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

Defendant lied to get benefits from a State Agency:

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

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

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

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

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

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

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

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

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

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

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

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

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

Someone Stole a Pyramid

Quoth the Defense Attorney

From an actual closing argument in a jury trial:

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

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

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

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

Jenny Fontaine: Emotional Prosecutor

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

World's Most Impressive Scam Artist?

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

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

Perfect Prosecutor

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

How do you figure the value of an item stolen?

Baylor v. Commonwealth:

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

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

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

No, You Cannot Trifurcate a Virginia Trial

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

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

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

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

The Oxycontin Express

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

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

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

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

Except it isn't.

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

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

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

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

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

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

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

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

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

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

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


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

Power, Persuasion, & Plea Agreements

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Is an Invalid Arrest Warrant Actionable?

Interesting article.

This Year for the US Supreme Court