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."

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.

Year	Worst	Second	Third	Fourth	Fifth
2003	Craig	Home City	Russell-1	Lee-1	Home County
2004	Lee-1	Bland-3	Russell-1	Dickenson-1	Tazewell-2
2005	Pulaski-4	Buchanan-2	Russell-1	Dickenson-1	Lee-1
2006	Home County	Dickenson-1	Tazewell-2	Russell-1	Highland
2007	Dickenson-1	Home County	Pulaski-4	Emporia	Russell-1
2008	Dickenson-1	Home City	King & Queen	Buchanan-2	Highland

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.

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.

Name That Pic - 25 November 2010

Last Week's Name That Pic

Joe was hoping for the big score, after all that solid copper crow bar was expensive.

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.

Name That Pic - 18 November 2010

Winner: Last Week's Name That Pic

A poor showing at Wesminster was the beginning of Butch's long downward spiral.

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.

Name That Pic - 11 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.

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.

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."

Virginia Criminal Procedure Cases September 2010

CLTV: Evidence and Substantive Law Cases September 2010

CLTV Virginia's Constitutional Cases September 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."

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.