Let 'em Go: Early Release from Prison

Sentencing is where philosophy meets fiscality. The fiscal part is that which is impossible to get around. At least for the States, which cannot just print more money, there will always be scarce resources beyond which they cannot afford to lock more people up and throw away the key or to provide programs to reform those who have broken the law.

Two Schools of Thought

The philosophical realm is where the fighting takes place. There are basically two sects. The first views the criminal as someone who should be punished. This view tends to conceptualize the criminal as an individual actor who makes moral choices for which he must be made to suffer consequences. The second views the criminal as someone who should be fixed. This view tends to see criminals as members of a community which has let the criminal down (and thus led him to develop anti-social behavioral characteristics) and which will be damaged by the individual's punishment.

Of course, neither side is entirely correct, but the punishment view has had the most influence over the last thirty years or so. This is in large part because the citizenry understands and approves of the punishment model. Citizens tend to believe in punishment for criminal acts. They understand that a criminal is incapacitated and cannot commit crimes while in prison. They believe that when someone is significantly punished and his buddies/family/neighbors hear about it that it will lesson the probability that the buddies/family/neighbors will commit crime. They are dubious that coddling wrongdoers will cause them to see the error of their ways and seek a life beneficial to society. Politicians, beholden to their constituents, have voted in laws which reflect these views.

Nevertheless, the reform the troubled criminals theme has never gone away completely. This is because, at core, it is the more hopeful way of seeing the world. If only we did X and Y we would fix these men so that they would never break the law again. The problem is that, while it may reflect the better parts of our nature, it doesn't reflect reality. Still, for at least the last decade we have allowed our better natures to allow things like drug courts and DUI courts to come into being. Usually, these reform programs come about as a push for a criminal reform program cloaked under the claims of fiscal responsibility. If it costs $A to put Criminal in jail for a year, a year in drug court costs $B, and $A > $B, then it makes sense to put worthwhile cases in drug court.

However, the push for fiscal responsibility can only carry the rehabilitation movement so far. How far can be seen in the cases Professor Klingele discusses in "The Early Demise of Early Release." States have attempted, mostly for fiscal reasons, to adopt early release programs for inmates who are deemed at low risk to break the law if released. These have been rebuffed as "illegitimate changes in the underlying sentence." In other words, changing the sentence of a convict is a lie to the citizenry.

Nevertheless, Professor Klingele pushes forward with suggestions as to how early release programs can be brought into existence and strengthened. It is a difficult argument to make and Ms. Klingele's valiant attempts swim upstream against a strong current springing from the failure of indeterminate sentencing.

What Professor Klingele is Arguing Against

Indeterminate sentencing is the procedure of setting a maximum possible sentence, but not setting a specific sentence. The indeterminate sentencing system with which most people are familiar with is the parole system which held sway in the United States until late in the 20th century. The idea behind parole was a medical treatment model for inmates: with proper treatment they could be returned to society rehabilitated into proper members of society. Eventually, this model came to be seen as a failure and it was swept away in most States by "truth in sentencing" laws. TIS laws were put in place in the majority of States in the latter part of the 20th century. They changed the laws so that a defendant would serve the time he was sentenced to serve instead of whatever fraction of that time he would have done under the parole system. So, instead of getting a sentence of 5 years with the Department of Corrections deciding when to release the inmate at any time after he served 33% of his sentence, the defendant sentenced to 5 years would serve 5 years.

This came about because of a perception that rehabilitation efforts had been failures and that convicts were receiving appropriate punishments, but not being required to actually serve them. Parole embodies the hope that exemplary prisoners can be "fixed" and released to go forth and lead productive lives. However, the public viewed it more as a revolving door on the prison. In reality, the public's view was probably closer to reality. Departments of Correction were not going to be able distinguish between the thousands of offenders they dealt with and offenders got dumped back out on the street as soon as possible, unless they were particularly bad while in prison. This ended with TIS.

TIS was followed by Victims' Rights legislation. This was meant to counter the perception that courts were overly worried about the criminals at the expense of the victims. Victims were to be allowed access to courts and have their experience be taken into account. This type of legislation is clearly an indicator that the citizenry wanted an appropriate punishment model - not a rehabilitative model.

Interspersed with this has been a tendency of legislators to pass mandatory, non-suspendable punishments for certain offenses or multiple convictions of certain offenses. These have been applied to felons possessing firearms, the possession of firearms and drugs at the same time, driving under the influence of alcohol, and three strikes laws. Here is found the trifecta of purposes for incarceration: punishment, incapacitation, and a warning to others who might offend.

Why Early Release Has Not Worked

Professor Klingele cites three reasons for the failures of early release. The first is financial constraints which limit the money which can be spent reintegrating prisoners into society. The second is political impediments to early release. The third is the fact that the moral values of the citizenry are such that they believe a person sentenced to 5 years should serve 5 years. Personally, I agree with her on the second and third points. As to the first point, I think this is a failure of the criminal justice system generally and not particular to early release prisoners.

What to Look for in Future Early Release Programs

Professor Klingele next looks to what should be considered in future programs. First she wants honesty in assessing whether an inmate will re-offend. She wants violent and sexual offenders to be considered on the same plain as lesser offenders because it is clear that in some cases the inmate who has committed the worse crime is less likely to re-offend. Next she calls for clarity, reasoning that if participants in the legal system act tough on crime up front and then try to sneak inmates out the back door of the prison that people will get upset. Finally, she urges those who want to reduce sentences because they view them as overlong and therefore unjust to stop arguing through strawmen (like saving money or reducing recidivism) and instead argue that the sentences are overlong and unjust.

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More in the next few days . . . 

Merry Christmas

Merry Christmas everyone!

Defending Kentucky's Persistent Felon Laws

Ray Larson, the Commonwealth Attorney in Lexington Kentucky, explains the need for for Kentucky's persistent felon laws:

Appellate Cases : The Difference Between "Wanton and Reckless" and an Error

Last week, I expressed disappointment that Virginia's appellate courts are still letting very strict reliance on rules (colloquially known as "technicalities") keep them from addressing the substance of appeals. In particular, I noted that in Davis v. Commonwealth, NOV11, VaSC No. 102420, in which the appellant cited the error, but said the trial court made it instead of stating that the Court of Appeals had made an error by agreeing with the trial court. As I characterized it, the Supreme Court refused to hear the case because the appellant stated “The trial court was wrong in that . . .” instead of “The Court of Appeals was wrong in not finding that 'the trial court was wrong in that . . .'”

I suggested that the General Assembly pass a statute requiring Virginia's appellate courts to address the substantive issues of an appeal unless the appellant's attorney engaged in "wanton disobedience or extreme negligence" in the filing. Even then I suggested that the appellant not be punished, but that the attorney be removed and the appellant given another appeal with a different attorney.

Within short order, this comment was posted:

Rule 5:17 clearly states:
"An assignment of error that does not address the findings or rulings in the trial court or other tribunal from which an appeal is taken . . . is not sufficient. If the assignments of error are insufficient, the petition for appeal shall be dismissed."
I have a hard time understanding why an appellate attorney's failure to either (1) read or (2) understand that requirement does not constitute "wanton disobedience or extreme negligence"? Or to put it another way, should attorneys get a pass for being plain dumb?

Always enjoyed a challenge, so I thought I'd address this one.

First, let's address the "Should an incompetent attorney get away with it?" section of the comment. No, but that misses the point. The appeal is not for the benefit of the attorney. It's for the appellant. It's hard to make a case that it is just and/or moral to deny the appellant the ability to correct a putative trial error because the appellant's attorney makes an error in form that does not cloud the ability of the appellate court to understand the substance of the putative error. If a pound of flesh must be paid, it should come from the attorney - perhaps from the Bar, perhaps from court sanctions - if the error is so grievous that it is clearly "wanton disobedience or extreme negligence."

Second, let's determine whether the error in Davis is such that it is not simply an error, but so serious that it is "wanton disobedience or extreme negligence." To begin with, let's address the Supreme Court Rule 5:17. Here's the rule (post continues on the other side of massive rule):

Rule 5:17. Petition for Appeal


(a) When the Petition Must be Filed. --Unless otherwise provided by rule or statute, in every case in which the appellate jurisdiction of this Court is invoked, a petition for appeal must be filed with the clerk of this Court within the following time periods:

(1) in the case of an appeal direct from a trial court, not more than three months after entry of the order appealed from; or

(2) in the case of an appeal from the Court of Appeals, within 30 days after entry of the judgment appealed from or a denial of a timely petition for rehearing.

(b) Who Must Receive a Copy of the Petition. --When the petition for appeal is filed with the clerk of this Court, a copy of the petition shall be served on opposing counsel.

(c) What the Petition Must Contain. --A petition for appeal must contain the following:

(1) Assignments of Error. Under a heading entitled "Assignments of Error," the petition shall list, clearly and concisely and without extraneous argument, the specific errors in the rulings below upon which the party intends to rely. An exact reference to the page(s) of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court or other tribunal from which the appeal is taken shall be included with each assignment of error.

(i) Effect of Failure to Assign Error or Use Separate Heading. Only assignments of error assigned in the petition for appeal will be noticed by this Court. If the petition for appeal does not contain assignments of error, or if the assignments of error are not set forth under a separate heading as provided in subparagraph (c)(1) of this Rule, the petition shall be dismissed.

(ii) Nature of Assignments of Error in Appeals from the Court of Appeals. When appeal is taken from a judgment of the Court of Appeals, only assignments of error relating to assignments of error presented in, and to actions taken by, the Court of Appeals may be included in the petition for appeal to this Court.

(iii) Insufficient Assignments of Error. An assignment of error that does not address the findings or rulings in the trial court or other tribunal from which an appeal is taken, or which merely states that the judgment or award is contrary to the law and the evidence, is not sufficient. If the assignments of error are insufficient, the petition for appeal shall be dismissed.

(2) Required Statements When the Appeal is from the Court of Appeals.

When appeal is taken from a judgment of the Court of Appeals in a case in which judgment is made final under Code § 17.1-410, the petition for appeal shall contain a statement setting forth in what respect the decision of the Court of Appeals involves the following:

(i) a substantial constitutional question as a determinative issue, or

(ii) matters of significant precedential value.

If the petition for appeal does not contain such a statement, the appeal will be dismissed.

(3) Table of Contents and Table of Authorities. A table of contents and table of authorities with cases alphabetically arranged. Citations of all authorities shall include the year thereof.

(4) Nature of the Case and Material Proceedings Below. A brief statement of the nature of the case and of the material proceedings in the trial court or commission in which the case originated. This statement shall omit references to any paper filed or action taken that does not relate to the assignments of error.

(5) Statement of Facts. A clear and concise statement of the facts that relate to the assignments of error, with references to the pages of the record, transcript, or written statement of facts. Any quotation from the record should be brief. When the facts are in dispute, the petition shall so state. The testimony of individual witnesses should not be summarized seriatim unless the facts are in dispute and such a summary is necessary to support the appellant's version of the facts.

(6) Authorities and Argument. With respect to each assignment of error, the standard of review and the argument -- including principles of law and the authorities -- shall be stated in one place and not scattered through the petition. At the option of counsel, the argument may be preceded by a short summary.

(7) Conclusion. A short conclusion stating the precise relief sought.

(d) Filing Fee Required With the Petition. --When it is filed, the petition for appeal must be accompanied by a check or money order payable to the "Clerk of the Supreme Court of Virginia" for the amount required by statute. The clerk of this Court may file a petition for appeal that is not accompanied by such fee if the fee is received by the clerk within 10 days of the date the petition for appeal is filed. If the fee is not received within such time, the petition for appeal shall be dismissed.

(e) Number of Copies to File. --Seven copies of the petition shall be filed with the clerk of this Court.

(f) Length. --Except by leave of a Justice of this Court, a petition shall not exceed the longer of 35 pages or 6,125 words. The page or word limit does not include the cover page, table of contents, table of authorities, and certificate.

(g) Use of a Single Petition in Separate Cases. --Whenever two or more cases were tried together in the court or commission below, one petition for appeal may be used to bring all such cases before this Court even though the cases were not consolidated below by formal order.

(h) Procedure for an Anders appeal. --If counsel for appellant finds appellant's appeal to be without merit, counsel must comply with the requirements of Anders v. California, 386 U.S. 738 (1967), and Brown v. Warden of Virginia State Penitentiary, 238 Va. 551, 385 S.E.2d 587 (1989). In compliance therewith, counsel is required to file (1) a petition for appeal which refers to anything in the record which might arguably support the appeal and which demonstrates to this Court counsel's conscientious examination of the merits of the appeal; (2) a motion for leave to withdraw as counsel; and (3) a motion for an extension of time to allow the appellant to file a supplemental petition for appeal. The petition for appeal and the motion for leave to withdraw as counsel should specifically cite to Anders. All three pleadings must be served on opposing counsel and upon the client and must contain a certificate providing evidence of such service. This Court will rule upon the motion for extension of time upon its receipt, but will not rule on the motion to withdraw until this Court considers the case in its entirety, including any supplemental petition for appeal that may be filed.

(i) What the Certificate Must Contain. --The appellant shall include within the petition for appeal a certificate stating:

(1) the names of all appellants and appellees, the name, Virginia State Bar number, mailing address, telephone number (including any applicable extension), facsimile number (if any), and e-mail address (if any) of counsel for each party, and the mailing address, telephone number (including any applicable extension), facsimile number (if any), and e-mail address (if any) of any party not represented by counsel;

(2) that a copy of the petition for appeal has been mailed or delivered on the date stated therein to all opposing counsel and all parties not represented by counsel;

(3) if a word count is used, the number of words (headings, footnotes, and quotations count towards the word limitation; the cover page, table of contents, table of authorities, and certificate do not count towards the word count);

(4) in a criminal case or habeas corpus appeal, a statement whether counsel for defendant has been appointed or privately retained; and

(5) whether the appellant desires to state orally to a panel of this Court the reasons why the petition for appeal should be granted, and, if so, whether in person or by conference telephone call.

(j) Oral Argument.

(1) Right to Oral Argument. The appellant shall be entitled to state orally, in person or by telephone conference call, to a panel of this Court the reasons why the petition for appeal should be granted. The appellee shall not be entitled to oral argument, whether in person or by telephone conference call. Any lawyer not licensed in Virginia who seeks to appear pro hac vice to present oral argument to the Court must comply with the requirements of Rule 1A:4.

(2) Waiver of Right to Oral Argument. The appellant may waive the right to oral argument on the petition for appeal before a panel by notifying the clerk of this Court and opposing counsel in writing, or by filing a reply brief.

(3) No Oral Argument on Pro Se Inmate's Petition. If an appellant is not represented by counsel and is incarcerated, the petition for appeal may be considered by this Court without oral argument.

(4) Notice of Oral Argument. If the appellant has requested oral argument, notice of the date and time of such argument shall be provided to counsel for the appellant or to any pro se appellant. If requested in writing, notice of the oral argument shall also be provided to counsel for the appellee or any pro se appellee.

I made it the smallest font I could because it takes up most of this post and I wanted you to see how big the Rule is and how many hoops the appellant has to jump through in order to get past the form requirements and have the substance of the case heard. The only sections addressed by the Virginia Supreme Court in Davis are the ones that I left regular size. Presumably, every single other of the nine million form requirements was met.

[1]  Per 5:17(c)(1)(ii) the error which the appellant must "relate" to the assignment of error and actions taken by the Court of Appeals and per 5:17(c)(1)(iii) "an assignment of error that does not address the findings or rulings in the trial court or other tribunal from which an appeal is taken" will be dismissed. It is not hard to read these sub-rules so that you would think assigning error to the actions of the trial court, which by their very nature "relate" to the assignments of errors and actions taken in the Court of Appeals. It's obviously not the way that the Supreme Court interprets the language, but a simple reading of it could lead someone into error.


[2]  Per the Davis case itself, 5:17(c)(1)(iii) was added to Rule 5:17 on 01 July 2010. That's pretty new in a legal world which is resistant to change. As we all know, the Rule Book from last year is sitting on the shelf. The "How to Do Appeals Correctly in Virginia" book that somebody got at a CLE in March 2011 gets used. The form which the attorney has perfected and kept on his computer (to make sure he doesn't make errors) only gets used every year or two when the attorney does a rare appeal. These are all common problems which can cause mistakes to pop up.


[3]  Appeals which involve constitutional questions, legal matters, and mixed questions of law and fact are addressed "de novo" by the Supreme Court. In appeals which involve findings of fact the Supreme Court is extremely deferential to the finder of fact (the trial judge). There is an argument that when the Supreme Court takes an appeal from a case that has gone through the Court of Appeals the Court of Appeals' opinion is rendered meaningless and thus the errors assigned make more sense if they address "the findings or rulings in the trial court."


Now, before everybody starts telling me how wrong I am, I am not saying that this correct.. I am saying that, keeping the above in mind, this is an indication that what happened in Davis is error due to simple negligence, not "wanton disobedience or extreme negligence."


All I want is for cases to have the substance of appeals to be more important than the form. Of course, I also want to win the lottery, lose 30 pounds, and bowl a 250. Not sure any of these things are going to happen.

Congratulations Josh

A friend of mine just got sworn in as Commonwealth Attorney for Dickenson County, Virginia.

Congratulations Josh Newberry, The new Commonwealth Attorney for Dickenson County.

And his Assistant Commonwealth Attorney, Gerald Gray.

Cases 2011: Appellate Strict Adherence v. Legislative Response

Despite what seems to be fairly significant efforts on the part of the General Assembly to stop the dismissal of cases and deemed “waivers” of arguments in the last 5 to 6 years, they continue.

Smith v. Commonwealth, MAR11, VaSC No. 101357

(1) The failure of the appellant to arrange for the timely filing of a necessary transcript does not deny the appellate courts jurisdiction. (2) Failing to file a necessary transcript waives the issue which the appellant preserved in the transcript.

Note: I believe this case was dealt with by HB2438 which gave a 6 months grace period in which an appellant can refile his appeal if the transcript was not timely filed.

Davis v. Commonwealth, NOV11, VaSC No. 102420:

(1) If the appellant appeals from the Court of Appeals, but does not assign error to the Court of Appeals the Virginia Supreme Court will dismiss the case for lack of jurisdiction to consider the appeal. (2) Assigning errors to the trial court when appealing from the Court of Appeals is not sufficient to give the Supreme Court jurisdiction.

Note: It seems clear that the appellant stated the error and that the court could discern the error the appellant wanted to address. This rejection is purely based on the lack of technical words not needed to decide the issue. In other words the appellant stated “The trial court was wrong in that . . .” instead of “The Court of Appeals was wrong in not finding that 'the trial court was wrong in that . . .'”

I wish the General Assembly would pass a statute something like:

19.2-XXX -  The appellate courts of Virginia shall strongly presume that any error in the filing of an appeal is non-jurisdictional and does not in any way waive the substantive issues raised by the appellant. Except in cases of wanton disobedience or extreme negligence by the appellant's counsel to the laws of Virginia and the Rules of the Virginia Supreme Court, the appellate courts of Virginia will address the substance of the appeal and may only note the failings of the appellant to properly observe format requirements, filing requirements, and similar non-substantive matters as harmless error. In cases of wanton disobedience or extreme negligence the appellate court shall remove counsel and allow the appellant 6 months to refile with new counsel.

Cases 2011: Making New Common Law by Claiming Old Common Law Wasn't

Advisement

The Court of Appeals remains dedicated to eliminating the common law procedure of taking cases under advisement to be dismissed with the fulfillment of certain conditions. The Court of Appeals is clearly seeking out cases it can use to eliminate this practice.

Hernandez v. Commonwealth, JAN11, VaSC No. 092524

(1) Until the court enters a written order finding the defendant guilty of a crime, the court has the inherent authority to take the matter under advisement or to continue the case for disposition at a later date. (2) Once a judge has found someone guilty of a crime the punishment must be as laid out by the General Assembly. (3) A judge's statement that there is enough evidence to support a conviction is not a finding of guilt. (3) The VaSC makes no finding as to whether a case can be deferred/continued/taken under advisement with a promise of a particular disposition at a later date.

Note: Hernandez is significant as the Supreme Court's refutation of last year's attempt by the Court of Appeals to eliminate advisement.

Congdon v. Commonwealth, FEB11, VaApp No. 0531-10-2:

(1) If a defendant waives his right to a de novo appeal from the juvenile and domestic relations court, in a plea agreement with the Commonwealth, the defendant cannot appeal the court's decision (normally allowed under § 16.1-296(A) ). (2) The lower court's order cannot take away the defendant's right to appeal, but the defendant can bargain it away as part of his plea agreement with the Commonwealth. (3) A district court guilty plea is inadmissible in the de novo trial in the circuit court.

Note: Congdon and cases similar to it are significant because they establish that a prosecutor and defendant can make side deals. Thus, if a judge agrees to continue a case without any findings, a defendant could be required to complete conditions by the Commonwealth and have the Commonwealth move for a dismissal upon completion.

Taylor v. Commonwealth, JUN11, VaApp No.2236-09-1:

Upon a finding of facts sufficient for guilt, a trial judge does not have the power to reduce a conviction to a lesser offense or to dismiss it.

Note: Of all the decisions this year, this probably provoked the greatest reaction from me. See my blog posts

http://crimlaw.blogspot.com/2011/06/virginia-court-of-appeals-invalidates.html

http://crimlaw.blogspot.com/2011/07/advisement-lets-look-at-court-of.html

http://crimlaw.blogspot.com/2011/07/advisement-lets-look-at-court-of_19.html

http://crimlaw.blogspot.com/2011/07/advisement-theory-behind-it.html

This and Tharrington v. Commonwealth, SEP11, VaApp No. 1573-10-1 (When the legislature makes clear its intent to punish a defendant twice for the same offense under two different statutes there is no double jeopardy and no need to prove the two crimes each have a separate element), are the cases I most strongly disagree with this year.

Epps v. Commonwealth, NOV11, VaApp No. 1799-10-4:

(1) 19.2-303 allows a judge to suspend a sentence or suspend the imposition of a sentence. (2) 19.2-303 does not allow a judge to not find a defendant guilty after determining facts are sufficient to find the defendant guilty.

Note: The defense attorney in this case deserves points for originality, but the Court of Appeals isn't going to go to the trouble of slapping down the common law and then stretch to allow the same practice under a statute which doesn't quite fit.


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Tomorrow:  Appellate Strict Adherence

Cases 2011: Federal Cases on Pat Downs & Searches

The 4^th Circuit has rejected a number of vehicle related seizures and searches in published decisions this year. In particular, the 4^th Circuit has expressed a concern that the government is trying to inflate minor, normal, innocent behavior and circumstances into reasonable suspicion. 4^th Circuit talks about “our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity.” Powell, Massenburg, and Foster, infra.

US v. Foster, MAR11, 4Cir No. 09-5161:

(1) A police officer having knowledge of a suspect's prior criminal activity does not, by itself, establish reasonable articulable suspicion of current criminal activity. (2) The appearance of a person in a car an officer had not previously seen is not enough to establish reasonable articulable suspicion of criminal activity. (3) A suspect shifting his arms around in a car is not enough to establish reasonable articulable suspicion of criminal activity.

US v. Massenberg, MAY11, 4Cir 10-4209:

(1) The fact that the suspect stands a foot away from his companions, does not look at the officer when asked to allow a search, and refuses to allow a search (when companions allow one) is not enough to provide reasonable suspicion for a search. (2) The government cannot rely on whatever facts are present, no matter how innocent, as indicia of suspicious activity."

US v. DiGiovanni, JUL11, 4Cir No. 10-4417:

(1) An officer can ask question not related to the purpose of a traffic stop as long as the questions do not extend the time of the stop beyond a de minimus amount. (2) If an officer spends over ten minutes asking a detained driver about things not related to the traffic stop before conducting investigation related to the stop, it is an unconstitutional seizure. (3) There is no specific time that a traffic stop should last, but the mere fact that it only lasted 15 minutes does not render it constitutional. (4) The mere facts that the officer handed back license and registration and said “you are free to go” do not establish that the suspect's detention ended – other circumstances pertaining at the time must be examined.

US v. Powell, NOV11, 4Cir No. 08-4696:

(1) The mere fact that someone has a record does not, by itself, justify a pat down. (2) A violent prior record can justify a pat down. (3) When the officer receives information that the suspect has “priors” for a violent criminal offense it is not enough to justify a pat down without (a) a date of the prior and/or (b) information as to whether the suspect was convicted. (4) A suspect handing an officer a license which, when checked, turns out to be suspended is not enough to justify a pat down.

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Tomorrow:

Making New Common Law by Claiming Old Common Law Wasn't (Advisement)

Cases 2011: Criminal Street Gangs

The Court of Appeals put a lot of effort this year into deciding how to determine whether a group is a criminal street gang and whether a person is a member.

Taybron v. Commonwealth, JAN11, VaApp No. 2834-09-1

(1) If members of different local gangs copy a national gang's colors, symbols, and language this does not mean that they are both in that national gang. (2) Convictions of gang members in a different local gang which copies the symbols etc. of the same national gang as the defendant's gang copies are not enough to provide the prerequisite convictions to prove a criminal street gang.

Rushing v. Commonwealth, JUL11, VaApp No. 0723-10-1:

In proving prior criminal acts by members of the criminal street gang, in order to establish its status, (1) the crimes do not have to involve the defendant (2) nor does it have to be proven that the defendant knew the people involved.

Salcedo v. Commonwealth, JUL11, VaApp No. 1325-10-3:

The two necessary predicate criminal acts which are needed to prove a criminal street gang can be established by an officer testifying that two members of a national gang, in other States, have been convicted of requisite crimes.

Note: This seems to clearly conflict with Taybron, but it does not seem to be meant to overturn it. It appears more like it was not something seriously considered.

Johnson v. Commonwealth, AUG11, VaApp No. 2091-10-1;

(1) In order to prove that a group is a criminal street gang the prosecution must prove its members have (a) individually, or (b) as part of the group committed two or more predicate criminal acts. (2) The introduction of the defendant's prior conviction(s) can serve as evidence of the predicate offenses.

Morris v. Commonwealth, OCT11, VaApp No. 1133-10-2:

(1) There are three elements to the crime of participating in a criminal street gang: (a) the defendant must participate in or be an active member of a criminal street gang, and (b) the defendant must knowingly and willingly participate in a predicate criminal act, and (c) the act must be done (i) for the benefit of, or (ii) at the direction of, or (iii) in association with the gang. (2) Even if one is not a member of the criminal street gang committing the predicate criminal act, participating with members of the criminal street gang is acting “in association with” the gang and therefore fulfills element iii.

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Tomorrow: 

Federal Cases on Pat Downs & Searches

Give That Trucker a Badge

Because sometime the police need a hand.

Moments in the Hall

I'm walking down the hall between courtrooms when a woman and man stop right beside me.

Woman: You the prosecutor?

Me: I'm one of them.

Woman: You John?

Me: No, I'm Ken.

Man: You the one who prosecutes in general district court?

Me: No, I don't usually prosecute misdemeanors, I prosecute felonies.

I kid you not, the guy jumped back two inches and the woman turned and immediately walked away from me.

Practice Tip for Young Defense Attorneys: What NOT to Say

Okay, so I've indicted your client for 3 counts of burglary. I also know, and have disclosed to you, that the police suspect that he was involved in a dozen more, but are not now (and probably never will be) able to prove his involvement. I'm telling you that his guidelines will probably call for a sentence between 3 to 6 years. Yoiu are trying to talk me into a low-ball offer. You should not say to me

"He's a thug. Putting him in prison won't solve that whether you send him there for 6 months or 6 years."

You must understand that my knee jerk reaction is going to be "Well, then I'll go for the 6 years (or more)."

I understand you're trying to make an argument that he won't be reformed in jail and maybe you have alternatives X, Y, & Z in mind that you're going to try to sell me on next, but you've already set my state of mind and there's a high probability that you've scuttled the rest of your argument.

BUT, but, you say, I've heard well respected, long-time practitioner John Smith Esq. say the same things to you, Mr. Prosecutor, and it didn't seem to affect anything.

Well, yes he does say things like that to me. He knows when he can say it and when he cannot. He knows that the defendant, Mike Greene, has been in front of the courts 27 times in the last 5 years and that my office knows him and isn't ever going to offer him a sweet deal. Mr. Smith Esq. is just recognizing a reality and establishing his credibility with me and my office. It doesn't mean for a second that he won't fight tooth and nail for the guy in the courtroom and he definitely isn't making that statement in order to get me to lower my offer.  It's more like a recognition and notice that one way or another, there's not going to be a mutually satisfactory ending to this case.

If you are a new practitioner, you need to stay away from this. Get a couple or three years under your belt. Establish your creds as someone who gets his clients the best deal he can and who tries the cases that need to be tried. Then maybe you can come into my office and engage in this kind of more sophisticated dealing with the prosecutor.  Maybe . . .

If I Ever Have to go to Jail, Can Mine Have Strippers Too?

Apparently, the federal jail in Miami is overrun with strippers who are being hired by law firms and sent to the jail as "legal assistants."

Y'know, back in my old days of doing criminal defense, I must admit that it never crossed my mind to use my law office to provide that sort of service for my incarcerated clients. Heck, if I had been that creative I could have tripled my client base. Sadly, I proved not to be so innovative.

Via LawofCriminalDefense

A Catholic Moment: Changes to the Mass

I'm what I've heard a lot of people around here call a “Cradle Catholic.” That's 45 years of attending Mass. I was born late enough that I missed most of the major pains when the Church decided to switch to the vernacular from Latin. However, I've seen a number of changes to the Mass over the years. Some were official. When I was a year or so past my First Communion the Church changed from parishioners kneeling in a row in front of the altar and having the priest administer the Host directly to the tongue to the parishioners standing in line and having the priest pass the Host to the parishioner's hands so the parishioner could put it in his own mouth. The institution of altar boys has disappeared and with it went the ringing of the bell when the bread transubstantiated into the Body and the wine into the Blood (I think this is a shame as it marked the important moment of mass and added an element of solemnity and majesty).

Additionally, I have seen any number of changes which have been either semi-official or undertaken by parishioners. We hold hands with the people standing next to us when we say the Our Father. The older minute of silence to remember those for whom we wish to pray has changed to asking for whom we have prayers and parishioners announcing names and reasons to pray for certain individuals. When I was young the only person I remember crossing his forehead, lips, and heart before the priest read the Gospel was the priest (asking Christ to be in his mind, on his lips and in his heart). Now everybody in the church does it. And we appear to have co-opted that most Protestant of Protestant songs “Amazing Grace.” It's strange hearing a song written by an Episcopalian Preacher which was the theme of the Second Great Awakening (which strongly established the Methodist and Baptist denominations in the U.S.) being played once or twice a month at the beginning or end of a Catholic Mass.

Yesterday, the Church introduced the new English translation of the Roman Missal. Priests everywhere led their churches through new versions of the prayers that many of them had been saying their entire lives (including me). We all stumbled as we would say prayers which were almost instinctual, but aren't the form of the new translation.

The one which caught pretty much everyone at least once during the Mass was “And with your spirit.” Several times during Mass the priest says “The Lord be with you.” Ever since the first translation into English the congregation has answered “And also with you.” It's a knee jerk reaction by now. Yesterday, that answer changed to “And with your spirit.” This is a direct, and much better, translation of the Latin “Et cum spiritu tuo.” This translation obviously corrects a failure in the original translation, but it was also the one which tripped people up the most.

The rest of the translations are a mixed bag. If you've ever done any serious translation work, you know there are those who tend toward simplicity of understanding and those who cleave to the idea that translations must be as true as possible to the original even if it means adding unecessary prepositions and conjunctions¹ and using words which are almost never used in the receiving language. The original English translation was a translation which valued simplicity. The new translation values accuracy.

The Penitential Act

OLD

I confess to almighty God, and to you, my brothers and sisters,
that I have sinned through my own fault,
in my thoughts and in my words,
in what I have done, and in what I have failed to do;
and I ask blessed Mary, ever virgin, all the Angels and Saints, and you, my brothers and sisters, to pray for me to the Lord, our God.

NEW

I confess to almighty God and to you, my brothers and sisters,
that I have greatly sinned,
in my thoughts and in my words,
in what I have done and in what I have failed to do,
through my fault, through my fault, through my most grievous fault;
therefore I ask blessed Mary ever-Virgin, all the Angels and Saints, and you, my brothers and sisters, to pray for me to the Lord our God.

This translation does a much better job of emphasizing the continuing nature of willful, sinful behavior on the part of man. I think the original may be seen as a reflection of the time when it was translated. It is an accurate, but simple translation. The new translation brings home the nature of the failing much better.

More interesting is the new translation of the Nicene Creed. I don't have time to get into that this morning and this is a busy week, so look for a discussion of that next Saturday or Sunday.


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¹ Prepositions and conjunctions are always a place where translators will vary because they vary in shades of meaning and use from language to language such that they often don't have exact translations and can be translated as a couple different words or even just as a comma.

UC Davis and Pepper Spray: Sound and Fury, Signifying . . .

Lots of fussing about UC Davis, just like there was meant to be.

Here's the tactic: Find a public location which you know police will be forced to clear, make sure others are around to take pictures/video, interlock in a way to make it very difficult for police to move you, and wait.

It works. There is absolutely no way for the police to look good when they clear the area as they have been ordered to. Tons of videos show up on the internet.

Police are being ordered to clean out the various "Occupy" camps. Nothing too surprising there. Those among the "Occupy"ers who are dedicated or professional protesters or among the group of people who look at it as a right of passage to get arrested by the police while in college have resisted. Nothing surprising there. Videos are all over the internet and news.

Yawn.

Here's an AP video and an Al-Jazeera vid. According to the Al-Jazeera, the police were cleaning out a tent city and this group of kids decided to engage in passive resistance. The AP shows more of the occurrence than anything else I found. Note the police ordering the kids to "move." Note the kids on the sidelines screaming at the resisters to "not move." Note the police trying to physically separate the kids (unsuccesfully).  Note the officers being extremely obvious about their plan to use pepper spray. Note the yells "protect yourself" and "close your eyes." note the kids on the ground actually taking steps to protect themselves so they won't get a face full of spray (hoods and collars up, heads down).

AP

And here's a video which starts even earlier, in which the police give clear warning that they were going to use spray before doing it.

In the end, the police cleared the sidewalk and the protesters got their moment of glory for standing up to the cops. They also got something to put out there to justify themselves.

This is not Kent State. This is a pre-scripted play.

Lying to a Bad Judge?

Everyone who has practiced criminal law has come across some variation of this scenario: A defense attorney practice regularly in Pitcairn County; representing at least 2 defendants in felony court every week. Judge Smith has been the judge in Pitcairn County for the last 20 years; he is probably going to be there another 20 years.

The problem is that before every trial, Judge Smith calls the defense attorney and prosecutor into chambers and says the following:

Let's cut to the chase. Is this guy guilty?

Of course the prosecutor says "Yes." What answer can the defense attorney give?

The two answers which pop into mind are "Judge, I cannot answer that question." or "He's innocent, judge." The second has the disadvantage of quickly turning the defense attorney into a liar in the judge's eyes as he proclaims the innocence of each and every client and overwhelming evidence in several cases make it obvious that he could not have thought they were actually innocent. Yes they're all "innocent until proven guilty", but Judge Smith ain't gonna buy that. So, the default would be the first answer. Giving that answer, the defense attorney neither misleads the judge nor violates ethic rules.

BUT, what if the defense attorney knows his client is innocent and knows that if he states his client is innocent that the judge will be significantly rougher on the prosecution, enforce the rules of evidence more strictly, and be much more likely to find the defendant "not guilty."?

Question inspired by Case Western Reserve Law.

Would You Want CSI / Law and Order / Bones / NCIS in Your Town?

Sure, at first thought it seems like a great idea. You could have an elite investigative unit located in your town. I mean, c'mon your local police investigators have to track down leads, interview dozens of people, send important evidence to a state lab 6 hours down the road and wait 4 - 6 months for the analysis to come back. Sometimes these guys take months, maybe even years, to solve cases. Compare that to Criminal Minds wherein the team drops into town and solves multiple murders in a matter of days. These elite teams have computer savants, people capable of solving crimes using math, and amazing labs in the basement (with neon lights). What could possibly be the downside?

Well, the worst part would have to be the skyrocketing homicide rate. Every week there would be someone killed (for at least the traditional 22 weeks of an American television series). Of course, every one of them would be solved quickly, but if you're in Lebanon, Virginia (population approximately 3,500) your homicide rate would be 629 deaths per 100,000. Comparatively, the highest homicide rate in the country has been New Orleans at 52 per 100,000.  Somehow, that doesn't strike me as sustainable.

Almost as bad would be the 175% tax rates which would be needed to pay for those amazing labs. After all, if you are going to have your very own lab, which is equipped with the most very newest of every kind of analytical equipment and enough staff so that every bit of evidence can be analyzed the same day it is found, it don't come cheap.

However, there is an option on the cheap: psych. Now, you'd still get the alarmingly high homicide rates, but all the expensive stuff (lab, staff, etc.) just isn't there. Of course, you have to put with an immature whacko bouncing around claiming he was psychic, but who cares since he would be solving every crime in sight at an affordable rate. And he'd be funner to be around than the knock-off over at CBS (BTW, does anybody watch that show?).

Discussing the GPS on a Car Without a Warrant Case

The first part of this video discusses the recent argument in the Supreme Court of the United States over whether a gps tracking device can be placed on a car without a warrant.

This We'll Defend

The Navy keeps enemies from our shores. The Marines provide flash and verve. The Air Force lives in nice dorms and eats really good chow.

The Army? It just wins wars.

There's been a standing joke around my office the last week. Through all its variations it has basically been, "Ken, thank you for your service. I'm going to honor your service by not working Friday." It's all in good humor, but it has set me to thinking about what would honor me and all the other veterans.  My conclusion?

SERVE.

If you are young enough and fit enough, serve your country and your fellow citizens.

But it's 4 years!   Yes, and it may seem like an eternity when you are 18-20. It's not.

But, I don't believe in violence!   Fine. Become a corpsman or medic or a chaplain's aid.

But I don't want to go to Afghanistan or Iraq or Libya!    Okay.  Join the Coast Guard.

But it will sidetrack me from my path toward maximum earning potential, could put me at risk, my parents will fear for me, and my peers will think there is something wrong with me.      Ah, now we come to the crux of the matter.  Well, okay, sure, you can just leave the heavy lifting to those whom you deem far enough below your social status. After all their lives and families obviously aren't as important as yours. Don't sweat it. A sense of duty to others really won't be something you'll need in your life anyway.

Look, I realize that most won't serve and I've met any number of Veterans who are troubled and troubling. Still, when I look at someone and that person has served his or her value as a person rises in my eyes. I cannot help but see someone who belonged to something greater than himself and who stood between me and mine and harsher realities in the world. I thank all of you who have served; all of you who are serving; and all of you who will stand in the future as part of the unending line that stands between the cruel realities of a world where life is nasty, brutish, and short and the gibbering masses, who speak of rights they have earned only by capricious birth. Some will speak hollow praises, but if you well and truly do your job the great majority will never understand what you are sparing them from. You serve - you choose to serve - so that the rest of America can remain in blissful ignorance of what would happen if you were not there.

This We'll Defend.

New Blog Layout

So, yesterday I was piddling around with some minor parts of the blog and accidently nuked it. Then I spent the rest of the day trying to put together a new layout. It took a while, but now I have most of the blog working. The only things left to fix are 1) I need to add back in links to other blogs (sorry if you get shorted - my list got slagged with the blog) and 2) I need to figure out how to get the featured posts entered and rotating like they do in the example here. If anyone can figure the second out drop me a line.

I don't like the color scheme and I'll probably end up working on that over the next little bit as I move the graphics from someone else's site to mine. I do like the more modern look. However, I am concerned that it may be slow. If anyone is having major problems let me know. The only reason I spent all the time trying to get this page up to snuff is that I like the slideshow (if I can ever get it working).

Anyway, hopefully I won't back to the bad old days when I rewrote the site every two weeks or so - but I make no promises. ;-)

Why I Hate Practice Books (And Mopeds)

If you practice criminal law, there is invariably a set of books you cannot survive without. Chief among these are the easy to carry summaries of law which you can take with you into a courtroom (where there tends to be no wifi or even internet for phones). A typical form of these has most of the criminal and traffic laws in one or two books and, under each code section, summaries of cases having to do with each code section. Often - especially in misdemeanor courts where there is a large docket and things have to move quickly - all anyone does is read these two or three sentence blurbs about cases and rely on the summary the publisher has provided.

The problem is, the publishers get things wrong. A big problem is that the publishers seem to have a hard time figuring out that a case they have put in their books was overruled a few years later. They just keep putting them in the books as they are republished year after year. This seems particularly true when the law is changed by an act of the legislature.¹ We recently had this come up in a case involving mopeds and licenses.

To begin, let me set out the framework. Under Virginia law, if someone's license is suspended generally she can still drive a moped because it is not a "motor vehicle." In Virginia's Traffic Code (Title 46.2) there is a specific exception under the general driving suspended law, Va. Code 46.2-301(B):

For the purposes of this section, the phrase "motor vehicle or any self-propelled machinery or equipment" shall not include mopeds.

A moped for that section is defined in Va. Code 46.2-100:

"Motor Vehicle" . . . For the purposes of this title, any device herein defined as . . . moped shall be deemed not to be a motor vehicle.

"Moped" means every vehicle that travels on not more than three wheels in contact with the ground that has (i) a seat that is no less than 24 inches in height, measured from the middle of the seat perpendicular to the ground and (ii) a gasoline, electric, or hybrid motor that displaces less than 50 cubic centimeters. For purposes of this title, a moped shall be a motorcycle when operated at speeds in excess of 35 miles per hour. For purposes of Chapter 8 (§ 46.2-800 et seq.), a moped shall be a vehicle while operated on a highway.

However, a person can have her license suspended/revoked for driving under the influence of intoxicants (DUI or DUID). Driving under the influence of intoxicants has an "article" under the Virginia Criminal Code (Title 18.2, Article 2) which goes from section 18.2-266 to section 18.2-273. Included in this article are sections 18.2-271 and 18.2-272 which, respectively, take away the right to drive after conviction for driving intoxicated and provide for punishment if caught driving after the license has been taken for driving intoxicated.

Prior to 2005, the statute which makes driving under the influence of intoxicants illegal specifically included mopeds:

For the purposes of this section, the term "motor vehicle" includes mopeds, while operated on the public highways of this Commonwealth.

In 2002 the Charlottesville Circuit Court (felony trial court) made a well reasoned decision that because 18.2-266 included mopeds only in "this section" and 18.2-6 states:

As used in this title:
. . .
The words "motor vehicle," "semitrailer," "trailer" and "vehicle" shall have the respective meanings assigned to them by § 46.2-100.

that a person couldn't be found in violation of driving after being suspended/revoked for DUI under 18.2-272 as long as long as she was driving a moped. Archer v. Fink, 57 Va. Cir. 354 (2002). Thereafter, LexisNexis put a blurb about the case under 18.2-272 in its "Police, Crime and Offenses and Motor Vehicle Laws of Virginia":

A "moped" is not a "motor vehicle" under 18.2-272.

All of this was just fine until 2005.

In 2005 the Virginia General Assembly changed 18.2-266, via House Bill 2786:

For the purposes of this section article, the term "motor vehicle" includes mopeds, while operated on the public highways of this Commonwealth.

So, it's now illegal to drive a moped after having been convicted of DUI because 18.2-266 and 18.2-272 are both in Article 2 of Title 18.2.

Fine, the law has changed. What am I fussing about? LexisNexis never took the case the General Assembly overruled out of their book. Last week someone looked in that book and saw a blurb which said people suspended for DUI could drive a moped legally. There was a big fuss in court until the attorneys were able to get somewhere they could actually do some research and find out that the law had changed 6 years earlier.

Grrrrrrr . . .


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¹ This is not unique to this kind of book. I first noticed this in Shepard's and West's citation checks, which catch 80% of caselaw changes, but few legislative changes which invalidate a case.

Rock the Mo

In honor of Movember, I offer this tribute:

The Greatest Moustaches In History

Indonesian Police Part 2

Apparently, music is highly regarded in the Indonesian police forces:

Sometimes I wish I had a universal translator.

Sometimes it Gets Boring When You are an Officer in Indonesia

I guess police duty gets boring some times:

I kept waiting for the guy sitting there, concentrating on his cell phone, to reach over and knock his partner silly. He clearly didn't want anything to do with this.

Don't Mess With Indian Cops

Eat your heart out Charles Bronson and Clint Eastwood. Ya'll ain't got nothing on this dude:

Translation, anyone?

Those Are Cameras in Those Black Bubbles on the Ceiling

Whenever you go into any kind of store nowadays you see black or silver bubbles on the ceiling. For those of you who don't know, inside those bubbles are cameras thru which store security watches potential shoplifters (and employees). I say "for those of you who don't know" because there are obviously people too dumb to realize that their every move is being watched as they stuff merchandise in their coats and down their pants. I've seen any number of tapes of this in cases I've been involved in. Here's a typical video of the type which I found on YouTube (two young punks almost too dumb to breathe filmed trying to steal everything that isn't nailed down):

Now here's a guy who knows he's being watched by the camera and who decided to play a prank on some people he used to work with (don't try this at home kiddies):

Cited in Wikipedia

You know you've hit the big time when you become a primary source for Wikipedia (citation #6).

I Wish to Report a Burglary

The Virginia State Bar v. Free Speech

When I became a lawyer I don't recall being told that I lost my 1st Amendment right to freedom of speech. However, it appears that the Virginia Bar has decided that all lawyers in Virginia have forfeited that right when it comes to blogging about matters that are already a matter of public record.

To be specific, the VSB has ruled that Horace Hunter, a Virginia lawyer in Richmond, must take all posts from his blog down which refer to that which has happened to his clients in open court and is in the public record, unless he has permission from each client. These things can be written about by every other citizen in the United States, just not Horace. Why not? Because he is the client's attorney.

This is part of a 2 issue argument which Horace has been having with the Bar. First, they wanted him to put a disclaimer on his blog which stated that the results he was talking about were not guarantees of similar results in other cases. On this, as much as I respect Horace's stand on principle, I agree with the Bar. I stated as much back in May when I first discussed this.

However, the second issue seems to have morphed in to a constitution breaker: the Bar insists that Horace has been shorn of his 1st Amendment right to free speech by becoming a lawyer and taking on a client. To be fair, this is a possible reading of the ethics rule which the Bar is enforcing against Horace:

Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

So, if the Bar can show in each case that the information written about by Horace was embarrassing or detrimental to the individual written about, then it might have a case (on a post by post basis). The implications in the Virginia Lawyers Weekly article seems to be that there weren't any demonstrable detrimental affect and that any embarrassment from the posts seems to have been caused by the Bar in the process of its investigation (which is an interesting lack of clean hands on the Bar's part). Nevertheless, the Bar can fall back on the potentialities and subjective standards written into the ethics rule. "Would be" and "would be likely to be" are incredibly broad turns of phrase. If Ethics Rule 1.6 trumps the Constitution the Bar is free to interpret that language any way it wants to and Horace just has to live with it (and the rest of us do too).

So, what's the Constitution say about all of this? Well, the pertinent part is the 1st Amendment, as imposed on the States through the 14th Amendment. I'm not anywhere near being an expert on this area of the law, but I'm going to offer up some fairly basic analysis through the lens of what I remember from ConLaw back at W&L.

First of all let's establish a three facts. 1) The Virginia State Bar is a State actor. Its own website proclaims it "An agency of the Supreme Court of Virginia." Of course, the Supreme Court of Virginia is a part of the Commonwealth's government per Article VI of the Virginia Constitution. 2) The important State interest is to protect confidential communications between an accused and her attorney. 3) Talking about what happens in court involves all sorts of political speech. After all, this is the place where the laws of the legislature, enforcement by the executive, and interpretation by the courts all meet. It is, as the saying goes, where the rubber meets the road. I'm not sure its political nature makes much difference in determining whether the government can quash it, but if it does it should make it harder for a government actor to do so.

Now, let's run this through the two tests I recall from law school.

The first test I recall is strict scrutiny. Under this test, a government actor seeking to halt free expression must have 1) a compelling government interest to halt the free expression which is enforced by a policy 2) narrowly tailored to achieve the governmental goal and which is 3) the least restrictive means of achieving that goal.

The compelling governmental interest here is to promote the operation of the judicial system by insuring that communications between a defendant and his attorney remain confidential. The government has no valid interest in keeping the activities which occur in open court from becoming public. In fact, this has been held so important that the US Supreme Court reversed a case when a person could not watch voir dire because there were so many potential jurors that there was no space for the person in the courtroom. Presley v. Georgia , JAN10, USSC No. 09-5270.

Keeping in mind the compelling governmental interest of protecting confidential communication between clients and attorneys, the next question becomes, is forbidding an attorney from writing about what happens in open court with his client narrowly tailored to protect confidential communication between the client and the attorney. It seems not. This is not a requirement that the attorney not speak of things told in confidence. This is a requirement that the attorney not speak of things done in an arena that is mandated to be open. US Const. Amend. VI.

As well, forbidding an attorney from discussing matters concerning his client which occurred in open court and are in the court's open record is not the least restrictive way of protecting confidential communications between the client and his attorney. The least restrictive way is to simply forbid the attorney from revealing confidential communications between himself and his client.

Beyond the strict scrutiny test, governmental actors can also emplace time, place, and manner regulations. Whether these are valid depends on a four part test. 1) Is the regulation content neutral? 2) Does the government have a significant interest? 3) Does it leave ample alternatives? 4) Is the regulation narrowly tailored?

In this case, the regulation is not content neutral. It forbids specific actors from discussing specific matters. Attorneys cannot discuss their clients' cases as they took place in the courtroom.

The government does have a significant interest in protecting the privacy of confidential communication between a client and his attorney.

There are no alternatives allowed here. If Horace cannot write about these cases on his blog, he cannot write about them in the newspaper or talk about them on TV or even get on a soap box in the park and speak of them to passers-by.

The regulation is not narrowly tailored. It forbids much communication which is outside the realm of the private client-attorney communication which it has an interest in protecting and forbids it in all places.

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Look, I never published the names of any clients on this blog. In fact, I usually masked where things happened and changed facts around in an attempt to talk about what was interesting about a case without attaching the post to a particular client. In fact, you'll notice that I seldom use actual place names anymore (usually substituting mythical Pitcairn County / City). I seldom name other attorney or judges in here and when I do I usually do it in order to praise them (I'd say always, but somebody would find some post I've forgotten from 7 years ago and make me a liar).

This is good policy. However, requiring it is not good constitutional law. I may not like the way Horace publishes matters on his blog. I may even think it counterproductive. However, there is a big difference between speech which is distasteful and/or counterproductive and speech which is so contrary to a necessary public/governmental interest that it should be suppressed by a government actor.

I wish Horace luck in his further defense of his right to free speech.

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[addendum] Scott, from Simple Justice, has written a post addressing this and sent me a link to the article in the Richmond Times Dispatch. Scott agrees with the Bar. Respectfully, Scott is wrong. Not identifying one's clients and talking about what happened to them in open court shows respect, a sense of fair play, common decency, and is a good behavioral policy. It is not a compelling governmental interest such that free speech should be suppressed.

And, for anyone thinking that this isn't about free speech concerning matters already entirely in the public domain (not confidences between a client and her attorney), here are the pertinent quotes from the Richmond Times Dispatch:

Can newspapers report on criminal trials? she asked. "Yes, absolutely, they can. Can (Hunter) then go back and report on his own cases? No, he cannot — absolutely not. Not without his client's consent."

"It doesn't matter if the information (he) reports is already in the public domain."

The Bar is, by its own counsel, admitting that it is suppressing the speech of lawyers concerning matters in the public domain. It can't be much clearer than that.

Is the Bar's position good behavioral policy? Yes. Is it good constitutional policy? Absolutely not. A governmental agency should never be able to suppress speech solely on the grounds that it disfavors that speech.