Justified

5 second review: Justified? In what?

30 second review: They want me to believe that's Kentucky?

Full review: This show is the perfect example of why you should film a TV show where you claim it is taking place.

The guy on the left, Marshal Raylen Givens, screws up in Florida. He gives a scumbag 24 hours to leave town and when the scumbag doesn't Marshal Givens shoots him dead. Of course, the scumbag drew first, so Givens is on the right side of the law by a razor thin margin. The result? The Marshal Service decides to move him back to Kentucky, where he grew up. From that point forward we get to see him hook up with a murdress, interact with his ex, do a superior job of marshaling, and shoot a bunch more people.

All-in-all, it's probably a slightly above average cop drama. However, it is unwatchable if you live, or have ever lived, in Kentucky. The people who wrote these scripts have never been to Kentucky and don't know anyone who has been. They just seem to pick locations out of thin air and throw them in. In the first episode they go from Lexington to Somerset to get a beer (that's a 2 hour drive for a beer). And they travel from Lexington to Harlan County like it's a 30 minute drive down the road (it's 3 hours). I don't know what city that is that they are trying to pass off as Lexington, but it's not even close. At least look at a photo or two of Lexington so that you can realize that THERE AIN'T ANY BIG STEEL BRIDGES IN LEXINGTON. There sure as heck isn't one on Tates Creek Road; take my word for it - I've driven that road a few times in my life. In fact, nothing I've seen in this show looks like Kentucky.

And then there's the people. What accents are those which are being thrown around? I've never heard them before. And, I haven't heard a Kentucky conversation from a single one of them. By that I mean that nobody's mentioned basketball - not a single person. This is a State wherein I was watching an NFL playoff game last year and the local channel cut in and broadcast a high school basketball game instead. People in Kentucky talk about basketball. No, that's not quite right. People in Kentucky talk incessantly, all the time, in every conversation, every day about UK basketball. They criticize the coach. They weigh the skill level of players. They talk about possible recruits. They live in expectation that the coach will get a national championship every three or four years. If he doesn't they will rip apart every second of every game, talking about every stupid thing the coach did. Heck, they'll even do this if he's a winning coach; it is impossible for a UK coach to satisfy the fans. They are everywhere. That Marshal's office in Lexington would have UK stuff on at least half the desks and cubicle walls. About 40% of the people in town - and in the counties - would be wearing UK clothes every day. Apparently, in whatever alternate reality this show takes place in basketball doesn't even exist.

C'mon. If you were going to shoot in Genericsville, Pennsylvania, you should have just put your show's location in Pennsylvania. It'd be a better fit. Since a good deal of your "location" shots are just green screen through a car window, you could at least have driven through Kentucky/Lexington/Harlan County to get those shots. Yeesh.

The Big 4 copyright 2010 Ken Lammers Jr

ATTENTION ALL DEFENSE ATTORNEYS: I am hereby copyrighting each and every one of the Big 4 reasons that defendants can't possibly go to jail for the crime they've committed. Should your client use or attempt to use Job, Family, Illness, or I Found God - or any variation or combination thereof - there shall be a $5.00 fee payable to Ken Lammers Jr. Payment shall be for each individual usage of a particular Big 4 reason, even if they are used in combination. As well, the fact that the Big 4 neither caused the judge to dismiss all charges and apologize nor led to any better result than the defendant could have received otherwise does not waive or abrogate the duty to pay for use my copyrighted material.

Payment is acceptable by cash, cashier's check, or money order. Checks on a defendant's account shall not be acceptable. However, payment from an attorney's trust account on behalf of the defendant shall be accepted.

BE ADVISED: There is no explicit warranty and no implicit warranty in the usage of my copyrighted Big 4 reasons. Use of the Big 4 is at your own risk and results shall vary depending on numerous conditions outside the control of the holder of the copyright.

The Guilt Project: Rape, Morality, and Law

I rate this book a 3 out of 5. As a whole concept it fails, but if you read it like you would a blog - section by section without an expectation of a strongly coherent whole - it can provoke thought.

For the first two sections of this book, I was searching for some coherent theme. Expecting the book to be either about the nuts and bolts of representing rapist on appeal or a screed against the evils of the system, I found a book wherein there's a lot of stream of thought which wanders between philosophy, sociology, reality, theory, and personal affect. It keeps harrying off into stream of consciousness every time you turn a page - or even start to read a new paragraph. Generally the thoughts are interesting, but they only link together with the barest of threads.

Before I had finished reading the Introduction and Section I: Guilt and Me, I was convinced that this was a blogger who had decided to put all her blog posts together as best she could into a book. I stopped and looked up the author sure that I would find a public defender blog tied to Vanessa Place. I was wrong.

It turns out that Vanessa Place is actually an author of poems and "experimental literature." Apparently, her most famous writing is a 50,000 word 177 page book Dies: A Sentence. Why is it famous? Because she only uses one period in the entire book (on page 117). Here's an excerpt:



Not my cup of tea, but not terrible either. Still, between this and the way the Intro and Section I went, I was beginning to wonder about this lady writing appellate briefs.

No worries, in the next three sections she shows that she knows the her stuff inside and out - the way you can only know it if you've spent the time researching and arguing a subject. It's hit or miss; some sections are extremely informative while others are expositions on philosophy and sociology.

I'm torn by this book. I found parts informative and some downright fascinating. If the subsections had been broken down and been individual blog entries I would be full of praise for an insightful, well thought through blog. But as a whole book it just doesn't hang together. Balancing these two impulses out, I have rated it a 3.

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

[addendum]For the record, I was given a courtesy copy of the book by a publicist, but later bought a copy for my Kindle.

Well, are you?

Breaking News: Drug Bust

DEA Official Announces Successful Drug Bust On Son's Room

The Other Guys

I can hardly wait for this movie:

Bubonic Bob & The a Smart Judge

Bubonic Bob was back in court a couple weeks ago. Bob earned his nickname from the fact that no matter what punishment a judge or prosecutor offers he has a condition which will preclude it. On the other hand, none of these conditions have yet stopped him from going into the local S-Mart and trying to leave without taking his items through that pesky checkout line. Most recently, his conditions also hadn't stopped him from writing a bunch of bad checks to about 7 local stores. I didn't see the original trial, but somebody gave Bob a break because his prior record should have gotten him at least 6 months. Instead he got 10 days in jail and 30 hours of community service. And therein was to be found the problem. It had been over a year and Bob hadn't done a single hour of his community service.

Probation officer testified that Bob had claimed that knee and back problems kept him from doing the usual trash pickup. Probation Officer had told Bob to bring in some sort of letter from the doctor proving his ailments. Bob put Probation Officer off for over 9 months - nary a medical record in sight - and finally Probation Officer decided to violate Bob. Since that time there'd been two continuance granted by the court so that Bob could get the paperwork and bring it to the court. Probation Officer wants either jail or at least that Bob be forced to do his community service.

Then Defense Counsel calls Bob. Bob has the magic ticket held triumphantly in his hands. He gives it to Defense Counsel who gives it to the judge. Prosecutor has to ask to see it. I couldn't see it, but from Prosecutor's reaction it was probably the same thing we see all the time from a doctor who writes something to get a patient to quit bothering him: a general letter which states there is some problem, but doesn't really state that it is serious or how the problem should limit the activities of the defendant.

Bob testifies that he can't do the physical labor of picking up trash because of his knee and back problems. On cross, Prosecutor points out that the letter doesn't say that. Bob counters that the letter says he shouldn't over-exert himself because of these problems and that the doctor told him that meant not being on his feet for over 20 minutes. Prosecutor asked why Bob hadn't brought the letter in when Probation Officer asked for it. Bob counters that he couldn't afford to pay the doctor for the letter - "No matter why you go to see Dr. Smith, it costs $750 just to get an appointment." Asked why he couldn't do community service where he could just answer phones Bob counters that his man-ear would only allow him to do that for an hour at a time. Asked why he agreed to community service Bob states that he didn't; he just agreed to do some jail and the judge stuck the community service on the order after he'd already gone to jail. Asked if he had any problems just doing jail time Bob states that the problem with that is that they won't let him have his pills for his "sugar", blood-pressure, and back pain _ "The last time I was in for a week and it took 3 months to things back to normal, cuz they wouldn't let me have my pills." Then the judge and Bob have a conversation about whether Bob smokes or not. Bob bobs and weaves a bit, but then claims he quit a year back because he's got "OCP" (I think he actually meant COPD - I've not met anyone who stopped because of river blindness). Watching Bob testify is watching a maestro in action. He may not be the most educated guy in the room, but he's mentally agile. There's an answer for everything and for everything there's an answer.

You can just see by the demeanor of Probation Officer and Prosecutor, they think that Bubonic Bob is going to skate yet again. Bob himself is looking rather smug. He's answered all the questions and his bastion of diseases is going to yet again serve him well. Then the judge weighed in.

"Mr. Bob, there's a tree in front of this courthouse. Probation Officer is at this courthouse on Tuesday, Wednesday, and Thursday. On each of these days of the week, you shall come to the courthouse and report to Probation Officer. Then you shall go down to that tree and sit and count cars. From 9 to 12 you shall count the cars which turn left from Broad Street onto 16th. From 1 to 4 you shall count the cars which turn right from 16th Street on to Broad. At the end of the day you will turn over the paper with the number of cars to Probation Officer. You will repeat this until you have completed all your community service hours."

Brilliant! I mean, I wouldn't want it for 99.999% of offenders, but it's something Bob will have a hard time getting out of medically and it will drive him nuts just sitting there all day (the tree is in the middle of a big lawn where nobody goes). Do I think he'll actually count cars? Nope. He'll make up numbers. However, I also think that he "misremembered" when he told the judge he quit smoking a year ago. Basically, the judge sentenced Bob to sit someplace where he can't talk to anyone but is in clear sight so that he can't smoke and prove that he lied to the court.

Maybe I'm just happy because I thought Bob was going to get away with it again. And, when I think about it rationally, Bob probably got off too light. Still, this is the coolest sentence I've seen in a while.

Quotes from The Guilt Project: Rape, Morality and Law

Got this book to review (also bought the Kindle version). I haven't finished reading it yet and I'm one of those strange people who won't actually review a book without reading it. However, here are some interesting quotes from the book so far.

On sex with a drunk woman equaling rape: "The real snake is the thesis that women are like children, and like children, must be protected from themselves."

Explaining why women can't consent to prostitution under the "domination theory": "Women who voluntarily engage in prostitution have been involuntarily recruited by daily patriarchal practices and institutional ideology: a woman whores because it's a man's world."

"Feminism and prostitution, those twin administrations of women's bodies, each claiming province of their hearts and minds, have been conjoined since the Victorian era."

"In the too-liberal imagination, each of the Seven Deadly Sins is attributed to a mutilated Me: the glutton is only starved for affection, the violent lashes out to reach out, and the murderous just doesn't get the rest of us."

According to my Kindle, I'm 57% of the way through the book. I'll comment on the meat of it when I get to 100%.

Padilla & the Prosecutor

So, how does Padilla v. Kentucky affect those of us on the prosecution side of the aisle?

It's more than a little ridiculous to expect defense attorneys practicing in State courts to understand the intricacies of immigration law. How ridiculous? Well let's look at the list of sources which Justice Stevens uses to back his claim that it is a normal standard of practice for defense attorneys to be fluent in and advise clients as to immigration law:

National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representation §6.2 (1995); G. Herman, Plea Bargaining §3.03, pp. 20–21 (1997); Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 713–718 (2002); A. Campbell, Law of Sentencing §13:23, pp. 555, 560 (3d ed. 2004); Dept. of Justice, Office of Justice Programs, 2 Compendium of Standards for Indigent Defense Systems, Standards for Attorney Performance, pp. D10, H8–H9, J8 (2000) (providing survey of guidelines across multiple jurisdictions); ABA Standards for Criminal Justice, Prosecution Function and Defense Function 4–5.1(a), p. 197 (3d ed. 1993); ABA Standards for Criminal Justice, Pleas of Guilty 14–3.2(f), p. 116 (3d ed. 1999).

Now, let's compare that to the real world courts which have rejected this idiocy (and which Justice Stevens buries in a footnote):

United States v. Gonzalez, 202 F. 3d 20 (CA1 2000); United States v. Del Rosario, 902 F. 2d 55 (CADC 1990); United States v. Yearwood, 863 F. 2d 6 (CA4 1988); Santos-Sanchez v. United States, 548 F. 3d 327 (CA5 2008); Broomes v. Ashcroft, 358 F. 3d 1251 (CA10 2004); United States v. Campbell, 778 F. 2d 764 (CA11 1985); Oyekoya v. State, 558 So. 2d 990 (Ala. Ct. Crim. App. 1989); State v. Rosas, 183 Ariz. 421, 904 P. 2d 1245 (App. 1995); State v. Montalban, 2000–2739 (La. 2/26/02), 810 So. 2d 1106; Commonwealth v. Frometa, 520 Pa. 552, 555 A. 2d 92 (1989).

So, on the the one side we have actual courts which recognize the reality. On the other side we have a widely disparate set of habeas-bait "standards" (invariably impossible to follow: see this post), never used procedural books (I'd even go so far as to say never heard of, but someone out there must have), ABA standards which laughed at by actual practitioners (actual criminal law attorneys don't have time to waste with that organization), and a law review article (you're kidding?!? tell me you're kidding). On one side are 11 courts (including Kentucky) which have held the opposite of Justice Stevens decided (btw, where's the circuit/State supreme courts split that required the federal supreme court to step in address this issue?); on the other side are the best sources which Stevens' clerks could scrape up by combing through the law library. This just screams of results oriented rationalization.

Immigration effects has been a major meme that has been thrust upon criminal practitioners for a while now. It seems like every CLE has one hour in which a professor or immigration lawyer stands in front of the room and lectures on consequences of convictions. Meanwhile, the practitioners browse the web, read newspapers, work on that brief due Friday (you know - what practitioners do at every CLE). I've actually tried to pay attention and come to one conclusion. There is no way that anyone who is not steeped in the labyrinthine disaster zone which is immigration law can possibly advise a defendant properly. To quote myself:

Then came a section on collateral effects of a criminal conviction on aliens. What did I take away from this section? If you're a defense attorney and your client is an alien, call an immigration attorney because you will never be able to figure out the morass that is immigration law.

IMO, the best a practicing defense attorney can really advise an immigrant client is that a conviction might effect his immigration status. More than that and the attorney is really speculating.

The problem is compounded by the reality on the ground. Immigration officials are stretched thin. I currently work in an area where there aren't a large number of immigrants in the system. However, before I came here I was in a locale where it was not unusual to see several immigrants per day in court. I can remember talking to State officials and defense attorneys who specialized in Spanish language defendants and hearing the same thing more than once, "Yes, the feds can deport, but they don't want to be bothered unless there is a violent felony." Of course, it wasn't always phrased quite so blandly. So, the attorney in Padilla's case may have been giving what was basically reality based advice based upon experience. I haven't seen the feds swoop in and deport people therefore, they shan't do it to you. Of course, the problem with this is that the feds can alter their behavior randomly and unilaterally. And, in Padilla's case someone in the federal government thought that transporting a tractor-trailer full of marijuana might just be a reason to deport someone.

So, getting back to reality as the Supreme Court has now defined it for us, what are the practical effects on the ground? Well, we know that a lot of attorneys aren't going to pro-actively advise the possible immigration consequences of a conviction. We also know that even when they do there will be appeals and habeases in which the defendant claims that he wasn't notified. Hopefully, judges will start adding the question to the plea colloquy, "Are you aware that if you are an immigrant a conviction may effect your immigration status?" Unfortunately, I can't do anything to effect that change. However, I can change the language in my plea agreements (whether or not Scott will advise his clients to sign them). Henceforth, all my plea agreements will contain the following language:

Immigration Consequences: The defendant understands that if he is an immigrant any conviction may effect his immigration status and that federal law allows deportation for drug convictions.

I suggest that any prosecutor out there develop similar language and insert it into their pleas until such time as the judges have changed their colloquies.

Virginia Supreme Court Arguments in April

Case name followed by assigned error(s):

Newby v. Commonwealth, No. 091247:

The Court of Appeals erred in upholding the trial court’s error in denying Newby’s Motion to Strike the Evidence, both at the conclusion of the Commonwealth’s evidence and at the conclusion of all the evidence, on the grounds that the evidence did not prove that he had committed any portion of the offense alleged in the City of Hampton, Virginia.

Herndon v. Commonwealth, No 091265:

The Court of Appeals erred in affirming the trial court’s admission of the certificate of analysis contained in Commonwealth’s Exhibit 1 into evidence, because the item described in the certificate of analysis was not shown to be the same item the officer submitted to the laboratory.

Cokes v. Commonwealth, No. 091507:

The Court of Appeals erred by holding that the trial court did not abuse its discretion by denying Cokes’ request to withdraw his jury trial waiver and to proceed with a jury trial.

Midkiff v. Commonwealth, No. 091793:

The trial court erred in admitting into evidence, over Petitioner's objection, images which were not taken directly from the hard drive of the computer seized from Petitioner's home because they were neither the best evidence of the images nor reliable evidence of the images.

Carter v. Commonwealth, No. 091895:

The Commonwealth failed to prove the grand larceny indictment, that paint was stolen from the store.

Appeals Accepted by the Virginia Supreme Court March 2010

Case followed by the assignment of error(s):

Sidney Jr. v. Commonwealth, No. 092313:

1. The Court of Appeals erred by upholding the trial court's refusal to suppress the evidence where the petitioner was detained without probable cause or a reasonable suspicion in violation of his rights under the Fourth Amendment of the U.S. Constitution and comparable parts of the Virginia Constitution, and where the evidence was obtained as a result of this detention.
2. The Court of Appeals erred by concluding that the anonymous tip and dispatch to police supported the seizure of the petitioner, where the tip and dispatched information were not from an informant whose reliability was established and the information provided in the tip was not predictive and was otherwise insufficient to support the seizure of the petitioner.
3. The Court of Appeals erred by concluding that the tip and dispatch information supported the seizure of the petitioner where the mere fact that a warrant was on file for Allen Sidney did not make the otherwise unreliable tip reliable enough to support the seizure of petitioner under the circumstances of this case.

Perry v. Commonwealth, No. 092418:

1. The Circuit Court erred in denying Appellant’s motion to suppress evidence obtained in violation of his constitutional rights.
2. The Court of Appeals erred by considering a new justification for the illegal search, which was never presented to the trial court.
3. The Court of Appeals erred in finding that Trooper Weidhaas had probable cause to arrest Appellant at the time of the illegal search.

Bennett v. Commonwealth, 092085:

1. The appellate court erred in finding the Commonwealth had proven at least one prior firearms conviction thereby imposing a sentence on the firearms charges of three and five years, respectively.

McGhee v. Commonwealth, No. 091274:

1. The Court of Appeals erred in ruling that the trial court did not err in denying the motion to suppress the evidence because there was no probable cause for arrest and because the search of the car was invalid.

Commonwealth v. Moirris, No. 092163:

1. The Trial Court erred in its decision finding authority to apply the Writ of Coram Vobis, or alternatively the Writ of Audita Querela, as an appropriate remedy.
2. The Trial Court erred in granting Appellee relief under the Writ of Coram Vobis.

Bly v. Commonwealth, No. 092064:

ERROR: The trial court erred in not granting the defendant a new trial when it was discovered that exculpatory evidence was not disclosed to the defendant prior to trial.

CROSS ERROR: The Court of Appeals, although correctly finding no prejudice as a result of the non-disclosure, erred by failing to also find that Bly did not establish the second requirement of the Brady test: that the non-disclosed information either was itself admissible evidence or would have led to evidence that was.

Carroll v. Commonwealth, No. 091987:

1. The Court of Appeals erred in finding that, at the close of the evidence at appellant’s revocation hearing, appellant did not argue that the trial court could not find him in violation of probation because of the terms of any plea agreement.
2. The Court of Appeals erred in holding that it could not consider the plea agreement terms of appellant’s Alford plea as a basis for reversal of the trial court’s revocation, because appellant did not ask the Court of Appeals to consider whether the trial court’s decision finding that appellant was in violation of his probation was a breach of the terms of the plea agreement between appellant and the Commonwealth.
3. The Court of Appeals erred, based upon the facts of this case, in affirming the Court’s revocation of appellant’s probation because appellant refused to accept responsibility in sex-offender treatment by admitting to rape based upon his Alford plea as a matter of law.
4. The Court of Appeals erred in holding that the trial court did not abuse its discretion in denying appellant’s request to consider a reasonable alternative treatment modality, such as individual sex-offender therapy, in lieu of probation revocation coupled with the condition of successfully completing the same program from which appellant was terminated.

New Cases Added to Virginia Criminal Cases & Law

March's appellate cases have been entered into Virginia Criminal Cases & Law.
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