Naughty or Nice: The Claus Saga

Why I am Glad to Practice Law in The U.S. (Not the UK)

They certainly do things differently over there.

Hiatus Due to Snow

As those of you that follow the news might know, we're buried under about 2 feet of snow here in the Appalachians. My power is out with estimates that it won't be back until 27 December. I've only got internet at a couple of local eateries and can only occupy a table in the warm, dryness of the Pine Mountain Grill for so long.

So, for the near future I wish you all a Merry Christmas and hope to put something up on the blawg soon.

Off Point: Nope, It's Not English

This video has popped up on several sites I've looked at this morning. The song is catchy, but it's complete jibberish. The idea behind it is to let English speakers know what they sound like to those who don't speak the Lingua Americana.

The Virginia Court of Appeals Overrules the Virginia Supreme Court on Whitehead

A while back the Virginia Supreme Court came out with an opinion about the "right result / wrong reason" doctrine wherein it stated in language plain for all to see:

Whether Whitehead received the stolen property here by constructively possessing it is not properly before us, because the Commonwealth makes this argument for the first time on appeal. It is true that “[w]e do not hesitate, in a proper case, where the correct conclusion has been reached but the wrong reason given, to sustain the result and assign the right ground.” Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283 (1963). However, cases in which the party seeking affirmance failed to present the argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not “proper cases” for the application of the doctrine.

Whitehead v. Commonwealth was a case wherein the Supreme Court (1) rejected as plainly wrong the findings of the trial court and the court of appeals that a person could be convicted of receiving stolen goods when she received benefits from a third party's theft and sale of goods (boyfriend paying her rent, etc.).

(2) Then it dealt with the Commonwealth's assertion that Whitehead was still guilty because she was in constructive possession of the stolen items (they were stored in her apartment). The Supreme Court rejected that argument with the reasoning above which basically boils down to "The right result / wrong reason doctrine does not apply to uphold a conviction if the ARGUMENT was made for the first time on appeal and the trial judge was never given the opportunity to rule on the ARGUMENT."

(3) Finally, the Supreme Court dealt with another argument the Commonwealth presented first during the appeal: concealment as proof of participation. This the Supreme Court rejected this argument by (a) first adopting the rationale that it had under constructive possession argument

Because this argument was not made at trial, the Court of Appeals erred when it held that the evidence provided this additional rationale to support Whitehead's convictions.

and then it moved into an area which the Court of Appeals had previously addressed. The Supreme Court noted with approval prior Court of Appeals cases which had held the rather commonsense position that (b) an appellee cannot argue on appeal a position which would require evidence which had not been provided during the trial. In fact, it takes the Court of Appeals doctrine one step further.

Because the Commonwealth limited its method of proof at trial, Whitehead was not on notice to present evidence to rebut any other method of proof possible.

In making this determination, the Supreme Court discussed how this applied to both the constructive possession argument and the concealment argument.

So, in the end, the Supreme Court ruled that an appellee's new argument couldn't be heard when first raised during the appeal because (1) the trial judge had no opportunity to rule on the new argument and, (2) if the Commonwealth tried to prove its case via one method of proof it cannot offer another method of proof in the appeal because the defense attorney had no opportunity to rebut the new method in the trial court.

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Comes now the Court of Appeals.

In Perry v. Commonwealth the Court of Appeals is faced with the Commonwealth making a probable cause argument instead of the reasonable articulable suspicion. The Court of Appeals "assume without deciding" that the trial court got the reasonable articulable suspicion decision wrong. Then it moves on to the right result / wrong reason doctrine and Whitehead. It specifically quotes the first part of the Supreme Court's rationale

The Supreme Court refused to consider this new theory of guilt offered by the Commonwealth, stating "[C]ases in which the party seeking affirmance failed to present the argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not 'proper cases' for the application of the doctrine."

Then comes the all important word of the new opinion

Nevertheless

Then the Court of Appeals goes on to decide

Whitehead, contrary to the appellant's claim, applies only when the new argument made on appeal involves a consideration of factual findings that the trial court never reached, rather than application of a different legal theory to facts already considered by the trial court.

Following this, the Court of Appeals rules that since both reasonable articulable suspicion and probable cause are 4th Amendment issues and arguing one 4th Amendment issue at trial suffices to preserve other 4th Amendment issues arising from the same acts.

We find that this case presents an appropriate situation for the application of the right result/wrong reason doctrine. . . . [T]he parties here were aware at all stages of this case that the courts would look to the Fourth Amendment to determine if Trooper Weidhaas’s actions were appropriate - regardless of whether the question involved probable cause or reasonable articulable suspicion.

It then goes on to uphold the search based upon a reason never argued in the trial court.

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Of course, this is, as even the Court of Appeals obviously noted, contrary to the holding in Whitehead. This argument was never made before the trial judge and therefore never allowed the trial judge to an opportunity to rule on it. Thus it fails the first part of the Supreme Court's decision.

As to the second part of the Supreme Court's decision, it's obvious that the appellant never had the opportunity to rebut this different argument in the trial court. An argument never made in the trial court isn't even presented for a defendant to rebut. Yes, they both fell under the umbrella of the 4th Amendment, and I'll "assume without deciding" that no different evidence would have been presented had the new argument been made. Still, the arguments which would be made as to whether an arrest was legitimate under the 4th Amendment are far different from the arguments made as to whether there was reasonable articulable suspicion. The standard of a Terry pat down and the facts which justify it are more easily met than probable cause. A defendant arguing against probable cause for an arrest is definitely going to be making different arguments than a defendant arguing against reasonable articulable suspicion. The one saving grace here for the Court of Appeals is that while this part is wrong it would probably be held to be harmless error.

Hopefully, the Supreme Court will take this case and decide whether it will alter its decision to come into compliance with the Court of Appeals or overrule the lower court. If it doesn't do it with this case the Supreme Court will have to face this issue at some time in the future because every time the Attorney General's office and the Court of Appeals use Perry the obvious appeal to the Supreme Court will be based on Whitehead.

Up, up, & away!

I'm having a discussion with another prosecutor about how libertarianism is superficially attractive, but not a philosophy I can live with in the end. I explain that I just can't adopt the "let them die in the streets as long as they don't bother anybody else" point of view for practical and (mostly) moral reasons to my skeptical co-worker. Then a third member of the office walks over and says to skeptical co-worker, "I think you two are going to end up doing the same thing in the end anyway." We both look at him quizzically and he goes on to explain:

"You see, you'll get there because you don't want to lose a case. Ken? He'll get there because he's Clark Kent."
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Tokyo Vice

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 Tokyo Vice a 3.7. It's an intriguing look into the criminal underbelly of Japan mixed with the lives of newspaper reporters and police.

I first heard about this book when I saw the author hawking it on the Daily Show. His main hook is the biggest scoop of his career: uncovering FBI cooperation in bringing a Yakuza boss to the US in order to get a liver transplant. Of course, this is a big thing to him. It ended his career as a reporter in Japan, got him published in the Washington Post, got him death threats, probably got a female friend of his killed, and brought down a high level gang boss. It's a big story. However, it's not what draws me to this book (BTW, I listened to this via audiobook).

What really makes this interesting to me is the exposure to a very different culture. We start out with an explanation of how people get hired into a major Japanese newspaper and how it is to work the police beat.The hiring process is very different than what we have. In Japan every paper administers its own type of SAT type test and then puts people through a series of interviews before selecting new reporters. People don't work their way up from smaller papers to the big leagues; its like being hired by the New York Times or Washington Post straight out of college. And the police beat seems to work a little differently than I think it does in the US. One of the pieces of advice given to the author is to drop by the police officers' homes and make friends with them. That seems to go over pretty well in Japan. However, I will not recommend this approach in the US; I'm not sure I can vouch for the safety of a news reporter who drops by a deputy's house at 1 a.m. after he's gotten back from his shift.

We also get a pretty good look at the Japanese sex industry. The way it's presented, Japan has a massive, thriving industry in which men can get all sorts of things, ranging from just sitting and talking with a pretty woman at a hostess bar to clubs where girls dress in all sorts of costumes to a club which has its own subway car so that a guy can go into it with a girl and "molest" her. Pretty much anything is legal and the cops only intervene on rare occasions (technically vaginal sex is forbidden and if there is a reason the police want to shut someone down they may use this). Apparently, wives in Japan accept this as just something men do. At least we know that the one time the author admits an infidelity to his wife that she just tells him to keep it to himself and not bring home any diseases.

Interacting in this sexual community is what starts to give the author his insight into the Yakuza. It's not like the Mob here; in Japan the mobsters are so looked up to that there are fan magazines dedicated to them. The author starts to see that women, especially foreigners, are not doing all this willingly and are being forced into doing things and paying "taxes." The mobsters lean on them because they don't have valid visas and everyone knows that the police will not deal with the problem. If notified all the police will do is exactly what the mobsters are threatening: the police will merely eject the girl from Japan. From there we are shown more and more of the underside of Japan and how it is ignored by both the populace and police, especially if foreigners are the victims.

I listened to Tokyo Vice via audiobook and kept stopping the audio and rewinding it to listen to things over. It's a book which both those involved in criminal justice will find interesting as well as those who are interested in reading about cultures quite different than the one we've grown up in.

Expungement

A note from a loyal fan (hey, if you're going to be anonymous I get to assume things):

Horrendously off-topic comment, but I'm evidently not smart enough to find an e-mail address for you anywhere on this blog, was hesitant to track down your work e-mail, and couldn't leave this comment on the post that prompted it because that post was the video you did on expungement in Virginia.

Eager readers (and viewers!) will remember that the gist of your presentation on expungement was: if your case was ended by acquittal, by nolle pross, or by dismissal (recognizing that starting a few years ago, 'dismissal' and 'nolle prosequi' are not synonyms) then you were entitled under § 19.2-302.2(A) to expungement. If you pled guilty, nolo contendere, or if the court disposed of your case with any finding that indicated there was sufficient evidence to find guilt -- even if it did not ultimately enter a conviction of guilt -- then you were out of luck, expungement-wise.

This summer, the Court of Appeals handed down a couple of consolidated cases out of Bristol -- Comm. v. Compton and Brown v. Comm. -- that appear to add another rule to the list.

Brown was charged with misdemeanor assault and battery, and the Salem General District Court took the charge under advisement for 12 months pending his successful completion of ASAP. After Brown completed the program, the court ordered the charge dismissed. The Commonwealth opposed Brown's subsequent expungement request, reasoning that requiring an alcohol program was the condition for the dismissal and this means he was not innocent -- notwithstanding the absence of any specific finding or plea to the contrary.

Compton was charged with felony abuse and neglect of a child, and the Bristol JDR court deferred any finding contingent upon Compton's submitting a written parenting plan and performing community service. Subsequent to her successful completion of these conditions, the court dismissed the charge, again without making any finding of guilt or accepting any plea from Compton.

In both cases, the Court of Appeals held that expungement was available.

This isn't any radical departure from the general rules your video discussed, but given the paucity of caselaw on the subject, I thought the addition of another set of specific circumstances that support expungement would be of interest.

Thanks. I have added an easier to find way to click and send an email to me. Hopefully this will make it easier next time.

Brown v. Commonwealth is a Virginia Supreme Court case. The note I filed away for myself after reading this case follows:

Brown v. Commonwealth, JUN09, VaSC No. 081417 & 081588: (1) The fact that a defendant obeyed a court condition in order to have a charge dismissed does not establish that the defendant was guilty. (2) If a case is taken under advisement for a period of time without entry of a plea or a finding of guilt or facts sufficient and then dismissed after a period of time the defendant can have the charge expunged. (3) A person who pled guilty cannot have a charge expunged even if the case was dismissed per a first offender statute. (4) A person who pled nolo contendere cannot have a charge expunged because he agreed to be treated as though guilty. (5) A defendant who pled not guilty and had a judge find facts sufficient cannot have his charge expunged. (6) Any charge dismissed pursuant to a first offender statute cannot be expunged.

Parts (1) & (2) are pretty much what Anonymous pointed out. I agree that this doesn't change the law. It just lays out a road map for those who want to leave people the possibility of expungement.

Affirmative Defense for Mountain Murders

So, I'm having a discussion with another attorney today and he was trying to explain how mountain folk feel about murder. As he explained it there is a two part affirmative defense which doesn't exist in other parts of the Commonwealth:

(1) That sonuvab!tch needed to get kilt, and
(2) I was the right person to do it.

We discussed for a while whether this is a perfect defense and came to the conclusion that it is in some cases, but not in others. It seems to depend on how much a sonuvab!cth he is and whether he is either (a) on your land, or (b) with your wife.

Is it Intrinsically Noble to stand between the Reviled and society?

No.

BUT, that doesn't make a defense attorney's job any less noble.

Let's be clear here, we're not talking about people charged with something he didn't do; representing that person is clearly noble. We're not talking about someone overcharged or in danger of being over-punished; representing that person is noble. Nor are we talking about representing the immature, the mentally ill, a person who steals to eat. It is clear that standing between society and these people is intrinsically noble.

What we're talking about here is a Reviled One. Picture the most deservedly hated person you can think of. This is the person we're talking about (someone like the BTK killer, a 9/11 terrorist, the guy who ambushed and killed the four officers yesterday). He is a member of the small group of deservedly reviled and there is nothing intrinsically honorable or or noble in protecting him from society.

And yet, the defense attorney who takes that job and does the absolute best he can in defense of that person is noble.

Why?

(1) Because these cases are the ones which pose the greatest danger to society. If there isn't someone out there fighting tooth and nail for Reviled One these cases will inevitably end up with losses of rights and protections. These are the cases wherein everyone is going to cut corners, ignore rights, and crush protections in order to get to vengeance as quickly as possible. Someone has to stand in front of that bulldozer and frustrate its destruction of the rights and protections of all on the way to destroy the Reviled One.

(2) Because there is no way that society can be just if the Reviled One doesn't have the ability to access, understand, and properly avail himself of all the societal protections. A defendant cannot really represent himself well in court. Even if he is bright, he isn't experienced. Legal research is fairly arcane and even if he has access to a decent law library in the jail (unlikely) he is almost assuredly going to miss important things. He doesn't know written court rules. He definitely doesn't know the unwritten rules of practice, which vary depending on State, region, courthouse, and judge. Without an attorney even the brightest, most capable person is not going to receive a fair trial. By giving Reviled One all the access to laws, rules, procedures, and protections he should have the defense attorney provides an honorable and noble service.

Defense attorneys do serve justice. One could even say that they "seek justice" just as much as any prosecutor does. And I now say it. Defense attorneys seek justice. It's not the straight forward justice that prosecutors enjoy. It's a more esoteric form. Defense attorneys advocate for short term injustice and in the process they assure societal justice in the longer term. That's either seeking justice or having it occur as an unintended, collateral consequence. Forgive me if I'm a bit of an idealist, but I choose to believe that defense attorneys are seeking overall justice, not just providing it by accident.
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Need a Job? Go See Brian Patton

I was messing around with my LinkedIn page and listening to the UK/Tenn. game when I tripped over the ad for Russell County Commonwealth Attorney's Office hiring a new Assistant Commonwealth Attorney.

Admittedly, I don't know much about Russell County It's SE of the county I work in), but I've met Brian Patton (the Commonwealth Attorney getting sworn in to the left) and he seems to be a good guy. If you like living near the mountains and are looking for an interesting opportunity (and have a Virginia Bar card) you might consider looking into it.

The Blind Side

5 second review: Feel good film, but not deep.

30 second review: Homeless black teenager gets into a private school because he's athletic and is adopted by a rich white family which finds him wandering the street after school.

In depth: This is based upon a true story, but you get the feeling it was loosely based (See RD version & NYTimes). Once upon a time this would have been an after school special and now it's the kind of fare you'd expect to find on Lifetime. The only thing which raises it above this level is the performances of the actors and Sandra Bullock. The story would have been much edgier, and probably better, if it had been presented from the black kid's point of view. Instead it switches back and forth between a 3d party point of view to the white mother's.

The first part of the movie shows how Michael Oher gets into a private, Christian school almost by accident. The only reason he even gets to the school is because he is spending nights at the house of a family whose father promised his mother that he would send her grandson into a Christian school. Oher is just brought along and it's made pretty clear that he gets in, despite not being even slightly academically qualified, because he is extremely large and athletically gifted.

Then we are shown how Oher is living on the street, even as he goes to this rich, private school. It's not exactly subtle. We see him gathering popcorn after a basketball game to eat and washing his single extra t-shirt in a 24 hour laundromat (and sneaking his shirt in with someone else's dryer). We also see that one teacher taking interest in him and discovering that he's not dumb, he's just never been taught.

Next we see the mother of the Tuohy family taking him in and the family, pushed by mama, rallying around him and pushing him forward so that he can play football and develop learning skills in order to raise his grades and allow him to go to college on a football scholarship. There are scenes in here which deal with issues such as trusting someone from the poor side of town to live in your house, worrying about that the relationship between Michael and Collins (the Tuohy's daughter of approximately the same age), and Mrs. Tuohy dealing with friends who can't understand how she can have a black kid living at her house. However, all of these are fairly short; there's no in depth treatment of any of them.

Finally, there's a conflict at the end when the NCAA basically accuses the Tuohy's of taking Michael in just so they could channel him toward their beloved alma mater Ole Miss. There's no doubt that they pushed him in that direction, and it starts some trouble and soul searching. Nevertheless, in the end everybody is happy and all is happy as we are treated to the touching scene of the Tuohy's dropping Michael Oher off at Ole Miss.

The movie glosses over some things (such as "the great Mormon grade grab" - blame the NYT for that characterization, not me), and switches others around (Mrs. Tuohy didn't come out of the stands to help Michael learn to play, she came out to help the coaches when Michael wouldn't let them look at an injury), but it generally seems to be true to what Michael Lewis wrote in his article and book about Oher. There are two things which stand out as different. First, Mr. Tuohy is downplayed in the movie. He plays a role, but it seems less vital than that reflected in the writing. Second, Michael Oher is basically treated as though he is dumb (cannot speak). The articles seem to indicate that he was reluctant to speak about things that were embarrassing or painful, but that he was talkative at other times - particularly in his senior year. I don't know who chose to make Michael Oher have the personality of a quiet 2 yer old, but I suspect he is doing Oher a disservice.

I'm not sure that this movie makes it onto the screen if it had been about a rich white family taking in a homeless white kid from the trailer park or an affluent black family taking in a black kid and channeling him to Morehouse. Let's face it, we all know the hook is that this is a "we can all get along", kumbaya film. As such it does a good job. It could have avoided a lot of the criticisms and complaints which will be made abut it if it had been about people all with the same skin color, but then it wouldn't be true. (or at least as true as Hollywood ever gets).

Best line: Who knew we'd have a black son before we had a Democrat for a friend?

Anatomy of a Righteous Shoot

I'm visiting with my folks in Cincinnati when the morning programs are interrupted and the chief of police and mayor come on to do a press release about a shooting which had occurred the day before. This guy has misdemeanor warrants and decided that he was going to grab his pistol, run and shoot it out.

This is an abridged version (after an advertisement).

One interesting thing is that immediately after the shooting the officer in the camera puts his pistol on the ground. I'm not sure why he did that. He did not know he was on camera (the second video is from the store, not a police vehicle).

Lawyers Needed in London (Kentucky that is)

As part of my vacation I've been running around getting pictures of some of the local courthouses in Kentucky. Most of them I got on my way North (before it started raining). However, I was driving back to Virginia this morning I stopped in London, Kentucky to get gas. I figured the local courthouse wasn't too far away and thought I could spare a half hour or so to go grab some pictures.

I asked the lady at the counter of the stop and steal where the local courthouse was and she called the delivery guy over to give me directions. After I get directions they're both standing there pointedly not asking me why I need to know. The conversation then proceeded like this:

Me: Don't worry. I'm not trouble. I'm an attorney from Virginia and I'm taking pictures of courthouses while I'm on vacation.

Lady: You know, we need more good lawyers here in London.

Me: I know Virginia law. Kentucky law, not so much.

Lady: You need to learn some and move down here.

Unfortunately, I think I'm going to have to disappoint the lady. No reciprocity and an abiding desire not to take another Bar examine ever again are almost insurmountable obstacles.

Ordinary Injustice

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 this book a 3. It's worth a read for those involved in the criminal justice system.

This review of Ordinary Injustice is coming later than most. I think this is partly due to being asked to review it later than others. However, a greater part is my reaction to the book made it difficult for me to write the review.

The theme of the book is that injustice becomes part of the system not so much from a desire to do evil, but from improper acts by various actors which are not checked by other actors in the system. It's a theme which I agree with. She implies that it is a pervasive state throughout criminal justice systems in the US. This I also agree with. Every jurisdiction has something which could be fixed. By the examples she chooses, she further implies that the flaws are universally cataclysmic. This I don't agree with. It's been my experience that seriously flawed systems are usually endemic, not pandemic. As we are people, not God, none of us has ever succeeded in making a perfect justice system, but there are a few that come close, a great number in the gray area and those few which are so badly out of kilter that they stick out like sore thumbs. To be fair, there may be more terribly bad systems than amazingly good ones; still, the vast majority are going to be in the gray area where the flaws aren't shockingly obvious. In fact, if she wanted to make a strong case this is where it should have been made.

In the gray is where "ordinary injustice" would occur. An examination of similar jurisdictions wherein one consistently has sentences of three months more than the other for the same crimes would have shed more light on this. Is the prosecution in one jurisdiction pushing for higher sentences? Is the prosecution in another not pushing at all? Has the judge succumbed to political pressure from local merchants to impose higher sentences in theft cases? Has the judge succumbed to pressure not to put too many people in jail because the local jail only has 20 beds and the locality will have to pay to incarcerate any more in another locality's jail? Are the local defense attorneys just taking part in an assembly line so that they can get paid? Are the young turks over at the PD office putting principle over their clients' interests so that they end up getting larger sentences than they should? Various factors can cause a local jurisdiction to develop in a certain manner until "that's the way we've always done it here" becomes the reason things are still done that way. Of course, the problem with pursuing this is that it would take years of sociological research, tons of data, be very hard to pin down (because of so many possible causes), and - in the end - probably be about as exciting to read about as a discussion on variations in the mass production of bread.

Thus, we get Amy Bach's book, which is largely a discussion of cases of extraordinary injustices. She gives us four different examples from around the country: badly flawed indigent defense in a Georgia county; a judge removed from office in New York; a county in Mississippi wherein she believes not enough people are being prosecuted; and a Chicago case which she believes shows over exuberant prosecution. The Georgia and Mississippi cases are the strongest in her book, but they are also clearly aberrations. They aren't "ordinary." The Georgia case is based upon the lowest-bidder contract defender system which is probably the absolutely worst way to set up an indigent defense system. She makes the defender the focal point of her examination, making him the bad guy of the piece. The system was an assembly line wreck with plenty of blame to go around, primarily to the county leaders who didn't hire an adequate number of defenders or pay the defender enough to have sufficient support staff, but the defender's the bad guy. As you can tell, I wasn't too impressed with this. I also found Ms. Bach's astonishment that this attorney, once transplanted into a well-run office used the resources he was given and did a good job, a little disturbing. He knew what a boon the resources he had gained were and finally having them he used them.

Her strongest case, and most extraordinary, was the Mississippi non-prosecutions. I must admit to some surprise that this was included. It's not a usual part of the meta-narrative in these kinds of books. About the only thing more surprising would have been a section on over aggressive defense attorneys causing their clients to spend more time incarcerated because they were too caught up in the fight. In this case, the story is that a large number of charges aren't even being taken to the grand jury and therefore aren't being prosecuted. The prosecutor gives some reasons for this and his investigator seems to bear a good deal of the fault, but it's obvious that something is very wrong in that county. However, it's nearly impossible to shoehorn this into the "ordinary" category. Sure, there are jurisdictions where the LEO's grumble a little and there are always citizens who are upset because a prosecutor's office declines to prosecute certain cases, but it's not often the norm (if for no other reason than that most places could vote the bum out).

We also get a story in which a New York judges is removed from his bench because he failed to tell some defendant's of their right to an attorney and he placed people in a position of having to plead guilty or being held with a bond too high to make until their trial date. Now, it's always hard to get a good picture of what's going on with a judge because few people who practice law in his courtroom are going to say things publicly which might get them in trouble with the judge if he's not dethroned. Still, the case as presented wasn't different than what might be seen in any court. A defendant who "doesn't remember" anything, including his lengthy record, at arraignment gets a high bond. People choose whether to plead to time served (or less) in order to get out of jail prior to the date that all the witnesses could be brought to court for the trial. The one thing that was happening was that the judge was not giving everyone an attorney. I don't recall a statistic telling us the number of these cases over a certain period of time, but even in one case it would be clearly wrong. Still, with the case as presented (who knows what was actually going on and being said behind the scene), it looked like something where the judge should have gotten a warning and some training - probably even had another judge observe his court for a period of time - not something where the judge should have been removed. I think the problem here was that the demanded an open hearing and that he was being too honest about the way things actually work; as one of the people interviewed pointed out, this appears to be the reason he was actually removed. This was Ms. Bach's strongest case for "ordinary" injustice. A judge, apparently with a pro-defense reputation, sitting in his courtroom and on occasion sacrificing justice for efficiency.

The last case, the Chicago murder. I shan't go too far into this one except to say that, as I read through it, I realized that it was all spin. It was obviously a hard fought case and her assertion that it shows overzealous prosecution could have been spun exactly 180 degrees and argued that this is a case which shows how lengthy, almost never ending appellate processes can lead to muddling of the evidence enough to allow a man found guilty to go free without an actual showing of non-guilt. It can be argued either way and doesn't help her meta-argument.

In the end, I think Ms. Bach has made a good try in her first book. I think she would have been better served to have concentrated on one of the stories and written an entire book on it. Each story cried out for further exploration rather than being crammed into the argument of this book. As well, I was bothered by the amount of credence she seemed to give people whose self interest was to make the primary person in each section look bad. Maybe this is just the cynicism hammered into me after 10 years of practicing criminal law. In the end it's an average book which those interested in this area should find interesting, even if they disagree with it.

1% Motorcycle Clubs: Under and Alone

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 this book a 3.6. It's solid, interesting, and informative.

Once upon a time the Mongols MC was became big and violent enough that the federal government decided something had to be done. That something, or rather someone, was William Queen. His job was to infiltrate the Mongols and help bring them down from the inside.

Under and Alone: The True Story of the Undercover Agent Who Infiltrated America's Most Violent Outlaw Motorcycle Gang, is another book which I listened to via audiobook. It's an anecdotal / informative book which has as its main draw entrée into a world which few of us will ever see, the life of a 1% gang.

It's interesting to see how well the gang is actually run and held together. For instance, we are told it has a constitution and that in the late 90's the entire MC decided that they weren't going to beat “Prospects” (new members) anymore and that the rule was mainly followed (except by the one member who was supposed to enforce it throughout the various chapters of the club).

Queen makes contact and enters the gang through the San Fernando chapter. He rises up, becoming a prospect, a fully patched member, and finally an officer. Along the way, we get a feeling for the brotherhood which the members share, the danger they are to anyone who crosses them, their conflicts with Hells Angels, and the constant drug use. I'm not sure if the chapter Queen was in was an average chapter. The book makes it seem to be barely holding together with motorcycles that were falling apart and members not having the werewithall to do much besides hang out. It taxes there very fiber to make the cross country trips required by the mother chapter. In fact, I found myself wondering more than once whether the reason that Queen rose as far as he did in the three years he was under was because he was the only one who had his stuff together. In fact, we're lucky that Queen's on our side because if he had embraced the club entirely he might have led them to do a lot more damage then they were able.

It was an interesting listen. I recommend it to anyone interested in this genre as well as anyone who wants a primer on how 1% gangs work.

You Get the Murder Gene from Your Mother

But apparently it requires you to be a male and environmental activation as a youth:

Gang Leader for a Day: A Rogue Sociologist Takes to the Streets

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 this book a 3.7. It's a fascinating look at how those whom we see in court day after day actually live their lives.

I first heard of Sudhir Venkatesh when I was watching a TED video about Freakonomics and the speaker told how Sudhir, as a brand new sociology grad student and someone entirely ignorant of how things worked in the Chicago projects, walked into the middle of a project high rise, got abducted by a gang, and then spent the rest of his grad school career exploring the connections he built through that abduction.

Gang Leader for a Day tells us the rest of the story and it is fascinating. I listened to it as an audio book, but I suspect it's just as good as a read. It starts with a rather naive middle class kid who didn't know any better than to walk into the middle of the projects. From there, we go with Sudhir as he gets hooked up with the gang; his exploration of the gang is the largest portion of the book. From there, he works outward to explore the rest of the people living in the high rise the gang ends up at (the first building gets torn down early in the book). We meet the lady who runs the building, controlling who gets resources from the corrupt city workers and charging her own form of taxes from those running off the book businesses in the building. We meet the men and women running their own off the book businesses ranging from mechanical work to a lady running a store out of her own apartment. We even get a glimpse at how all this interacts between different buildings and gangs. Then, just as we get a fair understanding, we get to see it all come apart as Chicago decides that the high rise projects are a disaster and tears them all down, throwing everything into chaos.

It is fascinating to see how things interweave from the perspective of someone who spends so much trying to figure out how it all relates together. Particularly interesting is Sudhir's description of the businesslike manner in which a drug dealing gang operates. He gets a good view of how things work by hooking up with the gang's version of a mid-level manager who is a college grad and a trouble shooter for the gang leaders. He does everything from enforce drug quality standards to negotiating cease fires with other gangs. In the end, one gang member even gives Sudhir the books for the gang.

Those of us who work in criminal law probably have a better view of how the poorer segments of society than most. Still, it's interesting to see how the whole enviroment interacts. Of course, this is a snapshot of how things were at a particular time and place. I realize that it's different from how things are elsewhere (after all locally we deal with trailer parks, not high rise projects), but that doesn't detract a bit from the fascinating picture Mr. Venkatesh paints.

Oerheard in the Hall

Defendant: I want to have a plea agreement and probation.

Lawyer: That's not what the Commonwealth is offering. They're offering 6 years and 2 months with 6 years suspended. That's two months in jail.

Defendant: But I want a plea agreement with probation.

Lawyer: Look, you can plead straight guilty and get sentenced by the judge. You can plead not guilty and have a trial by judge or jury. Or, you can take the Commonwealth's offered plea agreement. 2 months.

Defendant: I'll plead guilty if I get a probation plea agreement.

Lawyer: That's not what the Commonwealth is offering.

Defendant: But it's only stealing and I ain't got anything else on my record.

Lawyer: It's 8 different charges of grand larceny on 8 different days. They're not going to offer you probation.

Defendant: But, . . .

Hard to Make Your Closing Thrilling When It's All About the Paperwork

Defendant lied to get benefits from a State Agency:

---

Well, ladies and gentlemen, I told you we'd get through this trial quicker than the last trial. Unfortunately, this one was more boring than most cases too. That's just the way it is in paperwork cases. You get up here and basically the only witnesses are people showing you how the paperwork is done and telling you why he did what he did.

Going all the way back to February 5, 2005, I told you I was going to have this paper for you. Feel free to go over this back in the jury room. He answers everything so that he can get benefits, including checking no on this question, which, compared to a lot of things in this 12 pages document, really isn't all that complex a question. “Have you, or a person for whom you are applying been convicted, after January 1, 2001, of snipe hunting or possession of snipe pelts?”

OK, he wants you to believe he didn't understand that question. Well, let's say he can't read too well. I don't believe that's been shown. He was reading things while on the stand and his illiteracy seems to come and go, as convenient. Still, we know better, because Pete Jones and Mary Greene got up on the stand and told us what they do for each interview. Now, I know that Mr. Smith tells you it's a ten minute thing, you're in you're out, you're done. I guess the interviewers are supposed to sit around the rest of the day drinking coffee or something, because if they only schedule 2 to 4 interviews a day I don't know what else you'd be doing. What are they filling that time with? It just doesn't make sense. Recall that they both told you the same thing. This is what we do; this is what was done with her. And they weren't in the courtroom during the others' testimony, so they couldn't hear what the other said and sit down and say exactly the same thing.

They both came up here and told you that on two dates a year apart, on 15 October 2007 Pete Jones interviewed him about the various benefits he was getting from State Agency and he answered no on the snipe hunting question. It gets put into the computer and he answers “no” again when they go over it verbally. The he has to scan it himself. All those opportunities to say “Yes, I've been convicted.”

18 November 2008, Mary Greene, same thing, they do the computer – and why would the workers cheat on the computer? It can't take that long to fill out the questions on the computer – they fill out all the computer stuff. She prints it out, goes over it with him. He again says, “No, I've not been convicted.” At least twice on that day he says, “No, I've not been convicted.”

Now, the big defense seems to be that, “They knew.” “They knew; they should have known.” Their one sheet of paper which seems to go anywhere near that is this one. This is the printout you've seen us arguing about up here. Now, this is, as it says here on the front, “Request to Be Made Payee.” This is from Federal Agency. You can tell it's from Federal Agency. Here they go on about “We are returning this application to you for your records” and telling that they store their copy electronically. This sheet was turned in the day after he told State Agency that he didn't have any snipe hunting convictions in 2006. It says that Federal Agency is giving him $176 a month from this date forward. And there's this part which says if you have any questions contact us at Federal Agency.

So, this is a Federal Agency document, which, by its own writings on page 2, was given back to Mr. Smith. Not given to anyone else at State Agency. And you'll recall that when Mary Greene was on the stand and defense counsel walked up and said “This is the form you get at the office” and she said “No” and he stopped asking questions real quick. She explained a little bit further, when prompted, that they get a different form than this. This is something that was given to Mr. Smith and if it had made its way into the State Agency's paperwork would have been stamped “received”, with a certain date, just like you see it stamped on the February 5 application Mr. Smith filled out and handed in. And, if he'd gone and gotten this copy from State Agency, like he told you today, it would have “received” such and such date on it. It doesn't - this is just his application from Federal Agency, to get money from them as well.

And, as far as it goes, for impeachment purposes, we have, March 22, 2006, the day before this application – see right here, it has March 23 – he was at State Agency and again said “Snipe Hunting Conviction: No.”

So, the whole “They knew” thing is a red herring and there are lot of red herrings, and that's [Mr. Defense Attorney]'s job. He's here to try to get his client not convicted. And he's tried to point out everything he can to get her not convicted. There's just nothing here which rebuts the paperwork and interviews.

Mr. Jones and Ms. Greene have no reason to be going after him. He couldn't state a reason that State Agency would be coming after him. No reason why Mr. Jones and Ms. Greene would be lying about it, going after him. Why would they make all this up? It doesn't make any sense at all. They're just doing their jobs and they're here today, rather than being at work dealing with their other clients because he lied. And that's it plain and simple ladies and gentlemen. There's not really a whole lot more to this. I wish I had some big rousing argument to make or statements to make.

He lied. He lied in order to get benefits. He's trying to do the same thing today by shuffling things at you like this application to Federal Agency and claiming he can't read anything despite the fact his initial application is filled out pretty well and on the other days he didn't really have to read anything. He got asked the questions. As a matter of fact, his inability to read is not what we're here for today because the two times he's charged are the times he was asked the questions by those folks and answered “No, I don't have any snipe hunting convictions.”

You'll get all this back there. Of course, here's the paper showing his snipe hunting convictions, 2003, before any of this started, before he applied at all to State Agency: felony snipe hunting.

I wish I had some sort of rousing statement to give you, like I said, but I think it's straight forward. I don't really think there's any reasonable doubt here folks. [Get charging instruction from judge] We have to prove he falsely stated in a document to get benefits from State Agency. That's what he did. He did it twice, and I ask you to find him guilty of that. Thank you ladies and gentlemen.

Someone Stole a Pyramid

Quoth the Defense Attorney

From an actual closing argument in a jury trial:

"Sherlock Holmes had an arch enemy, Professor Moriarty, who made nefarious plots and gave him someone to fight against. The Batman has the Riddler and Joker. Superman has Lex Luthor. Pity the poor County of Pitcairn; the worst person they can come up with is Jane Smith." (points dramatically at client who looks pitiful at defense table)

The Shelby County Anti-Judge Mutiny: When the Judge is Too Nice to Defendants

It's not a good thing to have a Commonwealth’s Attorney, County Attorney, Assistant County Attorney, District Court Judge get together to write an anonymous letter of complaint to the Judicial Conduct Commission stating that if the Circuit Court Judge remains on the bench "blood in the streets", because he is too lenient.

Not sure how true any of this is, but it makes me leery of running for judge in Kentucky.

Jenny Fontaine: Emotional Prosecutor

Now, here's a tactic I've not yet seen in court (not sure this one will work for us guys).

World's Most Impressive Scam Artist?

An entire room dedicated to him at the prosecutor's office and "the alleged scam actually would be his third in a decade operated over the phone from the Department of Corrections."

Who the heck is this guy? Lex Luthor? How the heck does he STILL HAVE ACCESS TO A PHONE?

Perfect Prosecutor

I assume this game doesn't exist in English. If he truly is perfect it would probably be a good training device.

How do you figure the value of an item stolen?

Baylor v. Commonwealth:

If there is no market for a used item (in this case catalytic converters) then the value of a replacement cannot be used to prove value. Value must be proven by another means and must be the value of the item at the time it was stolen. Possible methods offered are:

[T]estimony of a lay person as to the property’s fair market value, the opinion of an expert, or by traditional accounting principles, starting with the original cost of the item and then factoring in depreciation or appreciation.

Of course, the question becomes, if there is no market for the item once used and the value is the value when stolen after it has been used, is there any value if it's not the cost of replacement?

No, You Cannot Trifurcate a Virginia Trial

Elem v. Commonwealth: Defense attorneys in Virginia have been trying to figure out for a long time how to keep prior convictions out of cases in which an element of the offense is a prior conviction. No one has been able to convince Virginia courts that they should adopt the reasoning of Old Chief, so some have tried to get creative.

In Virginia all jury trials are bifurcated. In the first part the jury decides guilt or innocence. In the second part the jury decides the sentence.

Defense counsel tried for a trifurcated hearing. The first would have been to find guilt or innocence on the petit larceny. The second would have been for the jury to find whether or not there were two prior larceny convictions (necessary for the misdemeanor to be elevated to a felony). The third would have been the sentencing phase.

However, both the trial court and the appellate court denied them because such a procedure is not allowed by any legislation which has been passed by the General Assembly.

The Oxycontin Express

Watch this video. We have this problem here as well. When I was in Richmond the drugs were cocaine and heroin. Out here the problems are oxycontin, percocets, xanax, lortabs, suboxone, et al. Pain clinics, out of State doctors and pharmacies, mail order drugs - most of it starts out with veneer of legality. Watch the Kentucky mountains part of the video and that's similar - although smaller in scale - to what our drug issues are.

Probable Cause is Probable Cause - Except When It Isn't

Everyone knows of my skepticism over the magically constitutional dog-sniff which isn't a search per Illinois v. Caballes. Nevertheless, now that the premise has become law, it has to be applied.

So, a car is pulled over and has four passengers. While the stop is going on a dog is run past the vehicle. The dog alerts. So, per Caballes the officers have constitutionally valid probable cause to search the contents of the vehicle. They have the people exit and search the vehicle, finding nothing. Can the officers search the people who were in the car when the dog alerted? After all, probable cause was for contraband to be in the vehicle and the people were in the vehicle; if an officer took a purse out of the car and laid it on the ground probable cause wouldn't dissipate and the search would still be valid. Thus the search of the individuals should be valid.

Except it isn't.

In Whitehead v. Commonwealth, the Virginia Supreme Court ruled that the standard for searching people is higher than probable cause. After all, probable cause was established by the dog sniff which covered the entire area of the car and Defendant was in the car at the time. Ipso facto, there is probable cause to search Defendant (if probable cause allows the officer to search a purse in the car he should be able to search the defendant). Nevertheless, the Virginia Supreme Court has decided that for a search of a person in the car the formula is: probable cause + a particularized something more.

In order to get there the Court has to stretch its reasoning across several different cases. Here are the cases it goes through:

U.S. v. Di Re, 1948, USSC: (Severely limited by Pringle) Mere presence in the car where a crime has been committed is not probable cause if one of the other persons in the car has been specifically identified as the law breaker.

Ybarra v. Illinois, 1979, USSC: When police get a search warrant for a merchant's place of business the search warrant does not extend to whichever random customers happen to be in the place of business when the warrant is served.

Maryland v. Pringle, 2003, USSC: If contraband is inside a car an officer can reasonably infer that there is probable cause that all the occupants of the car are involved in the illegal activity because of the relatively small size of the automobile.

El-Amin v. Commonwealth, 2005, Va.SCt.: There is reasonable articulable suspicion for a Terry pat down of members of a group, in the evening in a high crime area, if a member of the group is found to have a weapon.

Of all the above, Pringle seems to be the case closest to point. It's not exactly the same because in Pringle the contraband was found first and then Pringle was arrested without particularized proof that it was his. However, since Caballes has declared dogs infallible, the same probable cause as the finding of drugs in Pringle is established by the alert of the dog.¹ Thus, the defendant in Whitehead has probable cause clearly established against him, just as the defendant in Pringle did.

Whence came the Virginia Supreme Court's reasoning? Well, it's a pretty close rationale to Di Re before it was limited by Pringle. Before the limitation, it was a fair reading of Di Re to say that it stood for the idea that being in a car in the presence of contraband or illegal activity does not mean that probable cause adheres to all individuals in the car. This is almost exactly the standard adopted by the Virginia Supreme Court. However, it is not the constitutional standard post Pringle.

Ybarra & El-Amin, neither car cases, really aren't germane to much except that the Virginia Supreme Court seems to be trying to use them as ammo in its attempt to turn back the clock and claim the old standard from Di Re. They bolster the Court's attempt to characterize this case as a "companions" case rather than a "car" case. However, it's clear that constitutional jurisprudence has set different rules for those in a car than for those an open shop or walking in public. The cases just are not on point.

To be fair, the Court was dealing with a terrible decision from the Court of Appeals which basically said that there was probable cause to search Defendant because he was the last place that hadn't been searched and that he couldn't raise the search of the other occupants, even if their searches might not have been as based in probable cause as his. Either all the occupants were searched constitutionally or they were not. You can't break the constitution until you find the guilty party and then state that it wasn't unconstitutional for this guy. As well, the Court does point out that there are opinions out there from other appellate courts which do not reach the same conclusion as it has. Maybe it's trying to get the USSC's attention by pointing out a split it ought to address.

Anyway, now we have to face the practical applications of this decision. I don't know if they'll be much. Now, as one officer searches the car another officer can run the dog past the individuals who have exited the car. As long as there is no extension to the time of the detention, this second, non-search sniff should not have any constitutional implications and furnish all the particularized suspicion needed.


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¹ And before you yell at me about this, go read the article I linked to in the first sentence of this post. I do not believe this is logical per se, I am just stating that it is the USSC's logic per Caballes and we are obligated to follow it.

Power, Persuasion, & Plea Agreements

So, I'm reading thru Simple Justice and I ran across this post regarding plea agreements. I'm not particularly concerned over whether academics have an accurate view of actual practice, but I did suss out some points which I thought it would be interesting to address.

(1) Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions.

I don't see how refusing to settle would get a defendant "lenient sanctions", except for a not guilty finding. In general, one would expect a pragmatic prosecutor to offer a better deal than Defendant could expect to get even if Defendant just pled straight guilty and got a disposition from the judge. I'm not saying Prosecutor will give up the farm, and she won't offer a punishment which is insufficient, but she'll offer something at least a little less than what the judge will probably hand down. Of course, there will be exceptions to this - charges which cannot garner an offer, judges who are too lenient for a prosecutor to conscientiously make a better offer, the rare unreasonable prosecutor - but this would be the general rule.

On the other hand, if somehow all defendants, and their attorneys, decided that from a date certain there would be no more plea bargains and that they were all going to plead not guilty to everything it would benefit a number of defendants in the future. Of course, the first group to do this would have a lot of people who would get longer sentences than they would have otherwise, but, assuming the government could not increase its resource expenditure to handle all the cases, the government would eventually have to bring fewer charges or drop more. This would benefit those with lesser charges. However, those with more serious charges are going to see the time they spend in prison increase.

As a practical matter, you'll never see all the defendants act in concert. In the short run it is to most of their self interests to take the plea offer. As well, defense counsel isn't charged with defending the best interest of the group, he's charged with defending the interests of the single defendant in his care. He cannot ethically recommend Defendant take one for the team and spend a year in jail for snipe hunting (instead of the 9 months offered) just so that someone else might not have to be charged or convicted of this crime in the future.

(2) The substantial bargaining power of the resource-constrained prosecutor is therefore the product of the collective action problem that plagues defendants.

Yes, this is partially true. However, that's an incomplete picture. A good portion of the power in a prosecutor's hands comes from the fact that a large percentage of defendants are provably guilty. They've been found by an officer in possession of contraband. They shoplifted while store security was filming them. They confessed to an investigator. Let's say that these "easy proves" are 60%. In those cases the only real thing which is going on is a determination of what the disposition shall be. If Defendant and Counsel know Defendant has a 99% chance of being found guilty and getting 5 years from the judge, that is what gives the prosecutor a lot of power to plea bargain. The prosecutor has the power to offer anything up to a 5 year sentence. Then come the "probable proves"; let's say these are another 25% of the cases. In those everyone perceives an 80% chance of conviction and therefore Prosecutor's plea bargaining power is less; perhaps her power only rises to the level of the ability to offer up to a 4 years sentence. The scale continues to slide as the perceived ability of the prosecutor to prove a case lessens. Mind you, the plea bargaining power of a prosecutor never completely ceases to be; the mere existence of the ability under the law to offer a plea agreement assures the prosecutor will always have some power in plea negotiations. In a murder case which both sides perceive to have a 5% chance of conviction an offer to reduce to felony battery and probation (rather than potential life) is still something the defense is going to have to consider.

(3) [T]he institution of plea bargains may not improve the well-being of defendants.

Since when is the purpose of anything in the courthouse meant to "improve the well-being of defendants?" Assuming Defendant's interest in court is that of self liberty, the only way he can achieve this in totality is to fight all the way to the end and be found not guilty. In a plea negotiation situation Defendant isn't trying to improve his well-being, he's trying to mitigate the harm society is going to inflict upon his liberty interest in order to further what it has decided are important ends.

(4) Thus, we can no longer count on the fact that plea bargains are entered voluntarily to argue that they are desirable for all parties involved.

Were plea bargains ever entered "voluntarily?" Were they ever desirable for all involved? Let's be serious here. In a perfect universe every lawyer, prosecutor and defense, would have one case and all the time and resources in the world. Judges would be assigned one case at a time and have no docket pressure. Jurors would be bright, attentive, and take their duties seriously. There would be no reason for even a plea at the beginning of trial; we'd just assume a not guilty plea and have at it. In such a system defendants would probably benefit in that more of them would probably be found not guilty. The citizens would also benefit in that there would be no need for the government to discount sentences; those convicted would be segregated from society for as long as they optimally should be.

However, this isn't reality. Judges are coerced into plea agreements because they need to keep their dockets moving. Prosecutors are coerced into plea agreements because it is problematic to gather all the witnesses and all the evidence for each and every single case they are prosecuting, concern about witnesses/evidence, speedy trial concerns, &cetera. The defense is coerced into plea agreements because of the probable worse consequences if the agreement is not entered into. Sure, no one's free will is overborne, but it isn't exactly as though everyone gets there without some force within the judicial system pushing him in that direction.

Just as true is the fact that plea agreements aren't desirable for all involved. They turn the esteemed, legally brilliant judge into a clerk for the prosecutor and defense attorney who are basically just filing their agreement with him. The prosecutor generally offers less than she really thinks is the optimal punishment for the defendant. And what defendant desires his liberty interests to be imposed upon?

Yet, plea agreements aren't going away anytime soon. They are the oil which keeps the judicial system flowing and unless someone comes up with something better they're going to be with us for a long time.

Prosecution: And So It's Been Three Years: Blogging

About three years back I switched from being a defense attorney into the role of a prosecutor. As the third year passes I thought that it might be interesting to look back upon those three years.

I used to wonder, back when I was a defense attorney, why there were so few prosecutors blogging. Now I understand. There are some considerations which are obvious enough, but some of which really hadn't occurred to me.

Of course, critiquing fellow workers and/or the Boss in a blog is just stupid and should be avoided. Anybody who doesn't disagree with a fellow worker once in a while is a saint or a rug, but if a conflict isn't major enough to leave the job a prosecutor should either work to resolve it in shop or just let it be. Nothing good can come of putting it in a blog.

Politics is also obviously a concern. As a deputy prosecutor you have a duty not to cause trouble for the Boss. This means watching out for the sensitivities of voters, other office holders, powerful people in the community, LEO's, judges, news agencies and anyone else who might impact the Boss and/or his office. So, if 5% of the people in the prosecutor's city believe the color Blue is God's color and refuse to swear an oath which does not in end "so help the Blue God" the prosecutor really can't comment on it for fear of offending a significant voting block.

Additionally, there is the concern that anything a prosecutor blogs about a case may be used against her either in trial or in an appeal or habeas. It's obvious that anyone who blogs about a trial while it's in progress is inviting trouble because of its potential to cause a mistrial (e.g.: if a juror stumbles upon it) or give away trial strategy to the other side. As a prosecutor she also has the problem of not knowing if a case is finished. A defendant can file post trial motions, or appeals, or habeases, or even a petition for a writ of actual innocence (in Virginia). Blogging about an important case coming out of the office the prosecutor works in invites these things, particularly in an era when people are overreacting to jurors text messaging or twittering. Sure, the motions filed based on a blog post would, almost always, be spurious, but a prosecutor just shouldn't go out of his way to provide ammo for a convicted offender.

One thing which makes it hard to blog is that a surprising amount of the interesting stuff which happens in a prosecutor's work is prior to court. You vet an interesting indictment before it goes to the grand jury. You help a deputy get a search warrant. Prosecutors and officers discuss what charges to file against someone. You discuss with officers ongoing investigations or the local drug trade connections. A lot of this is truly interesting and has some amazing stories attached. In fact, all sorts of interesting stories pop up precharge. Yet, a prosecutor can't blog about this stuff for both ethical and practical reasons.

Personally, I've been lucky in that both my elected bosses knew about my blog ahead of time and agreed to allow me to continue to blog. I've tried to honor their trust by not doing anything too stupid which might cause the Boss trouble. As anyone who has followed this blog for a while knows my style of blogging has changed somewhat. The strongest part of this blog used to be the stories of what happened in court with theory and news thrown in. Now, I think the strongest is the discussion of theory and law, usually with a concentration on Virginia. There are still some stories here and there, but not near as many. News stories don't often make it into my posts anymore, but that's more of a result of me putting a friendfeed up and just posting news links to it.

Is an Invalid Arrest Warrant Actionable?

Interesting article.

This Year for the US Supreme Court

Litter Patrol: Jail or Not?

After a number of misdemeanor convictions, Defendant is facing her first felony conviction. There's no doubt as to guilt (committed a felony in the presence of an officer), but the sentencing guidelines are really strange. If Defendant has spent any time in jail the guidelines will recommend she get over a year; if she has not the guidelines will recommend probation. Neither seems appropriate. Anyway, per the record, she served 10 days back in 2001, so it looks like she's going to go away for a while.

We all get to court and I give Attorney the plea offer and show him Defendant's guidelines. He goes off and talks to his client. Then he comes back. "She says she's never spent any time in jail." Uh-huh. Sure. I fire up the computer and connect to the Virginia Supreme Court's site. We look at the record of Defendant. Sure enough, February 2001 Defendant was sentenced to 90 days with 80 days suspended.

Attorney calls Defendant to the front of the courtroom and points at the screen. "Says here that you went to jail in 2001." Defendant, looking over my shoulder at the screen, "No sir. I did not. I remember coming to court for that, but I never got no jail time." Attorney decides that he needs to ask Judge for a continuance so he can check this. Judge says, "Attorney, your case is the last of the day, but I've got about an hour of paperwork waiting back in my office. This conviction was from our misdemeanor court. Go check it out and come back."

So off we go (after Defendant begs off to Attorney because she needs to go get a smoke). Attorney and I get walk down the hall to the clerk's office, which is luckily fairly empty of business. A helpful clerk takes about 10 minutes to hunt up the old file.

Right at the top it states "Guilty: Snipe Hunting Punishment: 90 days / 80 ssp." Then we read further down the sentencing document and find "10 days Hwy cleanup shall count as jail time."

WHAT THE HECK IS THAT?!?

We're not sure what to do with that. She was sentenced to 10 days in jail, but apparently the judge didn't make her go. Picking up litter on the side of the road sure isn't jail, but the judge defined it as such for this offender. Does that count against her on the sentencing guidelines under "Prior Incarceration/Commitment" or not? Neither of us are sure.

We bump heads for a little while about this. In the end, while I can make the argument that the litter patrol was incarceration - per the sentencing judge - I agree to not count it if Defendant serves some months on a misdemeanor she has appealed to the felony court. I offer this because if I lose the argument Defendant might get probation for both and I think that's entirely inappropriate. Attorney, knowing that if he argues the litter patrol shouldn't count as incarceration - no matter what the sentencing judge said - he might lose and that decisions the felony judge makes about sentencing guidelines cannot be appealed, recommends it to Defendant as better than risking over a year. She jumps at it.

The rest went pretty much according to normal procedure. Defendant pled guilty, got probation on the felony and months on the misdemeanor. And thus ended another strange day in the courtroom.

Moving Closer to the Portable Electronic Office

The techsavy world (via Gizmodo) has been making a little bit of a fuss about the new "tablet" design which Microsoft is rumored to have come up with, apparently all based upon the leak of this video:

I've been watching the handheld computer market for a while now and this form factor is an innovative idea which I think merits consideration and imitation. Of late, the real innovations in handcomps have been on the ereader branch, so it's good to see innovation from the tablet side.

This solves one of the biggest problems with tablets: how to view a document and take notes on it using the same computer. Sure, there were workarounds. Some split the top and bottom half of the screen; some made the original document smaller. None were really satisfactory. Now a document can be on one panel and you can be taking notes on the other.

Nevertheless, I suspect that this will not become the tablet which launches thousands. Why? Because they will try to do too much and be too fancy and they probably still haven't solved the weight problem. Companies need to concentrate on making this (and any other tablet) into a replacement for a legal pad, files, and books. They need to concentrate on doing this well and getting the price as low as possible - down to the price level of netbooks or what good PDA's used to cost.

Just imagine being able to go to court with a handcomp the size of a legal pad containing all your files and notes (because you save them electronically as soon as you make them), complete copies of all the statutes and cases (for every US jurisdiction), and all the secondary treatises on evidence, procedure and law. It's not here yet, but, God willing, sometime soon.

Here's what I want in a handcomp:

Approximately the size & WEIGHT of a legal pad. If you've ever tried to use a tablet you realize that this is a major issue in usability. A 3-5 lb tablet doesn't sound so bad until you have to lug it around thru an entire trial (did it once - not happening again).

Folds open to have two panels.

The panels use e-ink and are not illuminated unless operator chooses to (this should save a lot of wear and tear on the eyes) & yes, I do realize that e-ink needs improvement

A slot for an SD memory card in order to import and export files / programs

Touch controls which work both with finger and stylus

Approxiamately the innards you'd find in a basic netbook: atom processor, 1 gb memory, at least 40 gb storage - in order to do this solid state storage will probably need to be made affordable and used

A very simple operating system. Nobody has to get too fancy here. Palm's old system worked wonderfully. Maybe something like a modified version of jolicloud. BTW, I can't speak too highly of jolicloud's operating system and have it now on my personal Acer portable and my work Gateway portable. It's amazingly easy to use and pretty much idiot proof.

The ability to send notes which I have written to another person via some sort of IMish function. This would be a great way to write notes freehand to send (as opposed to texting) or even to send handwriting to a secretary to be typed up.

An audio recorder. If Creative can fit a recorder in a Zen the size of a credit card they can get on in this.

I'm sure I'll think of something else later, but for now, that's my perfect handcomp.

Census Worker Lynched in Clay County, Kentucky

Found hung with "Fed" written on his chest, but the FBI hasn't determined whether it was because of "anti-government sentiment."

Here's the AP video:

Why do people become prosecutors?

From D.A.: Prosecutors in Their Own Words by Mark Baker:

"As one former prosecutor who is now a judge reasoned at the beginning of her career, 'I figured as a D.A., if you did your job and the person was guilty, the person went to jail. If you did a bad job and the person was guilty, the person got off. However, if you were in Legal Aid and you did a bad job, somebody went to jail. I figured it wasn't a good idea to represent people and risk them going to jail because of my inexperience.'"

The Kindle, Books, and Record Albums

Scott, who has previously wondered why people would waste money on a Kindle DX, is now singing the praises of books rather than soulless electronics. After reading it, I recognized an argument I'd heard before.



You see, once upon a time there were these sound playback devices called "record albums." Those of you younger than 30 may never have seen one of these. They were discs with several songs scratched onto them which were played by putting a needle on the disc while it rotated. They also came with album covers which provided protection and art. Records were first challenged by 8-tracks, which allowed ease in choosing which included song listened to and were less vulnerable to damage. Then came cassette tapes, which were easier to carry, less vulnerable to damage, and allowed listeners to record their own music. Then came compact discs which offered more space for songs in a smaller format with the ability to easily choose a track and sounded almost as good as records. These killed records. In turn, they are now in the process of being killed by mp3's.

Your record collection told people who you were. People would browse through your collection and you'd even set your most impressive albums (in their covers) out for people to see. If you had the original White Album people would be jealous. If you had a cutting edge comedian like Bob Newhart you showed you were hip. Yet, despite the resistance of music companies and the howls from audiophiles, it all passed because new technologies just provided too much of an advantage to users.



Mass printed books have been around for about 550 years. They aren't about to disappear overnight. However, we've already passed the point where records were when 8-tracks came into existence. Devices such as Palm PDA's and Apple's iPhone have provided ebook reading experiences which are convenient, but neither practical or satisfying because of their size. Reading on a regular computer ties you to a desk or a slightly less inconvenient portable computer. Tablet computers seemed to be the solution, but they have never gotten light enough nor achieved sufficient battery life (I don't know about ya'll, but I can read for more than a couple hours at a sitting). Additionally, unlike ereaders, reading from a computer screen tends to tire the eyes much more than reading from paper.

Nevertheless, publishers are almost all coming around to offering ebooks. A very incomplete list would include firms such as Penguin, Random House, HarperCollins, Simon & Schuster, and Baen. They're not going there because they want to; they are providing ebooks because they've seen the future.

Ebooks are the future. As they stand now they are just short of the slot cassette tapes filled in competition with records. Their practicality and convenience isn't quite to the place that it can replace books completely, but the primary reason that they haven't made huge inroads yet is that the companies selling them are charging too much. Thus they remain an item restricted to those with large amounts of disposable income.



Mind you, I don't think that ereaders will completely drive all books from the field. For professionals and students something like a Kindle DX with an ability to write notes on and save (as though writing in the margins of a text book or taking notes in a case file) should become somewhat normative. Just imagine having all your case files in an ereader with you when the judge or another attorney or your client finds you in the courthouse and starts asking you about some case a month down the road; 10 seconds later you're looking at the file and can answer secure in the knowledge that you're not confusing the Smith case with the Smyth case. Newspapers and magazines are hopeful about this format, but I think this is something of a pipe dream because for a large ereader to be the format used for daily, weekly, or even monthly publications it would have to be cheaper than the smaller ereaders and I just don't see that happening.

On the other hand, low end, smaller ereaders will probably take the place of paperback books. To be honest, if the companies can get us all switched to ebooks rather than paperbacks they can sell the book for less and make more profit. Let's face it, they are currently selling us ebooks which they print out in order to sell them to us. If they can cut out the costs of paper, ink, and the brick&mortar's share of the sale, profit will be almost 100%.

Yet, I believe that books will remain. For one thing, people don't really buy hardback books to read. They buy hardback books because they want to save them, display them, impress others with them. The hardback books you buy and put on display are more important as signalers. They lend atmosphere and let people know who you are (at least who you want them to think you are). For another, ereaders will always be too expensive for some. My thoughts are that the small ereaders need to be under $100 and the large ones need to be somewhere under $250 if they are going to draw customers below the upper middle class. They'll probably also have to improve their graphics to the point that People magazine, etc. could be displayed in full color. Even then, there will be those who cannot afford them. For them some sort of books, newspapers, and magazines will remain. I hope.

Of course, none of this is going to happen tomorrow, or even next week. This is something which will happen in the fullness of time. I look for universities requiring their students to have ereaders to buy and load text books on, as the probable major sign that ereaders have taken the lead over mass market books and I've yet to hear of any doing this so far. I think we may see it in the next ten years.

As for me? Well, I don't own an ereader yet. If I had the money I'd probably be eyeing the Sony ereaders (particularly the PRS_900BC due in December). I want one, but the price point just isn't reasonable enough yet for me to rationalize that I'll save (in the long run) by purchasing an ereader so I can populate it with ebooks which cost less than the books I'd buy otherwise.

Larcenous Licentiousness

1) Beer's just not worth that much trouble.

2) Bus theft and slow speed pcp induced chase.

3) Not worth the time: stealing hot sauce and electrical tape.

4) The pink beanie thief.

5) "Did you hear about the identity thief in Seattle who tried to open a JC Penney credit card account with one of the very women whose identity she had stolen?"

6) Wow. Don't shoot at the tires of a fleeing thief in Missouri or you'll catch a felony charge and have your concealed weapon permit revoked.

7) Stole 6,000 gallons of gasoline in under 23 minutes. That's a talent better spent on NASCAR rather than thievery.

8) Credit card receipts.

9) ATM Machine stolen from inside the bank.

10) If you steal from the police, you will probably go to prison.

11) Don't bring your kid to work with you if you are a thief.

12) Is there a black market in stolen canaries?