Albo, Walsh, & Hassell, Oh My!The Continuing Battle Over Judicial Reviews

Remember, back in December, when I commented how "The New Private Judicial Review Process Starting to Come Off the Rails." Well, the conflict is still ongoing.

So far, the reviews of Virginian judges have not been used by the General Assembly.

Neither chairman has opened the sealed packets, Del. David B. Albo, R-Fairfax, because the order creates the possibility that he could be held in contempt of court and Sen. Henry L. Marsh III because he thinks the process is unfair to judges.

Frustrated with the gag order from the Chief Justice, the legislators have made noises about making Chief Justice Hassell appear and explain the need for his order and the legality of his order. They also made an attempt to take the control of the judicial review away from the Supreme Court; the Delegates voted to do so, but the Senate killed it by committee vote.

[AMENDMENT] Just got a ping in my news searches and it appears the Supreme Court is backing down after Delegate Albo (Chairman of the House Courts of Justice Committee) led a contingent of Delegates over to speak to a contingent of Justices. Now, legislators will be able to ask sitting judges about their evaluations during their reappointment proceedings, in public hearings.

Interesting Possiblity of Sentencing Juries

In Virginia we have bifurcated jury trials for all offenses. In the first part the jury decides guilt or innocence. In the second the jury sets the sentence to be served.

A while back, I ran across an interesting phenomenon which I think may be unique to Virginia, or at least to the few States which allow jury sentencing. In Virginia, accommodation is an imperfect defense to drug distribution. Accommodation is basically the distribution of drugs for another without any expectation of gain. If an offender is convicted of distribution of a schedule I or II drug it's an unclassified felony and the jury must impose 5-40 years in prison. If that same person is convicted of distribution of a schedule I or II drug as an accommodation it's a class 5 felony and the jury may impose 0-10 years in prison. The decision of which felony to convict the defendant is a jury decision. However, this decision is not made during the trial; it's done during the sentencing hearing.

The prosecution has to prove guilt of distribution during trial. During the sentencing phase, and only during the sentencing phase, the defense can try to prove that the distribution was not for the defendant's gain. In other words, the prosecution must prove the illegal act, then the defense must prove which type of felony his client is actually guilty of (or default to the max).

That's an interesting way to structure a trial and I must admit to never having thought of it before. It led me to some interesting thoughts on how statutes might be changed to fit within this framework.

~-~ THIS IS NOT HOW VIRGINIA LAW ACTUALLY WORKS
JUST HOW IT COULD ~-~

What if Virginia rewrote her statutes, or the appellate courts interpreted them, so that the prosecution only had to prove the general offense (larceny, distribution, homicide)? The default punishment would be the maximum under that offense. The defense could only raise perfect defenses during the trial on guilt or innocence. If the defendant is found guilty, the defense would raise any imperfect defenses during the sentencing hearing which would lower the offense from the maximum sentence.

For instance, the maximum punishment under Virginia's larceny scheme is 2-20 years (larceny over $200 with intent to sell). Let's assume that this would be the maximum punishment if the offense was changed simply to larceny. During the guilt or innocence phase of a trial the Commonwealth would merely have to prove a larceny. The defense could raise perfect defenses during the guilt or innocence phase, such as an alibi showing the defendant was playing poker at a buddy's house when the larceny occured. Assuming that the defendant is found guilty, during the sentencing hearing the defense would put on evidence trying to lessen the range of the sentence. In other words, the defense would show that there was no intent to sell, lowering the range to 0-20 years, the defense could show that the item stolen was a farm animal, lowering the range to 0-10 years, the defense could show the item was not worth $200, lowering the range to 0-12 months.

It's an interesting idea and, as the accommodation defense demonstrates, it could be done. I can see some procedural difficulties it might cause, but I can't come up with any constitutional bar.

Thoughts anyone?

Round Two of Virginian Judges' Ability to Alter Sentences

Previously on CrimLaw: I discussed here the ability of judges to modify plea agreements without the agreement of the prosecution or defense, pursuant to the last paragraph Virginia Code § 19.2-303.

If a person has been sentenced for a felony to the Department of Corrections but has not actually been transferred to a receiving unit of the Department, the court which heard the case, if it appears compatible with the public interest and there are circumstances in mitigation of the offense, may, at any time before the person is transferred to the Department, suspend or otherwise modify the unserved portion of such a sentence. The court may place the person on probation for such time as the court shall determine.

I pointed out a case directly on point, Esparza, which states the trial court has jurisdiction to modify even if the sentence was by plea. I then went on to discuss the two prongs which have to be satisfied for the judge to alter the sentence, "compatible with the public interest" and "circumstances in mitigation of the offense." I then went on to postulate as to the purpose of the statute, post creation of the Writ of Actual Innocence.

Donald, in a comment, cried foul. He pointed to language in the Esparza which states this statute is rehabilitative and should be construed liberally. Then he challenges my distinction between "mitigation of the offense" and "mitigation of the sentence." He ends by asserting "If a judge thinks a defendant has become a better person or less of a risk or whatever, at any time since the original sentencing, as long as the jurisdiction-killing DOC transfer hasn't happened, the judge can reduce the period of active incarceration. Period."

Thank you for your input Donald, but I must disagree.

I. Liberal Interpretation of the Statute:

Donald's correct in stating that there is language from cases in the 1950's which states this statute is rehabilitative and should be liberally interpreted. It's boilerplate and is included in just about every decision concerning this statute. However, the appellate courts have been very clear that language of the statute trumps any purpose previously attached to the statute by the courts.

In resolving that question, we must look to the language of the pertinent part of the statute to determine the General Assembly's intent. See HCA Health Servs. of Virginia, Inc. v. Levin, 260 Va. 215, 220, 530 S.E.2d 417, 420 (2000) ("Courts must give effect to legislative intent, which must be gathered from the words used, unless a literal construction would involve a manifest absurdity."). As "[t]he purposes of Code § 19.2-303 are rehabilitative in nature," Esparza v. Commonwealth, 29 Va. App. 600, 607, 513 S.E.2d 885, 888 (1999), the statute should be construed liberally. See Wright v. Commonwealth, 32 Va. App. 148, 151, 526 S.E.2d 784, 786 (2000) (stating that statutes should be liberally construed in keeping with their rehabilitative purpose); see also Dyke v. Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952) (noting that courts should liberally construe Code § 53-272, Code § 19.2-303's predecessor, in order to "afford to trial courts a valuable means of bringing about the rehabilitation of offenders against the criminal laws"). This does not mean, however, that Patterson is entitled to an interpretation of Code § 19.2-303 that is inconsistent with the statute's plain language. See Cartwright v. Commonwealth, 223 Va. 368, 372, 288 S.E.2d 491, 493 (1982) (noting that a statute may be interpreted in accord with its purpose only to the extent that such purpose "'may be accomplished without doing harm to [the statute's] language'" (quoting Gough v. Shaner, Adm'r, 197 Va. 572, 575, 90 S.E.2d 171, 174 (1955))). "The manifest intention of the legislature, clearly disclosed by its language, must be applied." Anderson v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944).

Patterson v. Commonwealth (no 2446-01-2)

Additionally, modern appellate courts have had no truck with giving offenders the benefit of the doubt under this statute:

Chilton v. Commonwealth (no. 0789-02-2) - An offender was transferred to the Department of Corrections (DOC), then back to the jail. Trial court lost jurisdiction at the moment of the first transfer.

Coe v. Commonwealth (no. 3293-02-2) - Even if the offender was transferred to prison contrary to an order of the trial court the trial court loses jurisdiction.

Patterson v. Commonwealth (no. 2446-01-2) - An offender with a suspended sentence cannot avail herself of this statute.

D'Alessandio v. Commonwealth (no. 0483-02-2) - An offender must prove the trial court still has jurisdiction and she has never been transferred to DOC.

There's no way you get those last three decisions by construing the language in the statute liberally with a rehabilitative intent. In fact, I don't think Patterson is even supported by a plain reading of the statute; ambiguous language had to be read against the offender's position to get that result. And there's nothing in the statute at all which supports D'Alessandio.

It's clear that modern cases are not giving this statute a broad interpretation, no matter who is effected by a strict interpretation. Both Esparza and Coe have strong arguments (from different sides of the Bench) which the appellate courts cut straight through, in strict reliance to the actual words of the statute. So, let's address the actual language of the statute.

II. The Language of the Statute

Donald's concern here is:

You reach your idea of the statute's purposes by way of the distinction (also unsupported in Esparza or in the statute) between mitigation of the offense and mitigation of the sentence. Your implication, which parallels the notion of after-discovered evidence, is that facts arising after conviction cannot mitigate the offense itself, only the sentence. But this is a lot of unnecessary line-drawing.

Consider: evidence presented "in mitigation" at the original sentencing hearing is certainly in mitigation of the offense, under your terms, because the sentence hasn't happened yet. But the offense itself might be a year old by that time. No one says the sentencing judge can't hear stuff about the Bible classes the defendant's been going to during his pretrial detention.

Okay, I defined Sentence and Offense in the last post, but here it is again to refresh your memory.

Offense: A felony or misdemeanor; a breach of the criminal laws; violation of law for which penalty is prescribed.

Sentence: The judgment formally pronounced by a court or judge upon a defendant after his conviction in a criminal prosecution, imposing the punishment to be inflicted, usually in the form of a fine, incarceration, or probation.

All definitions from Black's.

It's obvious that "offense" and "sentence" are two different events. They are related, as every sentence requires an offense, but not in any way the same. An offense is an illegal act; a sentence is post-conviction punishment for the act.

I never asserted that "evidence presented 'in mitigation' at the original sentencing hearing is certainly in mitigation of the offense, under your terms, because the sentence hasn't happened yet." That statement is a partial truth. Evidence presented in a sentencing hearing is presented to mitigate the sentence. It has two subsets. The first is evidence in mitigation of the offense. The second is evidence regardless of the offense. Evidence in mitigation of the offense cuts across much more of the process than just the sentencing. Evidence regardless of the offense is only to see the light of day in a sentencing hearing.

Here's the entire process diagrammed out:



Evidence mitigating the offense can affect things at various stages of the process. A decision to not charge can be made because self defense is obvious. In trial affirmative defenses can be raised to nullify or lessen a charge (lowering it to a lesser included offense). A judge may decide to give a convicted offender a lesser sentence because he didn't plan the robbery or his distribution of a drug was an accommodation (neither of which cancels guilt; both of which are demonstrative of where a sentence should be given in the range of possible punishment).

On the other hand, there is probably an infinite list of evidence and arguments which are made in an attempt to lessen a sentence regardless of the offense. Common forms of these arguments include good behavior since the offense (going to Bible classes, being a trustee, cooperating with the investigation), the difficulties which incarceration will cause (loss of job, inability to help ailing parent/child), or illness (can't go to prison because have to have cancer surgery). None of these mitigate the offense in the least; this type of evidence/argument is an attempt to persuade the judge that circumstances are such that he should skew the punishment to the lower end or forgo it regardless of the offense.

III. Conclusion

This is not "a lot of unnecessary line-drawing." It's a plain reading of the actual words of the statute. Offense has a specific meaning. The General Assembly put the words "mitigation of the offense" into the statute, not "mitigation of the sentence." The use of offense gives "the manifest intention of the legislature, clearly disclosed by its language" and substituting sentence in place of offense would be the forbidden "interpretation of Code § 19.2-303 that is inconsistent with the statute's plain language." There is no way to read the last paragraph of § 19.2-303 to give the judge unfettered power. The language of the statute, particularly in light of the caselaw interpreting it, simply does not support such an assertion.

Can Virginia Judges Unilaterally Alter Plea Agreements after the Defendant has Started Serving Her Time?

Yes. [AMENDMENT] and, possibly, no. (see amended section below about Public Interest and 23 February 09 post)

I did a little bit of research on this and, much to my surprise, there's a case directly on point, Esparza v. Commonwealth, (1999) No. 2602-97-1, which states that a judge can go back in and alter a sentence even if it was reached as part of a plea bargain. Of course, in keeping with constitutional requirements, the judge can only lessen the sentence. HOWEVER, the judge's ability to do so has some significant limitations.

Here's the pertinent part of the statute giving the judge such power.

§ 19.2-303.

If a person is sentenced to jail upon conviction of a misdemeanor or a felony, the court may, at any time before the sentence has been completely served, suspend the unserved portion of any such sentence, place the person on probation for such time as the court shall determine, or otherwise modify the sentence imposed.

If a person has been sentenced for a felony to the Department of Corrections but has not actually been transferred to a receiving unit of the Department, the court which heard the case, if it appears compatible with the public interest and there are circumstances in mitigation of the offense, may, at any time before the person is transferred to the Department, suspend or otherwise modify the unserved portion of such a sentence. The court may place the person on probation for such time as the court shall determine.

Basically, the first paragraph above gives the judge unfettered power to alter a sentence if its entirety (including suspended time) is less than 12 months. Since most felonies carry sentences of X number of years they put the defendant under the jurisdiction of the Department of Corrections and the second paragraph kicks in.

In fact, I think every case which has gone before the appellate courts in Virginia which involves this statute has been over whether the trial court has jurisdiction. Their findings can be summed up as (1) the trial court loses jurisdiction if the offender has for any period of time been transferred to the Department of Corrections, (2) this statute does not give trial court jurisdiction if the offender received an entirely suspended sentence, and (3) the statute gives the trial court jurisdiction over anyone being incarcerated anywhere, however they got there, as long as they have not been transferred to the Department of Corrections.

Of course, even if the trial court has jurisdiction the reduction can only happen "if it appears compatible with the public interest and there are circumstances in mitigation of the offense."

Definitions:

Public Interest: Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or abilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state, or national government.

Offense: A felony or misdemeanor; a breach of the criminal laws; violation of law for which penalty is prescribed.

Sentence: The judgment formally pronounced by a court or judge upon a defendant after his conviction in a criminal prosecution, imposing the punishment to be inflicted, usually in the form of a fine, incarceration, or probation.

All definitions From Black's.

The compatibility with the "public interest" prong is somewhat amorphous, but it clearly means something larger than the offender and her immediate family. I see this as only a minor barrier to the offender. After all, any defense attorney worth his salt is going to be able to come up with some reason his client would be of better service to the world rather than being in prison. [AMENDMENT] Upon rereading Esparza, I see that the court only found jurisdiction and specifically left for another day the question of whether a judge abrogating the terms of a plea agreement violates "public interest." When a court punts like that, rather than even giving an opinion in dicta, I'm always suspicious that it did so because the dicta would have weighed against the court's conclusion.

The rather huge barrier is the "there are circumstances in mitigation of the offense" prong. Note that it is specific. This is not about circumstances in mitigation of the sentence; it specifically states the circumstances must mitigate the offense. Therefore, all the offenders who want to come back to court in order to show how they've been models of good behavior since their conviction (gone to Bible class every day for the last 4 months and become a trustee) as well as those who want to get out because there has been some terrible family disaster which requires them to be out to help their family cannot fulfill this prong. There must actually be something which mitigates the offense of which they've been convicted.

Why would the General Assembly write such a constricted statute? Well, probably because Virginia has a very short period of time within which the court retains its jurisdiction. 21 days after the sentence is imposed the trial court loses its jurisdiction. This statute restores it for a period of time for a specific purpose. If the defendant gets some new evidence providing a perfect or imperfect defense before being transferred to the Department of Corrections (which can take months) he can return to court and get the judge to reduce the sentence or even suspend all of it. I'm not sure when this statute was adopted, but I think that for a long time before Virginia's General Assembly created a Writ of Actual Innocence (a few years ago after The Washington Post kicked a fuss) it was the only relief someone convicted could possibly have.

Currently, I think the statute has two purposes. The first is if there was there is evidence of an imperfect defense which was not known, raised, and considered at the time of conviction. The second purpose would be in a case wherein, in a very short period of time but after 21 days, evidence appears which proves the defendant is actually innocent. This statute allows a trial judge to suspend all of the defendant's time so that the defendant can file his Writ of Actual Innocence without being unjustly locked in jail.

Avast Ye Mateys! The Pirate Bay Be Repelling Boarders

The Pirate Bay, for those who don't know, is a web site which allows people to search for peer-to-peer (P2P) downloads of all sorts of files. P2P allows one person to download sections of a file from many other persons hosting that file and therefore distributes band width for those who wish to share a file as well as allowing for a quicker download even if the uploaders have slower speed on their internet connections. It has legal uses; for instance, the internet video channel Revision3 uses it to lay off some of their bandwidth expenses from extensive downloads. However, in the great majority of cases p2p is probably used to download illegal files (games, movies, music, television shows).

The Pirate Bay has long been the most high profile site set up to search for these p2p hookups. TPB is part of an anti-copyright movement and actually led to the founding of a new political party. However, it never hosts any illegal files itself. Instead, it points people to "torrent" files are downloaded and used with software on the personal computer itself to hook up to the other computers to accomplish the download. Unlike older systems (ie Napster), the file transfer does not go through the Pirate Bay's computers at all. This, and the Pirate Bay's location in Sweden, have been TPB's defense against all sorts of organizations which would like to shut them down. In fact, TPB has an entire page dedicated to the letters it has received from various companies and organizations and the letters it has sent in reply.

Until recently, it seemed that TPB was safe in its haven in Sweden. Then the Swedish government, apparently bowing to pressure from the US and European countries (which in turn were being driven by the music and movie industries), raided TPB. TPB then moved some of its servers to different countries and got back up and running. The Swedish authorities then took those involved at TPB to court. The trial has just started.

So far, the trial has gone badly . . . for the government. The first day of trial had demonstrations outside the courtroom in favor of the defendants. Inside the courtroom things were going TPB's way. Apparently, the government attorney was shown up in court so badly that on the second day of trial he dropped 1/2 of the charges. While the music and movie reps put on a brave face about this development, it appears to be a rather major victory for TPB. Furthermore, there seems to be a good deal of doubt whether TPB can be found guilty of anything.

The trial goes on. If you're interested you can follow all this at Torrent Freak.

Not Gonna Let Felons Vote

The General Assembly spiked a bill which would have added a provision to the Virginia Constitution allowing the General Assembly powers to return voting rights to felons instead of just the governor.

Y'know, I don't have a problem with non-violent felons getting their right to vote back after a period of time. I'd probably set the time period at 10 years after their last conviction. I'd say "when their probation ends" or 10 years whichever is longer, except for the fact that I've seen more than one judge say "indefinite" probation. I think even "indefinite" probation is limited at maximum to the amount of time suspended, but in Virginia you can have 20 years suspended for any larceny of $200 (and I've seen it done).

Violent felons (rapists, murderers, robbers) don't have my sympathy here. There are certain acts which should serve to permanently segregate someone from the community.

I see this battle being fought over and over and over again. I've come to realize it's more of a philosophical debate than anything else. After all, how many people who are out there committing felonies are voting or will ever vote? When I was doing defense work I handled hundreds of felonies and I can only remember one in which the client was seriously worried about losing his right to vote. I suspect there are some people out there who have kept there noses clean, burning to get their right to vote back, and can't get the governor to restore them. I just can't see it being a huge number.

Because Deaf People Have to go to Jail

A probation office couldn't find safe work for a deaf man ordered to do community service, so they sent him back to the judge to serve jail time instead. The judge was not pleased.

Belize and Law

It's always interesting to read the trerminology used by different legal systems. I triped across this example from Belize:

"This morning’s trip to Belmopan was to hear Magistrate Earl Jones’ ruling on a no case submission that his defense attorneys made on January 29, during the preliminary inquiry into whether or not there was a prima facie case against him."

I believe that probably translates into American as "a motion to strike in a preliminary hearing to establish probable cause."

22 Dogs

Yes, that's a picture of 22 dogs in a car. On top of that, there was a lady living in there with them.

Law Books at the Book Store

I don't know why it is, but every used book store I've ever gone to has a set of law books and law school text books. And, when you talk to the owner of the store he will always gripe about how he got stuck with them, can't get rid of them, and say he'll give you a great deal if you'll just take them off his hands. Then he quotes you a ridiculous price for out of date books which you'd never use.

I discovered a used book store yesterday and, sure enough, in a far back corner these books were up on the wall. Of course, the law school books are useless and the out of date "modern" statute books won't really do me any good. However, that black book on the far left is a 1930 Virginia Code (all in one book). I would be interested in having that. However, when I approached the store keep he refused to quote a price for that book alone. Anyone who wants it is going to have to buy every single Virginia statute book they have.

As you might imagine, the books are still sitting there on the shelf.

Give the Jury a Torch

"Keep them in the dark, shovel a bunch of facts at them, and then tell them which parts they should have been listening for." This is the basic way every jurisdiction I know of treats juries.

We give jurors some very basic instructions at the beginning (mostly about not talking to anybody about the case until all the evidence is in) and tell them what the defendant is charged with, but we don't tell them what to look for. I know that lawyers in Virginia aren't supposed to tell the jury the law we're applying to the facts to in the voir dire or opening statements. It's the silliest rule out there because then all we can do is tell them the facts without any context. Most lawyers push the envelope on that rule because you can't possibly give the evidence without some sort of context. Still, it usually comes out "We're going to show you that Mr. Smith committed burglary through Facts A, B & C" or "They won't be able to prove Mr. Smith committed burglary because they won't be able to prove Fact B."

Jurors then sit through a trial without a solid idea of what to look for, or, worse, a semi-formed idea of what to look for based upon their own ideas of what burglary is, what they've seen on Law and Order, and what little they've gleaned from voir dire and opening arguments. Any one of these sources could mislead them. What if someone is charged with statutory burglary in Virginia? How many citizens understand the difference between burglary, robbery, and larceny? Not too many. The law picked up from Law and Order is TV'ized and based on New York law (where they suffer from crimes in multiple degree syndrome). And, who knows what they may have picked up from the unexplained voir dire and opening statements of counsel? It's not fair to the jurors to keep them in the dark like this. The only possible effect it can have is to confuse them.

What needs to be done is to read the charging instructions to the jury at the beginning of trial. Heck, give them a copy of the instructions at the beginning of the trial. And, I mean before even the voir dire. As they walk into the jury room prior to the trial, give them one sheet naming everything the defendant is charged with. Then, for each type of charge, give an instruction on the elements which must be proven. This would give the jurors a sense of focus, letting them know what they should be looking for. I'd bet dollars-to-donuts that this would help the jury immensely and I cannot see it hurting or helping either side (unless it's one of those cases wherein the defense's only hope is confusion).

Would this solve all problems? No, nothing solves all problems. Nevertheless, I think it would be a step which would greatly improve the lot of the jury in a criminal trial. Of course, there would be resistance to it. Every change in law or legal procedure is resisted, even if it's for the good. There would be all sorts of well reasoned excuses given as to why this shouldn't be done and why it wouldn't work. Scratch the surface and these are quickly revealed as "But that's not the way we've done it for the last 150 years."

Lawyers, judges, and anyone who has paid attention have had less and less faith in the jury system over the years. They make things slower, less predictable, and we constantly wonder whether jurors understand what is being presented. Well, juries are always going to be slower than a bench trial. They are always going to be less than 100% predictable (that's the point - both sides think they can persuade the jury and worry that the other side can). However, if we take this action it will be a great step in the direction of at least making sure the jury understands what is going on.

Give the jurors this torch. Let them know the instructions so that they understand what's being presented during the trial.

Jury Anxiety

From Matlock: 10 things which cause jury anxiety (and my comments):

They do not understand the information.

Yes, well, any of us who have tried a case in front of a jury know that this is a valid concern.

They suspect they are alone in not understanding the information.

Again, if you've ever tried a jury trial which has come up come up with an unexplainable verdict you know they are right to have this concern.

Information is presented too quickly.

This is often true. We lawyers, having seen a particular type of evidence a million times, and judges, who want to move a trial along, often move too quickly past something (like a record of prior conviction) which the jury has never seen before with only a cursory explanation of what it is.

Information is presented through only one communication channel.

Understandable, but not much that can be done about this. Evidence is supposed to come from one source and be tested by another, within rules as enforced by the judge. I really don't want a juror to be able to go to the internet and find that one website which claims all criminals are Martians and base his vote to convict on that.

The amount of information is overwhelming.

We've had 2 years to digest all the information in the murder case and we're still using notepads and/or computers to have outlines to keep us on track. Then we dump it all on the jurors in one week and maybe allow them to have a notepad. Can't understand in the least why they feel overwhelmed by that.

Multiple sources of different information are being presented simultaneously

I'm not sure I understand this one. I guess it refers to attorneys arguing different points during an objection.

There is too little information about the information.

Again, probably a side effect of lawyers knowing from long experience what a particular item of evidence means and only being allowed to present it rather than explain it at the time.

They do not know whether further information about the information will be presented.

That's a failure of the attorneys in their opening statement to explain the evidence they will be showing the jurors.

The information is contradictory to old information they had before hearing the new information.

Can't get around this. It's the entire point of having a jury trial.

They do not know whether they will need the information.

This is a failure on the part of our system to tell jurors what they should be looking for. We just do our best to keep them in the dark, shovel a bunch of facts at them, and then tell them which parts they should have been listening for.

Snow Delays, The Secret Service, and The Wise Contingent: The Saga of The CrimLaw CLE

All us legal folks are required to go to "Continuing Legal Education" (CLE) seminars for 12 hours a year (2 of which must be in "ethics" training). Of course, nobody comes out to God's Country here in the mountains to put on any of the major CLE's, so we either drive down among the flatlanders or watch videos or arrange our own CLE's. Having not been down to the flatlands since moving up here, and needing several hours of credit, I decided to go to the Williamsburg for the Bar's annual Criminal Law CLE.

So, I send in the money for the CLE and reserve a room at the swanky hotel the Bar holds this thing at. The plan was that I'd leave Wednesday right after work and travel 4 hours east to about Roanoke and then hunker down for the night before traveling the next 4-5 hours on Thursday (visiting people along the way). Of course, no battle plan survives contact with the enemy and Tuesday night/Wednesday morning is the worst snow storm I've seen since I've been here. The courts were closed Wednesday, so theoretically I could have left early but when I tested the roads out at about 1 p.m. I still had to use 4 wheel drive and decided I wasn't traveling until Thursday.

Thursday: I wake at 4 a.m. so I can get an early start. Throwing my old parachute bag full of clothes in the car, I go make sure that the dogs have a huge trough of food and another one of water do they'll be okay for the next couple days. Then I get in the trusty Jeep Cherokee and leave about 6:15. The roads are clear enough that I get over the Jenkins Mountain Death Trap which just about did me in Tuesday night and I plugged in my Creative Zen and turned on the AudioBook I downloaded specifically for this journey (The Coldest Winter by David Halberstam). The I drove and drove and drove and drove and drove . . .

About 7 hours later I pulled into Powhatan and went to visit and, about 45 minutes later, I showed up at the door of the Chesterfield County courthouse. Then, after going back to my car to unnecessarily return my mp3 player to my car (I'd already left my blackberry, personal cell phone, leatherman, machete and machine gun in my vehicle before going to the courthouse door and learning that my mp3 player was such a terrible security risk), I dropped by to visit people I hadn't seen in a couple years. I picked up the latest gossip (1 & 2) and said "hi" to everybody I knew. Then it was back to the road for another couple hours.

Finally, I pull up to a Marriot which is where my directions led me. They're kind enough to tell me I'm at the wrong place and direct me to the next Marriot down the way (a block further along). When I get there the parking lot is filled with nice, gleaming, new cars. I park my 11 year old Jeep, still covered with all the salt and muck it had picked up in the mountains as I drove out. I notice two news vans parked there with their antennaes up. Then I see the police car parked by the front entrance and the officer standing in the lobby. I enter the lobby, check in, and pay cash up front. Then I go out to my car and get my clothes. On the way back in I ask the doorman what's going on. He tells me that Obama is doing something up the street and the news can't get their vans any closer and the officer is here to keep an eye on things.

Great, I'm here in a beat-up, muck-covered Jeep that sticks out in the parking lot like a sore thumb, I just paid in cash for my room, I'm carrying an old Army surplus parachute bag, and I'm from the one part of the United States which voted 99% against Obama. Visions of Secret Service agents bursting in my door at 3 a.m. begin dancing in my head. Anyway, I shake it off and go up to my room. On the way up I see another police officer patrolling the halls. I come back down to get a snack and there are 6 officers and a dog walking through the lobby. I get my snacks and head back up.

A little after 6 I head back down for the reception set up for those here for the CLE. The room is almost empty and the people in the room whom I know are people I know of, not people with whom I ever sat down and had a conversation with. I grab a beer drink it and head back to my room. On the way, I spot two plain clothes guys standing in the hallway and some political types standing around in the lobby. The politico's appeared to be handing out "homemade" Obama=Change signs to younger kids who are going wherever Obama is. After staying in the room for another half hour, I make another run by the reception and the people there haven't changed much so I head back to the room. See another guy in the lobby who didn't fit in, but couldn't figure out if he was political or plain clothes. Get back to the room and decided to call it a night.

The room is nice enough, but there's nothing on TV. Going out is undoubtedly going to be a nightmare because I don't know Williamsburg and we're obviously close enough to Obama that parts of the City are going to be locked down. Which leaves the Internet. However, when I go to log in they want $9.99. This hotel, which is charging me - even with the Bar discount - an amount of money which would have put me up for 3 days at a Red Roof Inn an hour down the road (with free Internet), wants me to pay for Internet. Nope. Not happening. Instead, I turn in early.

Which, of course, means I wake up at 3:30. I finally fight my way back to sleep about 5:00 (my normal wake-up time), knowing the alarm in the room is set for 6:00. When I awaken, it's 7:00. The cheapo alarm clock furnished by the hotel went off so low that I slept right through it (someone had set the sound all the way down). Still, no rush. I get up, prep and head down to the CLE. I don't even bother to go get breakfast because every time I've gone to this particular CLE they've always laid out food and a variety of drinks before the CLE. Except this time. This time the only thing they've seen fit to lay out is cofee. Still, there's time for me to run down to the little shop in the hotel lobby and pay a gazillion dollars for a Rice Krispies treat, banana, and bagel (two bites of which reminded me why I dislike bagels). Then I finally, head back to the conference.

Once seated in the room, I fire up my trusty portable computer. Surely, a place set up specifically for conferences in a modern era will have free Internet as part of the services provided. NOPE. So, instead of live blogging the CLE, I end up tweeting portions of it.

First, we get told about all the legal changes over the last year. No major ones that I hadn't already caught, but it's a good review (always the most useful part of this CLE). Then came a section on collateral effects of a criminal conviction on aliens. What did I take away from this section? If you're a defense attorney and your client is an alien, call an immigration attorney because you will never be able to figure out the morass that is immigration law. The third section was a painful section about evidence which was mostly not helpful. Federal rules DO NOT HELP VIRGINIA LAWYERS. We have common law rules and, despite what professors and others might think, 90% of us don't spend time in federal court. There was a Virginia judge who was giving useful counterpoints as to Virginia law (except one point where they through a question as to whether a conviction for possession of cocaine could be used to impeach; the answer was "no" in federal court and I think the judge wasn't listening because he agreed that the result would be the same when they asked him about Virginia courts). Toward the end the Virginia judge had part of the time to himself and that was more useful.

Then came lunch, It was a typical conference lunch with a typical conference speaker. The defense attorney/US Representative regaled us with poetry, stories, and why putting anybody in jail is just plain evil. It's the same speech, different presenter at each and every one of these things. I've yet to see a law and order type get invited to speak at these things.

So, we go back to the conference room. Next comes the ethics part of the program. This merits a post all of its very own and shall get one for tomorrow. Some people get up and leave after this section, knowing they are now legally ethical. However, a large majority stay. Craig Cooley walks up to the podium to give a talk about ten things to remember for a jury trial. Cooley is simply amazing. Anyone else could have put those points together, delivered a similar talk, and been summarily ignored. After all, who pays attention to the after lunch sessions? Cooley stands up there and the crowd is hanging off his every word. Now, I get this with those of us who started practice after the Cooley mythos became ingrained in Virginia legal circles, but it's not just us. His contemporaries are deferential as well. In a profession where so many people tear each other down, I've not seen any other lawyer treated with that much respect.

When Cooley finishes half the crowd leaves. The final speakers are a judge, an assistant prosecutor, and David Baugh. Baugh's another legend of the Virginia Bar, although not necessarily as beloved of one. He is memorable for his audacious, smart and loud defense work; one of the things everybody remembers is that he was the lawyer in the Morrisey fight (wasn't there, but suspect he'd have won). My first memory of David Baugh is being at a CLE as a young lawyer and having him tell all of us that if we had'nt yet been found in contempt and spent time in jail we weren't real defense attorneys. He seems to have mellowed somewhat over the years, but he was clearly the big gun at the table. The three of them spend an hour telling us that we should be asking more questions during voir dire, which is something I'm sure my circuit court judge will be just thrilled to hear. Not an extremely helpful section except for one thing: they gave us the cite to the Virginia case which states that the "If I tell you the law will you be able to follow it?" are improper and may not be asked by the judge. Good knowledge to have.

Finally, I go back out to my Jeep and head West. I listen to more of The Coldest Winter by David Halberstam as I drive 3.5 hours to impose myself overnight on a friend in Powhatan. We (He, hiw wife, and I are all crimlaw attorneys) trade war stories and the next morning his wife and he pile into their car and I jump into my Jeep and we head out to Bedford County to visit the D-Day memorial. Two hours later we're there and walk around checking the place out. It's a well done memorial, but out of the way. I bet it gets mobbed on 06 June. Anyway, we see all there is to see and my friends head back East while I continue my trek West.

It's 5 more hours to home and at some point I finish my audiobook about the Korean war and start listening to All Creatures Great and Small by James Herriot. I'd read it back in the 9th grade and it's still fun to listen to the stories of a country vet.

Finally, I get home. Three dogs come screaming up to the door of the Jeep and as soon as I open the door Lady (the lab) jumps in on top of with with great, muddy paws and drenches me. I get out and pet all three, then head for the door. There's a package there from UPS (lotta good the dogs did). It's to my address, but someone else's name is on it. Also, printed on the top in my hand is the message: "Return to sender. No one here by that name." I'd dropped it in a UPS box the Tuesday previous after it had been delivered to my address. Weird.

And so ends my Saga of the CLE. Think next year I might just pay to watch the tape. I like being there, but the drive is just tooooooooooooo long.

BTW: I want to thank the approximately 10 people who stopped and commented about the blawg. It's always good to know there are people out there actually reading this thing. ;-)

CopCast

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My Tie to D-Day

On the way back from the CLE at Williamsburg, I stopped in Bedford County and went to the D-Day Memorial. This unit is the one that I went through basic training in: 1st Platoon, Charlie Company, 1st Battalion, 26th Infantry Regiment.

Hate Crime or Excessive Force?

HT to Corine Claxton, who pointed out this story on Twitter.

Newspaper articles about criminal allegations are almost invariably frustrating to read. They never give me the information I want in order to decide what I think actually happened. Jason Vassell's case is a perfect example. Almost all the characterizations of the evidence seem to come from the defense counsel or people dedicated to an absolute belief that the defendant is not guilty. However, even assuming the evidence is as portrayed it leaves me with some serious questions.

Vassell's lawyer, David P. Hoose, has said that Bowes and Bosse instigated the confrontation by shouting racial epithets at Vassell from outside his room, breaking his window, and attacking him in the lobby.

What were the results?

Bosse and Bowes suffer[ed] from knife wounds, and Vassell’s nose was broken.

Vassell was charged with two counts of assault with intent to murder, two counts of aggravated assault and battery with a deadly weapon. Meanwhile, Bowes was charged with two hate crimes and disorderly conduct, and Bosse has not been charged at all.

The first article elaborates on the injuries somewhat (only information from prosecutor's office).

Vassell stabbed John C. Bowes and Jonathan Bosse several times each during a confrontation. The two men underwent emergency surgery as a result of their injuries.

This leaves me with all sorts of questions.

1) What started the event? Something's up. Did two white guys just pick a random black guy to harass? Possibly. However, breaking a window and then going into the lobby to pursue it further seems to indicate that something happened to stir emotions. There's something here we don't know about.

2) How did the knife come into play? Did Vassell pull it out of his pocket when he walked into the lobby and they bum-rushed him, or did he come out of his room ready to go with the knife in his hand?

3) Only one of the white guys charged? Did the other only stand around? Was the other guy just standing there or urging it on or trying to intervene to stop it?

4) How serious were the wounds? Are we talking slices (surgery=stitches) as Vassell waved the knife in front to keep the other two away or are we talking about multiple, major, once they were down, puncture wounds?

Honestly, I can't tell enough about the situation to know if the charges are justified. All I am sure of is that a fight took place and all parties left it injured. Everything else seems to be spin fed to the newspaper. It's just plain frustrating.

Me, My Dogs, and Snow

For those of you who come from places where they think the seasons are Hot, Drought, Hurricane, and Humid, here's what snow looks like:

How NOT to Deal With the Court of Appeals

I checked the Virginia Court of Appeals published opinions today. There was only one and it wasn't something you see often: the Court of Appeals directly finding someone in contempt of court.

What is required for a three judge panel to find an attorney in contempt?

1) File Notice of Appeal.
2) Move to withdraw as counsel per Anders.
3) Have court deny your motion to withdraw and order you to file an amended petition within 15 days.
4) Don't do it.
5) Have the court again order you to file an amended petition.
6) Don't do it.
7) Get removed by the court and ordered to provide a written response to a show cause within 15 days.
8) Don't do it.
9) Get called directly by the clerk of court's office to see why you haven't responded.
10) Fax a response that day admitting your failures were due to negligence.
11) Have the court order an in person appearance.
12) Don't appear.
13) Have the Chief Judge issue a show cause order and direct your appearance in court. Get served directly by the Virginia State Police.
14) Appear before the court and apologize. Offer no explanation other than your case load was too high.

Punishment? $1,000 fine, disbarred from practicing in the Court of Appeals (may ask for reinstatement after 3 years).

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The punishment strikes me as pretty light. Back when I was doing court appointed work to pay the bills I knew plenty of people who would have gladly paid $1,000 not to have to represent their clients in appeals. The lawyer's probably been turned into the Bar as well and is waiting for that other shoe to drop.

Why Must You Must Be Competent for the Government to Kill You?

A defense team in Kentucky is challenging whether a man should be put to death because he is not sane enough to be executed. They're actually challenging Kentucky's law because Ralph Stevens Baze, the man sentenced to die, understands he is about to be executed and why he is being executed (thereby establishing his competence per Kentucky statute), but has become depressed and irrationally paranoid.

This set me to thinking. The first thought in many capital cases is whether the offender is someone who should be found NGRI. However, if you have determined that the person knows the difference between right and wrong and does not have an irresistible impulse to do wrong, should other mental defects be a reason to stop the execution?

If you believe the death penalty is valid I think your answer must be "no." In fact, a true believer in the death penalty would probably believe that if the offender was (a) legally insane, thus NGRI, and (b) non-restorable, she should be executed. Most every theory which justifies the death penalty is about the act, the result, or possible future results. None of these are particularly affected by the mental condition of the offender. About the only thing which could require that an offender be clear of mind would be a theory of redemptive punishment, because perhaps a person could not be redeemed of her evil act if she does not comprehend the punishment meant to redeem her. However, it does not seem that redemption of the offender's soul is a goal of our society's judicial system.

Therefore, we are left with the question of why an offender must even be competent to be executed. I understand why legal counsel argues that it should be so; counsel is trying to best represent the presumptive desire of the offender to stay alive. But why do the courts buy into it? Sure, some of it has come from those few judges who are so opposed to the death penalty personally that they are willing to latch onto any reason to halt its use. Yet, in the modern era judges have become less reticent about the deathy penalty and less likely to sign off on any technicality in order to stop it. What then is the reason they continue to follow this standard? Surely, it is not because they want to insure the added cruelty of forcing the defendant to know of his impending demise. That serves no true purpose other than sadism.

The best I can figure, this is one of those things which has gotten into the law without any reflection upon its purpopse as specifically applied to death penalty cases. In most cases it makes sense not to punish someone if they do not understand the punishment. After all, how is the offender to learn not to do the same thing in the future if she doesn't even realize she is being punished for doing it? However, this reasoning does not apply in death penalty cases. There is no "lesson learned" by the defendant after she has been executed.

Sovran Immunity

USSct 9-0: Prosecutors are entitled to absolute immunity in respect to supervision, training, and information-system management claims.

New Format for CrimLaw

Okay, I spent most of the day today rewriting the code for CrimLaw. I like the new look far more than any that I've had recently so it'll probably stick around for a while. The links on the left go to pages which aren't fully formed yet, but I'll get to them sometime in the next week or two. I've checked the page against all the major browsers and it works well (after I fixed the problems Explorer alone had). It looks wonderful on my monitor at home, but I not know exactly how it will appear on smaller screens until I see it on some tomorrow.

If anybody has any problems let me know.