20 December 2009

Hiatus Due to Snow

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

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

18 December 2009

Off Point: Nope, It's Not English

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

14 December 2009

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

A while back the Virginia Supreme Court came out with an opinion about the "right result / wrong reason" doctrine wherein it stated in language plain for all to see:
Whether Whitehead received the stolen property here by constructively possessing it is not properly before us, because the Commonwealth makes this argument for the first time on appeal. It is true that “[w]e do not hesitate, in a proper case, where the correct conclusion has been reached but the wrong reason given, to sustain the result and assign the right ground.” Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283 (1963). However, cases in which the party seeking affirmance failed to present the argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not “proper cases” for the application of the doctrine.
Whitehead v. Commonwealth was a case wherein the Supreme Court (1) rejected as plainly wrong the findings of the trial court and the court of appeals that a person could be convicted of receiving stolen goods when she received benefits from a third party's theft and sale of goods (boyfriend paying her rent, etc.).

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

(3) Finally, the Supreme Court dealt with another argument the Commonwealth presented first during the appeal: concealment as proof of participation. This the Supreme Court rejected this argument by (a) first adopting the rationale that it had under constructive possession argument
Because this argument was not made at trial, the Court of Appeals erred when it held that the evidence provided this additional rationale to support Whitehead's convictions.
and then it moved into an area which the Court of Appeals had previously addressed. The Supreme Court noted with approval prior Court of Appeals cases which had held the rather commonsense position that (b) an appellee cannot argue on appeal a position which would require evidence which had not been provided during the trial. In fact, it takes the Court of Appeals doctrine one step further.
Because the Commonwealth limited its method of proof at trial, Whitehead was not on notice to present evidence to rebut any other method of proof possible.
In making this determination, the Supreme Court discussed how this applied to both the constructive possession argument and the concealment argument.

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


Comes now the Court of Appeals.

In Perry v. Commonwealth the Court of Appeals is faced with the Commonwealth making a probable cause argument instead of the reasonable articulable suspicion. The Court of Appeals "assume without deciding" that the trial court got the reasonable articulable suspicion decision wrong. Then it moves on to the right result / wrong reason doctrine and Whitehead. It specifically quotes the first part of the Supreme Court's rationale
The Supreme Court refused to consider this new theory of guilt offered by the Commonwealth, stating "[C]ases in which the party seeking affirmance failed to present the argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not 'proper cases' for the application of the doctrine."
Then comes the all important word of the new opinion


Then the Court of Appeals goes on to decide
Whitehead, contrary to the appellant's claim, applies only when the new argument made on appeal involves a consideration of factual findings that the trial court never reached, rather than application of a different legal theory to facts already considered by the trial court.
Following this, the Court of Appeals rules that since both reasonable articulable suspicion and probable cause are 4th Amendment issues and arguing one 4th Amendment issue at trial suffices to preserve other 4th Amendment issues arising from the same acts.
We find that this case presents an appropriate situation for the application of the right result/wrong reason doctrine. . . . [T]he parties here were aware at all stages of this case that the courts would look to the Fourth Amendment to determine if Trooper Weidhaas’s actions were appropriate - regardless of whether the question involved probable cause or reasonable articulable suspicion.
It then goes on to uphold the search based upon a reason never argued in the trial court.


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

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

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

08 December 2009

Up, up, & away!

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

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

07 December 2009

Tokyo Vice

Book rating scale:
5: Touched by God - a work which makes Shakespeare look infantile
4: Amazing - Instantly began rereading it and quoting it to friends
3: Worth Every Penny - a solid, interesting read, inspiring some thought and discussion with people who share similar interests
2: I Paid For It So I Finished Reading It - Some interesting parts but if I lose the book I'm not buying another copy
1: Couldn't Force My Way Thru and Burnt the Book in order to send it to the Hell it deserves
I rate Tokyo Vice a 3.7. It's an intriguing look into the criminal underbelly of Japan mixed with the lives of newspaper reporters and police.

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

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

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

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

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

06 December 2009


A note from a loyal fan (hey, if you're going to be anonymous I get to assume things):
Horrendously off-topic comment, but I'm evidently not smart enough to find an e-mail address for you anywhere on this blog, was hesitant to track down your work e-mail, and couldn't leave this comment on the post that prompted it because that post was the video you did on expungement in Virginia.

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

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

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

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

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

This isn't any radical departure from the general rules your video discussed, but given the paucity of caselaw on the subject, I thought the addition of another set of specific circumstances that support expungement would be of interest.
Thanks. I have added an easier to find way to click and send an email to me. Hopefully this will make it easier next time.

Brown v. Commonwealth is a Virginia Supreme Court case. The note I filed away for myself after reading this case follows:
Brown v. Commonwealth, JUN09, VaSC No. 081417 & 081588: (1) The fact that a defendant obeyed a court condition in order to have a charge dismissed does not establish that the defendant was guilty. (2) If a case is taken under advisement for a period of time without entry of a plea or a finding of guilt or facts sufficient and then dismissed after a period of time the defendant can have the charge expunged. (3) A person who pled guilty cannot have a charge expunged even if the case was dismissed per a first offender statute. (4) A person who pled nolo contendere cannot have a charge expunged because he agreed to be treated as though guilty. (5) A defendant who pled not guilty and had a judge find facts sufficient cannot have his charge expunged. (6) Any charge dismissed pursuant to a first offender statute cannot be expunged.
Parts (1) & (2) are pretty much what Anonymous pointed out. I agree that this doesn't change the law. It just lays out a road map for those who want to leave people the possibility of expungement.

01 December 2009

Affirmative Defense for Mountain Murders

So, I'm having a discussion with another attorney today and he was trying to explain how mountain folk feel about murder. As he explained it there is a two part affirmative defense which doesn't exist in other parts of the Commonwealth:
(1) That sonuvab!tch needed to get kilt, and
(2) I was the right person to do it.
We discussed for a while whether this is a perfect defense and came to the conclusion that it is in some cases, but not in others. It seems to depend on how much a sonuvab!cth he is and whether he is either (a) on your land, or (b) with your wife.