CrimLaw

Blogging Criminally For Over Ten Years

6/30/2008

CLTV 32: Reviewing Both a Movie and the Supreme Court of the United States

A quick take on "Wanted" and Kennedy, Giles, & Heller.

And here it is in larger format at CLTV.

Ken Lammers . . . Permalink . . . 0 comments

6/26/2008

Hey, I Went to Law School With That Guy

I've got no idea what exactly a Justice of the Peace is in Nevada; I'm just impressed that somebody from my class is already trying to become a judge.

addendum:

Well, this certainly was helpful:

NRS 4.170 Duties of justices of the peace. The justices shall be conservators of the peace in their respective townships, and shall discharge such duties as may be prescribed by law.

Heck, if we had townships in Virginia that could describe my job.

addendum 2:

Ahah! Via Esmereralda County, here's a good definition:

Justice of the Peace/Justice Court The Justice of the Peace is required to preside over a variety of hearings, including preliminary examinations in felony and gross misdemeanor cases, trials for misdemeanor criminal matters, as well as, traffic violations, formal civil suits, small claims actions, temporary restraining order hearings, and landlord/tenant hearings. In addition, the judge performs marriage ceremonies, and is subject to call out at all hours of the day and night to issue search and arrest warrants.

In other words it's what we in Virginia call a General District Court Judge.

Ken Lammers . . . Permalink . . . 2 comments

6/26/2008

Shaquille, Deputy No More

Once upon a time a sheriff made Shaq a deputy. Now, the sheriff wants his badges back. Why?

Because of this (nsfw).

Ken Lammers . . . Permalink . . . 0 comments

6/24/2008

The Supreme Court's Latest Death Penalty Ruling

Onion News Network

Ken Lammers . . . Permalink . . . 0 comments

6/23/2008

CLTV 31: Get Smart & In Plain Sight

Reviewing the Latest and Greatest.

CLTV full size here.

Ken Lammers . . . Permalink . . . 1 comments

6/19/2008

Yes, Virginia, Judges Do Have the Inherent Ability to take a Case Under Advisement

There's a practice in Virginia courts wherein a case is taken under "advisement" for a period of time - usually 6 or 12 months. There is no disposition prior to the end of that time and the charge is dismissed (or lowered) if the defendant has complied with certain conditions. It's a common practice in courts all over the Commonwealth.

However, there has been a rather small, but very vocal, minority of lawyers and judges out there who have argued for years that this just can't be done. They claim that because the General Assembly has written statutes specifically authorizing advisement in certain cases it is not allowed in other cases (e.g. statutory advisement for domestic assault).

The problem with their argument is that the rule they wish to apply cannot be sustained in a common law plus statutory modification jurisdiction such as Virginia. One simply cannot claim that the common law is abrogated because the General Assembly has passed a statute which specifically encompasses certain activities. If this were true the fact that, per 18.2-195.2:

B. A person who knows that a false statement has been made in writing concerning the financial condition or ability to pay of himself or of any person for whom he is acting or any firm or corporation in which he is interested or for which he is acting and who with intent to defraud, procures a credit card, upon the faith of such false statement, for his own benefit, or for the benefit of the person, firm or corporation in which he is interested or for which he is acting, and obtains by use of the credit card, money, property, services or any thing of value, is guilty of grand larceny if the value of whatever is obtained is $200 or more or petit larceny if the value is less than $200.

(and similar statutes) would exclude all other putative common law larcenies because the General Assembly has passed a law specifying that this is a larceny. There is no specific authorization by the General Assembly for the judicially developed elements which Virginia applies to other larceny cases. Of course, the same argument can probably be applied to all sorts of common law definitions used in Virginia law which have not been codified by the General Assembly, but larceny is the one which springs to mind most readily because the General Assembly has passed a number of statutes "deeming" acts to be larceny or simply stating an act is a larceny like 18.2-195.2.

Keeping this in mind, as well as the general statutory interpretation rule that as best possible statutes are to be read as being in harmony with the common law and only abrogating those parts they specifically change, there is a better way to interpret the statutes which the General Assembly has written about advisement in certain offenses. The General Assembly has not abrogated advisement in general, it has merely laid out the limits of what can and shall be done in relation to certain specific offenses.

And it seems the Supreme Court of Virginia is at least in partial agreement with me. Earlier this month it ruled that taking a case under advisement is an inherent power of the judiciary (Moreau v. Fuller). However, the Court blinked when it came to deciding certain parts of the case. It ignored parts of the trial court's record by designating only the order entered as the true record because "courts speak through their orders." So the parts wherein the trial judge noted the conditions and that the case would be dismissed after a period of time and completion of the conditions were not addressed by the Supreme Court because they were not part of a signed order, even though they were in the file.

The consequence of this decision is that the issue of whether advisement with conditions is valid should never reach the appellate courts. There is no signed order in cases taken under advisement because the case will not be completed until the period of time has elapsed and the judge evaluates the case to see if the defendant has done what he was ordered to do. So, technically advisement remains somewhat in limbo, but in reality the Supreme Court has endorsed the practice.

Ken Lammers . . . Permalink . . . 0 comments

6/17/2008

Why Won't the Prosecutor Believe You and Drop the Prosecution of Your Client?

Ipse's frustrated. She told the prosecutor that his case isn't worth a hill of beans, but he just didn't seem too impressed.

Why? Why won't the evil prosecutor just do the right thing and drop the charge? Why?

Well, I can't speak for the prosecutor in this case, but let me offer a possibility.

Let's assume the prosecutor speaks with different defense attorneys about 20 cases a week. 10 defendants are so obviously guilty that even Gerry Spence couldn't win their trial. 10 fall somewhere in the gray zone. Of these 10, experience tells the prosecutor that 7 of the defense attorneys are doing the best with some minor facts in their favor; there are some interesting circumstances, but if pushed to a jury there's not much doubt how the trial will turn out. 1 defense attorney is working with facts and law which which will make the case closer, but still present a 75% chance of conviction at trial. 1 defense attorney has a case which is 50-50. 1 defense attorney has a case which the defense has an 80% probability of winning. And let's say that in this typical week 5 of the lawyers in the gray zone are pushing the prosecutor to drop their particular client's charge, either as a good faith assertion of non-guilt or as an opening negotiation ploy.

So, how's the prosecutor going to react when a defense attorney walks up to him in the courtroom and starts telling him how bad his case is? Well, he's not going to say, "Hmmmm, yes, I see your point. I'll drop the case as soon as I can get the paperwork done." He's probably going to say something along the lines of, "Gee, an offender who has an excuse. Never seen that before." Hopefully this will be joking banter. Never fear, you've put him on notice and he should give the officers/witnesses involved a call to see what the situation is. If you've got the 50-50 defendant or the 80% defendant sometime before the trial he's going to come to you with either a sweetheart of a deal or tell you he's going to drop the case. If he thinks you are one of the others you'll go to trial. Then it becomes a matter of who sized up the case better and if you're right you'll win walking away. Having done so, the next time you talk to that particular prosecutor he'll tend to listen a little more attentively because you've proven you were able to accurately assess a case and - perhaps more importantly - that you weren't just running a bluff.

Ken Lammers . . . Permalink . . . 1 comments

6/16/2008

Drug Schedules: Should We Base Our Punishments Upon Them?

Back in the early 70's the federal government developed a set of "schedules" for drugs. A number of States adopted these schedules as well and governments began using them as a way to determine how possession/distribution of different drugs should be punished.

The schedules are generally broken down by three factors: medical use, potential abuse, and addictive qualities. Schedule I is where the drugs with no medical use, high abuse potential, and highly addictive qualities are categorized. Schedule II is where drugs of medical use, high abuse potential, and highly addictive qualities are categorized. Schedule III is where drugs of medical use, lower abuse potential, and moderate physical / strong psychological dependence. And the schedules continue downward. Examples of the top three would be LSD (I), cocaine(II), and ketamine (III).

It is an imperfect system, but one that always seemed - at least to me - to work. You could argue whether something belonged in I or II, but generally you knew something belonged in one of the two and, at least under Virginia law, the punishment is the same for possessing/dealing I or II. Then, I moved out to the mountains.

Everyone assumes the problem out here is methamphetamine. As far as I can tell, the only effect methamphetamine has had out here is that sudafed doesn't work anymore. There may be places, in the Appalachian Mountains where it is a major problem, just not immediately around here. The problem here is pills.

And this is where I wonder if the schedules and their application couldn't use a little tuning. Between schedules I/II and schedules III there is a dropoff in punishment under Virginian law. Dealing a schedule I/II drug carries up to 40 years (1st offense), up to life (2d offense), or 5 years to life (3d+ offense). Dealing a schedule III drug carries up to 10 years.

The problem is that - with pills - dealing, abuse, and death from OD's seem to happen with schedule III's as often as schedule I/II. Users/dealers seem to use, and sometimes mix, pills from across the schedules. It seems that people are abusing dihydrocodeinone (III) - or lately buprenorphine (III) - as often as oxycodone or methadone. We even see people using alprazolam (sched. IV) recreationally.

So, what's the solution? I'm not sure. And before anyone says "legalization", thanks but no thanks. We don't need the market flooded with more drugs for more people to OD on. Possibly, the General Assembly could be availed upon to pass a specific "pill abuse" statute. Something with punishment along the lines of up to 10 years, first distribution offense; 2 - 20 years, second distribution offense; and 5 - 40 years third distribution offense. It's nowhere near a perfect solution, but I'm not in the business of perfect solutions. I'm in the business of trying to protect the citizenry - both the night clerk at the Quikie-Mart who's getting robbed by people hopped up on dihydrocodeinone and the addict who is going to ruin his liver by snorting all that acetaminophen (if he lives that long) - and I've only got certain tools. Hopefully, the knowledge of attached punishment will nudge society away from this particular abuse. Hopefully, other steps would be taken to make this kind of abuse societally unacceptable. I know it's a long shot, but we've already failed if we choose not to try.

Ken Lammers . . . Permalink . . . 4 comments

6/16/2008

CLTV 30: The Fave Five

News from around the blawgosphere: Volokh to Simple Justice and others . . .

CLTV here

Ken Lammers . . . Permalink . . . 0 comments

6/15/2008

Yeah, Well, My Dad's a Mild Mannered Reporter . . .

Ken Lammers . . . Permalink . . . 1 comments

6/12/2008

There Are Still Yippies in the World?

And apparently they travel with a lot of money (that smells like pot).

Ken Lammers . . . Permalink . . . 0 comments

6/12/2008

Don't Tail the Jurors

They just might turn you in to the judge.

Ken Lammers . . . Permalink . . . 0 comments

6/11/2008

Ref Outs the NBA

Tim Donaghy, a former NBA ref who has pled guilty and is facing federal sentencing, had the NBA file a million dollar restitution claim against him. Facing this somewhat doubtful, but possibly very damaging claim, how did Donaghy react? His lawyer filed a letter to the judge "explaining" how Donaghy is cooperating and pointing out manipulations which the NBA and its refs have engaged in to make the "right" teams win (or, at least have a better chance to win).

The only question left is who has greater credibility, the WWE or the NBA? At least the WWE doesn't pretend to be a real sport.

Ken Lammers . . . Permalink . . . 1 comments

6/10/2008

Virginia Governor Commutes
3 Death Sentence Convict
Percy Lavar Walton

Kaine, who opposes capital punishment, has let five executions proceed. This was the first time he commuted a death sentence.

I'm sure Tom will have something to say about this.

Ken Lammers . . . Permalink . . . 0 comments

6/10/2008

CLTV 29: Explaining Twitter, Trillain, & MySpace to Lawyer Types

A bit of tech for a change. Hopefully some of it will sink in on some of ya'll out there who keep insisting on using these things called "books" and actually talking to people face to face (how very 5 minutes ago ).

Here's the link to CLTV itself.

Ken Lammers . . . Permalink . . . 1 comments

6/05/2008

NO! Totally Inappropriate

At about 5:22 a.m., someone tried to solicit the purchase of illegal methadone on this site. At about 6 a.m. (when I woke up), I deleted the solicitation.

Not cool. Not appropriate. Not here.

Keep that garbage off my site.

Ken Lammers . . . Permalink . . . 6 comments

6/04/2008

Theft in Its Various Forms

1. A year at Yale.

2. A gawdawful ugly statue (seen right). The appropriate punishment? Make the thief keep it.

3. Medical records.

4. ID theft (1, 2, 3, 4)

5. Human organs.

6. Metal (1, 2, 3)

7. Money from McDonalds (when you don't turn in the money earned for several days someone will become suspicious).

8. Gas cans.

9. Actual gasoline.

10. Vintage racing bikes.

11. Televisions.

12. Cigarettes and cigars.

13. Farm equipment.

14. A bull: "A Westmoreland taxi operator was arrested after a cow's carcass was found in his taxi Tuesday morning."

Ken Lammers . . . Permalink . . . 0 comments

6/03/2008

Gotta Prove It's Actually Money That Was Laundered

So sayeth the Nine Wise folks on the Federal Supreme Court.

Ken Lammers . . . Permalink . . . 0 comments

6/03/2008

If You're Going to Insult Important People in Singapore

Don't post your location and dare the authorities to come get you.

Ken Lammers . . . Permalink . . . 0 comments

6/03/2008

Tatum O'Neal

Caught buying crack.

Ken Lammers . . . Permalink . . . 0 comments

6/03/2008

Harvard Law Review Plagiarism

Could be. It could also be that the same guy wrote the brief in the moot court competition and the note.

Ken Lammers . . . Permalink . . . 0 comments

6/02/2008

CLTV 28: Indigents, Guidelines, WVa, & Hancock

Interesting. My camera shoots much better in B&W. Stick around to the end for the Hancock trailer.

Here's the link at CLTV.

Ken Lammers . . . Permalink . . . 0 comments

6/02/2008

Not Contact High
Contact DUI

"I didn't drink! I was kissing a boy who was drunk!"

Ken Lammers . . . Permalink . . . 0 comments

6/01/2008

DEMAND JUSTICE NOW

Somebody put a lot of work into this.

Ken Lammers . . . Permalink . . . 1 comments

email Ken

Ambush in Bartlette
Chapters 1 - 13

Law & Theory

LAWS
Va.'s Versions of Mayhem (malicious wounding et al): 4 In One Statute ~ Graphic
Aggravated Malicious Wounding
The Moped Exception
Rape by Lie: 1 ~ 2 ~ 3
No Intent Needed
Arresting in a House
Common Law Trespass
Certificate of Analysis Introduction
Probable Cause: Car Passengers
Obstruction of Justice Limited
Stealing Electronic Items
Stolen Value: Price Tags
Stolen Value: No Price Tags
Stolen Value: Electronic Items
No Weekend Jail on Felonies
Obstruction of Justice Limited
No Trifurcation
No More Beer at the Barbeque
Respondeat Superior
DUI & Reckless Driving
Can You Steal From the Dead?
Outlawry Outlawed
Felony 2d Degree Murder
Banishment
Computer Fraud
Insta-Deputy
PROCEDURE
Using Statements Made During Plea Negotiations: 1 ~ 2a ~ 2b ~ 2c
Invoking Right to Attorney in Virginia
Who Prosecutes Misdemeanors?
Expungement
Surrebuttal
Virginia's Reasonable Doubt
Reasonable Doubt II
Instruction: Right to Arm
Virginia Castle Doctrine1 ~ 2 ~ 3 ~
Dismissed with Prejudice
SENTENCING
I. Limitations on Right of Judge to Alter a Sentence
II. Limitations on Right of Judge to Alter a Sentence
III. Limitations on Right of Judge to Alter a Sentence
Probation & Suspended Time
Advisement in Virginia
Jury v. Judge (sentencing roles)
Limits on Evidence Presentable to a Jury
Jury Sentencing Possibilities
&CETERA
Witnesses & Writ of Actual Innocence
Domestic Battery & Firearm Possession
Domestic Battery & Testimony I
Domestic Battery & Testimony II
Domestic Battery & Testimony III
Domestic Battery & Testimony IV
Shall Doesn't Mean Shall
Just Following Orders
Lycurgus Not Welcome in Virginia

Practice Tips

Opening Statements
Advice for New Prosecutor1 ~ 2a ~ 2b ~ 2c ~ 2d

Specific Cases

Legal Theory

Back When I was a Defense Attorney

Client Communication
~~~~~~~~~~~~~~~

CYA Letter: Felony Client
CYA Letter: Appeal

-----

Dear Mr. Jailhouse Lawyer
Conversation between Inmates about Lawyers
Innocent Client Pleads Guilty
Client Parents

Time as a Prosecutor

JAN07
The New Office
FEB07
Different Court Diferent Behavior
Competency
MAR07
Cats
Ma'am I'm the Prosecutor
JUN07
I know nothing
23 Felonies
JUL07
Cross
Cross II
2d Simplest Explanation
OCT07
Jury
FEB08
CrimLaw Prosecutorial Corollary #1
MAY08
Paranoia
JUN08
Why Not Drop?
JUL09
Buy Me Dinner First
AUG09
Jury Sentencing Argument
SEP09
Is Litter Patrol Jail?
OCT09
Paperwork Closing Argument
APR10
Bubonic Bob & the Creative Judge
JUL10
Finding the Perfect Witness
APR12
Small Town Cop : Big City Lawyer
JUN12
Maturity Ain't Orange

Criminal Law

Sentencing Law and Policy
FourthAmendment
Law of Criminal Defense
CrimProf
White Collar Crime Prof
4th Circuit
...
Simple Justice
Defending People
a public defender
Underdog
Indefensible
DUIblog
Southern District of Fla.
Criminal Defense
Harris Co. Crim Justice
...
Seeking Justice
Crime and Consequences
The Chicago Syndicate
Patterico's Pontifications
The Magistrate's Blog
Trials & Tribulations
Charon QC
Changing the Court

Virginia Blogs

SW Virginia Law
Va Poli Blogs
Vivian Page
Bearing Drift
Not Larry Sabato

Worthwhile

Bloggingheads.tv
Gruntled Center
WindyPundit
day by day
The Faculty Lounge
Legal Scholarship Blog
PrawfsBlog
Justice & Drugs
Ernie the Attorney
Bag & Baggage

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.

Tech &
Vlogs

This Week in Tech
TWIT Live
Spill.com
Tekzilla

Copyright

Everything herein is copyrighted by Kenneth Frank Patrick Lammers Junior. License for use of particular posts is granted so long as this site is linked to and credited. Serial republishing of all or the majority of posts on a separate website from CrimLaw is forbidden.

6/30/2008

CLTV 32: Reviewing Both a Movie and the Supreme Court of the United States

6/26/2008

Hey, I Went to Law School With That Guy

6/26/2008

Shaquille, Deputy No More

6/24/2008

The Supreme Court's Latest Death Penalty Ruling

6/23/2008

CLTV 31: Get Smart & In Plain Sight

6/19/2008

Yes, Virginia, Judges Do Have the Inherent Ability to take a Case Under Advisement

6/17/2008

Why Won't the Prosecutor Believe You and Drop the Prosecution of Your Client?

6/16/2008

Drug Schedules: Should We Base Our Punishments Upon Them?

6/16/2008

CLTV 30: The Fave Five

6/15/2008

Yeah, Well, My Dad's a Mild Mannered Reporter . . .

6/12/2008

There Are Still Yippies in the World?

6/12/2008

Don't Tail the Jurors

6/11/2008

Ref Outs the NBA

6/10/2008

Virginia Governor Commutes3 Death Sentence ConvictPercy Lavar Walton

6/10/2008

CLTV 29: Explaining Twitter, Trillain, & MySpace to Lawyer Types

6/05/2008

NO! Totally Inappropriate

6/04/2008

Theft in Its Various Forms

6/03/2008

Gotta Prove It's Actually Money That Was Laundered

6/03/2008

If You're Going to Insult Important People in Singapore

6/03/2008

Tatum O'Neal

6/03/2008

Harvard Law Review Plagiarism

6/02/2008

CLTV 28: Indigents, Guidelines, WVa, & Hancock

6/02/2008

Not Contact HighContact DUI

6/01/2008

DEMAND JUSTICE NOW

Archive

Copyright

Virginia Governor Commutes
3 Death Sentence Convict
Percy Lavar Walton

Not Contact High
Contact DUI