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.

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Congress authorized much needed upgrades for the capital police to handle the new wave of government scandals.

Introducing the Rejected Plea Agreement Probative/Prejudicial

Even if it gets past both hearsay and relevance objections, the proposed introduction of the rejected plea offer must have its probative value balanced against its possible prejudicial and misleading effect upon the fact finder. The two possible matters for which the rejected plea agreement could be offered are for proof of the prosecution's perception that its case has weaknesses and “the mere existence of a favorable plea offer is some evidence of an innocent state of mind by the defendant.”

The actual strength or weakness of the case will play itself out in front of the finder of fact. The prosecutor's perception of the case's strength does not change the strength of the evidence presented. Introducing the rejected plea agreement for the purpose of showing that the prosecutor thought the case was weak is asking the fact finder to substitute the prosecutor's judgment for his/their own. The prosecutor's perception adds nothing to the actual evidence and has a substantial risk of prejudicing or misleading the fact finder by inviting him/them to adopt the prosecutor's perception rather than coming to a conclusion based solely upon the facts.

The rejection of the plea offer as proof of the defendant's innocent state of mind is problematic. Anyone who has done defense work has seen defendants turn down all sorts of favorable deals for reasons other than innocence. Among the more unusual ones I ran across were the beliefs that mispelling a name on an indictment meant the prosecution could not convict and an abiding belief that the UCC denied the Commonwealth of Virginia the ability to prosecute for criminal failure to pay child support. More common are defendants who don't believe certain witnesses will testify against them; defendants who don't want to do any time (they will turn down 6 months despite being told they will get 2 years if they go to trial); defendants refusing the plea offer today because it would require them to go to jail today (in effect buying an extra couple months on the street with years in prison; defendants who feel like any conviction will destroy their lives/jobs; &cetera. Often, the choice to reject the plea offer and go to trial is irrational. Professor Miller even acknowledges this phenomenon:

It is well established that guilty defendants as a class are unusually prone to risk taking because, inter alia, a criminal history suggests a preference for gambling, just as it suggests that the defendant fears punishment less than most people. Conversely, risk aversion is a much more plausible assumption where innocent defendants are concerned (especially those with relatively clean records). Therefore, critics…claim that plea bargaining coerces a significant percentage of innocent defendants to convict themselves in exchange for a certain, reduced penalty.

With all this in mind, there is no basis for stating that rejecting a plea offer is indicative of either a belief in innocence or actual innocence. In fact, per Professor Miller's statement supra it appears that rejecting a plea agreement actually tends to show guilt more than innocence. With that in mind, offering the rejected plea offer as proof of the defendant's innocence has a strong potential to mislead the finder of fact.

Under both possible uses of the rejected plea agreement the potential toward prejudice and misleading the finder of facts is greater than any actual evidence putatively to be found in the offer.

Introducing the Rejected Plea Agreement Hearsay & Relevance

Professor Miller addresses the hearsay problem and makes a case for allowing the introduction of the plea agreement under an exception as indicative of the state of mind of the prosecutor.

“In light of this data, evidence of a favorable plea offer by a prosecutor has significant probative value for establishing the weakness of the prosecution's case. While other factors may play a role in a prosecutor offering a favorable plea bargain to a defendant, the above data reveal that nearly every prosecutor is influenced by the weakness of the prosecution's case in making a plea offer. And, “if we assume that prosecutors are motivated by a desire to avoid acquittals, they are likely to adjust their plea offers so as to create the largest differentials in cases where the government evidence is weakest.” Put another way, “the more likely it is that a defendant will be acquitted, the more attractive the plea offer that he will receive.”

The flaw in this is that it conflates weakness of the case with innocence. If the favorability of the plea agreement tracked with the prosecutor's belief in the probability of the defendant's innocence - the better the plea offer the stronger the prosecutor's belief that the defendant could be innocent – then a favorable plea offer would clearly be a statement contrary to the Commonwealth's assertion of guilt and should be an exception to the hearsay rule. If Brady and its progeny are stretched a little they could require the admission of a prosecutor's admission that a defendant might be innocent. However, weakness of a case rarely has to do with a prosecutor's belief that the defendant is innocent.

My experience, and I daresay that most prosecutors would back me up on this, is that weakness of a case almost never comes from the thought that the defendant might be innocent. Most of the cases in which there is a question on my office's part are flushed out before I get assigned to prosecute the felony. In my case the primary cause for concern that the case is weak is a worry that I will not be able to get witnesses to court. The clerk who was robbed while working the late shift no longer works at the eZee Stop. The Officer who took the confession no longer works in the police department. The co-defendant who identifies the defendant is serving time in another State which may not want to send him back to be a witness. There are also plenty of other reasons for concern over a case. Admissibility of evidence may be a concern, particularly when there is a shift in constitutional precedent such as after Arizona v. Gant. There may be a concern that witnesses (momma, mamaw) may refuse to testify or develop memory loss because they don't want “little Bobby” to go to jail. Every honest prosecutor will tell you he's lost track of the number of times he's gotten a file in his hands which leaves him no doubt as to whether the defendant is guilty but boatloads of doubt as to whether he can prove that guilt.

Why is all this important? Because, a statement that a prosecutor believes a defendant is quite possibly innocent is a statement countering the prosecution's assertion at trial that the defendant is guilty. However, a statement that the case is weak is a statement of the difficulty of putting the case together, not a comment on innocence. Therefore, the offered plea, as merely a comment on the difficulty of putting the case together, should not be admitted as an exception to the hearsay rule.

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Even assuming the evidence makes it past the hearsay exception, it must pass the basic test that all evidence must: is it relevant? As the plea offer is about the weakness of the prosecutor's case and not about the innocence of the defendant it is not. The difficulty which the prosecutor went through in getting his evidence together (or failing to get certain parts) is not a concern of the fact finder. The fact finder is to review the evidence in front of him/them and make a decision based upon that evidence. The fact that a prosecutor had difficulty putting the case together has no bearing on that decision. The fact that a prosecutor was unable to present some piece of evidence he would have liked to present is only relevant insomuch as it may leave a vital element of the crime unproven and that will play itself out in the trial without the introduction of the rejected plea agreement.

Continued in Wednesday 2 p.m. post.

Introducing a Rejected Plea Offer into Evidence Perceptual Evidence

Colin Miller, of EvidenceProf Blog fame, sent me a link to an article he's written espousing the virtues of allowing a rejected plea agreement to be introduced by the defendant as evidence tending to prove innocence. It's an interesting article, but I must disagree with its conclusion.

The introduction of a plea offer is something which might best be called perceptual evidence. It wouldn't prove or disprove a physical element of a charged crime. Instead, it is meant to change how the finder of fact perceives the evidence. This is not necessarily a bad thing. Perceptual evidence is used in court in almost every trial. Most often we see this when evidence is introduced to show a witness' bias or when the prior convictions of a witness are introduced to show a lack of moral reliability. A less common example is one that Professor Miller offers: the introduction of the fact that a defendant refused immunity offered by the prosecution. None of these are actually a piece of positive evidence proving or disproving a physical element of the charged crime.

Perceptual evidence is per force a tricky area. It is the introduction of bias into the trial. In fact, the examples above all play toward a bias which has been approved by our jurisprudence. We conclude that a person who has been given a benefit from the prosecution in exchange for his testimony is, to some extent, likely to fabricate testimony against the defendant. We conclude that someone who has been convicted of a felony or misdemeanor involving “moral turpitude” is more likely to lie during his testimony. Courts have concluded that the fact that a defendant turned down an offer of immunity is indicative of a belief that he is innocent. All of these are officially sanctioned biases which are introduced to influence the perception of other evidence which has been introduced.

On the other hand, there is plenty of perceptual evidence which is out of bounds. Of course, blatant plays toward prejudices involving race, ethnicity, nationality, religion, &cetera are off limits. However, there are also any number of evidential items which are off limits due to judicial precedent. Neither the prosecution nor the defense can introduce the results of a polygraph test. The prosecution cannot introduce the defendants 10 prior convictions for the same type of offense; under Virginia law the prosecutor could ask a defendant who has chosen to testify how many felonies and moral turpitude misdemeanors he has been convicted of, but no questions beyond the number are allowed.

So, how do we determine if a defendant should be allowed to introduce the perceptual evidence of a rejected plea offer to the finder of fact during a trial? Personally, I see three obstacles. The first is that the plea offer is hearsay. The second is whether the plea offer is relevant. The third is the probative/prejudicial test.

Continued in Tuesday 2 p.m. post.

Introducing the Rejected Plea Agreement into Evidence

Colin Miller, of EvidenceProf Blog fame, sent me a link to an article he's written espousing the virtues of allowing a rejected plea agreement to be introduced by the defendant as evidence tending to prove innocence.

I have penned a three part reply which shall post at 2 p.m. Monday, Tuesday, and Wednesday:

Monday - Introducing a Rejected Plea Offer into Evidence: Perceptual Evidence

Tuesday - Introducing the Rejected Plea Agreement: Hearsay & Relevance

Wednesday - Introducing the Rejected Plea Agreement: Probative/Prejudicial

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And they say exercising makes you live longer. What a croc.

This week's selection brought to you by Scruffy.

McNuggets Rage

Apparently, this is a woman in Ohio who really wanted her McNuggets and was denied their ineffable heavenliness.

Come up with a new excuse

There's a persistent problem with groups of Yahoos getting in a truck and driving up to a mine/train station/garage and grabbing wire/metal brakes/engines and going down to the friendly local scrap metal dealer and turning it into cash.

Here are a tip for those of you defending one of these Yahoos when I've been assigned to prosecute the case:

Please tell him that unless the stuff was picked up during business hours, while workers were on site, I am not going to believe that his buddy told him that Buddy had permission to take that $8,000 air pump meant to keep people alive in the mine and go to the scrap yard to get $500 for it. Even if Buddy said such a thing, I don't believe anyone is stupid enough to think that it was kosher when they took it at 5 a.m. using flashlights.

It's the same excuse every single time. Tell them to come up with something more creative. It probably won't help much, but at least a claim that space aliens made him do it would keep the rest of us entertained.

Thanx to Mark Draughn

For those of you who are now viewing this blawg correctly, you can thank Mark, who figured out what was wrong with it in about ten seconds flat. It turns out, if you don't tell Explorer that you want your website to run the way you wrote then Explorer will go into a mode that will make sure your website doesn't run properly. Whodathunkit?

CLTV in Better Def: Virginia Appellate Decisions July 2010

It's in better def than yesterdays and it doesn't cut anything off. I'm not sure why it shrinks into the black box. I'll try to fix that next time.

July's New Cases Up at Virginia Criminal Cases & Law

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Kyle began to suspect that bike race wasn't going to be 100% fair.

CLTV: Reviewing iJuror

Can My Wife Steal from Dead People?

Mark has a unique problem. To judge from TV shows, you'd think that most husbands have to worry their wives seeing dead people. However, Mark's wife is different. Apparently the only thing she sees about dead people is the opportunity to steal their stuff.

My wife and I were watching Rizzoli & Isles and there was a scene where it was revealed that someone had stumbled across a recently-murdered body and swiped the deceased's laptop. So my wife, who is otherwise a nice and law-abiding person, said she didn't understand why it would be illegal to take stuff that used to belong to a corpse is is now just lying there in the street.

Okay, so in order to save Mark's wife from a life of crime I thought I'd explain why it's not legal to take that laptop (at least in Virginia).

First of all let's define larceny (what we call stealing in Virginia). Larceny is the taking of personal property from a possessor, without the possessor's assent and with the intent to permanently deprive the possessor of the item. If you look in the older cases they will characterize larceny as "trespass upon chattels." Basically, in plain language that means that the core of a larceny charge is interfering with the possessor's right to possess an item. Possession does not have to be actual; it can be constructive (you are in possession of your car even when you have it parked in your driveway).

So, how does that apply to the deceased's laptop? After all, he's dead and therefore can't possess it anymore.

What you have to realize is that the fact that the owner died does not mean the property is lost or abandoned. All that death does is pass the possessory interest to another. It either passes via the legal scheme which a particular State has set up or by a will to the dead man's heirs and assigns. In plain language - when a man dies his property instantly becomes the property of his wife or kids or parents or whoever the law or will says it goes to.

In other words, when the person took the laptop she didn't steal from the dead man, she stole from his heirs.

Of course, as a practical matter the actual person to whom a particular item belongs to isn't settled immediately upon the death of its owner. For instance, consider a man who dies without a will in a State where the law gives 50% of his property to his wife and 50% to his 2 children. His wife has a 50% interest in the laptop, his daughter has a 25% interest, and his son has a 25% interest. Whom do I allege the laptop was stolen from?

In Virginia, the General Assembly has passed a statute resolving this question.

§ 19.2-284. Proof of ownership in offense relating to property.

In a prosecution . . . for stealing . . . any personal estate it shall be sufficient to prove that when the offense was committed the actual or constructive possession . . . in the whole or any part of such estate was in the person or entity alleged in the indictment or other accusation to be the owner thereof.

Because of this statute, I don't have to allege that the theft of the laptop was from all three persons who had an interest in it. All I have to do is allege the theft with one family member as the stated victim.

These kind of situations pop up more often than you'd think. People will hear that someone has died and drive right over to her house and start taking things, or grab things at the wake, or get money out of the account of the lady for whom they were the homecare nurse. In each case the person taking the item which he has not been given is guilty of larceny.

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Last Week's Winner: "Brandon finds out the hard way that his ex has taken a job as a police sketch artist."

§ 19.2-163.7. Counsel in capital cases Shall doesn't mean Shan't unless it means Should

I was speaking to another lawyer about the appointment of counsel for those accused of capital murder and he pointed out to me the statutory requirement that each and every person accused of capital murder is entitled to representation by an attorney from the the Virginia Capital Defenders office. His question was what would happen in cases where there are co-defendants? The capital defenders office would be conflicted out of all but one defendant. What would be done about the statutorily mandated appointment of someone from that office for the other co-defendants? It seemed to him that the statute gave them a right which they would have to be denied.

I was curious about this so I looked up the statute.

In any case in which an indigent defendant is charged with a capital offense, the judge of the circuit court, upon request for the appointment of counsel, shall appoint at least two attorneys from the list or lists established by the Supreme Court and the Indigent Defense Commission or as provided in subsection C of § 19.2-163.8 to represent the defendant at trial and, if the defendant is sentenced to death, on appeal. In all cases where counsel is appointed under this section after July 1, 2004, one of the attorneys appointed SHALL be from a capital defense unit maintained by the Indigent Defense Commission.

So, it seems that it is mandated that every person charged with a capital offense is required to have an attorney from the capital defender office.

However, the word "shall" under Virginia case law doesn't quite mean what you think it means. If it's a jurisdictional statute it's mandatory; if it's procedural it's directory. See Karim v. Commonwealth, 22 Va.App. 767 (1996). What this basically boils down to is that judges aren't required to follow any statutorily required procedure just because the statute states the judge "shall" do it. "[T]he words 'shall' and 'may' are used interchangeably at times and 'shall' is often interpreted to be directory in meaning." Huffman, Warren, & McAleer v. Kite, 198 Va. 196 (1956). This has been a part of interpretation of Virginia procedural statutes for a long time. See Watson v. Coles, 170 Va. 141 (1938)(the requirement that a jury pool "shall" be selected 10 days before trial is merely procedural and therefore failure to comply is not reversible error).

Yes, I know. It doesn't seem to make sense. However, when I look up shall online at Merriam-Webster, it also lists as an archaic definition of shall as "will be able to: can." And everybody knows we lawyers love those archaic definitions.

I don't see anything in that statute which is jurisdictional. Therefore, the "shall" in it is merely directory. With this in mind, let's look at the statute with the actual meaning substituted in.

In any case in which an indigent defendant is charged with a capital offense, the judge of the circuit court, upon request for the appointment of counsel, shall appoint at least two attorneys from the list or lists established by the Supreme Court and the Indigent Defense Commission or as provided in subsection C of § 19.2-163.8 to represent the defendant at trial and, if the defendant is sentenced to death, on appeal. In all cases where counsel is appointed under this section after July 1, 2004, one of the attorneys appointed MAY / WILL BE ABLE TO / CAN be from a capital defense unit maintained by the Indigent Defense Commission.

So, if there is a second defendant, the fact that he can't get representation from the capital defenders office doesn't really deprive him of anything he's entitled to.