ¶44-45 (explaining Wyo. Stat. Ann. § 99-01-2009), he enjoys that substantive right. Of course, none of this is relevant in Virginia. Even when they do argue Virginia law they're usually off somewhere in left field, trying to assert something which got changed in the law 5 years ago.
So, we've slogged through all that (or perhaps it's a misdemeanor and we haven't had to go through all of it). Comes now the day of trial. I brace myself for a trial that's going to take 3 times longer than it should. I call Officer Smith and he gives his testimony. Then Judge lets ProSe cross. Of course, ProSe doesn't cross - he starts telling his story. Judge corrects him, telling him he'll get a chance to do that later. ProSe asks a couple questions and, when he gets an answer he doesn't like, turns to the Judge: "Now, that just isn't right, Judge. It happened like this . . ." Judge has to keep reminding him to ask questions - not testify. This scene is repeated several times before the prosecution completes it's case in chief.
Next, Defendant calls his witnesses. I stand there trying to keep my peace, because I know objections will just prolong the torture and the judge is going to give ProSe a good deal of latitude anyway. Finally, it's too much and I just have to object. Usually, it's a question like, "Didn't you hear Bobby say May told him that on November 5th at 3:45 p.m. Mike used an extension ladder to climb to a second story window, in the back of the house, break the window, and go downstairs and steal the jewelry from the right middle drawer in the guest bedroom of Joe's house, so I couldn't possibly have been the one who stole them?" It's either object or have my brain explode in the middle of court. The judge tries to explain to ProSe why he can't ask that question, but ProSe doesn't get it and tries to ask the same question 4 more times, each with a slight variation.
Finally, the case is over. It took forever, clogged a docket, got where it would have a long time ago if there'd been a defense attorney, and frustrated the living daylights out of me. Give me a regular old trial with a defense attorney any day.
I know. I know. You're astounded. "But, Ken, won't they throw you out of the Prosecutor's Club if you don't swoop in like a vulture over the defenseless corpse of an unrepresented defendant?"
Not really. Whether ya'll like to hear it or not, most of the time you defense attorneys make things run much smoother in a courtroom (oh, great, I just sent all the true believers off to burn their Bar cards and withdraw from all their criminal cases). Sure, ya'll can be pesky with your constitutional arguments and insistence that I provide proof that your client is guilty. However, therein also lies the great advantage of having a defense attorney present. You know the law; you know procedure; you know the judge; you know a good deal when it's offered. Even if we can't agree on a disposition, I know that when I try a 30 minute reckless driving bench trial with you it will be a 30 minute reckless driving bench trial.
What do I gain if there's no defense attorney? Not much. Most of the time my case has been investigated by officers and investigators who were at the scene. My evidence isn't going to change much whether the defendant is represented or not. That's not to say there aren't any possible issues. Maybe ProSe doesn't raise a constitutional issue. Maybe ProSe will miss a statutory right, like Virginia's speedy trial statute. Maybe ProSe won't object if I break an evidentiary rule.
Of course, experience teaches that none of these things happen (at least not for me).
Pro se defendants, particularly those in jail/prison, raise all sorts of constitutional arguments. The problem is that often they are asserting constitutional rights which you, I, the judge, and even the Founding Fathers never heard of. They'll raise constitutional arguments which were fought over and well settled 25 years ago (against their position). Of course, sometimes the 40 page, hand-written
The same sort of thing happens with statutory rights. It's not uncommon to receive painstakingly hand written motions asserting that 18 USC 1234 gives defendant this procedural right or that, per State v. Smith, 2011 WY 12, ¶44-45 (explaining Wyo. Stat. Ann. § 99-01-2009), he enjoys that substantive right. Of course, none of this is relevant in Virginia. Even when they do argue Virginia law they're usually off somewhere in left field, trying to assert something which got changed in the law 5 years ago.
So, we've slogged through all that (or perhaps it's a misdemeanor and we haven't had to go through all of it). Comes now the day of trial. I brace myself for a trial that's going to take 3 times longer than it should. I call Officer Smith and he gives his testimony. Then Judge lets ProSe cross. Of course, ProSe doesn't cross - he starts telling his story. Judge corrects him, telling him he'll get a chance to do that later. ProSe asks a couple questions and, when he gets an answer he doesn't like, turns to the Judge: "Now, that just isn't right, Judge. It happened like this . . ." Judge has to keep reminding him to ask questions - not testify. This scene is repeated several times before the prosecution completes it's case in chief.
Next, Defendant calls his witnesses. I stand there trying to keep my peace, because I know objections will just prolong the torture and the judge is going to give ProSe a good deal of latitude anyway. Finally, it's too much and I just have to object. Usually, it's a question like, "Didn't you hear Bobby say May told him that on November 5th at 3:45 p.m. Mike used an extension ladder to climb to a second story window, in the back of the house, break the window, and go downstairs and steal the jewelry from the right middle drawer in the guest bedroom of Joe's house, so I couldn't possibly have been the one who stole them?" It's either object or have my brain explode in the middle of court. The judge tries to explain to ProSe why he can't ask that question, but ProSe doesn't get it and tries to ask the same question 4 more times, each with a slight variation.
Finally, the case is over. It took forever, clogged a docket, got where it would have a long time ago if there'd been a defense attorney, and frustrated the living daylights out of me. Give me a regular old trial with a defense attorney any day.
Waiver of Right to Counsel
I Was the State has a post which shows a form used in one Texas jurisdiction for waiving representation in a criminal trial. I thought I'd put up the Virginia form.
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I have been advised by a judge of this court of the nature of the charges in the cases pending against me and the potential punishment for the offenses, which includes imprisonment in the penitentiary or confinement in jail. I understand the nature of these charges and the potential punishment for them if I am found to be guilty.
I have been further advised by a judge of this court that I have the following rights to be represented by a lawyer in these cases:
a. I have a right to be represented by a lawyer.
b. If I choose to hire my own lawyer, I will be given a reasonable opportunity to hire, at my expense, a lawyer selected by me. The judge will decide what is a reasonable opportunity to hire a lawyer. If I have not hired a lawyer after such reasonable opportunity, the judge may try the case even though I do not have a lawyer to represent me.
c. If I ask the judge for a lawyer to represent me and the judge decides, after reviewing my sworn financial statement that I am indigent, the judge will select and appoint a lawyer to represent me. However, if I am found to be guilty of an offense, the lawyer’s fee as set by the judge within statutory limits will be assessed against me as court costs and I will be required to pay it.
I understand these rights to be represented by a lawyer. I understand the manner in which a lawyer can be of assistance and I understand that, in proceeding without a lawyer, I may be confronted with complicated legal issues. I also understand that I may waive (give up) my rights to be represented by a lawyer.
Understanding my rights to be represented by a lawyer as described above and further understanding the nature of the case and the potential punishment if I am found to be guilty, I waive all of my rights to be represented by a lawyer in these cases, with the further understanding that the cases will be tried without a lawyer either being hired by me or being appointed by the judge for me. I waive these rights of my own choice, voluntarily, of my own free will, without any threats, promises, force or coercion.
Upon oral examination, the undersigned judge of this Court finds that the Adult, having been advised of the rights and matters stated above and having understood these rights and matters, thereafter has knowingly, voluntarily and intelligently waived his rights to be represented by a lawyer.
FORM DC-335 (REVISED 5/03)
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WAIVER OF RIGHT TO BE REPRESENTED BY A LAWYER (CRIMINAL CASE)
I have been advised by a judge of this court of the nature of the charges in the cases pending against me and the potential punishment for the offenses, which includes imprisonment in the penitentiary or confinement in jail. I understand the nature of these charges and the potential punishment for them if I am found to be guilty.
I have been further advised by a judge of this court that I have the following rights to be represented by a lawyer in these cases:
a. I have a right to be represented by a lawyer.
b. If I choose to hire my own lawyer, I will be given a reasonable opportunity to hire, at my expense, a lawyer selected by me. The judge will decide what is a reasonable opportunity to hire a lawyer. If I have not hired a lawyer after such reasonable opportunity, the judge may try the case even though I do not have a lawyer to represent me.
c. If I ask the judge for a lawyer to represent me and the judge decides, after reviewing my sworn financial statement that I am indigent, the judge will select and appoint a lawyer to represent me. However, if I am found to be guilty of an offense, the lawyer’s fee as set by the judge within statutory limits will be assessed against me as court costs and I will be required to pay it.
I understand these rights to be represented by a lawyer. I understand the manner in which a lawyer can be of assistance and I understand that, in proceeding without a lawyer, I may be confronted with complicated legal issues. I also understand that I may waive (give up) my rights to be represented by a lawyer.
Understanding my rights to be represented by a lawyer as described above and further understanding the nature of the case and the potential punishment if I am found to be guilty, I waive all of my rights to be represented by a lawyer in these cases, with the further understanding that the cases will be tried without a lawyer either being hired by me or being appointed by the judge for me. I waive these rights of my own choice, voluntarily, of my own free will, without any threats, promises, force or coercion.
___________________________________________
ADULT
ADULT
Upon oral examination, the undersigned judge of this Court finds that the Adult, having been advised of the rights and matters stated above and having understood these rights and matters, thereafter has knowingly, voluntarily and intelligently waived his rights to be represented by a lawyer.
___________________________________________
JUDGE
JUDGE
FORM DC-335 (REVISED 5/03)
11 February 2008
The Bluegrass Conspiracy
I rate The Bluegrass Conspiracy a 3.7.1 It's an intriguing look at a lot of things that were going wrong in the Commonwealth of Kentucky during the early days of large scale illegal drug importation in the 70's and 80's.The book's anchor is a man named Ralph Ross, a Kentucky State Trooper involved in drug interdiction who was eventually thrown out of law enforcement and convicted for wiretapping. While Ross is just one of the primary characters in the book it is obvious that he is a major (if not the major) source of information and that the book strongly reflects his point of view.
The book implies a number of things without resolving the truth behind them. The Lexington, Kentucky police are strongly implied to be corrupt from the narcotics division all the way to the Chief of Police. Many of the criminals portrayed began their careers in the Lexington Narcotics Division. The book raises serious doubts about a Lexington Investigator John Bizzack; it never quite says he is corrupt and covering up crimes (including murder) for his former-police-now-criminal buddies, but it comes as close to the line as it can. BTW: Bizzack went on to be rather successful, publishing several police manuals and serving the last three governors as Commissioner of the Kentucky Department of Criminal Justice Training.
There is also an interwoven, but never proven, theme of CIA involvement. This is the only point where the author and Mr. Ross seem to part ways. More than once she writes dubiously about how Ross isn't buying the connection. Nevertheless, she lays out a number of questions as to how the Kentucky organization was able to thrive and why it took the feds so long to crack it (if they ever actually did).
The hook here is the involvement of Kentucky Blue-Bloods. It's made more interesting by strong ties between Kentucky criminals and Las Vegas Mob types (an interesting thing to consider now that the new Kentucky governor is trying to legalize casinos). Peripherally, there is also the destruction of Governor John Y Brown Jr.'s presidential aspirations as his good friends are taken down and he's never quite proven to be involved in anything.
I was growing up in Lexington during the time that all this was taking place. I remember my Father's abiding belief that Lexington and, by implication, all of Kentucky was extremely corrupt. I remember my Grandfather sitting on an investigative grand-jury until his death. Grandpa was a taciturn man, who took his duty not discuss the investigation seriously. However, word in the family was that he'd said something to Grandma to the effect of "They may not have broken any laws, but they're all dirty." So, I'm not terribly surprised to read any of this.
Still, reading this book was like entering a Bizzaro World Kentucky. Concerned that the book is one-sided, I went looking for critiques and counter-points. I didn't find much. Barnes & Noble and Amazon had the normal gushing reviews, with only one dissent in Amazon:
Don't believe everything you read, April 17, 2005And that's all I could find, even after doing separate searches on both Yahoo! and Google.
By anon "anon"
Though some people might find this book to be exciting and sexy and intriguing, please don't consider it as truth. This book should have been labeled as Fictional, which is what it is. Sally should have interviewed people who really knew the details-maybe spoken to members of the families involved, instead of spouting lies and touting them as truths. As a member of one of the families in the book, I know what I am talking about, and it hurts me deeply the lies that were told, which I can verify, matter of factly, were false.
I did find one other thing that indicated the PD had been "cleaned up":
In 1990 . . . Walsh became Chief of Police. Walsh had never been involved in undercover work or narcotics investigations. He’d been a beat cop throughout his career, and was appointed Chief of Police to clean up the corruption within the department. After Walsh took office, many officers either retired or took jobs elsewhere, including David Shade and John Bizzack.So, hopefully, any problems there were at LexPD have been squared away. Although, I wonder if the State Police are still exiled from Lexington.
--
1 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 consign it to the Hell it deserves.
10 February 2008
Judge Not Allowing Prosecutors to Object Part II
From the Pages of the Louisville Courier Journal (via Kentucky Law Review):
I see two possibilites here. The first is that the local prosecutors are being extremely aggresive in their pressing of technically correct, but unneeded objections. We've all seen (usually young) lawyers who object to things like the opposing attorney asking "You're John Smith?" Technically, the objection is proper because the question is leading. However, it accomplishes nothing good because all the opposing attorney is doing is confirming the witness' ID to the court.
The second possibility is that the judge, because of the need to speed through a docket (or similar reasons), is violating the rules of evidence for a purpose he thinks more valuable.
Of course, there's always a third possible reason: the judge just doesn't like prosecutors. However, there'd have to be more evidence to credibly assert that.
The irony is that a grandstanding Judge Delahanty accused prosecutors of -- you guessed it -- grandstanding, and of wasting the court's time. He could, of course, save even more time if he simply dispensed with having prosecutors involved at all. Justice might not be served, but there would be more opportunities for everybody involved to enjoy an afternoon round of golf.This is a follow up on the post from earlier today.
I see two possibilites here. The first is that the local prosecutors are being extremely aggresive in their pressing of technically correct, but unneeded objections. We've all seen (usually young) lawyers who object to things like the opposing attorney asking "You're John Smith?" Technically, the objection is proper because the question is leading. However, it accomplishes nothing good because all the opposing attorney is doing is confirming the witness' ID to the court.
The second possibility is that the judge, because of the need to speed through a docket (or similar reasons), is violating the rules of evidence for a purpose he thinks more valuable.
Of course, there's always a third possible reason: the judge just doesn't like prosecutors. However, there'd have to be more evidence to credibly assert that.
The Weekly Sports Bragging
Centre College is ranked 5th in D3 Basketball and has a 19-1 record. The #2 team Mass-Dartmouth lost to Keene State (which only has a 13-8 record), so there's a chance that Centre moves into the top 4 if it can beat Rhodes (8-13) today. It's the last scheduled home game of the season and starts at 3 pm (after the last home women's game at 1 pm).
If the Prosecutor Objects He Goes to Jail
Apparently the judge thinks that the only reason prosecutors object is to "grandstand and waste the time of the court."
07 February 2008
CLTV: Best of the CrimLaw Web
Introducing Spot, the WonderDog. Next time I might intro ya'll to Fred, my Lab.
Only a couple errors this time. For some reason, the text I tried to put in didn't show so you get to stare at a frozen picture of me for about 30 seconds. And, yes, I realize the sound level for that section could have been better. Some graphics errors also which I'll try to fix next time.
Hopefully, the content will be enough to get ya'll.
Only a couple errors this time. For some reason, the text I tried to put in didn't show so you get to stare at a frozen picture of me for about 30 seconds. And, yes, I realize the sound level for that section could have been better. Some graphics errors also which I'll try to fix next time.
Hopefully, the content will be enough to get ya'll.
06 February 2008
05 February 2008
Questions on A Prosecutor's Role
A few days back, in a comment to a previous post, paratrooperjj asked:
Let's start with if this by defining, as best possible, prosecutorial misconduct. Prosecutorial misconduct is some sort of purposeful or reckless disregard of the law or the judge's rulings in a case. This can involve not disclosing exculpatory evidence or lying to a judge or mentioning a defendant's refusal to testify during closing argument (among many other things). It's a throwaway claim that seems to make it into most capital appeals - and get summarily dismissed by the courts. It's more effective use is in double jeopardy cases wherein a mistrial has been declared because of a prosecutor's act. For instance, I'm caught up in the passion of a closing argument and I turn around and point at the defendant, "If John Smith was innocent, we all know he'd have testified today!" That's clearly unconstitutional and after the judge declared a mistrial defense counsel would have a field day stomping any subsequent charge I was to file because the mistrial was my fault.
The ethics of this would be found in Virginia under Rule 3.8(a) (I'm sure other States have similar rules):
So now we've set the parameters. By filing the two charges would I be violating any laws? None that I'm aware of. There's a due process argument, but I don't think it's a strong one. That argument would be, "if she's guilty of one she is innocent of the other and therefore cannot be tried for both." However, this is not true. The two charges require separate elements to be proven. One requires proof that a lie occurred in the report to the officer. The other requires that a material fact be lied about under oath. In fact, if she told the officer X and testified in court Y, but I can prove the truth to be Z, I can convict her of both charges. With all this in mind, I think I'm safely outside the prosecutorial misconduct zone.
The question then becomes one of ethics. This is a more interesting question. Is it ethical to prosecute two charges when I think the facts of the case require that a conviction of one will preclude a conviction in the other? Yes, it is. Remember, the standard is whether the charge is sustained by probable cause. Is there a reasonable ground in fact and circumstance to believe perjury has occurred? You bet. She reported an entirely different story to the police previously. Is there reasonable ground in fact and circumstance to believe a false report was filed? Sure, considering the statements she made to the prosecutor out in the hall.
So, it would be neither misconduct nor unethical to go forward with these charges. Do I think she should be convicted of both? No; considering the facts in this particular case it would not be just to convict her of both charges. I'd even be amenable to a jury instruction telling the jury that they have 3 choices: perjury, false report, or not guilty.
This sort of thing happens more often than you'd think. There are a couple of examples which spring into mind. In Virginia it is, by statute, illegal to convict a person of both general reckless driving and DUI. Defendants are often charged with both; the judge/jury just can't convict them of both. As well, it's almost universal to give manslaughter instructions in murder cases. Murder requires intent to kill or knowledge that killing is likely (the theory behind felony murder and depraved indifference murder). Manslaughter requires either heat of passion (voluntary) or gross negligence / failure to perform a legal duty (involuntary). They both have exclusive elements not found in the other charge, yet they are offered in the alternative. I'm sure the collected minds out there reading this can think of any number of other situations wherein this happens under the law.
REALITY
-------
Now, let's look at the reality of what's going to happen here. The lady is probably going to plea down to the misdemeanor and I'm not likely to force the issue. The only time I'd really push the issue is if I looked at her record and she had a history of this sort of thing. Everyone who has worked in a domestic courtroom has seen the woman who brings charges against her man 3-4 times a year and wants to drop charges each and every time she comes to court. I'm not predisposed to be sympathetic to her the way I might be to other women who have been thrown under the bus by their men. However, most of the defendants in this sort of situation aren't going to be that woman, so they'll get a break (pleading to a misdemeanor instead of going forward on the technically stronger felony perjury) and most likely get a fine and probation from the judge.
[I]f you charged [a woman who gave one story on the night of the offense and a different one on the stand] with both [filing a false police report and perjury], then wouldn't you be charging her with a crime you know she did not commit? I mean if she is guilty of one or the other then that means that she is innocent of the other? Is that not prosecutorial misconduct to charge someone with a crime you know that was not committed?I think that's an interesting question and I'm going to expand it even further to ask if this is a violation of legal ethics.
Let's start with if this by defining, as best possible, prosecutorial misconduct. Prosecutorial misconduct is some sort of purposeful or reckless disregard of the law or the judge's rulings in a case. This can involve not disclosing exculpatory evidence or lying to a judge or mentioning a defendant's refusal to testify during closing argument (among many other things). It's a throwaway claim that seems to make it into most capital appeals - and get summarily dismissed by the courts. It's more effective use is in double jeopardy cases wherein a mistrial has been declared because of a prosecutor's act. For instance, I'm caught up in the passion of a closing argument and I turn around and point at the defendant, "If John Smith was innocent, we all know he'd have testified today!" That's clearly unconstitutional and after the judge declared a mistrial defense counsel would have a field day stomping any subsequent charge I was to file because the mistrial was my fault.
The ethics of this would be found in Virginia under Rule 3.8(a) (I'm sure other States have similar rules):
A lawyer engaged in a prosecutorial function shall:So, the ethical standard is not whether a prosecutor can get a conviction, it's whether there is probable cause. Probable cause is
(a) not file or maintain a charge that the prosecutor knows is not supported by probable cause;
1 : a reasonable ground in fact and circumstance for a belief in the existence of certain circumstances (as that an offense has been or is being committed, that a person is guilty of an offense, that a particular search will uncover contraband, that an item to be seized is in a particular place, or that a specific fact or cause of action exists)The way I have explained this to juries is "[P]robable cause is less than probable, which is kind of a weird way to put it. The way that I like to think of it is there is probably a cause, probably a reason to file the charge." Or, as a judge I used to practice in front of put it, "I don't know exactly what probable cause is, but I could trip over it in the dark."
FindLaw
So now we've set the parameters. By filing the two charges would I be violating any laws? None that I'm aware of. There's a due process argument, but I don't think it's a strong one. That argument would be, "if she's guilty of one she is innocent of the other and therefore cannot be tried for both." However, this is not true. The two charges require separate elements to be proven. One requires proof that a lie occurred in the report to the officer. The other requires that a material fact be lied about under oath. In fact, if she told the officer X and testified in court Y, but I can prove the truth to be Z, I can convict her of both charges. With all this in mind, I think I'm safely outside the prosecutorial misconduct zone.
The question then becomes one of ethics. This is a more interesting question. Is it ethical to prosecute two charges when I think the facts of the case require that a conviction of one will preclude a conviction in the other? Yes, it is. Remember, the standard is whether the charge is sustained by probable cause. Is there a reasonable ground in fact and circumstance to believe perjury has occurred? You bet. She reported an entirely different story to the police previously. Is there reasonable ground in fact and circumstance to believe a false report was filed? Sure, considering the statements she made to the prosecutor out in the hall.
So, it would be neither misconduct nor unethical to go forward with these charges. Do I think she should be convicted of both? No; considering the facts in this particular case it would not be just to convict her of both charges. I'd even be amenable to a jury instruction telling the jury that they have 3 choices: perjury, false report, or not guilty.
This sort of thing happens more often than you'd think. There are a couple of examples which spring into mind. In Virginia it is, by statute, illegal to convict a person of both general reckless driving and DUI. Defendants are often charged with both; the judge/jury just can't convict them of both. As well, it's almost universal to give manslaughter instructions in murder cases. Murder requires intent to kill or knowledge that killing is likely (the theory behind felony murder and depraved indifference murder). Manslaughter requires either heat of passion (voluntary) or gross negligence / failure to perform a legal duty (involuntary). They both have exclusive elements not found in the other charge, yet they are offered in the alternative. I'm sure the collected minds out there reading this can think of any number of other situations wherein this happens under the law.
REALITY
-------
Now, let's look at the reality of what's going to happen here. The lady is probably going to plea down to the misdemeanor and I'm not likely to force the issue. The only time I'd really push the issue is if I looked at her record and she had a history of this sort of thing. Everyone who has worked in a domestic courtroom has seen the woman who brings charges against her man 3-4 times a year and wants to drop charges each and every time she comes to court. I'm not predisposed to be sympathetic to her the way I might be to other women who have been thrown under the bus by their men. However, most of the defendants in this sort of situation aren't going to be that woman, so they'll get a break (pleading to a misdemeanor instead of going forward on the technically stronger felony perjury) and most likely get a fine and probation from the judge.
04 February 2008
03 February 2008
This Weekend's Sports Bragging
Here we go again. Yes, I still know this is not criminal law in nature. And, yes, you will have to keep suffering these periodic updates as long as my schools, Centre College and Bryan Station High School, continue to excel.
On Friday Centre let Trinity University whomp on it for most of the game, but with 5 minutes left staged a steady comeback to tie the game with 20 seconds left on the clock and win in overtime. Gotta stop that pretty soon 'cuz I'm pretty sure some teams Centre will face in the tournament are teams Centre shouldn't let get a lead. On top of which, if they keep this up too often I'm liable to have a heart attack.
On Saturday Centre took on a game Southwestern University and, while Southwestern refused to fold, took and kept a solid lead for much of the game, winning by 10 points.
Thanks to Trinity for doing an audiocast of the Friday game and Southwestern for a videocast. Sadly, because Centre offers neither of these and I live 3 hours from the campus, I'm better able to follow Centre when it plays away games.
Meanwhile, my high school, Bryan Station, remains number one in the Commonwealth of Kentucky, with wins over two Lexington schools this weekend: 83-64 over 16th ranked Paul Dunbar on Friday and 83-57 over Lafayette on Saturday.
On Tuesday Bryan Station will play 4th ranked Scott County, at Bryan Station. It's hard to tell whether Scott should be ranked where it is because its record is not good (14-9), but most of its losses have been traveling out of the Commonwealth against teams from other States. Bryan Station beat Scott County earlier on its court, but Scott has beaten Mason County, the only team to beat Bryan Station this year. It promises to be a good game; I urge you all to throw on something green and gold (and blue if you absolutely must) and head to Bryan Station Tuesday at 7:30.
On Friday Centre let Trinity University whomp on it for most of the game, but with 5 minutes left staged a steady comeback to tie the game with 20 seconds left on the clock and win in overtime. Gotta stop that pretty soon 'cuz I'm pretty sure some teams Centre will face in the tournament are teams Centre shouldn't let get a lead. On top of which, if they keep this up too often I'm liable to have a heart attack.
On Saturday Centre took on a game Southwestern University and, while Southwestern refused to fold, took and kept a solid lead for much of the game, winning by 10 points.
Thanks to Trinity for doing an audiocast of the Friday game and Southwestern for a videocast. Sadly, because Centre offers neither of these and I live 3 hours from the campus, I'm better able to follow Centre when it plays away games.
Meanwhile, my high school, Bryan Station, remains number one in the Commonwealth of Kentucky, with wins over two Lexington schools this weekend: 83-64 over 16th ranked Paul Dunbar on Friday and 83-57 over Lafayette on Saturday.
On Tuesday Bryan Station will play 4th ranked Scott County, at Bryan Station. It's hard to tell whether Scott should be ranked where it is because its record is not good (14-9), but most of its losses have been traveling out of the Commonwealth against teams from other States. Bryan Station beat Scott County earlier on its court, but Scott has beaten Mason County, the only team to beat Bryan Station this year. It promises to be a good game; I urge you all to throw on something green and gold (and blue if you absolutely must) and head to Bryan Station Tuesday at 7:30.
01 February 2008
CLTV Sports & The Best of the CrimLaw Web
Well, it's finally up, and I shan't be using Adobe Premiere Pro (trial version) in the future. LE, which I own, does everything I need. Not as many spiffy bells and whistles and Pro handles adding animated backgrounds better, but LE doesn't screw up my vid when it compiles like Pro seems to. With LE I can also compile in Xvid, which I can't do with Pro Temp (which means it takes a loooonnngggg time and is a massive file).
Hopefully, next week I shouldn't have a mid-week jury trial and compilation problems. I should be able to get the vids up in a timely manner.
Hopefully, next week I shouldn't have a mid-week jury trial and compilation problems. I should be able to get the vids up in a timely manner.
Statutese
Read part A of the statute:
Personally, I am very hopeful that my friendly local mental health clinic isn't allowing arms dealers to come in and hand out free samples. This does not make much sense.
The key word here is "during", which sets out a clear time period within which it is illegal to buy or possess a firearm.
During - 1 : throughout the duration of 2 : at a point in the course of
Now let's look at part B of the statute
Y'know, I get that the members of the General Assembly probably don't have the time to read every statute they vote on. But what the heck are they paying their staffers for? Somebody had to advise the Delegates and Senators that this law made sense and they should vote for it.
If anybody knows a Virginia legislator ask him to please fix this.
A. It shall be unlawful for any person involuntarily committed pursuant to [a temporary detention order] to purchase, possess or transport a firearm during the period of such person's commitment. A violation of this subsection shall be punishable as a Class 1 misdemeanor.Let's do a plain reading analysis on that. You can't buy or have a firearm while you are being temporarily detained in order to check your mental state.
Personally, I am very hopeful that my friendly local mental health clinic isn't allowing arms dealers to come in and hand out free samples. This does not make much sense.
The key word here is "during", which sets out a clear time period within which it is illegal to buy or possess a firearm.
During - 1 : throughout the duration of
Now let's look at part B of the statute
B. Any person prohibited from purchasing, possessing or transporting firearms under this section may, at any time following his release from commitment, petition the circuit court in the city or county in which he resides to restore his right to purchase, possess or transport a firearm. The court may, in its discretion and for good cause shown, grant the petition.BUT AFTER HE HAS FINISHED HIS COMMITMENT HE'S NOT FORBIDDEN TO BUY OR HAVE A FIREARM.
Y'know, I get that the members of the General Assembly probably don't have the time to read every statute they vote on. But what the heck are they paying their staffers for? Somebody had to advise the Delegates and Senators that this law made sense and they should vote for it.
If anybody knows a Virginia legislator ask him to please fix this.
How to Know You're Not in Richmond Anymore
Judge: "Where's Bob?" (the defense attorney)
Clerk: "Judge, he called and said a couple trees fell on his driveway. He'll be here as soon as he cuts his way clear."
Clerk: "Judge, he called and said a couple trees fell on his driveway. He'll be here as soon as he cuts his way clear."
Not Happy: CLTV
Filmed and edited it last night. Left computer on for Adobe Premire Pro to compile it over night. Woke up at 6 and it had stopped for some unknown reason which could range from a Windows break down to my cat walking across the keyboard. Started recompiling at 6:10 and it's been telling me that it will be done in about 57 minutes ever since. It's 6:50 and it's now telling me 58 minutes (so far 50% compiled).
Sorry folks, but it looks as though CLTV won't be done in time to go up this morn since I have to upload it after it compiles and then add tags. That means it'll be up sometime around 6 p.m. tonight.
Of course, all these problems would be solved if anybody out there knows Steve Jobs and could convince him to donate to me a totallypimped out worked up Mac Pro (I figure that a Mac Pro with everything is probably only $25K; that's pocket change for Jobs). Then compiling would probably take about 3 minutes and this problem would never occur again. Heck, I'd even be willing to put up a $500 a week ad for Apple on my site to pay it off.
Sorry folks, but it looks as though CLTV won't be done in time to go up this morn since I have to upload it after it compiles and then add tags. That means it'll be up sometime around 6 p.m. tonight.
Of course, all these problems would be solved if anybody out there knows Steve Jobs and could convince him to donate to me a totally
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