Kansas v. Ventris:Trimming Protections Against Unconstitutional Interrogations

[1] In Kansas v. Ventris the question presented to the US Supreme Court was whether a confession gained by police instigated interrogation of a defendant after he has an attorney can be used to impeach the defendant's trial testimony.

Facts

[2] After Ventris had an attorney, police sent an informant into his cell to get information. The informant reported that Ventris confessed the crime to him. At trial, the defendant testified that he did not commit the crime. The prosecution then used the informant in rebuttal to impeach the defendant. After conviction defendant appealed the planting of the informant in his cell as unconstitutional questioning without the defendant's attorney present (or waiver of his presence).

6th Amendment Right to Counsel

[3] Scope of the Right: The Court makes it extremely clear that the right to counsel is not limited merely to the actual trial. The defendant is definitely entitled to his 6th Amendment right to have his counsel present at any pretrial interrogation.

[4] Scope of the Remedy: Unconstitutionally obtained statements shall be allowed in rebuttal. They are still banned from the prosecutor's case in chief.

~~~~~ Lammers ~~~~~

[5] The entire basis of this decision is the Court devaluing the constitutionally guaranteed right to counsel in favor of the a non-constitutional mandate that courts should be protected against possible perjury and disruption of "the integrity of the trial process." This is poorly reasoned, favoring the discouraging of illegal acts over the forbidding of unconstitutional ones. It is badly out of kilter with modern constitutional cases such a Virginia v. Moore which proclaim that illegalities are irrelevant as long as the constitution is followed.

[7] Not every illegal act is unconstitutional. Perjury started out as a common law crime (Blackstone, Book IV Chapter 10 sec. 16), but has long since been a statutory crime. See 18 USC 1621, Kentucky Revised Statute 523.020, Rhode Island General Law 11-33-1, Michigan Penal Code 750.422, and Alaska Statute 11.56.200. Even Virginia, with its fondness for the common law, has made perjury a statutory offense. In either event, perjury is a criminal offense against the orderly pursuit of justice and the constitution is silent upon whether the government has a right to unperjured testimony. This does not mean it approves of it; it just means that it was a matter left to the legislatures to sort out and thus became a matter of law rather than constitution (as demonstrated by the statues enacted).

[8] As well, perjury as a criminal charge is not within the bosom of the courts. As an initial matter, the decision of whether someone has committed perjury is prerogative of the prosecutor - not the courts. Should a prosecutor have proof that perjury has been committed the statutes clearly lay out the remedies which the various legislatures have allowed prosecutors to seek. All of these require a trial specifically on the matter of perjury and its proof beyond a reasonable doubt. None of them rise to the level of a constitutional matter.

[9] What the Court is actually talking about here is impeachment. It's a handy way of short stopping the entire issue of perjury. The level of proof for impeachment is far lower than would be required in giving someone their constitutional right to a trial on perjury and its requirement of proof beyond a reasonable doubt. Impeachment merely requires some rational quantum of evidence tending to show that the testimony of a witness was not truthful. Of course, impeachment is a valid part of any trial and it's not mutually exclusive of a perjury charge. However, it is instructive about what the court actually decided.

[10] The US Supreme Court decided that presenting evidence which does not rise to the level of proof beyond a reasonable doubt of perjury - merely tending to show that a defendant's testimony was not truthful - is more important than a clearly violated constitutional right to have counsel present during questioning. As the Court acknowledges that violation of this right precludes the use of the evidence gained in a prosecutor's trial in chief, this evidence couldn't even be used in a perjury trial. Thus, the Court creates an exception, allowing criminal procedure alone to trump a constitutional right.

[11] Ultimately, in a most amazing paragraph the Court simply states that no harm will come from this because it's not likely a defendant will testify in his own defense anyway and that an officer won't violate the right because then the evidence gained will only be usable to impeach the defendant's testimony and the officer can't anticipate that the defendant will get on the stand and tell a story inconsistent with the story he'll tell the officer when his right to counsel is violate.

[12] On the other side of the scale, preventing impeachment use of statements taken in violation of Massiah would add little appreciable deterrence. Officers have significant incentive to ensure that they and their informants comply with the Constitution’s demands, since statements lawfully obtained can be used for all purposes rather than simply for impeachment. And the ex ante probability that evidence gained in violation of Massiah would be of use for impeachment is exceedingly small. An investigator would have to anticipate both that the defendant would choose to testify at trial (an unusual occurrence to begin with) and that he would testify inconsistently despite the admissibility of his prior statement for impeachment. Not likely to happen - or at least not likely enough to risk squandering the opportunity of using a properly obtained statement for the prosecution’s case in chief.

[13] That's correct, a US Supreme Court decision is based on a belief that it is unlikely that the defendant will testify. It's backed up by a statement that shows an amazing lack of understanding of why a statement would be taken by a police officer. The exact purpose that an officer would be taking a statement after the defendant has an attorney is to lock him into a particular version of the facts with the thought that the defendant could tell a different story at trial. After all, if the officer expected the defendant to take the stand and testify exactly in the manner most likely to lead to a conviction, why would he waste time trying to get a statement from the defendant?

Practical Application

[14] As a practical matter, this opens up several tactics to law enforcement. Prior to this decision the further development of the case through human information gathering techniques was severely limited after the defendant had a lawyer. Now the Supreme Court has given its imprimatur to the continued use of human information gathering techniques despite a defense attorney's involvement.

[15] Informants, whether they be planted in jail or sent to approach a defendant on bond, are clearly sanctioned by this opinion. Furthermore, this decision's scope seems to allow police to reinterview the defendant after the appointment of an attorney. Neither of these will produce evidence which can be used in the prosecutor's case in chief. However, the mere fact that a charge has been taken should reflect that the prosecutor already has enough evidence for his case in chief. The purpose of the actions taken after a defendant has an attorney will be to preclude the defendant from testifying or build a crushing case against him should he choose to do so. These are all constitutionally valid tactics per the Ventris decision and if these are the rules we lay down for our law enforcement agencies we should expect they will play by the rules we give them.

Gant: A Sea Change in Car Searches

[1] On 21 April 2009 the US Supreme Court changed decades of law enforcement practice by clamping down on searches of vehicles incident to arrest. Arizona v. Gant is a tour de force by Justice Stevens in which he weaves his way through all the old precedents to change the interpretation most lower courts have given to the ability of officers to search cars after arresting their drivers.

[2] Gant's theory both prunes and widens the circumstances under which an officer may search the car after an offender is arrested. In reality, the effect is a net reduction in the scope of officer searches.

[3] The prior rule was that after any arrest police could search the passenger compartment of a vehicle because of "exigent circumstances." In other words, once the offender was placed under arrest the officer could search the car in order to preclude the possibility that the offender might destroy any evidence or reach a weapon. Of course, any sane officer restrains a person he has placed under arrest before he turns his back on that person in order to search the car. However, this had never seemed to bother lower courts and had even seemingly been given a pass (although never specifically approved) by the US Supreme Court.

[4] The new rule has 2 parts. First, if there are actual exigent circumstances, such that the defendant(s) is not restrained and could actually reach something inside the vehicle, a search can take place; however, "exigent" searches can no longer happen when the offender is handcuffed and properly restrained. Since an arresting officer should always prioritize to his own safety, this situation will be extremely rare.

[5] Second, an officer can search a vehicle if it is reasonable to believe evidence of the crime the offender was arrested for will be found in the car. An example is if an officer arrests someone who has just stolen from Mega^Store and sees two of the stolen items in the car; it'd be reasonable to search the car for the other 4 items the thief stole at the same time.

[6] Every lawyer I spoke to seemed to have pretty much the same reaction: they predicted a great upsurge in vehicle impoundment and inventory searches subsequent to the impoundmment. Typical of such reactions was lawscribe's (via Twitter): "You will [see] a massive jump in inventory searches and careful review of dept policies to make cars consistently easier to impound."

Impounding in Virginia

[7] With this in mind I went looking to see what is allowed vis-a-vis the impounding of vehicles. In Virginia the controlling case is King v. Commonwealth from 2002. King lays out a set of rules under which impoundement can take place. The first rule is that there must be a standard police policy under which the vehicle is impounded. However, even a written policy does not, in and of itself, make the impoundment valid.

[8] Beyond the written policy, there are only two justifications for impounding a vehicle. A vehicle must either be a risk to public safety or need to be safeguarded. Although not absolutely exhaustive, the generally approved circumstances for impoundement are when the vehicle is blocking traffic, trespassing on private property, or violating parking ordinances/laws. Neither the fact that a vehicle is parked next to a busy road nor that it may be vandalized is a satisfactory reason to impound a vehicle.

[9] A vehicle also may not be impounded if the offender is able to arrange for the vehicle to be moved. Generally, the mere fact that an offender is under arrest will preclude such an arrangement. However, if there is another citizen present at the scene, who is a legal driver and who will take the car to where the offender wants it, an officer is required, by Virginia Code sec. 19.2-80.1, to allow that citizen to drive the car from the scene.

[10] Finally, a vehicle may not be impounded for the purpose of performing a search upon it.

[11] Personally, I don't see impoundment becoming a major issue in Virginia. King is solid, long-standing precedent rooted in the 4th Amendment so that the rules cannot be changed by the Virginia General Assembly.

Race, Knives, & Fists: More on the Jason Vassell Case

Back in February I wrote a post complaining that I couldn't figure out whether the charges were justified against Jason Vassell, a black student charged with 2 counts of aggravated assault and battery with a dangerous weapon under (I believe) MGL Chapter 265: Section 15A:

(c) Whoever:

(i) by means of a dangerous weapon, commits an assault and battery upon another and by such assault and battery causes serious bodily injury;
. . .
shall be punished by imprisonment in the state prison for not more than 15 years or in the house of correction for not more than 21/2 years, or by a fine of not more than $10,000, or by both such fine and imprisonment.

(d) For the purposes of this section, "serious bodily injury" shall mean bodily injury which results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death.

There has been a rather strident campaign launched in support of Mr. Vassell and my former post elicited a response which laid out the factual position claimed for Mr. Vassell and asked me to read the Defense's Motion to Dismiss.

I did. It moved me much further along the line toward belief in Mr. Vassell's guilt of A&B (the gradation of the appropriate final conviction I am still uncertain of). Let me explain.

The Law

Apparently Massachusetts allows for the pretrial dismissal of a case if 3 conditions are met:

In order to obtain a dismissal on the basis of selective enforcement, the defendant must initially offer evidence that reasonably permits an inference of unlawful discrimination by showing that

(1) a broader group of persons than those prosecuted has violated the law;

(2) the failure to prosecute others was either consistent or deliberate; and

(3) the decision not to prosecute others was based on an impermissible classification factor such as race, religion, or sex.

If the defendant satisfies that initial burden, the Commonwealth must then rebut the inference that there has been selective enforcement, or the case will be dismissed.

Commonwealth v. Palacios Docket 05-P-52

Defense counsel does yeoman's work trying to stretch this test to cover the facts of the case at hand. He expends a great amount of effort showing that the "victims" in this case were brutish, aggressive, racist cretins. He shows some strong indications that law enforcement jumped to some improper conclusions. Yet, he never gets past the first test.

The way the defense tries to get past the first test is to conflate the assault by one of the "victims" and the assault and battery by the other "victim" on Mr. Vassell with the assault and battery with a weapon by Mr. Vassell. There are two flaws in this. First, neither of the "victims" used a weapon as required by the statute Mr. Vassell is charged under and thus could not have been part of the same group as Mr. Vassell. Second, it's doubtful that the case from which this test comes is talking about a small group. Palacios is about a claim of selective enforcement of DUI and driving with a suspended license against a driver based upon his ethnic background. The "group" would be all drivers - a rather large group.

Even if a group of 3 people was sufficient, the presence of only one weapon, the knife held by Mr. Vassell, causes the defense's argument to fail the second test. There cannot be a consistent or deliberate failure to prosecute the "victims" because it is impossible to charge them under the same law.

The Tactics

Why would defense counsel put this argument forth? Because Mr. Vassell is in a world of hurt. By the defense's own statement of facts after the initial conflict Mr. Vassell picked up a knife, carried it to the location of the second conflict, and drew it before he was physically attacked.

I don't know Massachusetts case law, but if it is anything like Virginia, the use of fists (as the victims did) carries with it a inference that the intent is not lethal while the use of a knife (as Mr. Vassell did) carries the opposite inference. When Mr. Vassell brought and drew a knife he unilaterally escalated to the use of lethal force. On the facts, it appears that Mr. Vassell is guilty of that which he is charged.

On the other hand, Paracios also states that in Massachusetts

If the defendant's charge of racial profiling is not established prior to trial, it may not subsequently be raised again as a defense. However, we distinguish between racial profiling and racial bias. Denial of the motion to dismiss does not by itself eliminate the right of either party to challenge at trial the testimony of a witness on the ground of racial bias. The right to cross-examine a witness regarding racial bias is not unfettered, however, and the judge may reasonably limit the extent and scope of cross- examination on this, as on any other, subject. Where the defendant makes no plausible showing to support his claim of racial bias, the judge may prohibit reference to a witness's alleged bias altogether.

In other words, the defense might not have the law or facts of the second conflict on its side, but it has all sorts of impeachment evidence which it could use to make the prosecution's "victims" look very bad and damage law enforcement witnesses as well. And it's just demonstrated that to the prosecution.

This motion strikes me as a gambit played as part of negotiating a plea. The defense is showing that it will move forward with self defense bolstered by the ability to impeach the victims to shreds. Still, it has to take into account the fact that Mr. Vassell brought a knife to a fist fight and drew it first. In the end, I'd be surprised if this went to trial because of uncertainty on both sides (unless it has become so blown up that one side or the other won't back down or the facts are even more anti-defendant than the motion lets on).

How Long Can a Judge Keep Someone Under Threat of Imprisonment?

As a comment on another post, Tony asks:

Maybe some one can help me understand something as follows. (1) Can a defendant be placed on probation for a term exceeding what the original sentence would have been,i.e. (2) in a class 1 misdemeanor can the defendant be put on probation for three years when the sentence is 12 months with 11 suspended for three years, with "indefinite" local probation? and (3) how long would the [indefinite] probation be, three years or 12 months?

[1]It's an interesting question and the waters are muddied by the fact that there are two separate things which occur under Virginia law, the period of probation and the period of the suspended sentence. As best I can define the two, the period of a suspended sentence is how long an offender can be hauled back into court to receive time "for any cause the court deems sufficient" (§ 19.2-306) and probation is the period of time the offender has someone specifically assigned to be her caretaker. Unfortunately, in both statutes and judicial decisions, there has been a loose usage of these terms. Sometimes they are used in parralell, sometimes they have separate meanings, and sometimes they seem to be used as synonyms. It confuses things.

[2] A defendant can have his sentence suspended for as long as the judge determines to be "a reasonable time, having due regard to the gravity of the offense." Va Code § 19.2-303.1. In other words, if the judge decides an offender's brandishing a firearm misdemeanor needs to have the sentence suspended for a period of 20 years, the judge can so order.

[3] Indefinite probation usually means that probation shall end at the discretion of the probation officer after certain conditions have been met. I couldn't find any limits to the length of probation, but logic would seem to indicate it could go no longer than the period during which the sentence is suspended.

[4] A common practice in Virginia courts is to usually limit most misdemeanors to a single year period of time suspended and in cases that the judge sees as more egregious three years of time suspended. I cannot find any statutory reason for this and suspect it may be ensconced in Virginia law via Smith v. Underwood, 1985, Va. App. No. 0316-85. In this decision a habeas was rejected because it was based upon new claims, but the court also accepted, without any discussion, 3 years time suspended on a misdemeanor.

[5] Furthermore, we find no ambiguity in the June 3, 1982, sentencing order that would support Smith's claim that the misdemeanor sentence suspension could not be revoked. Its terms are clear. Both the felony and misdemeanor sentences were suspended and Smith was placed on probation for a period of three years.

[6] Nevertheless, nothing in the statutes or any cases I've seen seems to limit the length of time a person can have his sentence suspended if the judge is specific about the length.

[7] If the judge is not specific about the length of time for the suspension it defaults to the length of the maximum potential sentence for the crime (ie: 1 year for petit larceny & 20 years for grand larceny). § 19.2-306. However, a judge can extend both probation and suspension. Under § 19.2-306(C), if a judge "finds good cause to believe that the defendant has violated the terms of suspension" the suspension is revoked and the sentence is imposed. However, the judge can resuspend the sentence - leaving him the option of setting a new length of time for the suspension. Under § 19.2-304, the judge can alter probation upon the convening of a hearing; as the statute states no other conditions, it appears that the judge has complete discretion in this.

Jury Today

Sorry folks, no post today. I'm off living the pilot for a new TV show:

Who Were the Colombine Kids Really?

"They weren't goths or loners.

They . . . weren't in the "Trenchcoat Mafia," disaffected videogamers who wore cowboy dusters. The killings ignited a national debate over bullying, but the record now shows Eric Harris and Dylan Klebold hadn't been bullied — in fact, they had bragged in diaries about picking on freshmen and "fags."

Their rampage put schools on alert for "enemies lists" made by troubled students, but the enemies on their list had graduated from Columbine a year earlier. Contrary to early reports, Harris and Klebold weren't on antidepressant medication and didn't target jocks, blacks or Christians, police now say, citing the killers' journals and witness accounts. That story about a student being shot in the head after she said she believed in God? Never happened, the FBI says now."

<much more>

Stare Decisis:Where Should the First Thought Come From?

As long as statutes are written there will be two truths which require judicial decisions. First, there will be ambiguities written into the statutes/constitutions (textual ambiguity). Second, circumstances will arise which may, or may not, fall under a particular statute or constitutional clause (situational ambiguity). It follows that, if we are to be consistent, once a judicial decision has been made clearing up the difficulty this interpretation of the law should be universal and constant (so long as the decision is appropriate to the language of the pertinent statute/constitution¹).

[1] The best method of interpreting a statute is to use textual interpretation doctrines such as the Rule of Lenity (in criminal cases), expresio unius est exclusio alterius, noscitur a sociis, or ejusdem generis. This type of interpretation gives the most honest reading of a statute.

[2] In the few cases when the meaning of a statute/constitutional provision cannot be determined textually, historical meaning and legislative meaning analyses should be the next step. Historical meaning would look toward dictionaries or writings of a particular time to determine the meaning of the ambiguous word or phrase. Legislative meaning would primarily look toward other statutes with similar phrasing to clear up the ambiguous wording.

[3] If this fails, the next step is historical intent or legislative intent. This is the point at which interpretative tools become shaky. Historical intent is notorious because it's often one sided and/or incomplete. No one knows what every single member of the constitutional convention intended and it's unlikely that any historical analysis has proven what even a majority of them intended. Legislative intent suffers the same flaw; it's near impossible to prove what a majority of Congress thought about a statute passed as part of a two hundred page omnibus bill.

[4] In the very few cases which get through all the above, there's the appeal to other authority. In the past this might have been to the Great Thinkers: The Philosopher, Aquinas, Maimonides, Averroes, Hume, Kant, Locke, Burke &cetera. In modern times this is more likely to take the form of decisions by foreign courts. While both of these can shore up a decision, they are the shakiest form of interpretation. This is primarily because they do not have any anchors in the American legal system. We should always be suspicious that these sources are appealed to because American jurisprudence leans the other way and some source is needed to allow the judge to reach the conclusion he wants to reach. After all, how many people in modern times receive an education to the level that they even know who Averroes was, much less can quote his philosophy? And, why would an American judge know about an opinion published in Australia 7 years ago?²

Personally, I'd like to see a lot less appeal to authority in our courts. Beyond steps [1] and [2] above, it all looks like the judge has come to a decision and is just looking for justification. Assuming a previously unresolved ambiguity, it should be perfectly acceptable to state that ambiguity, state why the ambiguity cannot be cleared up by [1] and [2], and then set out the court's decision. If it is consistent with statute then good precedent has been set.<sup>3



1</sup> The great flaw of deference is when it reaches a near mystical level and is slavishly followed no matter how out of touch a decision may be with the actual language of a statute.

² The Australian Supreme Court could publish the most amazing, insightful, breath-takingly wonderful piece of reasoning on the right to free speech tomorrow and I might, MIGHT, find out about it because I get ABC's feed on my Twitter account. It's not exactly easy to research case law from another country.

³ Yes, I know this will never happen. Lawyers are mistaught from their first day in law school to over-cite, to always have a source. Original, uncopied thought is the bugaboo we are all taught to fear.

Interesting Question

Here's an interesting question which came up in court yesterday.

Under Brady v. Maryland et al, the prosecution is required to to turn over evidence which is exculpatory or impeachment material. However, what if there is no doubt the defendant did the crime (uncontested) and the defendant is trying to get evidence under Brady which would be used solely in an affirmative defense?

I did a quick bit of research yesterday and the cases clearly state that there is no obligation to turn over such evidence prior to a guilty plea. Still, that begs the question, is it constitutionally required at all? I never could find a case which specifed one way or the other.

Anybody know a case on point?

Addendum: For some unknown reason, Blogger isn't allowing me to put comments on this post. So, I thought I'd post them here.

ParatrooperJJ: In general, I agree that if it will not endanger third parties or other investigations (& any other such caveat which is slipping my mind at the moment), the prosecutor should share all evidence possible. However, consider a pro se defendant who is a felon caught with a firearm. He does not deny possession. Rather, he informs the court that he will be raising a duress/society made me do it/it's a dangerous world affirmative defense. In accord with his theory, he files for pretty much every record he thinks the county has related to violent crime over the last ten years (indictments, orders of conviction, copies of plea agreements, etc.). This is clearly outside of allowed discovery in Virginia, but the pro se argues it should be allowed under Brady. Judge won't go that far, but considers ordering 5 years of orders of convictions. (facts are made up out of whole cloth, but similar to case yesterday)

This doesn't impeach anybody or tend to prove he didn't possess the firearm. Should the government be obligated? If so, what is the constitutional basis and where do you draw the line?

-------------

Anon: Yes, an affirmative defense is a defense. However, it's a "Yeah, but . . ." defense; a defense wherein the act the prosecutor is alleging is admitted. If there was anything tending to negate the act the prosecution would clearly be required to turn it over. However, nothing tending to prove an affirmative defense negates the act. Therefore, the question is whether the prosecution is required to turn over evidence which does not tend to disprove the act because the evidence may be consistant with an affirmative defense the defendant may present at trial.

A Shank We Can All Enjoy

What people are looking for when they come to CrimLaw

Click on the picture in order to be better able to read it. These search queries are a little different than I normally see. Usually the three things which get the biggest hits are methadone (because of pill pics I once uploaded), malicious wounding, and the Bluegrass Conspiracy.

Misprision of a Felony:Failing to Report a Felony

I was prepping up cases yesterday and Mark started tweeting about a case, bringing up misprision (yes, that's the correct spelling). He'd been dealing with it in federal court, where it's a 3 year felony per 18 USC 4).

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

Admittedly, I did not know there is a federal crime of misprision of a felony. In fact, I don't think I'd heard of misprision since law school. So, I got curious and went looking to see if misprision of a felony is still good law in Virginia.

To begin with misprision of a felony is a common law crime in Virginia. Of course, this is no problem in the Commonwealth.

§ 1-200. The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.

No statute has been passed altering the common law in any way. In fact, the only statute mentioning misprision is referring to misprision of treason - an entirely different crime. As well, the case law is littered with cases concerning misprision of a clerk, which isn't helpful at all. Nevertheless, there are some mentions of misprision of a felony.

However, none of the mentions define misprision itself. The majority of the cases are older and hold up misprision as something everyone knows in order to define accessories against it. Even the case which is most important in confirming that misprision of a felony is still good law in Virginia, Juniper v. Commonwealth, 2006, No. 051423, only mentions the law as a reason a witness was given immunity by the prosecution; it never offers a definition.

When questioned about the events on the day of the murders, Murray answered, "Your Honor, I plead the Fifth." The trial court called a recess and outside of the presence of the jury, the Commonwealth stated its intention to offer Murray immunity. ¹⁰
. . .
¹⁰ The Commonwealth determined Murray could incriminate himself as an accessory after the fact or give information that could lead to a charge of misprision of a felony offense.

Thus we see that in 2006 misprision of a felony is still a part of Virginia law, but we still don't have a definition.

So, where do we find a definition? Well, we go where every good American legal theoretician goes - Blackstone.

XI. Analogous to the preceding offence is misprision of felony ie the concealment of a felony which a man knows of but never assented to for if he assented to it this makes him either principal or accessory. The punishment of this misprision in a public officer by the statute Westrn 1 3 Edw 1 c 9 is imprisonment for a year and a day in a common person imprisonment for a less discretionary time and in both fine and ransom at the pleasure of the crown which pleasure must be observed once for all not to signify any extrajudicial will of the sovereign but such as is declared by his representatives the judges in his courts of justice voluntas régis in curiâ non in camera.

Concealment in this case, does not mean actively hiding something. Instead, as is made clearer in the section on misprision of treason, this type of concealment is merely a failure to report as soon as possible.

This concealment becomes criminal if the party apprised of the [act] does not as soon as conveniently may be reveal it to some judge of assize or justice of the peace.

Basically, the criminal act in misprision of felony is seeing a felony and not telling a law enforcement official as soon as possible.

Although Blackstone sets out that misprision of felony tops out at 12 months for regular citizens (a misdemeanor), there is no set punishment for misprision of felony under Virginia statutes so the punishment defaults to a class 1 misdemeanor (max 12 months &/or $2,500).

§ 18.2-12. A misdemeanor for which no punishment or no maximum punishment is prescribed by statute shall be punishable as a Class 1 misdemeanor.

Just remember folks, the next time you see a felony in Virginia and don't report it, it could be you spending time in jail.

Southland:MTV Meets Hill Street Blues

TV goes thru cycles. Of late, all the "real", meant to win awards TV shows seem to have been Doctor/hospital shows. That doesn't mean they've stopped trying to make police dramas (CSI's, Law&Orders, etc.), just that none of them have really reached the pinnacle. However, the doctor drama seems to have run its course and now the field is clear for the next Hill Street Blues.

However, I don't think Southland is going to be the one. Now, I've only seen the first episode on Hulu. Still, I'm not sure that the flaws I see can be overcome.

There are three stories crammed into a single hour format. 1st is the rich boy, rookie officer who is having a terrible day as he tries to earn his final approval to get off probation from a hard-nosed veteran of the force, who isn't giving an inch (and seems to turn out to be gay in the end). 2d is the story of a couple detectives trying to solve the shooting of a kid by some bangers (which eventually merges into the first). 3d is the story of a detective trying to figure out what has happened to a little girl who has disappeared. It was one story too many; the third should have been let go to give the other two some room to develop.

The filming is in what I'd refer to as MTV style (who knows if MTV still does this - I ain't watched in several years). The picture is done via unsteady cam in an obvious attempt to be "real." The positioning and zoom of the camera also seem to be an attempt to say "See, we're filming this like a video camera would." I'd hoped that this fad was fading, because it is just annoying; however, for now it still lives. Only one scene really works with this style and it's over in about 30 seconds.

As with most pilots, too much was crammed into too short a time period. We can hope that as the season progresses the story will spread out, slow down, rely less on gimmicky filming. However, in my bones I just don't feel it coming. I've got a bad feeling this is going to stay a show shot for people with 10 second attention spans.

1 give this show a provisional rating of average (3 out of 5).

Man Freed After DNA Exoneration

Wisdom in 140 Characters or Less#LawsOfCriminalDefense

People on Twitter are tweeting about the truths of practicing criminal defense. I've harvested some of the best. Go to Twitter and look at #LawsOfCriminalDefense (and follow the people who make the best comments).

Prosecutor:

No, the prosecutor has nothing better to do, now let's move on.

Dear Client, Yes, the prosecution has been out to get you from the start. No, that is not a good appellate issue.

Prosecutor: If I'm being nice to you, I'm playing you.


Client:

Including your client and you, there is one person in the courtroom trying to keep your client out of prison.

"The b!tch aint showing up?" You mean her, in the third row?

Asking me what happens if the witness doesn't show up worries me.

That you "can't go to jail" doesn't affect whether you will.

Going to trial because you can't go to jail is like jumping off a cliff because you can't be pushed.

No, it doesn't matter that they didn't Mirandize you.

If you want a new client to lie to you, ask him about his criminal record.

Never look a gift horse in the mouth. That's your client's job.

Your friends cousin knows a cop on the force? Your boss knows the judges wife? Awesome! Now we win.

Yes, if the case gets dismissed I get to keep the fee.

A criminal defense lawyer who guarantees a result is lying or bribing someone.

Dear Client, Just because you are bi-polar does not mean that you have free reign to commit a criminal offense.

The clients I've taken for free or below cost are the most demanding and unreasonable.

No, we're not suing the cops.

Let's win the criminal case first. Then I'll refer you to a civil rights plaintiff's lawyer.

Representing celebrities is a great honor, just ask them.

Just because I represent doesn't mean I have to believe you.

Dear client: If a 12 year old on the Web wants to have sex with you, it's an FBI agent. I promise.

Telling me what your friend thinks is like talking about your ex girlfriends on a date.

Dear Client, I'm not your life coach. I'm the cold shower of reality that rains on your egocentric parade.

If you just want to talk to me over the phone, you're shopping, not hiring.

No, it doesn't matter that the handcuffs hurt your wrists.

It is your client that is on trial, not you.

Dear Client, It is not a good thing that you & the Judge are on a first name basis.

A jury of your peers does not mean that your friends are on the panel.

You're not unhappy with the PD, you're unhappy with the plea offer he got.

Telling me you're going to hire a private lawyer is not threat but usually a relief.

Never represent someone you're having sex with.

And where did the police officer take you after he gave you all this advice? Exactly.


Tactics:

If you're going to "win it in closing," plead guilty.

There is nothing more difficult than cross-examining the victim of a sex crime.

An acquittal is not the only way to get a "win" in this line of business. A nolle prosequi is just as good.

Just because you think the victim is a lying piece of sh!t does not mean the jury has to.

Nobody ever went to prison for not talking to the cops

A continuance is as good as an acquittal, for as long as it lasts.

No trial is a sure thing for either side.


God:

When you roll out, "God is on my side," you're probably forgetting about the victim.

I appreciate that you put your faith in God, but he's going to need some expert help on this particular case.

Dear Client, Most of Jesus' disciples met their end in prison. So, you think he is going to save your @ss?

Virginian Judicial Selection

There is no truly good way to select judges. There are direct elections, which everyone is concerned about because they cause the judge to worry about votes more than the law. There are political selections with life tenure, which lead to a sudden lack of memory and inability to discuss legal theory on the potential judge's part until after the nomination process is complete and thereafter leave the judge/justice entirely without any without any check when he turns out to be an incompetent or worse. There's judicial selection by committee, which just screams "behind closed doors, good ole boy" (the "Missouri Plan": the worst of all selection plans lumped into one).

In Virginia, we have political selection without life tenure. Every judge is selected by the General Assembly and periodically reappointed by that same august body. As someone who has observed this process in action, I see three possible flaws:

(1) The potential for nominees to be not based upon "not what you know, but who you know."

This comes and goes. Sometimes the General Assembly is willing to take the advice of the local Bar and sometimes it's not. Knowing an Assembly member can never hurt someone's chances of becoming a judge. On the other hand, no member is going to purposefully appoint an incompetent or lunatic judge if he can help it. You see, the Assembly member has to run for re-election himself and doesn't have any desire to place an anchor around his own neck.

(2) The potential for judges to have to enforce laws in a manner out of sync with the locality because the General Assembly is strongly influenced by other parts of the Commonwealth or by influential lobbying groups.

If the 10 most populous counties in Virginia are strongly anti-firearm, but the locality the judge is in is pro-firearm, where will the judge come down? After all, he has to face down all those Delegates and Senators (perhaps a majority) from anti-firearm counties. On the other hand, if the pro-firearm lobby is extremely strong in the General Assembly (out of proportion to the population) what does a judge in one of the 10 counties do, knowing that he will face Delegates and Senators influenced by this group?

(3) The potential for judges to be appointed by the General Assembly who are not appropriate to the jurisdiction.

Assume one party gets a large majority in the General Assembly, but the locality strongly favors the other party. There's a strong possibility that the General Assembly is going to appoint someone more in tune with its sensibilities than those of the locality.

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I've watched the Virginia system in action for a while now and, warts and all, think it's a fairly good system. It's certainly better than the Missouri Plan or the Life Tenure plan and has merits which favor it in debates against a direct election system. In point of fact, members such as Delegate Albo have made efforts to improve the system further thru the (now defunct) judicial review system. Could it use improvement? Sure it could. Every system could use improvement.

Still, I've watched the system work in regards to poor judges. In the 8+ years I've been practicing, I've seen a lawyer rebellion lead to a judge not being re-appointed. I've seen a judge removed for cause from his seat. This year, I've seen citizen pressure lead to a judge being re-appointed only after he sent a letter to the Chief Justice stating he was retiring a year after his re-appointment. In this same year, I saw the General Assembly refuse to remove a judge after a clearly partisan attack against him (as opposed to real questions as to his judicial abilities). So, it appears that the system is working.