Why Change That Law (Part Duex)

A while back I was reading through the new statutory changes (in place as of July 01) and found something which seemed like tweeking the statute just for tweeking's sake and when I posted it ya'll were kind enough to provide an explanation of why the statute was changed. So, I've got another one for you.

18.2-308.1(B) as currently constituted:

B. If any person possesses any firearm designed or intended to expel a projectile by action of an explosion of a combustible material while such person is upon (i) any public, private or religious elementary, middle or high school, including buildings and grounds; (ii) that portion of any property open to the public and then exclusively used for school-sponsored functions or extracurricular activities while such functions or activities are taking place; or (iii) any school bus owned or operated by any such school, he shall be guilty of a Class 6 felony; however, if the person possesses any firearm within a public, private or religious elementary, middle or high school building and intends to use, or attempts to use, such firearm, or displays such weapon in a threatening manner, such person shall be sentenced to a mandatory minimum term of imprisonment of five years to be served consecutively with any other sentence.

This is being changed into 18.2-308.1(B) & (C):

B. If any person possesses any firearm designed or intended to expel a projectile by action of an explosion of a combustible material while such person is upon (i) any public, private or religious elementary, middle or high school, including buildings and grounds; (ii) that portion of any property open to the public and then exclusively used for school-sponsored functions or extracurricular activities while such functions or activities are taking place; or (iii) any school bus owned or operated by any such school, he shall be guilty of a Class 6 felony.

C. If any person possesses any firearm designed or intended to expel a projectile by action of an explosion of a combustible material within a public, private or religious elementary, middle or high school building and intends to use, or attempts to use, such firearm, or displays such weapon in a threatening manner, such person shall be guilty of a Class 6 felony and sentenced to a mandatory minimum term of imprisonment of five years to be served consecutively with any other sentence.

Okay. Got it figured out. Halfway through writing the post I realized that the same bill which does this also changes the list of violent felonies under 17.1-805 (for sentencing guidelines) so that the only violent felony under 18.2-308.1 is the newly created subsection C. So, if an 18 year old kid is dumb enough to bring his hunting rifle to school to show it to his buddies he may end up with a felony, but it won't be a mandatory minimum 5 year, violent felony.

Lawyers, Morality, & Law

Recently, I asked a number of fellow layers a simple question: is the law a reflection of morality or merely a way to organize society? Every single one, from those who are pragmatic, non-philosophical types to those whom I perceive to be deeper thinking, more theologically oriented answered that the law is there to organize society.

That's more than a little disturbing. Law which orders society, but which is divorced from morality is dangerous. A society can be perfectly ordered and extremely well run and do terrible things. Imagine a United States wherein anyone who has not been employed, in a taxable job, for 6 months out of a year is put on probation and if they are not employed for 6 months out of the next year they are executed. It would have several salutary effects. The would be far fewer people on the dole. There would be a strong incentive for people to be productive. Additionally, since people would have a strong incentive to not work under the table, a large portion of the underground economy would surface and be taxed. And all it would take is to kill those among the 13.7 currently unemployed in the U.S. who can't find and keep a job.

I understand the impetus behind the lawyers' thinking. We see the flaws in the legal system day after day after day. Day in and day out, it is difficult seeing morality through imperfect statutes, enforced by less than perfect officers, manipulated by lawyers, and interpreted by flawed judges. It is so much easier to put one's head down and say they are just rules, nothing more and nothing less. The very fact that we see the flaws in the trees leads us to deny that there is a forest.

And yet the forest exists.

In Memory

Have You Gotten Your Justice Shed Yet?

For Americans who are sick and tired of annoying technicalities like "due process" and "proof beyond a reasonable doubt" a video explaining how to set up your very own Justice Shed:

Negotiations at Their Best

Prosecutor: "He shot him in the gut. I'll offer 3 years for maiming."

Defense Attorney: "Maiming!?! Nobody around here is going to convict him for shooting Johnny Smith."

Prosecutor: "Okay, what do you think he should be convicted of?"

Defense. Attorney: "Destruction of property. That was a pretty decent shirt Johnny was wearing. Nobody should have their property torn and stained like that.'

Disclaimers and the Bar

A Richmond lawyer, Horace Hunter, is in the midst of a conflict with the Bar over whether he has to put a disclaimer on his website informing readers that the results he announces are not guarantees of future results. Horace is publishing occasional summaries of cases in which he was involved. I picked a sample of 7 of these and read them. They are in a basic press release format. A strong paragraph at the beginning identifies the victorious case and client and also makes it very clear that Horace is the attorney in the case. Then there is a short factual/philosophical/legal/tactical discussion. None of the summaries I read had anything confidential information in them. All of the summaries are published in a blog format under the moniker "This Week in Richmond Criminal Defense."

So, as far as I can tell, the only real complaint the Bar can have is the lack of a disclaimer. As you all know, I am a big believer in disclaimers and have had one on my blawg at least since 2006. In its current incarnation it states:

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.

Of course, my situation is different from Horace's situation. My blawg was meant to show things from my point of view. This has ranged from war stories to comments on news stories to goofy things that have caught my eye to analysis of laws and cases. It was never intended to get clients to walk into my office. Horace's posts are clearly meant as a type of press release and as a means to flesh out his website.

I understand that the ethics folks are interested in making sure that the public realizes that there is no guarantee that a result with one particular client, in front of one particular judge, in one particular jurisdiction will mean that other clients will get the same result. If I'd have been Horace, I would have probably put in a disclaimer at the bottom or side - confidant that most members of the public aren't going to read the boilerplate anyway. However, he has decided to make a principled stand based upon the 1st Amendment right to freedom of speech. Bravo. It is always good to see a person make a stand for something he believes in. It will be interesting to see how that eventually plays out.

An interesting question is whether a disclaimer is actually needed to inform the public about the nature of the information they are getting. The summaries are clearly on a law firm's website and about that law firm. They are written in the stilted, awkward format that press releases always have and are obviously self promoting of the lawyers in the firm. Granted, not all criminal defendants are the sharpest crayons in the box, but anyone computer savvy enough to get to the website and navigate to the case summaries should have enough brainpower to realize this is an advertisement. Does an obvious advertisement need something to point out it is one?

Personally, I view disclaimers more as a way to protect the attorney rather than the client. Would I put up a disclaimer in Horace's place? Sure, I would. Not because I thought the clients are too dumb to understand that I'm not going to advertise the cases with less than optimal results for the client or that they will be misled to believe I win every case. Not because the Bar has some arbitrary rule. No, I'd do it to protect my own hide. Would I actually expect any clients who came to my site to read the disclaimer? No. However, clients who lose complain to the Bar, file malpractice suits, or try to get a writ of habeas corpus. That disclaimer goes a long way toward neutralizing spurious claims that the things I published on the web misled the client into thinking she was going to win that robbery case with her DNA on the scene, video of her committing the offense, and a witness list against her that had 4 nuns in it.

New Virginia Criminal Laws

Strange changes in the Gambling Law

Virginia has put together all its legal changes and, as per usual, there's always one or two which don't make a lot of sense to me. The definition of illegal gambling has been changed as follows:

a. For the purposes of this subdivision and notwithstanding any provision in this section to the contrary, the making, placing, or receipt of any bet or wager of money or other thing of value shall include the purchase of a product, Internet access, or other thing, which purchase credits the purchaser with free points or other measurable units that may be (i) risked by the purchaser for an opportunity to win additional points or other measurable units that are redeemable by the purchaser for money at the location where the product was purchased or (ii) redeemed by the purchaser for money, and but for the free points or other measurable units, with regard to clauses (i) and (ii), the purchase of the product, Internet access, or other thing (a) would be of insufficient value in and of itself to justify the purchase or (b) is merely incidental to the chance to win money.

Obviously, this is done in an attempt to make internet gambling illegal. First, it makes the common sense correction of deleting the part which makes gambling only illegal if done at a physical location. The weird part is where it talks about purchasing iternet access of insufficient value to justify its purchase or incidental to the chance to win. I understand that they are trying to shut down internet gambling, but no one is overpaying for internet access as part of a coverup for gambling. Still, I think that the inclusion of "or other things" covers what they were trying to get to because the transfer of funds to an internet site for "credits" (or whatever a site calls them), which are basically worthless except for their value in gambling, seems to fall within that language.

I wish they were somewhat more precise in their language. "Other things" does leave open an argument that electronic credits are not things, but conceptualizations of potentialities; I'm sure those of you out there who are defense attorneys will find a simpler way to say that to a judge. They are not things because they have no physical embodiments outside of the ever-shifting electrons in any electronic brain system (that's a computer for those of you who have never read old science fiction).

On the other hand, "thing" is a broad catch-all word in English. It clearly does not have to denote a physical item. We've all seen the television show with the detective saying, "Here's the thing, I don't believe you." In that example, "thing" is referring to a belief or state of mind, not a physical item. As well, we'd all understand if Steve Jobs were on a stage talking about the iPhone 6 and he said something like ". . . and our support website for the phone is a thing unto itself." Therefore, a website, and by inference other things on the web, is a thing.

[addendum] After putting some thought into it, I think what the General Assembly meant by "internet access" is probably access to a particular website. The purpose is probably to keep people from paying $5,000 for a week's access to "Texas Hold'em Heaven." As such, the language used fails because "internet access" does not cannote, in normal usage, the access of a single site, but the access of the internet in its entirety. However, I think that "other things" also covers site access.

How the U.K. Views Americans

Sometimes, the best way to understand how another group of people perceives you is to watch portrayals in popular media. It's there where people let slip what they actually think.

As a fan of science fiction, I've been watching the new season of Doctor Who. Consequently, I've seen a couple scenes which might give a clue as to what the folks living on the islands on the other side of the Atlantic think about us.

[For those of you who don't know, the Doctor is an alien who moves through time and space fighting evil aliens and solving problems. He usually travels with two or three humans.]

Scene One:

The Doctor has snuck into the Oval Office and is seated in the president's seat. About 10 Secret Service agents are standing with their pistols pointed at him. The Doctor is sitting there smugly saying something to the effect of, "Really? I just snuck into the most secure room in the world and you think you are going to shoot me?" At this point, one of the Doctor's companions (who has been watching) runs into the room shouting "They're Americans!!" The Doctor jumps out of the seat and says nervously, "Don't shoot! Definitely, don't shoot!"

Scene Two:

An American FBI agent is facing down an alien and asks it if it is armed. The alien answers back in an ominous tone, "We have manipulated you since fire and wheel. We need no weapons."

At that, the FBI agent draws his pistol and guns the alien down.

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Somehow, I'm getting the impression that we might be seen as a little gun happy.