Litter Patrol: Jail or Not?

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

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

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

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

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

WHAT THE HECK IS THAT?!?

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

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

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

Moving Closer to the Portable Electronic Office

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

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

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

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

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

Here's what I want in a handcomp:

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

Folds open to have two panels.

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

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

Touch controls which work both with finger and stylus

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

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

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

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

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

Census Worker Lynched in Clay County, Kentucky

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

Here's the AP video:

Why do people become prosecutors?

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

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

The Kindle, Books, and Record Albums

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



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

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



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

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

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



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

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

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

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

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

Larcenous Licentiousness

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

2) Bus theft and slow speed pcp induced chase.

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

4) The pink beanie thief.

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

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

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

8) Credit card receipts.

9) ATM Machine stolen from inside the bank.

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

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

12) Is there a black market in stolen canaries?

Splitting the Magistrate Baby

In Virginia there is a judicial officer known as a magistrate. Magistrates are the guys who are on duty 24 hours a day and their primary job is to decide whether there is probable cause to issue a warrant and set initial bonds (19.2-45). Not only LEO's can go to the magistrate; regular citizens can go and try to get a warrant issued all on their own. The store which gets 30 bad checks a month can go get its own warrants directly, saving us all time. As well, regular citizens can go in and try to get warrants for things such as trespass or assault. Of course, this has made the magistrates the center of a lot of complaints over the years.

There are citizens who blatantly abuse the process, and get all sorts of marginal warrants filed. A favorite trick is for a defendant to get a warrant served on her and immediately go to the magistrate and file charges against the complaining witness. Then there's always forgetful Mammaw Smith from up the hollow who files trespassing charges on Bob Jones every 6 months for trespassing on her family's land, despite the fact that her son sold Jones the property 10 years ago. And it seems that every nasty divorce spawns charges, counter-charges, and more charges.

There isn't a criminal attorney, prosecution or defense, who hasn't stood in court wondering how in the world Mammaw Smith got yet another warrant sworn against poor Bob. Judges get angry because they issue capiases (bench warrants) because Defendant hasn't come to court for his last three court dates and the magistrate keeps giving Defendant bond - after which she again does not show up for court. LEO's and prosecutors get upset because sometimes the magistrates seem not to understand nuances in the law.¹

This is not to say that the rest of us in the crimlaw community haven't taken advantage of the magistrates. Magistrates save judges from being called at 2 a.m. to issue a warrant. They keep prosecutors' offices from being swamped with deciding the merit of minor charges. As well, every officer and prosecutor has told a person who absolutely refuses to take "No, I'm not going file charges" some variation on the following: "Mrs. McGillicutty, I'm not going to file charges on your son-in-law for putting your 22 year old cat to sleep after it got hit by a car. If you want, it is your right go to the magistrate yourself and see if he'll give you a warrant."

In any event, there has been a perception since I've been practicing that the magistrate system needs fixing. With that in mind, it's not too surprising that in the last few years the General Assembly has taken to tinkering with the magistrate offices. It began by taking the power to appoint magistrates away from the chief judge of the circuit and giving the power to the Virginia Supreme Court.² Then, last year, the General Assembly passed laws requiring the chief magistrate to be a lawyer³ and the other magistrates to have a bachelor's degree.

The latest change took place this year, when the General Assembly changed the law so that magistrates have to "consult" with a prosecutor or LEO before issuing a felony warrant. When initially presented to the House and Senate the bill required the magistrate to get "authorization" from a prosecutor or LEO. Somehow that language got changed between presentation and passage.

Rather than leaving the situation the way it was or requiring that LEO's investigate or prosecutors approve all felonies from the beginning the General Assembly split the baby. Basically, it told the magistrates that they weren't trusted to show proper judgment in issuing felony warrants, but that it wasn't going to take the power away from them. It was just going to make it a little less convenient for them to exercise the power. They'd have to make a phone call. After the phone call they could ignore everything a prosecutor or LEO said, but they did have to make the call.

I'd be *annoyed* if someone did that to me and I imagine the magistrates were. However, after an initial bit of confusion it has all settled out. Now, the magistrates do exactly as they did before, except that they call a prosecutor who knows nothing about the case, hasn't seen any evidence, and can't even judge the credibility of the complaining witnesses thru the phone and tell him that they are going to swear out a warrant. Not sure that accomplishes a whole lot.

Personally, I'm not sure that consulting with or even calling to get authorization from a prosecutor accomplishes much. However, I do wish that felonies would require investigation by an officer - at least for warrants on violent felonies. Not so much because I think that the magistrate isn't capable of making the call, but rather because the officers usually have a good idea who needs to be subpoenaed and what evidence is needed for the trial. Citizens who swear out a warrant almost never understand these things and are unreachable until they show up in court on the date the magistrate has scheduled them to be in general district court.



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¹ The issue which comes to mind is the Obstruction of Justice statute. This statute was used as the Virginia version of what other States might call "resisting arrest", but in Jordan the Virginia Supreme Court basically ruled that the Defendant had to succeed in stopping a charge from going forward to constitute obstruction. The solution is easy - the offender should be charged with Attempting to Obstruct Justice, which carries exactly the same penalty (18.2-27). However, people keep getting charged with Obstruction and LEO's say that they can't get magistrates to approve misdemeanor attempt charges.

² I'm not sure what the rationale for this change was. It would seem desirable to have the local chief judge have the control to set consistent policies and legal interpretations within a circuit.

³ It will be interesting to see which lawyers fill these slots once the current, grandfathered chief magistrates leave. Ideally, the slots would go to attorneys who have spent years concentrating their practice on criminal law. However, there is some concern that the Supreme Court will have to beat the bushes to fill these slots and be forced to fill them with lawyers with little criminal law experience.

Post Melendez-Diaz Changes in Virginia Law

Things seem to have settled down in Virginia post-Melendez-Diaz.

Last week, in Grant v. Commonwealth, the Virginia Court of Appeals decided that, while the information in a DUI breathalizer certificate is non-testimonial, the fact that Virginia law requires attestation on the certificate means that the certificate cannot be introduced if the person who did the attestation is not present in court. Since the LEO who did the test is usually present this doesn't really cramp much in our local courts.

Prior to that, the General Assembly had a special session and passed alterations on all sorts of laws in order to make them come into compliance. Consequently, here's my understanding of what has to happen for certificates to be admissable without the person who did the test.

1) 28 Days - or more - Prior to Trial: A copy of the certificate, along with an explanation of Defendant's right to object and require presence of the person who performed the test to be present in court, must be sent both to Defendant (or counsel) and the Clerk.

2) 14 Days after Certificate Delivered: Defendant's right to have tester present is waived if Commonwealth not notified prior to this date.

3) Prior to Trial: Defendant must raise any claims not to have received timely notice from the Commonwealth prior to trial. The Commonwealth's proof of provision shall be prima facie evidence that it was delivered on that date.

4) If the Trial Court finds that notice was not timely given or that the Commonwealth, after exercising due diligence, cannot have the tester in court on the trial date, shall continue the case.

5) Continuances: Up to 90 days "if the accused has been held continuously in custody." Up to 120 days "if the accused has not been held continuously in custody." No continuance pursuant to this section shall count against Virginia's speedy trial statute.

6) Preliminary Hearings: None of this is required to use a certificate in a preliminary hearing.

Issues:

1: The 14 day window. In most cases this won't make a difference and it will probably cut down on defendants filing for the tester's appearance when there is no actual issue. However, this is going to be hard fought in some serious cases. Imagine a murder trial wherein the Commonwealth notifies defense counsel of several certificates the day after counsel is appointed as part of a couple thousand pages of discovery. Defense counsel, who has a full trial schedule, doesn't read all the the discovery until it was too late. 6 months later, but several months pretrial, defense counsel finds an issue which requires the tester to be in court.

2: Exactly what proof does the Commonwealth have to provide that it delivered the certificate in a timely manner? Maybe we should all start faxing things so there is proof of receipt. I suspect that the date the Clerk received his copy shall be the generally accepted date.

3: The "has been held continuously in custody" language is unfortunate. If someone was in custody for three days 6 months ago (when first arrested) that would seem to fulfill this language even if Defendant is free on bond when the case is continued. This would seem to set things up for problems with the speedy trial arguments. If someone "has been held continuously in custody" but is not now in custody and the case is continued for 180 days will only the first 90 be exempt from the speedy trial statute?

Predictions: Most of the fuss which arose after Melendez-Diaz has died down. I think that, except as game playing, this will all fade. In fact, defense counsel under the old system could have required testers to have been in court, but they didn't because most of the time they wouldn't have gained anything. However, I hope to see tweaking of the 14 day limit and clarification of the "has been held continuously in custody" language.

The Apple Store Smash & Grab

Seen at Court

Defendant and Attorney are standing 2 feet in front of the judicial bench. Attorney has just had a bond hearing at defendant's request. Defendant told the judge she should lower the bond because "I've had the same bond for 8 months and my family hasn't been able to pay it."

After the judge shoots that down, Defendant starts insisting that he be allowed to plead guilty right now because he has to get out out today. Attorney tries to calm him down; tries to pull him aside to talk; tries to get him to stop talking; tries to make him realize that he has a plea date set for next week when Attorney expects to have a plea offer. He isn't having any of it and keeps insisting that he wants to plead guilty today! The judge tells him that she'll be happy to let him plead guilty and set a sentencing hearing for three months down the line. It doesn't seem to penetrate the head of Defendant that this will probably keep him in jail longer.

Finally, Attorney turns to Defendant and says, "You can do this against my advise. You shouldn't, but you can. I'm going to walk out of the front door of the courthouse either way. You still insist on pleading today?"

And, you know what? It worked. The guy finally came to his senses and decided to wait until next week.

Carroll Doctrine

Last week I got asked to research an interesting question about the limitations which the Gant decision might have upon the Carroll Doctrine. It didn't seem to have any, but it raised my interest.

The Carroll Doctrine came out of a case : Carroll v. U.S., 1924 (267 U.S. 132). A prohibition era case, Carroll is the case which creates the constitutional difference between searches of dwellings and vehicles. After a review of a number of statutes, basically doing an original intent analysis, it states that for buildings a warrant may be easily obtained while for vehicles “it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which a warrant must be sought.” Going further it explains that an officer can't just stop any vehicle he wants to.

The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops has contraband [] therein which is being illegally transported.

To sum it up, Carroll allows LEO's with probable cause to search an entire vehicle because of the mobility of the vehicle and the difficulty of obtaining a warrant in a timely manner.

I can already hear the howls of protest. “In the modern world we have radios and cell phones. Carroll is outdated law!” Well, maybe so in your locality, but let's consider those of us in far Southwest Virginia. My county borders Kentucky. There are mountains everywhere, cell towers are extremely spotty, and there are plenty of places back in the way back, with three or four mountains between the deputy and civilization, where anything short of satellite communication just ain't going to work.

Consider a case wherein the local sheriff's department has all sorts of knowledge of John Jones trading oxycodone, methadone, suboxone and lortabs back and forth across the Kentucky-Virginia border in his SUV. Jones crosses the border at random times and places. At 3 a.m., Deputy Smith is out in the way-back returning from a call from a house just on the other side of a national park. He sees Jones driving an SUV down a road which comes directly through the park from Kentucky (with no civilization anywhere near either side of the border). Pulling over the vehicle, the deputy sees nothing in plain sight and Jones is savvy enough that he's never going to agree to a consent search. There's no cell service anywhere near and the mountain next to the road isn't letting any radio waves get through.

Deputy Smith is faced with a number of bad choices. If the deputy releases Jones, so he can go get a warrant, Jones will be back across the border in 5 minutes. If the deputy secures Jones in the back of his car while he drives 10 miles down the road where he can get radio contact he has extended a seizure of a person without an arrest. The least constitutionally intrusive practical act is a search of the vehicle on the scene.

In the modern era, the use of Carroll assumes that smugglers are smart enough to try to ply their trade in areas where it will be difficult for LEO's to easily get search warrants. If a smuggler is stopped at a port in Miami or driving through New York City local LEO's probably shouldn't be able to rely on Carroll. On the other hand, in a rural county in Nebraska where there are two deputies on duty and the judge comes by once a week, Carroll may be a necessity if there is to be a realistic possibility of actually enforcing the law.

[addendum] Apprently, my reading of Carroll was too restrictive. Via Commonwealth v. Grimes, I see that the federal supreme court has entirely excised any exigent circumstances requirement so that all an officer needs to do the search is mobility of the car and probable cause that contraband is in it.