31 December 2010

Is Requiring the Noble Act Unethical?

If you work in criminal law you spend much of your time hearing why someone shouldn't be incarcerated and/or why they should get out of jail/prison. Most of the fall under the umbrella of the Big Four and usually they don't work after someone has gone to prison.

Nevertheless, Jamie and Gladys Scott are getting out of prison. Sixteen years ago the two women were part of a violent robbery in which they lured two people to a spot where they were jumped by three others with a shotgun and each was hit in the head. The effort didn't garner much for the robbers because the victims only had $11. Each sister was sentenced to life in prison. Apparently, this has been a cause celebre in Mississippi where the women's supporters focus on the fact that happenstance caused only $11 to be stolen rather than the armed robbery in which purposeful violence was done to each victim.

In any event, the governor is suspending the sentence of both women. One sister's kidneys have gone bad and she is costing the prison system a lot of money in care, so she's getting a release. The other sister wants to donate her kidney to the ailing sister. The governor has agreed to suspend her sentence on condition that she do so.

And there's where people start having problems. Is the governor's requirement legal since you are not allowed to "sell" organs and threatening life in prison puts a price on an organ? Is it ethical for the governor to require an inmate to give up a body part as a condition of a suspended sentence? What happens if the two are not compatible and the transplant cannot take place?

Let's start with the compatibility question first. Every lawyer in the world knows the answer to this. Impossible terms of a contract cannot be enforced. If the organ is not compatible with her sister she'll still get the benefit of her bargain as long as she entered into it in good faith. As you'll see below, I don't think this is an actual contract, but conditions agreed to for probation are generally treated as though they were a contract.

As for the legality and ethics of the situation, that's something of a red herring. This isn't so much a forcing her to do it situation as it is a trust but verify one. The governor didn't go to her and make an offer "Give up the kidney and you get out." Instead, she went to him and said "I need to get out so I can give my sister a kidney." In the first case there would be an offer and acceptance with mutual consideration. In the second case the governor is not getting anything so there's really no consideration on his side.

The manner in which Governor Barbour is handling this is the correct way of handling this sort of situation. Anyone who has worked in criminal law knows that there are a lot of people out there who will say and offer anything to get out of their sentences. They may even mean it when they offer. However, somewhere between the doors of the jail and the point at which they would accomplish their good intentions they lose their way, never accomplishing the good they intended. There are various causes for this - old friends, partying, drugs, apathy, etc. However, if it's in an agreement with which failure to abide means returning to prison, they are more likely to follow through. And if they don't they can serve as an example to the next person who gets a sweetheart deal and might consider blowing it off after he gets out.

Mind you, I hope that the mere nobility of the sister's heart will keep her on track to helping save her sister. However, I've seen too many family members mess over each other once they're out of jail to think he should let her go without some means of verifying that she does what she says she will.

Billy the Kid is Still an Outlaw

Y'know, it's kinda cool that the governor is up on his history, but is contemplating a pardon for Billy the Kid really that important of an issue?

30 December 2010

Why Do We Always Lose the Zombie Apocalypse?

So, I was watching AMC's "The Walking Dead" when an important question hit me: How in the world did we lose to the zombie horde?

I mean, I get that there would be significant losses at the beginning. There would be initial losses of doctors and first responders before it got figured out. Then we'd all have warning. From that point a bunch of zombies stumbling along at one mile per hour should be pretty easy to handle.1

Of course, there will be greater casualties among liberals. Liberals would not have firearms to shoot the zombies in their heads as they closed in. As well, I figure San Francisco is just to be written off. As soon as the government starts to shoot zombies there will be massive demonstrations and rallies in San Fran in support of Zombie-Americans. Thousands upon thousands of tree hugging, tie-dye wearing, hippy types will throng the streets with signs decrying imperialistic capitalism oppressing our zombie comrades. Then, as the zombies start to encircle them, they won't run away because they want to show solidarity. Thus, there will be massive casualties and a ton of people who got away after just being bitten will turn and the zombie army will be too large for San Fran to be held. In the end the military will at least have to napalm the city to destroy the masses of zombies occupying the streets. The military's first instinct would probably be to nuke San Fran (just on general principals), but I figure some admirals may lobby to save the naval facilities.2

Beyond the liberals there would also be those who were just too sentimental to throw Aunt May out after she was bit. So, we'll lose a fair number of people just because they are compassionate.

And, while the police, firemen, gang-members and suburban NRA members are fighting the zombies in the cities, there won't be much of a problem in the rural areas and mountains because out there firearms aren't considered an option, they're considered an appendage. Your basic zombie starts walking down the street in Honaker, Virginia and I'm sure somebody is going to take care of it pretty quick. Heck, even without firearms a guy who works on a farm or in a mine is probably going to be proficient enough with hand held tools to run up on a zombie and kill it with a pick or axe or shovel or whatever else is handy.

And, then there's the military reaction. You know, I was a REMF, M.I. guy and I was a good enough shot with my M-16 that I could have stood at the end of a street and shot a couple dozen zombies in the head (for some reason that's the only way to kill them) as they shuffled down the street toward me. I'm pretty sure soldiers in the combat units would do extremely serious damage to the zombies. Heck, with slow moving, easy shots, you might even be able to train sailors - and maybe even possibly airmen - to fight as though they are actually in the military. I give it six months, a year at the most, before the military has the situation entirely in hand.

Now, some of you are going think that a zombie apocalypse might not be such a terrible idea. There would be a huge drop in moonbats in the world (see San Francisco supra). However, this would leave us with no balance for the wingnuts. After all, the wingnuts are going to be the people out in compounds in the middle of Colorado with 10 firearms each and enough stocked food to last ten years (y'know, the ones the ATF & FBI haven't raided yet). Not sure I want to live in a world that unbalanced. Maybe if we could just contain the zombie outbreak to San Fran and NYC . . .


1 Yes, I realize there are some outlier movies wherein the zombies move fast, but that's just silliness. In any event, fast zombies would probably result in greater casualties, but not zombie victory.

2 This is not to say that all of California will be lost. I figure that L.A. will do pretty well. Heck, between police who aren't afraid to use force when they can and gangs which have kids holding territory on every street corner the zombies won't stand a chance.

28 December 2010

27 December 2010

November Cases are Up at Virginia Criminal Cases & Law


click on graphic to go to Virginia Criminal Law & Cases

Pretext Stops in Virginia

I was catching up on reviewing cases from the Virginia appellate courts and ran across the following case, which pretty much puts the courts' stance on pretext stops as baldly as possible.

Thomas v. Commonwealth, NOV10, VaApp No. 1288-09-3: (1) The fact that the seizure of a person is pretextual (car stop) does not factor into the question as to whether the seizure was constitutional. (2) The question of the constitutionality of a seizure is not dependent on the officer's state of mind, what the officer says, or evidence of the officer's subjective rationale. (3) An objective assessment of the officer’s actions in light of the facts and circumstances at the time of seizure will determine whether the seizure was constitutionally valid. (4) When a seizure is valid (traffic violation) the officer does not violate the 4th Amendment when he briefly extends the seizure to ask questions not related to the objectively valid reason for the seizure. (5) It is not unreasonable to extend the time of the seizure of one person in a car in order to run a warrant check on another person in the car. (6) During a traffic stop the officer has the authority to (a) obtain registration of the vehicle; and (b) get the identities of all persons in the car; and (c) seek radio dispatch confirmation of the information gotten from those in the car; and (d) detain the persons in the car, other than the driver, for the duration of the stop; and (e) ask questions unrelated to the stop; and (f) order anyone in the vehicle to exit it; and (g) walk a drug sniffing dog around the vehicle; and (h) seize weapons the moment they are seen.

21 December 2010

Moments for a Prosecutor to Drool Over

The last statement made by the defendant on direct examination:
. . . but I'm not guilty this time!"
Muhahahaha

Writing an Article for a Law Review

Last week I turned in the law review article I've been working on. It's now in the hands of 2L's and 3L's whom I pity because they have to correct my bluebooking. I went through my approximately 170 endnotes and tried to get them in the correct format, but I am terribly out of practice in doing anything other than just doing a cite which lets the reader know where to find the information. Putting things in the right order and differentiating between those cites which should be italicized and those which should have small caps just isn't something I'm used to anymore. Also, my Bluebook was old enough that it didn't really address internet sources and the sources I used were all from the internet.

For those of you out there who are practitioners and interested in writing papers, I encourage you to jump in with both feet. It isn't like the old days when you just couldn't do it unless you took time out your life to drive to the nearest law school library. Nowadays, with online services such as Lexis, WestLaw, or Fastcase you can do most of the actual legal research fairly easily. You'll also find that a lot of journals are online and free now and that's not limited to only legal journals. As well, the government puts a lot of information out that can be very useful.

My worst difficulty was finding sources to back things every practitioner around here knows to be true. It was frustrating because there were some important issues that I wanted to address, but didn't feel I could because I couldn't prove them. However, I don't think this was because I was using the internet to find sources. Instead, I think it was more because the issue I was writing about is one that is most serious out here in the hinterlands, away from the major news agencies. I think this was also a reality of the type of research I was doing. This paper is more of a sociology paper and less a legal interpretation paper. The last article I wrote was about the 4th Amendment and the US Supreme Court's ruling on dog sniffs. Because it was much more law oriented I didn't have problems getting sources for it.

20 December 2010

Admirable Brevity in an Opinion

Here is the entire decision for State v. T.L.C., 186 NJ 600 (2006):
Denied.

You Say Lower Crime Rate Like It's a Bad Thing

Via Simple Justice, I tripped over a new website, Right on Crime. I went over to check it out and it seemed like most sites of this type. It's well put together, but the content isn't really for anyone looking to actually think about the issues. Basically, it seems to be about punishing the guilty, supporting victims, and saving money. All of these goals are laudable, but the third seems not to fit too well with the first and second.

I was curious about one thing. The site has a section on the right where there is a map showing various highlighted states where "initiatives" for reform have been put forward. I was curious as to what reforms are being touted by a site which is self consciously from the right. We've already had victim rights written into the law and done away with parole. So, I went to the Virginia page.

The good news is that "Virginia ranked 41st in index crimes, 42nd in violent crimes and 40th in property crimes per 100,000 resident population." How did Virginia get such a low crime rate? It could have something to do with the fact that Virginia has a 9% higher incarceration rate than other states. BTW, I know there is someone out there who can cite statistics "proving" that the high incarceration rate isn't the cause of the low crime rate. Of course, there are approximately 40 states out there with lower incarceration rates and higher crime rates, so I'm going to have to pull out the lies, d@mn lies, & statistics quote. At the very least, Virginia's in an "if it ain't broke, don't fix it" situation.

When you read the page it becomes evident that the Big Bad here is that criminals are actually being made to go to prison. This is a strange position for a right of center site to take and even stranger is the reliance of this Virginia section of the Right on Crime site on a solidly left of center site which is dedicated to reducing prisoners' sentences.

As far as it goes, the site feeds us the at least partially erroneous line that the increase in incarceration is due to the abolition of parole in Virginia. What's never discussed when people raise this point is that when the General Assembly abolished parole it set in place sentencing guideline which generally reduced sentences to about what they would have been if the defendant had gotten parole. There are exceptions, such as when a judge sentences above the guidelines or those on pre-1995 sentences which would have resulted in parole sentences (but which the parole boards are very stingy to give out anymore), and these would tend to raise the amount of time someone spends in prison. However, it is doubtful that these are enough to account for most people incarcerated.

We are also told that "Virginia has only 1 in 94 adults is under community supervision compared with the national average of 1 in 45.[x] Combining these two statistics – a high incarceration rate and a low community supervision rate—shows that 52 percent of Virginia’s adult correctional population is behind bars.[xi] Accordingly, this is the fourth highest rate in the country. Compared to other states, Virginia is using more incarceration and less community supervision."

The terrible evil in this? Keeping criminals off the street costs money. The solution? Put more offenders out on the street and throw them in jail immediately every time they violate for 30 days.

I've heard this called "shock violation" before and I'm not actually opposed to the theory of it for people who are on probation (although I do not believe it should be relied upon as an excuse to put someone on probation rather than giving him the sentence he should receive). I'm a big believer in telling someone where the line is and the punishment he will get if he crosses it. Personally, I think that every single probationer should be informed as part of his initial plea agreement what the punishment for any violations of probation would be. I believe that a potential offender who knows that he will be punished is more likely to toe the line than one who thinks he might be punished. While I favor heavier sentences, a 30 day sentence could do the job if it was administered quickly and with no nonsense for each violation.

The problem is the immediacy requirement. The three violations I think are most prevalent are new convictions, failing drug tests, and absconding. None of these lend themselves to immediate punishment. New convictions really shouldn't be limited to 30 days as a probation violation (except, perhaps misdemeanor traffic offenses or citations). Even if they were so limited the immediacy could only be achieved if the 30 days were imposed as soon as the arrest took place and I doubt anyone is going to really push for that without a conviction. Failing a drug test is the violation most likely to achieve the immediacy requirement. Most people seem to fail and admit usage to their probation officer. However, this may not be the outcome everyone really wants. Currently, when a probationer fails a test or two the probation officer usually tries to put him in a program to help him deal with the problem. In a working shock violation system that goes out the window and the officer should arrest as soon as a single test is failed. Another issue is the testing itself. The dipstick method is not absolutely determinative. Therefore, when a probationer denies use despite failing the initial test, a sample is sent to a lab for more reliable tests. This means that the system can be gamed. A probationer who does not want to go to jail immediately can deny. Then the officer and judge are faced with the choice of immediacy or accuracy. Finally, there is absconding and the reason that someone who has absconded can't be immediately punished is obvious.

I don't see anything offered on this site working well.

Nevertheless, if you want a solution that will save Virginia money I've got one. Exile. Every non-violent felon in Virginia should get a pass on his first offense. He gets probation without incarceration - pretty much like it is now. The second non-violent offense he is exiled from Virginia. After conviction he is held at a jail. Within three weeks an unmarked, nondescript van arrives at the jail on a random day at a random time. The offender, and all others of his ilk, is dressed in his civilian clothes and put in a cage in the back of the van. The driver has a computer in the front that chooses a random town at least three states away and 2 hours from an interstate. The driver drives to that spot, hits a button which opens the back of the van, and Virginia no longer has to deal with the offender. Of course, some will be tempted to try to return, but the punishment for returning would be something rather horrific, like being dropped off randomly in the middle of a random northern blight city or, for the worst offenders, being shipped to Texas. I think this would save Virginia a lot of money, lower our incarceration rate, and probably result in an even greater reduction in Virginia's crime rate.

14 December 2010

Did the Police Officer Act Incorrectly?

Over the last week or so there has been much written on the blawgs about the arrest of Joel Rosenberg. I'm not going to write about the propriety of Mr. Rosenberg's behavior after the incident or the officer's decision to charge him. However, there is a video which raises the question, "Did the officer act inappropriately?"


Just watch until the firearm is given back and taken out of the building

I've looked into the statute which Mr. Rosenberg quotes and, as best I can tell, it looks as though he is right in stating that the judge could not ban firearms from the public building. Minnesota Code 642.714 subd. 17 allows firearms to be banned from "private establishments", but they are obviously not in a private establishment. And then there's subd. 23 of the same code section:
This section sets forth the complete and exclusive criteria and procedures for the issuance of permits to carry and establishes their nature and scope. No sheriff, police chief, governmental unit, government official, government employee, or other person or body acting under color of law or governmental authority may change, modify, or supplement these criteria or procedures, or limit the exercise of a permit to carry.
A judge is clearly a person acting under color of law or governmental authority. This appears to absolutely bar a judge from banning firearms from any place at any time.

Of course, that's insane. And before anyone starts telling me that's just the prosecutor in me speaking, I'm pretty sure anyone who has been in a courthouse when emotions are running high, on both the victim's side of the aisle and the defendant's, has been glad that no weapons were allowed. Just imagine a trial in which the victim was a 3d Street Samurai Crip and the defendant is a 7th Street Banzai Latin King. Do you think the judge should be absolutely banned from keeping members of the two sets from bringing firearms to the courthouse?

Nevertheless, I couldn't find an exception to the law. That doesn't mean there isn't one somewhere, just that I couldn't find it in the statute or the case law addressing the statute. So, as far as I can tell the judge was wrong to banish firearms from the building.

On the other hand, consider the officer's situation. He has an order from a judge banning firearms. The judge is higher on the food chain than the officer. The officer is going to obey the command of the judge. So, it's no surprise that he acted to enforce the judge's order.

What's the solution here? In Virginia the technically correct solution is go over the judge's head and get an order of mandamus requiring the judge to withdraw his order or an order of prohibition to keep the judge from enforcing the order. However, this is time consuming and not practical for someone who is not going into the building often. In this case you could run up and punch the bear in the nose, trusting that he won't figure out how to get free of the chains and maul you.

06 December 2010

Can you be convicted of credit card theft and larceny of the wallet it was in?

So, I left you last time after telling how a judge struck a credit card theft charge I was prosecuting after pointing to a case which said a defendant couldn't be prosecuted for the theft of the wallet and the cards within the wallet or it would violate double jeopardy. I also told you how, after I got home and it was too late, I eventually came up with the correct answer which should have kept the judge from striking the charge. So, let me lay it out.

----------

Under the common law credit cards were "choses in action" and thus had no value except for the value of the plastic of which they were made. However, the Virginia General Assembly passed a law making the theft of any credit card a felony. Subsequently, the Virginia Court of Appeals specifically excepted credit card theft from the constraints of the single larceny doctrine. This meant that if a defendant stole twenty credit cards from the same person, at the same time, the defendant could be charged with 20 felony credit card thefts. As the single larceny doctrine is inapplicable to credit card theft, the only constraints on charging credit card theft are the double jeopardy prohibitions in the Virginia and federal constitutions.

Since 1932 the test for double jeopardy has come from Blockburger v. United States. The simplest way to describe this test is as a "different elements test." Basically, if a defendant is charged with two types of crimes each type of crime must have an element that the other does not have. An example of this can be found in Hudgins v. Commonwealth, in which the Virginia Supreme Court ruled that robbery and larceny from a person can both be charged because, while they both have many of the same elements, robbery requires the use of force and larceny from a person requires the taking of something worth more than $5. The different elements test has been, and is, the prevailing double jeopardy standard.

However, for a short time in the early 1990's (1990-93) the US Supreme Court tried out a different standard. In a case called Grady v. Corbin the USSC adopted a "same conduct test." Under this test if the same act violated two laws the defendant could only be charged with one crime. However, after only three years, in Dixon v. United States the USSC reversed itself and abolished the same conduct test and returned to the different elements test.

Unfortunately, the case which I couldn't rebut in the courtroom, Darnell v. Commonwealth, 12 Va.App. 948 (1991)(not available on open web), was decided during the time that Grady was good law. In Darnell a wallet was stolen and the defendant was charged with petit larceny for the wallet and credit card theft for a credit cards in the wallet. Darnell objected to this as violative of double jeopardy. The Virginia Court of Appeals first runs through the Blockburger different elements test and concludes that the two prosecutions do not violate the different elements test. Larceny of the wallet has an "intent to permanently deprive" element and credit card theft has an "intent to use, sell or transfer" element. With the different intent elements, charging the two crimes at the same time passes the Blocburger test.

Then the appellate court turns to the Grady same conduct test. It finds that Darnell had to steal the wallet in order to get the credit cards in it. Since stealing the credit cards involved stealing the wallet the thefts involve the same conduct. Thus, they fail the same conduct test under Grady. Therefore, as long as Grady was good law it was forbidden to charge credit card theft and theft of the wallet or purse they were in.

Of course, Grady isn't good law anymore. It was only good law from 1990 until 1993. In 1993, the USSC abandoned the same conduct test and reversed Grady in Dixon v. United States. The Virginia Supreme Court specifically followed the USSC in this in Hudgins v. Commonwealth in 2005. Maybe there was a similar decision within the 12 year gap, but I couldn't find it and apparently neither could the Virginia Court of Appeals which the Virginia Supreme Court overruled.

It's not like the Virginia Court of Appeals hid the fact that the Darnell case was based upon Grady. The first paragraph ends with this sentence
We find that the prosecutions under Code § 18.2-192 are barred by Grady and, therefore, we reverse the convictions.
I just didn't know that that Grady had been overruled. Heck, I didn't even know that Grady existed.

Next time I'll know to stand up and say, "Darnell was based on Grady which was overruled by Dixon and Hudgins. Even Darnell recognized that charging credit card theft and larceny of the wallet isn't barred under the Blockburger test. And, per Scott, the single larceny doctrine does not apply to credit card theft charges."

Of course, I've never been quite so glib and after a uttering a string of cases like that I'll have to spend the next 45 minutes explaining myself. Still, at least I won't be sitting there staring uselessly at a computer screen like I was last week.

05 December 2010

The Judge, Motion to Strike, and Credit Card Theft

We're at the end of evidence in a jury trial where the defendant has been charged with Grand Larceny and Credit Card Theft. The defense attorney has made the motion to strike the evidence as legally insufficient to sustain the charges. We argue and I sit down thinking that I've fought off the motion. I should know better. It's always those moments when you get a little cocksure that fate, or the judge, reaches out and slaps you around a bit.

The judge asks me if the charge of credit card theft is valid if the basis of the grand larceny is the stealing of the wallet and the credit cards are in the wallet. It's a classic question which is based on double jeopardy and the single larceny doctrine (if a defendant steals from one person at a singular period of time he can only be charged with one larceny instead of one larceny for each item taken). Again, I stand up (over)confident that I've got this answer down pat. "Judge, case law states that the single larceny doctrine doesn't apply to credit card theft."

Judge: "In some cases, but I don't think that's correct when we're talking about credit cards in a wallet or purse, the theft of which has been charged as grand larceny." Suddenly my endorphins spike. The judge wouldn't have made that statement without something to back it up. I ask for a couple minutes to look it up. "Yes, Mr. Lammers, and I suggest you start by looking at Darnell at 12 Va.App. 948."

I start plunking away at my computer. I've never heard of Darnell. I find it pretty quickly and it says that if the cards are in the wallet charging a larceny for the wallet forecloses a credit card theft charge for cards int he wallet. That just rings absolutely wrong. In the ten years I've been practicing law, I've seen hundreds of people charged with credit card theft when they stole wallets or purses with credit cards in them. I look for subsequent cases which rely on or elaborate upon Darnell, but it's an orphan. There's no serious treatment of it or citation to it. In fact, I can only find two citations. The first just cites to Darnell for an element of credit card theft (in an unpublished opinion). The second cites to Darnell as establishing that petit larceny is not a lesser included offense of credit card theft. I don't know how long I plunked along on the computer, but eventually the judge cut me off and, because I hadn't found anything contrary to Darnell, struck the credit card charge.

I don't think it made a difference in the final outcome of the case, but it was a quick lesson in not getting too cocky. Of course, once I got home and put a little research into it I found the correct answer, but by then it was a little too late.

What's the correct answer? You'll have to come back on Monday and read the next post to get that answer.

30 November 2010

Best Quote of the Week

Note left for me by a defense attorney:

"I ain't ready to go to trial tomorrow unless you aren't ready to go to trial."

29 November 2010

Legalized Drugs?

One of the arguments constantly put forth for the legalization of drugs is that once they are legalized the government will be able to regulate them and, much like cigarettes, drive use to a low level. Once, that argument carried a significant weight with me. Then I moved to the mountains where the primary drugs of abuse weren't cocaine or heroin. No, the drugs used here are mostly pills; the most abused is probably hydrocodone (Lortab, Vicodin), but there are plenty of people abusing Xanax, OxyContin, Suboxone, etc.

When I left Richmond to come out to the mountains, I was amazed at the number of defendants that seemed to be dropping dead from overdoses before they could make it to trial. It seemed incredibly out of proportion to anything I'd seen before, but I didn't have any evidence to back up my observations.

Recently, while researching a paper I came across statistics showing the per capita deaths from drugs from the Virginia Medical Examiner and the results are fairly determinative.

YearWorstSecondThirdFourthFifth
2003CraigHome CityRussell-1Lee-1Home County
2004Lee-1Bland-3Russell-1Dickenson-1Tazewell-2
2005Pulaski-4Buchanan-2Russell-1Dickenson-1Lee-1
2006Home CountyDickenson-1Tazewell-2Russell-1Highland
2007Dickenson-1Home CountyPulaski-4EmporiaRussell-1
2008Dickenson-1Home CityKing & QueenBuchanan-2Highland

Home County & City are the two jurisdictions I work in (Home County surrounds Home City). The red counties are those in Far South West Virginia (you know, the 4 hours of Virginia west of Roanoke) and the number next to the red counties is how far they are from Home County & City. Blue counties are east of West Virginia, but are mountain counties on the West Virginian border.

Now, if a mountain county appears once or twice it is probably a statistical anomaly. After all, the populations of these counties are much smaller than a NoVa county like Fairfax. What is disturbing about the chart is that the counties are consistently in the top 5 per capita. Two Far Southwestern counties are in 5 of the 6 years. Two others are on the chart for 3 of the 6 years. Furthermore, 25 of 30 are clustered in Far Southwestern Virginia counties. At this point it starts to look like we aren't looking at a statistical anomaly at all. Instead, we are looking at the level of fatalities when the primary abused drugs are "legal" pills.

28 November 2010

The Ugly Side of Jury Nullification: Emmett Till

There are a lot of people out there who think that jury nullification is a panacea. The problem is that jury nullification is an application of the jurors' prejudices. No one thinks about how nullification can allow the dark sides of people to come to the fore and allow evil to triumph. Ladies and Gentlemen, I give you the Emmett Till trial.

In 1955, Emmett Till was a 14 year old Black kid who was visiting relatives in Jackson, Mississippi. He was rude to a married White woman. That night at least two White men broke in while Till was asleep and dragged him off. J.W. Milam and Roy Bryant took the youth off and beat him at gunpoint. Then, incensed that Till would not admit they were better than him or recant his statement that he had slept with white women, they shot him dead. They tied a fan to the neck of the body using barbed wire and threw it into a river.

When Milam and Bryant were tried their attorneys trotted out the defense that there was no proof that Emmett Till was dead. Till's mother identified his body and a unique ring which had belonged to Till's father was found on the body. The defense attorneys argued that it was all a plot to help destroy the way of life of Southern white people. The jury took an hour to find the defendants not guilty.

The prejudices involved in the case are pretty clear, but in case none of you are up on your civil rights history here's a letter written to LIFE about the murder and trial:
Maybe the Emmett Till case will convince "smart alecky" Negroes to stay in the North where such things as the attempted assault of Mrs. Bryant are condoned. We do not want them in the South and will not have them even if it means drastic measures.

Mrs. Sarah White, Memphis, Tennessee
And, lest any of you might think there's a chance the defendants didn't do it - they confessed to a reporter after they were found not guilty.

Plans for the Week

I spent the last three days prepping up two separate jury trials which I have scheduled for this week. Wanna bet whether they'll actually take place?

One of the most frustrating things about being a prosecutor is the number of times you set up for trial and it doesn't happen. Quite often, there isn't any real question as to whether the defendant is guilty. The defendant is just hoping that a witness won't show or that I'll be too inconvenienced by the threat of trial and drop the charge.  Whatever the cause, most of the time I've prepped for a jury trial the defendant, informed by his attorney that "yes, he really is going to try you", the defendant folds his tent the day before or the day of the trial.

BTW, defense attorneys, when the defendant does this to us (you had to prep too), I know you have to ask, but the answer is "No, the offer of two weeks in jail is not still on the table now that there's a jury and witnesses here." Sorry. The reason the deal was offered was because I didn't want to spend my Thanksgiving break prepping a jury trial and to force witnesses and jurors to miss work. That's all water under the bridge now. Catch me the day before so I can call off the witnesses and jurors. Then I'll probably be in a slightly less steadfast mood.

22 November 2010

Appellate Court Opinions & Multi-Part Tests

We're about to be graced with the latest round of opinions from the Supremes. Of course, this will be accompanied also by the latest round of critiques against the Supremes. Some will criticize them for reaching the wrong decision (been there, done that). Some will criticize them for making decisions which so broad as to provide little actual guidance so that unity could be achieved. Some will criticize them for being fractious and deciding opinions by a razor thin majority. Personally, my greatest dislike at the moment is multi-part tests.

To be fair, every conviction involves some sort of multi-part tests. For instance, a grand larceny requires the prosecution to prove that an (1) item (2) was taken (3) from its owner (4) with the intent to permanently deprive the owner thereof. Of course, each of these elements is part of a multi-part test. The problems arise when there is some sort of ambiguity as to one part of the elements of a crime or an unsettled constitutional issue.

In more modern times multi-part tests have become more common. One reason I have seen given for this is the ghost writing of decisions by inexperienced clerks for their Justice. I'm not so sure of this. I think it may be a sign of Justices writing about things in which they have no personal experiences. In either event, I think the multi-part test is generally an indication that the writer is feeling his way around in the dark.

Multi-part tests come in a variety of flavors. Among the most prominent are the actual multi-part, the overbroad multi-part, and the false multi-part. The actual multi-part is what it says it is: each part of the test must be fulfilled. I think this is probably most often reached in explaining an element of a law. If you are trying to understand the "taking" element of a grand larceny it could be a two part test:
(1) Caption: Did the defendant take possession of the item?
(2) Asportation: Did the defendant carry the item away?
This is fairly straight forward. Unfortunately, it also seems to be the least common.

The overbroad multi-part happens in a lot of cases where the courts are trying describe judicial discretion. These are the ones in which the court cites 27 different tests which don't narrow anything down. Usually, all the multi-part does is set the particular set of circumstances for the case at bar inside or outside the acceptable circumstances in an entirety of the circumstances test.

The false multi-part is actually one test masked as a multi-part. Sometimes this is the same question repeated in three different forms. At other times it is several meaningless tests surrounding the one actual question.

Multi-parts seldom solve anything. They don't draw bright lines and usually leave so much wiggle room that they basically are just telling the judge to make his best guess.

15 November 2010

When All Else Fails, Eat the Cabin Boy


After all, he is only there to provide spare rations, isn't he?

Alternatives to Punishment in Virginia

I recently got the following request from someone who is an experienced attorney just starting to practice criminal law in Virginia:
I am currently having problems finding out about diversion programs for first-time offenders. I suppose it goes county by county? Are you aware of any diversion programs, such as deferred prosecution or deferred sentencing agreements, for first time offenders?
First, in Virginia we don't call it diversion. If you say "diversion" most Virginia lawyers will think you are talking about a specific incarceration program. In Virginia the language you are looking for is "taking a case under advisement." When a case is taken under advisement the judge sets the case off for a period of time (usually 6 months or 1 year) and if the conditions set are met the charge is dismissed. This is a common law practice which has been done everywhere I've practiced in Virginia. However, the court of appeals has unilaterally struck it down unless there is a specific statute allowing it or all parties - the prosecution, judge and defendant - agree upon it (technically, the court specifically did not address this when it stripped trial judges of the right to place someone under advisement themselves). The three areas which I can think of which have specific statutes allowing cases to be taken under advisement are domestic assault and battery (18.2-57.3), misdemeanor property crimes (19.2-303.2), and drug cases (18.2-251). When a case is taken under advisement per the statute the defendant must complete all the requirements of the statute and any others the judge may put upon him. Most of the time the defendant enters a plea of "facts sufficient for conviction" and the judge withholds a finding while the defendant's case is under advisement. This ensures that the defendant can't get his case under advisement and then ignore the court's requirements when a major witness dies or moves to Gnome. As his counsel, you must be aware that there is a collateral consequence of this: the defendant's charge can never be expunged. In Virginia only charges which have led to a not guilty finding, a nolle prosequi, or have been "otherwise dismissed" can be expunged. Our appellate courts have read the "otherwise dismissed" language to mean that the defendant must not have any evidence of actual guilt. Since a plea of "facts sufficient" admits guilt there is therefore no expungement available (See Brown here).

Beyond taking things under advisement many jurisdictions have "Day Reporting Programs" for drug users, as well as drug courts. These are handled differently in just about every jurisdiction I've been to, but the general idea is intensive drug counseling and supervision. Drug court includes a weekly trip to the court where the judge meets out praise or punishment, depending on the merits of each individual. Most places require the defendant to plead facts sufficient before entering one of these programs and, as part of the plea or contract, mandate a punishment than would otherwise be imposed for the defendant if she enters either program and fails. Programs of this ilk are becoming more common nationally and you've probably dealt with them before, but I'm still going to give the warning I give everyone. A well run drug court is strict and the best I saw probably never graduated more than 50% of its entrants. Your client, who is not thinking beyond next week, will want to go into the program to keep from going to jail. He won't think about the fact that he could serve 3 months now and he'll have to serve 9 months if he fails the program. I've seen a lot of people get more time in jail than they would have otherwise because of this shortsightedness.

Another possibility is Home Electronic Monitoring (HEM), which is more commonly called home arrest. Some jurisdictions are more open to this than others. I have been in many jurisdictions where even mentioning HEM was a non-starter unless there were incredibly unusual circumstances. I've also been in a couple where it is an accepted way to deal with certain offenders.

Finally, if your client is going in there are a few programs to consider: Detention, Diversion, & TC. TC is Therapeutic Community and it's a program offered by the Department of Corrections for addicts. It's a three year program and, to judge by how much defendants want it, must have better conditions than general imprisonment. I've seen a number of judges order or recommend that a defendant go into this program, but I make no guarantees that DOC pays any attention. Detention is drug counseling and strict control environment. As I understand it, this program is something of a boot camp light. Diversion is the one your clients will want. Basically, it is supposed to be drug counseling and outside work. Be advised, prior violent convictions and medical problems will keep your client out of these programs.

That's all that pops into my mind right now. There may be some other programs available in your area and some different use of language, but I think I've covered enough of the basics to get you rolling.

09 November 2010

Discovering Discovery in Virginia

A lawyer experienced in practicing in a State where discovery rules and agreements favor the defendants:
The Virginia Supreme Court has also set out separate rules of discovery for general district courts, the lower courts that handle misdemeanor cases. Specifically, Rule 7C:5 requires the government to turn over only two pieces of information to the defendant: (1) any statements given by the defendant to the police, and (2) any criminal record of the accused.

Under this rule, defense counsel needs to file a formal request for this information at least 10 days before trial. The information in practice, at least in Fairfax County, is then given to defense counsel orally. It is not provided until the very morning of trial, during that hubbub of activity right before the judge takes the bench. And in many cases it is conveyed to defense counsel not by the prosecutor but by the police officer or detective handling the case.
This is basically true. In misdemeanor cases in most of the courtrooms where I've practiced in Virginia neither side does much actual discovery prior to the court date. Usually, both sides learn their cases from the officer involved on the day of court. Of course, as always, there are exceptional cases where certain misdemeanors get attention prior to the court date. Usually, these cases are ones in which the defense attorney has taken an extra step to bring the case into the limelight.

Most of the time this happens when the defense attorney contacts the Commonwealth Attorney prosecuting the case before the trial date and asks for the information he is entitled to. A personal contact a week or two before can work wonders as long as the defense attorney doesn't do it for every single case (don't call on every single driving suspended).

Of course, there are always going to be jurisdictions where the prosecutors and police are too busy to be informally helpful. And, there will also be jurisdictions where the relationship between the prosecutors and the defense bar is so bad that the informal approach is not available. In these cases there are formal options.

In most jurisdictions merely filing a discovery motion is enough to trigger a response from the Commonwealth and to get the judge to grant a continuance for lack of compliance with discovery. However, this is not technically correct because the judge never entered a formal order. If there is no other way to get discovery, the defendant can file the motion with the judge and the prosecution and then get in front of the judge (with a prosecutor present) and get the judge to sign an order requiring the prosecutor to send the defendant discovery. Doing that won't make the defense attorney any friends, but if he has to go that far to get discovery that boat has probably already sailed.

08 November 2010

For the Record, I Do Not Support This Position

You know, as a blogger people come to your site through weird searches all the time. However, I don't know why anybody would come to CrimLaw via this search ever:
a) because sex is for the woman's pleasure in our marriage, i will deny my husband sexual release most of the time. i believe that a denied husband is an obedient husband. i may allow him sexual relief on rare occasions for biological reasons. i will determine if, when, and how his sexual release will occur.
Why exactly is a husband going to be obedient when he knows the answer will always be "No"?  Seems more likely to lead to infidelity or divorce.

Creative Punishment for Stealing from WalMart*



Hmmm . . . I wonder if we can get our judge to do this.

07 November 2010

The Church Walks Away From the Death Penalty & Trial by Ordeal:
4th Lateran Council (1215 Anno Domini)

CANON 18

"No cleric may pronounce a sentence of death, or execute such a sentence, or be present at its execution. If anyone in consequence of this prohibition (hujusmodi occasions statuti) should presume to inflict damage on churches or injury on ecclesiastical persons, let him be restrained by ecclesiastical censure. Nor may any cleric write or dictate letters destined for the execution of such a sentence. Wherefore, in the chanceries of the princes let this matter be committed to laymen and not to clerics. Neither may a cleric act as judge in the case of the Rotarrii, archers, or other men of this kind devoted to the shedding of blood. No subdeacon, deacon, or priest shall practice that part of surgery involving burning and cutting. Neither shall anyone in judicial tests or ordeals by hot or cold water or hot iron bestow any blessing; the earlier prohibitions in regard to dueling remain in force."

02 November 2010

Most "Interesting" Reasoning in Virginia's September Cases

The Virginia Court of Appeals has already decided to hear Foltz v. Commonwealth en banc, so I can't critique too hard. Hopefully, they'll fix this in the final decision.

The case is about whether or not the police violated the 4th amendment when they placed a GPS tracker underneath the bumper of a van the defendant was driving. Part of the appellate court's reasoning was this:
There is no societal interest in protecting the privacy of those activities that might occur in a bumper.
Just imagine the federal Supreme Court in Katz saying "There is no societal interest in protecting the privacy of those activities that might occur on the outside of a phone booth."

01 November 2010

September's Virginia Criminal Law & Cases is Up


click on graphic to go to Virginia Criminal Law & Cases

Who Says Judges Can't Get Learned?

The federal 4th Circuit Court of Appeals in US v. White (No. 09-7933) considered whether Ms. White should be forcibly returned to competency through medication (it ruled she should not).  As part of the Court's consideration it discussed the amount of time her guidelines called for her to serve. Then as an aside, it said in this paragraph
Likely sentence aside, we note that our entire analysis pre- sumes that White will be found guilty. Of course, this assumption belies our judicial system’s fundamental and criti- cal presumption of innocence. Flouting such a seminal aspect of our law is particularly troubling considering that the government must show that important government interests are at stake in prosecuting White, and they must show it via clear and convincing evidence. Our assumption, although necessary to proceed with this analysis, is particularly unsettling in light of our recent precedent in Evans, where we permitted the forcible medication of Evans, a schizophrenic, for the purpose of standing trial, United States v. Evans, No. 06-4480, 2006 WL 2604843 at *1 (4th Cir. Sept. 12, 2006), and separate juries of Evans’s peers found him not guilty of threatening to kill a federal judge and of assault on a federal employee. Judgment of Acquittal, at 1, United States v. Evans, No. 1:07CR00043 (W.D. Va. Nov. 15, 2007). Thus, although we have estimated White’s likely sentence to be 42-51 months, there is some possibility that she would be found not guilty and that the entirety of her pre-trial detention will remain uncredited time.
Not sure if that means they wish they'd not let Evans be forcibly medicated so that he'd still be in the mental ward or if its a concern that they don't want to seem like they're assuming White is guilty, or both.

30 October 2010

Pitbulls and Parolees

I was just flipping through channels and came across Animal Planet's Pitbulls and Parolees.  It's pretty much exactly what its name says it is, an animal rescue for pitbulls which employs parolees. They show the typical problems with dogs (training, aggression, adoption) and the typical problems with parolees (which seems to primarily be not showing up).

It's an interesting enough show, but they spent half the show going to court in Las Vegas trying to get a bond hearing for the main protaganist's husband. They got shifted through four different judges and spent an entire day in court before the hearing got continued to a different day. The main problem is that they kept estimating the time for the bond hearing to be two hours . . . three hours . . . four hours (it seemed to increase as the day went on).

Good gracious. A bond hearing in Virginia takes an hour, at the very most. What the heck do ya'll in them there other states do during a bond hearing? Translate every question into Latin and the answers into Greek? I mean, how long can it take to call the defendant's Mom to say he's a good kid who shouldn't be held responsible because he has ADHD, have the prosecutor point out the defendant has been convicted of 7 prior felonies, and hear the judge say yes or no?

28 October 2010

Ah, the Good Old Naive Days

Back when men of character roamed the Earth:

"Evidence of larceny involves the perpetrator’s character for truth, and stealing is a crime of that character which men generally are not found to commit unless when so depraved as to render it extremely probable that he will not speak the truth."

This is the rationale, dating from the early 1900's, behind allowing a defendant to parade 20 people in front of a jury who don't know anything about the facts of the larceny case, but who all testify that "Yeah, yeah. Rat Face Louie, he ain't never told a lie to no one, ya see."

Of course, the witnesses are only actually supposed to testify about the defendant's reputation in the community. Talking about specific instances of behavior or about the witness' personal opinion about the defendant is forbidden. Still, when the witnesses include the defendant's mother, father, 2 brothers, sister, 3 guys on his bowling team, etc. etc. etc. one begins to suspect that no matter how much they swear that they are only testifying about community reputation, they might, maybe, perhaps be allowing their personal opinions, sense of loyalty and desire to keep Bob out of jail color their testimony (I mean, for goodness sake, he bowls a 234 average. If Bob goes to jail the league championship is blown).

24 October 2010

I Need Someone to Translate Statisticianese

I'm researching for an article I'm writing and seeking an answer to whether pharmaceutical advertising leads to more pill distribution. From the amount of money they spend on it, it's pretty obvious that pharmaceutical firms believe it does, but I was was looking for empirical data (or at least someone explaining the empirical data in terms I can understand).  I found an article in an Indian news site and from Reuters talking about a new study out that reviewed a bunch of other studies and indicated that doctors "prescribe more expensively, less appropriately and more often" because of pharmaceutical advertising.  However, I was a little suspicious because no US news sites seemed to have picked this up and I prefer original sources anyway, so I looked up the study.

As best I can tell the article's conclusion is that it is a definite possibility that pharmaceutical advertising might perhaps have caused increased cost and decreased quality in prescriptions (maybe). There is "some evidence of increased costs and decreased quality of prescribing." So, I dug into the article itself, trying to find the basis of the two news reports and I think that this portion may be what they focused on (primarily I base this on Reuters talking about the same numbers as are found in this paragraph, albeit probably terribly misconstruing them):
Of the 58 studies included in this review, 38 studies reported a single unit of analysis with 25 (66%) finding significant associations between exposure to information from pharmaceutical companies and the quality, frequency, and cost of prescribing and eight (21%) finding no associations. The remaining five (13%) had multiple measures and found significant associations on some measures but not on others. The 20 studies with more than one unit of analysis reported 49 units of analysis of which 21 (43%) found significant associations, 24 (49%) found no associations, and four (8%) found mixed results. The difference between the results of the single versus multiple unit of analysis studies is significant (p<0.05 Freeman-Halton extension of the Fisher exact test). This difference may have been caused by publication bias against publication of single unit of analysis studies when no association was found. We believe the pattern of results suggests that there was little or no reporting bias for the multiple unit of analysis studies. Because the multiple unit of analysis studies found no association more often than the single unit of analysis studies, multiple mentions of the former studies in our narrative synthesis will not exaggerate the frequency of findings of significant associations.
Okay, I need some translation for the following terms: "single unit of analysis", "multiple measures", and "multiple units of analysis." I have in my head what I think those mean, but shan't give my thoughts here because I'd rather have someone tell me fresh, rather than tip-toeing around any misunderstanding I might have.

As well, am I right in understanding that the authors applied their own perceptual, unsupported bias to deprecate the "single unit of analysis" results?

18 October 2010

18th Annual Capital Defense Workshop

Today, after four years of working at a Commonwealth Attorney's office, I yet again got an invitation to the Capital Defense Workshop. I'm tempted to sign up as there seems to be only one restriction.
This program is provided for attorneys seeking qualification for capital defense cases and willing to accept appointment in such cases and for mitigation specialists and investigators employed by the Indigent Defense Commission capital defender offices. Part-time prosecutors may not attend
Great, I'm a full-time prosecutor, so I guess it's okay for me to go.

Pill Seekers

From a Rough Draft of a Paper I'm Writing:

On the other hand, while there are some local distributors and street level dealers in the pill trade, the provision of multiple legal outlets for prescription pills has led to aggressive abusers. Sometimes this manifests itself in a form of criminal activity which is bent toward the use of force to take pills, such as robbery or burglary. More commonly abusers seek to defraud a doctor or pharmacy in order to get drugs.

However, the most aggressive act taken by abusers is the seeking of pills from doctors and pain clinics several states away. As pain management clinics coalesced in states which are not properly regulating them, particularly in Florida, abusers sought them out with a vengeance. People drive from Virginia, Kentucky, Tennessee, Ohio and West Virginia to mob these clinics. There is even a flight from West Virginia to Fort Lauderdale that is so notorious for carrying drug seekers that it is called the “O.C. Express.” As one law enforcement official in Kentucky stated, “We're just seeing a phenomenal amount of people from Kentucky going to Florida for these pills. They drive down there to Boca Raton and Fort Lauderdale, and they're getting bags full of pills, and they're driving back the same day.” Another Kentucky law enforcement official was more blunt. “We're inundated with it. Florida is killing us. There's a carload that leaves here so often -- hell, every week or so -- to go to Florida.”

16 October 2010

I'm Famous!!!!
or at least on Topix

So, I'm sitting in my office, diligently working my Friday away, when I get a call: "Ken, you've got to come see this." It turns out that one of the attorneys has been checking out Topix, which is a nationwide community bulletin board system and has a significant following in our locality. Everyone checks it out at least once in a while to check on the gossip (of course, those in my office are only checking it to make sure no information dangerous to ongoing investigations and prosecutions is leaking).

The topic of discussion on one thread is who the hot local law enforcement types are. They are sniping back and forth and then, out of the blue comes this comment:
I hear about one that works in court house they call him the hammer, he must be hot.
Ain't but one Hammer at this here courthouse.

Now the only question is whether it is Wintertime Bearded Hammer which is hot or Summertime Bald Hammer?

13 October 2010

The Winnder of Last Week's Name That Pic

Bear claw or eclair?

Broward, 454, & the Judge is Gone

Admittedly, I don't know much about Broward County other than the fact that it is the center of the pill abuse universe. I was actually doing some research on that very subject when I ran across the story of a judge being removed from his position because the prosecution had moved for him to be recused from 454 cases (all the cases involving the prosecutor in his courtroom).

Wow. That's simply amazing. Admittedly, the guy had been acting, from the one sided accounts presented to the media, as a prima donna. He basically talked a defendant out of pleading guilty and getting time served because the defendant would lose his license. He significantly reduced three plea agreements. He made the prosecutor sit at her table.

And if that's all that it takes to get a judge removed, I could get about half the judges I've practiced in front of removed. I've been in courtrooms where you didn't sneeze without the judge's permission, much less leave your table (whichever side you were on). I've fought, and lost, the "but, judge, the plea agreement says" battle from both sides of the bench. I've also seen judges at least seem to try to talk defendants out of the plea agreement. Yet, none of these judges have I asked to be recused or relieved of their duties. It's just part of life as an attorney that there are judges you won't appreciate and will have personality conflicts with. Disagreement generally doesn't (outside Florida) mean you get to choose a new judge.

This was an elected judge. However, apparently in Florida you aren't elected to a specific bench - or at least if you are you can be changed to another. This is the solution the chief judge opted for, moving this judge to juvenile court.

12 October 2010

CLTV: The Legalized Drug Plague



Tried a new format, but I'll probably go back to the old, behind-a-desk format next week. This episode was also thrown together a little quickly so it it's a bit disorganized . . . live with it. ;-)

11 October 2010

Sometimes Criminals Make it Too Easy

Y'know, as a prosecutor, I am generally not opposed to the defendant making the conviction easy. However, there are times when it is almost too much like shooting fish in a barrel.

1) When you burglarize a pharmacy it's best not to imbibe a bunch of the cough medicine you've stolen and fall asleep in the ceiling.

2) When you plan to rob a pharmacy for oxy's the statement "robbing pharmacies for OxyContin is the only way to go" is going to hurt you when you go to trial.

10 October 2010

Grover is my Hero

Yeah, I know it's not crimlaw related, but some things are just too good to ignore.


07 October 2010

01 October 2010

Avast Ye Scurvy Dogs! It Be Art Time!

All hands on deck and these here be yer marchin' orders. Ye're all to go to My View from 15021. When ye get there, if ye don't want the black spot, ye'll reach down into the darkness of ye dark hearts and find the last little bits intellect in ye and say kind words  to the artist.

Lest ye think to say even a small bit of blaggardness, know ye that it'll be Davy Jone's Locker for ye!


----------
1 The title is an homage of Renaissance painters and specifically in memoriam of Alvise Vivarini who passed away in 1502. This is because Valerie thinks that the height of artistic achievement was achieved during the Renaissance and everything has been downhill from there. ;-)

27 September 2010

CLTV: Should the Government Give Defendants Vouchers Instead of a Court Appointed Attorney?


If you want a copy of this paper for yourself contact CATO at (202) 842-0200 or through the website www.cato.org.

Video quality not quite as high this week because it was going to take over 20 hours to upload. Consequently, I compressed it as a .mov and only had to spend an hour uploading it. And, yes, I know that I goofed at the end and didn't shrink the logo up into the corner, but ya'll had already seen enough of my ugly mug by then anyway. ;-)

20 September 2010

Anchoring Pleas & Judicial Negotiation


A reply to Professor Miller's article on the participation of judges in plea negotiations.

If you want to read the article yourself you can find it here.

13 September 2010

CLTV: Inferring Malice

Restarting the weekly CLTV. There are some glitches this week in the intro and the text at the end. As well, the points made could be tighter. It could probably all have been fixed, but I was getting over some sort of illness yesterday and just didn't have the strength to keep fighting it. :-P


From CLTV.

11 September 2010

Off Point: The Ole Miss Admiral Akhbars

"If Admiral Akhbar was truly adopted, the average student's IQ at the University of Mississippi would sky rocket."

08 September 2010

Winner of the Last Name That Pic

Marvin McTavish, maniacal masked mangler, manifests mousy mammalian muggings.

Court in Kentucky (compared to Virginia)

Being a curious sort, I was in Kentucky today and arranged to sit in and watch a general district court in session. It was interesting to see how the practices compared with the Virginia general district court.

Much like Virginia, the general district court in Kentucky is a court for misdemeanors and preliminary hearings on felonies. The courts have different "departments" each of which has its own judge. If something is in Department 1 the case is Judge Smith's. If something is in Department 2 the case is Judge Jones'. I guess this is done primarily as a means of docket control. We don't do this in Virginia. If there are three judges in a county the case just gets put on Judge Smith's docket or Judge Jones' docket, without any further indicators. Unlike Virginia, jury trials are held in district court. There is a right of appeal to the circuit court, but I am uncertain what that entails. In Virginia a defendant cannot get a court of record or a misdemeanor jury trial unless he appeals a conviction in general district court. I don't think that a Kentucky defendant can get two bites at the jury apple, but I don't know the nuts and bolts of a misdemeanor appeal.

When court started, the first thing the judge did was read the assembled defendants their rights. This included their Miranda rights and their rights under Kentucky law. We don't do that in Virginia. An interesting right in Kentucky is that preliminary hearings must take place within ten days if the defendant is incarcerated and twenty if he is on the street. There's nothing like that in Virginia; we'll do the preliminary hearing when we do the preliminary hearing (generally within a couple months).

The docket was organized so that every case had a "call" number. While cases weren't necessarily called in order, each case was referred to by its call number: "Call number 6, Commonwealth v. Smith." Nothing like that in Virginia; we just list the defendants alphabetically.

Part of the day was spent on the first appearance of several defendants in court. The defendant would get called up, the judge would ask the prosecutor if there was an offer and the prosecutor would either make an offer which the defendant could accept on the spot or say "no offer." If the defendant refused the deal or the prosecutor said "no offer" the case was set over to a later date for trial. This is very different from Virginia. We don't usually have a prosecutor participate in the first appearance. All the Virginia judge does is tell the defendant his charges, determine what the defendant will do about an attorney, and address bond. Kentucky also has its judges arraign the defendant at the first appearance. Virginia doesn't do this (more accurately, some Virginia judges do, but it has absolutely no legal affect). I must say, seeing the judge and prosecutor interact with a defendant without even addressing whether the defendant wanted an attorney was the thing which most shocked me as a Virginia attorney. However, the judge has already informed everyone of their rights by then, so they know they have a right to an attorney, and it is the citizen's duty to assert his rights. I can see how it passes muster. It was just so very foreign to my experience

Much like misdemeanor cases everywhere, most cases were settled with "pretrial diversion", time served, "conditionally discharged" time, or a fine. "Pretrial diversion" appeared to be what Virginia calls "taking the case under advisement": go forth and sin no more and in 6-12 months we will make your charge disappear (if you've not gotten in any other trouble). "Conditionally discharged" time seemed to be what Virginia calls suspended time: you're convicted, but you won't have to serve this time unless you get into trouble again in the next year or two.

While procedure and substantive crimes had a lot of similarities, the language was often quite different - although usually I could suss out the meaning thru context. In addition to the different names already listed above, I heard things like "court trial" (bench trial), "cold checks" (bad checks), "3d degree trafficking" (distribution schedule IV or V), failure to appear - warrant of arrest (capias), etc. My favorite of all these was "criminal mischief", which I pictured in my mind as somebody getting drunk, putting on a clown suit, and sneaking around giving people hot foots. It turns out it was just what we in Virginia rather banally call destruction of property; personally, I prefer the imagery that criminal mischief implies.

Finally, Kentucky has a charge which we need in Virginia: "prescription not in proper container." This appears to be a charge for not keeping the pills in the container in which they came from the pharmacy. For those of you in areas where the prescription drug abuse problem hasn't been noticed yet, requiring people to keep the pills in the container that states when they were obtained and how many were obtained is extremely useful (as opposed to the mixed bag of random pills under the driver's seat which he miraculously comes up with a scrip for each and every type of pill once charged).

30 August 2010

The Right to Arm for Self Defense

So, you have the right to bear arms and you have the right to defend yourself, but what if you arm yourself in anticipation of defending yourself?

In Virginia, the answer is that if you have armed yourself in reaction to a threat the inference of malice that the use of a firearm in a homicide carries is negated. The same rule probably carries for lesser offenses such as malicious wounding, but the cases which set the rule are homicide cases. Generally, this has been laid out in a series of decisions having to do with jury instructions. The best statement of this probably comes from Bevley v. Commonwealth, JUN46, VaSC No. 3097:
It is a fundamental doctrine that a person who has been threatened with death or serious bodily harm and has reasonable grounds to believe that such threats will be carried into execution, has the right to arm himself in order to combat such an emergency. Whether the threats were made, or the accused had reason to believe they would be carried into execution, were questions to be determined by the jury. However, when a jury is told that the law presumes that a person using a deadly weapon to kill another acts with malice and throws upon the accused the burden of disproving malice, then the accused is entitled as a matter of law to have the jury instructed that he has overcome the presumption, if they believe the evidence offered in his behalf.
Of course, this uses the old "presume" language, which we have scrapped nowadays in favor of telling juries that they can infer. Nevertheless, the principal in the decision is still sound.

This right to arm extends so far that in Jones v. Commonwealth, JAN48, Va. No. 3304 a man who was clearly threatened could go home, arm himself, and wait on his porch for the man who threatened him to come was entitled to the right to arm instruction.

There are some limitations to the requirement that the instruction be given. Reasoning that the right to arm instruction is based upon a need to counter the available inference that if someone purposefully arms himself the act of doing so indicates malicious intent, the Virginia Court of Appeals has stated the instruction is not appropriate when the defendant merely grabbed an available weapon to defend himself or his family.  Lynn v. Commonwealth, MAY98, VaApp No. 0109-97-3. I take this to mean that since the defendant didn't purposefully seek a weapon there is nothing to counteract from the purposeful seeking of the weapon and therefore, the only instruction needed is the self defense instruction - not the right to arm instruction.

So, what exactly is the instruction? Well, here's the one from Bevley:
The court further tells the jury that when a person reasonably apprehends that another intends to attack him for the purpose of killing him or doing him serious bodily harm, then such person has a right to arm himself for his own necessary self-defense."
And here's the one that was rejected as unnecessary in Lynn:
When a person reasonably apprehends that another intends to attack him or a member of his family for the purpose of killing him or a member of his family or doing him or a member of his family serious bodily harm, then such person had a right to arm himself for his own necessary self-protection and the protection of his family, and in such case, no inference of malice can be drawn from the fact that he prepared for it.
The second covers all the bases, so I think it's the better of the two.

It's an interesting line of reasoning and carries all sorts of questions. Does the threat have to be individualized? Can a Blood carry a sidearm because he knows that the Latin Kings are trying to kill Bloods in the City? The cases refer to the right to arm. How does this right play out with felons or others who are forbidden by mere laws from possessing firearms? Can a felon carry a firearm if he knows that the Pagans are hunting him? Personally, I think there has to be an individualized threat which has some immediacy.