Last week's winner:

Please Help Timmy's stuck in the well!

I just finished going over all the cases from Virginia's appellate courts for June and there were two in which the Supreme Court of Virginia was called out. The first was in a dissent by the previous Chief Justice of the Supreme Court. It was a case where the defendant decided he wanted a jury trial on the day his bench trial was scheduled. The trial judge had refused to let him have the jury trial after the prosecutor stated he had all his witnesses present in court. The Supreme Court ruled that the trial court hadn't created a record justifying the refusal and reversed. The former Chief Justice called them on it.

I respectfully dissent. I do not agree that the circuit court abused its discretion in denying the defendant's motion for a jury trial made at the very moment his trial was to begin and after he had voluntarily waived his right to such a trial. True, this was the waiver of a cornerstone right, but the courts uphold waivers of such rights every day. To me, this is more a case of a defendant trying to play fast and loose with the court system in order to delay being tried than it is a case of an abuse of judicial discretion. I would affirm the judgment of the circuit court.

Cokes Jr v. Commonwealth

The next was by a Judge on the Court of Appeals. In an opinion which is complex enough that I had to read it four times, the Judge complains about how the Virginia Supreme flouts its own ruling on the subject of jurisdiction.

Notably, in concluding in Jay that a dismissal rendered a rule violation jurisdictional, the Supreme Court expressly stated that “to hold otherwise would mean that, if an appellant did not list cases alphabetically in the table of citations as required by Rule 5A:20(a), dismissal of the appeal would be mandated as a jurisdictional matter.” Jay, 275 Va. at 520, 659 S.E.2d at 317. Yet curiously on April 30, 2010, the Supreme Court of Virginia adopted comprehensive amendments to its Rules which, contrary to the holding in Jay, permit, and in some cases require the dismissal of a petition for appeal for failure to comply with various Rules including, among other things, the failure to file a compliant table of contents or authorities. See Rule 5A:26 (“If an appellant fails to file a brief in compliance with these Rules, the Court of Appeals may dismiss the appeal.”); see also e.g. Rule 5A:12(c)(1)(ii) (“If the assignments of error are insufficient or otherwise fail to comply with the requirements of this Rule, the petition for appeal shall be dismissed.”) (Amendments to Part 5A of the Rules of the Supreme Court of Virginia adopted April 30, 2010 and effective July 1, 2010) (emphasis added). Since Jay expressly holds that deficient briefs and other rule violations which are readily curable are not jurisdictional and, thus, ought not result in dismissal of an appeal, the plain language in the amended Rules would seem to be in clear conflict with the holding of Jay and, thus, it may well be that when effective, these amended Rules will have the effect of overruling Jay. However, that is a decision for another day.

Smith v. Commonwealth

Wow. I thought the only people who called out appellate opinion writers were smug, overconfident, self-important blawgers. ;-)

This week it's not exactly a pic, but I still want to see who comes up with the best tagline for this:

Defense Attorney: You know, we need to teach Ken compassion. If you just had some faith in your fellow man you wouldn't want to stick these people in prison.

Me: If I had any faith in humanity, I'd be married and have kids. You need to speak to Bob if you want compassion. He's the one with a wife and kids.

Bob: I don't have any faith in humanity because I have a wife and kids . . .

Per United States v. White, JUN10,  4Cir No. 09-4114, the answer is definitively, absolutely, definitely . . .


 Wonderful.

White was convicted in a Virginia Juvenile & Domestic Relations Court (J&DR) of domestic assault and battery (Va Code 18.2-57.2). The warrant just stated a bare allegation that White had violated the statute without any supporting facts. After the J&DR conviction, in a later, unrelated event, White was found to be in possession of a firearm and convicted of possessing a firearm after having "been convicted . . . of a misdemeanor crime of domestic violence" under 18 USC 922(g)(9).

In this decision, the 4th Circuit Court of Appeals had to decide whether both Virginia's domestic assault and battery statute and federal code under 18 USC 922 require violent contact as an element. The 4th determines that Virginia case law only requires an unwanted touching in anger and nothing more. This can mean spitting on someone, or any slight "touching of another, or of his clothes, or cane, or anything else attached to his person, if done in a rude, insolent, or angry manner." In other words, tapping someone on the shoulder because it's rude, you're angry at him and want him to turn around to face you is a battery in Virginia even though it isn't a violent act. There is no requirement for violence in order to convict someone of domestic assault and battery in Virginia.

Then the 4th turns to federal law. Per the definition under 18 USC 921(a)(33)(A) the predicate offense must have "as an element, the use or attempted use of physical force" and the opinion zeros in on the "physical force" part of the definition. The government tries to sell "physical force" as exactly the same as the "slight touching" required under Virginia law, but the court isn't buying it. Pointing to federal supreme court precedent and the fact that the predicate offense is supposed to be violent in nature, the 4th decides that the physical force required to qualify under this statute must be violent in nature.

At this point, having determined that the required element does not exist under Virginia's common law, it would seem that the analysis is over and Virginia residents convicted under Virginia's domestic assault and battery law would be allowed to possess firearms. In fact, under any logical reading of the statute, there is no other possible outcome. Nevertheless, the 4th reaches outside the plain language of the statute - requiring an element of the crime to include violent physical force - to state that a "modified categorical approach" can be applied.

The modified categorical approach allows the court to look at the predicate offense's "trial record-including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms." Typically, this is used to determine which exact part of a several part statute applies. However, in this case the 4th applies it to determine factual issues. Having done so, it stated that nothing in the trial court's records indicated anything to differentiate whether this was a violent or non-violent conviction. Therefore, White's conviction was reversed.

PRACTICAL APPLICATION:

Most domestic violence convictions are in the J&DR court, which is not a court of record. Additionally, the Virginia Supreme Court's manual for the J&DR courts requires criminal records to be destroyed "in the eleventh year." The orders which the judges fill out (usually part of the summons or warrant) do not have a place on them for the judge to differentiate between violent and non-violent domestic assault and battery. Furthermore, it is very clear under Virginia law that a court speaks through its orders and other papers in that file are not determinative of anything.

Federal Implications:

Whether the Feds can prosecute these types of cases from this point forward is going to depend a lot on whether the federal courts will hold them to the Virginia law that only the trial court's orders are determinative. If the Feds are allowed to put forward other documents from the file they will probably have a complaint in most files. This is a narrative of the event which was given to the magistrate so that she could determine whether to approve the warrant. The warrant itself usually only contains a generic recitation of the elements of the offense. The problem with relying on the complaint is that anyone who has spent three days in J&DR court will tell you that, unless they are from an officer, they often have little to do with reality and the conviction often doesn't proceed from the facts as they are laid out in the complaint. When they are from an officer they usually include a list of observed injuries and a recitation of the allegation from the other party. The facts in these complaints might be enough to prove helpful in showing violent physical force - assuming the federal courts will allow the Feds to ignore Virginia law stating that everything outside the court order is meaningless.

Of course, after ten years - when the papers are destroyed - there will be absolutely no way to prove whether the facts support a violent or non-violent battery.

Virginian Implications:

It's not illegal to possess a firearm after a conviction for domestic assault and battery under Virginia law. However, we do every so often get someone charged with lying on their application when they try to buy a firearm. They answer "no" the question "Have you ever been convicted in any court of a misdemeanor crime of domestic violence?" In so doing, they commit perjury.

As a Virginia prosecutor, I'm limited to the fact that the court speaks through its orders. It's going to be very hard for me to prove that the predicate conviction was actually something that qualifies under the federal statute as "a misdemeanor crime involving domestic violence" and thus hard to prove he committed perjury.

Citizen Implications:

Well, that depends on how much the citizen wants to gamble with his liberty. Let's be honest here, there just aren't a whole lot of people out there with domestic assault and battery convictions because they tapped their spouse on the shoulder; police and prosecutors just aren't going to waste their time on things that small. Furthermore, most of the first offense violent domestic assault and batteries are diverted so that they do not end up with a conviction. With these facts in mind, if you have a domestic assault and battery on your record, no matter the technical mismatch between federal and Virginia law, everyone is going to think it is a violent offense. The only question is whether it can be proven or not. The prosecutor will believe that you are guilty and try to prove it. If a convicted citizen possesses a firearm he's gambling that prosecutors won't be able to prove it.

I've been asked to set up a name that pic on the blog, so I thought I'd try. Name that pic . . .

You too can be a Virginia State Trooper:


You get a cool vehicle assigned to you (only the Virginian ones at the beginning).


You get to dodge cars (btw, this offense has changed to a citation rather than a misdemeanor).


You get a tazer, which you can use to take pictures of a rabid fox.


And, you'll get the new plate reader which will allow you to read the plate of every single car you pass to see if it is legit.


Personally, I think a device like that will keep the troopers from being able to drive down any street in Virginia. Every time they get in their cars, they will drive ten feet and the device will ping on someone with a suspended license. After handling that, they will drive ten feet and the device will ping on someone who hasn't renewed his registration in time. After handling that, they will drive ten feet and the device will ping on someone with a suspended license. et cetera, &cetera, etc. . . .

Mister looking on critically as I write a post for CrimLaw.

From Florida:

McWatters also argues that the trial court erred in denying his motion to disqualify the [prosecutor] for the Nineteenth Judicial Circuit. He contends that the [prosecutor] should have been disqualified because the [prosecutor] listened to phone calls McWatters made to his lawyers while he was an inmate at the Martin County Jail. This Court has stated that "disqualification is proper only if specific prejudice can be demonstrated. Actual prejudice is `something more than the mere appearance of impropriety.' Disqualification of a [prosecutor] is appropriate `only to prevent the accused from suffering prejudice that he otherwise would not bear.'" Farina v. State, 680 So. 2d 392, 395-96 (Fla. 1996) (citations omitted) (quoting Meggs v. McClure, 538 So. 2d 518, 519-20 (Fla. 1st DCA 1989)). A ruling on a motion to disqualify is reviewed for abuse of discretion. Id. at 395.

At a hearing on McWatters' motion, evidence was presented that the jail systematically recorded all calls made by inmates. A recording was played before each conversation that advised the inmate: "This call is subject to monitoring and recording." After listening to the recorded calls to counsel in camera, the trial court denied the motion. The trial court found that McWatters' statements were limited in a "fashion that strongly indicates his knowledge that he is being monitored or recorded" and that other calls demonstrated that he "clearly knows that he is subject to being recorded." The trial court concluded that "[t]here was no reasonable expectation of privacy in those calls and there was a voluntary waiver of privilege by Mr. McWatters in the face of that lack of reasonable expectation of privacy." The trial court added that there was no evidence "that the substance of these calls provided any benefit to the prosecution" or was used to "any detriment to Mr. McWatters." We agree.

Section 90.502, Florida Statutes (2006), establishes a statutory privilege for communications between a client and his or her lawyer. The attorney-client privilege "attaches only to confidential communications not intended to be disclosed to third persons who are not furthering the rendition of legal services." Mobley v. State, 409 So. 2d 1031, 1038 (Fla. 1982). "Whether a communication is confidential depends on whether the person invoking the privilege knew or should have known that the privileged conversation was being overheard." Id. Before every call, McWatters was warned that his calls were subject to monitoring and recording. This Court has held that an inmate has no reasonable expectation of privacy in a telephone communication from jail where the inmate is warned that all calls are monitored or recorded. See Jackson v. State, 18 So. 3d 1016 (Fla. 2009), cert. denied, 78 U.S.L.W. 3417 (U.S. Jan. 19, 2010). There was no reason for McWatters to believe that his phone calls to defense counsel would be excluded from this warning. Thus, McWatters waived his right to confidentiality. Based on the foregoing, we find that the trial court did not abuse its discretion in denying McWatters' motion to disqualify the [prosecutor].

McWatters v. State

---

Technically, I think this is a correct decision and could be applied across most States. After all, there is a warning. Still, in an era of regional jails and far off prisons which are difficult for defense attorneys to actually reach it is a disturbing opinion. Sometimes the phone is the only way to contact a defendant.

Heck, I can't even find an ethical breach in a prosecutor listening to the recorded phone message. When I look through Virginia Ethics Rules the prosecutor ethics rule doesn't speak to this, nor does the communications with represented parties rule (not communicating with defendant, just listening after disclosing that it will be done). The only ethics rule I can find that would apply is this one:

1.3(c) A lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3.

So, I guess defense attorneys are going to need to make sure their cars are in good working order so they can get to the jails/prisons and stop taking calls from inmates - because, no matter how many times you warn them, I guarantee they'll say things a prosecutor would love to hear.

Clear your browser's memory and reload.

Whodathunkit. Firefox isn't usually the browser which screws up when I change the layout code. It's usually Explorer first by a far stretch and Opera second. I didn't even check Firefox this time after the new layout worked perfectly on those. So, of course the only browser which the new layout didn't work on was Firefox. Ugggg.

I switched back to the old layout. Hopefully, it is fixed now.

I'm working my way through a set of lectures from UC Berkley which were created for a class called "Punishment, Culture and Society." So far, there's nothing too shocking in it; it's pretty much an overview of philosophy and results of incarceration. Much of it is stuff that those who work in the criminal justice system, and have put some thought into it, probably have worked out for ourselves. Although, it is interesting to hear the lecturer link theories with particular persons and fill in some of the statistical background.

So far, the thing which has popped out at me the most is the chart above. It is very interesting that as the mental wards were geared down the prisons geared up. I'm sure that most of us who have worked in criminal law for any period of time know that there are a number of people with mental problems who end up in jails and prisons. I'm just not sure that many of us suspected it is as bad as this chart seems to indicate.

Yeesh. I must be channeling a Yankee.

Anyway, it has been forever since I changed the layout hereabouts. I used to change the layout here every couple months, but then I found a layout which worked pretty well and got tired of trying to keep up with the continuing complications in programming. I won't give examples because every time I do I get ten emails telling that it is necessary to make programming more difficult.

Still, this weekend I had too much time on my hands. I drove down to Kingsport and watched the Kingsport Mets get slaughtered by the Pulaski Mariners (14-4, next time I'll go to a Bristol Sox game instead). I read all 580 pages of the new David Weber book, Mission of Honor. I put the finishing bits on a website I built for someone else (but am not sure they want me to link to) and fiddled around with creating a new blog (True Review) to review fun stuff. And I still had too much time on my hands, so ya'll have a new version of CrimLaw to look at. Enjoy!

BTW, ya'll are lucky that Viddler crashed and burned. If it hadn't you'd probably be seeing a vid here. If any of you are desperate enough that you want to see my ugly mug in motion, point me to any vid site that will let me have 20-30 minutes.

"Ken, call on line two."

"Thanks, Mabel."

Pick up phone. "Deputy Commonwealth Attorney Lammers. How can I help you?"

Citizen: "Yeah, well, Benny told me to call you."

Benny? Who the heck is Benny? Wait a sec . . .

"Do you mean Captain Jones?" (You know, the guy who has spent his last 22 years in law enforcement, been shot in the line of duty, and has worked tirelessly to stomp out any hint of corruption in Pitcairn and its police force.)

Citizen (sounding puzzled): "Yeah, you know, Benny . . ."

Synopsis: I don't work for Cnet or Ziff Davis or even TWIT, so I haven't had my hands on other products of this type, but the Sewell Minideck does what it says it will do and does it well.

As long as you have realistic expectations (you're not going to pump enough video through a USB cord to play Space Warriors on the Zombie Planet of Doom 6: The Awakened Re-Reckoning - in 3D) this is a useful product for the office or home. It is particularly useful for those of us with laptops who want something other than just the ubiquitous VGA hookup or a third monitor.

So, I'm going out to the scene of the crime to familiarize myself and take some pictures. The eZee Stop had been closed for Christmas day, so naturally two guys decided to break in and steal the money in the till. I'm trying the get away driver, who claims that his buddy asked him to meet at the apartment complex behind the eZee Stop and give him a ride to West Virginia. He claims he knew nothing about nothing until his buddy came tearing around an apartment building and jumped into his car screaming "The cops are coming! Go! Go!" and that he fled with his buddy only because he had a warrant for failing to appear on a driving suspended charge.

I snap a few pictures at the eZee stop where the burglary took place: the back door which was broken in, the register which had been broken open, &cetera. Then I trace the route by which the intruder had run around the building to where the get away car was parked.

Three old guys are sitting in lawn chairs in front of the apartment. As I'm taking pictures, one of them yells out to me, "Hey, I don't need any charges today."

Okay, they've obviously recognized me. Not that it's too hard. I'm a short, round guy with a shaved head who wears a dark suit, bow ties, and a black cowboy hat. You might say I'm identifiable. So, I turn around. "Naw, I ain't looking to put any charges on somebody today. This is about that burglary of the eZee on Christmas."

One of the old guys looks at me, a little confused. "Somebody robbed the Ezee on Christmas?"

Before I can reply one of the others jumps in. "Yeah, I saw the whole thing. I was taking some trash to the dumpster and there was this boy sitting in his car smoking cigarettes on the other side of it. It was that Mullins boy from down Pitcairn way." The other two nod. "So, I get about half way to my apartment when this Mexican kid comes running around the corner of the building and jumps into the car and they take off."

Then I ask, "How was the car parked?"

"Well, he was backed in and it was running. He took off as soon as that Mexican boy got the door closed."

Ah, the joy of breaking a case wide open through hard work, skillful effort, preparation, and a big heaping dollop of being the luckiest man alive at a particular moment.

As you might guess, after I found THE witness, Mr. Mullins decided that prudence dictated that he plead guilty.