Five Signs

If You Are Stolen . . .

Why Aren't I a Law Professor?

I got asked yesterday for about the 900th time, "Why aren't you a law professor?" After all, I've been commenting on law and criminal practice since 2003 on CrimLaw, I've had a couple articles published, and I'm the guy who goes around our Circuit lecturing other lawyers about changes in case law and statutes. The next logical step would to become a law professor.

OK. Well the first (and primary) reason that I have to admit to is, well, nobody has asked. I mean, I know I'd be an awesome professor; you know I'd be a stupendous professor. The problem is that nobody out there hiring knows it. It's a terrible oversight on their part and shakes my confidence in the omniscience of law school deans, but it is a fact.

The second reason is that, while I love research and teaching would be great, I've always been drawn toward the practical. I like mixing it up at the office and in the courtroom. I have seen professors who do some practical work. At Washington & Lee Law, Professor Groot did an excellent job of teaching and worked on death penalty cases. However, I wonder whether a new professor would have the latitude that a well established, significant professor does.

If I was offered a position teaching criminal law, procedure, evidence, &cetera I'd have to give it very serious consideration (great, now I'm giving my Boss ideas on how to get rid of me). It would be a great adventure (and I hear the pay is good), but right now I just don't see myself flooding every law school from here to Oregon with copies of my resume. So, don't get your hopes up too high defense attorneys, I think you're stuck with me for the foreseeable future. ;-)

Fear the Great Electronic Menace

Lately, I've noticed a lot of attempts to scare attorneys about the use of online resources. One form of this comes from "professionals" who make their living by telling attorneys how much danger they are in and how they can be saved. Telling someone not to tape their password to the monitor isn't exactly rocket surgery. I also like how they keep telling people to make their passwords longer and longer. Passwords are like padlocks. They keep the casual thief from getting in, but they aren't going to keep anyone serious out. They can accomplish that with six characters. If you're expanding your password to try and keep ahead of better and better password crackers you are going to be using a fifty character password in five years.

Another interesting point of fear mongering is coming from lawyers themselves. For instance, the ABA has come out with the following ethics opinion:

A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.

Okay, the part about an employer communicating with his attorney thru his employer's computer or

CrimLaw News From Around the Globe

1) A puff piece on Chesterfield County's drug court. Drug courts can run the gamut from extremely well run to just another way to save money by not sending people to prison. I haven't practiced in Chesterfield for over 5 years now, but it was one of the better ones I had seen as a defense attorney.

2) Wonderful. Drug companies are paying doctors oodles upon oodles of money. Of course, that has nothing to do with the rampant overprescribing and prescription drug abuse. Nothing at all.

3) If you dump your first three attorneys, you run the risk that the judge might decide to let you represent yourself.

4) Oops. Gotta follow the correct legal procedures if you want all that lucre from the traffic cams.

5) I'm Gumby Dang It! Now, give me all the money in the till.

6) If you show up an hour late to your murder trial, the judge might look askance at that.

7) Really? You can taser people if you have the right religious beliefs? Father O'Reilly hasn't keyed us in to that aspect of religion at Our Lady of the Mountains.

8) If you get subpoenas and send threat letters without the judge's permission, he might become a little irked.

9) The plural of moose is MOOSE. And it's still funny that they are getting drunk on apples.

Valuing Electronic Content that is Illegally Converted

So, the police find a computer with data or programs which can be proven to have been obtained in contravention of Virginian criminal law. How is the value of the data or programs to be proven?

Of course, the easiest way to prove value would be to use the price the data or program is sold for on the market. Data includes songs, videos, ebooks, etc. A song is probably worth .99$ because that's what it would cost to buy it on iTunes; a movie might be worth $2.99 if that was the price on Amazon; an ebook at Baen could be $6.00. The cost of a program would also be determined in this manner. The most commonly pirated program in the world (outside of Windows) has probably been Photoshop. If someone has an illegal copy of Photoshop its value can be easily found ($549.00). Similarly, value for programs such as Word, StarCraft II, or Final Cut Pro would be fairly easy to find.

The place where difficulties could arise here is in the valuation of older versions of a software title which are no longer sold or in inferior copies of an original. If someone downloads a copy of Word which is from five years ago, does it actually have a value? It's no longer on the market and, with free word processors such as Lotus Symphony, Abiword, and
Open Office, the prosecution would be hard pressed to show that but for the illegal download the company would have sold a single copy of its current program. Of course, this does not mean that the converted program has no value; it merely means that the indeterminate value would mean that a misdemeanor would have to be charged instead of a felony.

Similarly, if a song is .79$ at Amazon, but the illegally downloaded copy has half the kilobytes per second, does that mean the value of the copy is half the cost at Amazon? Perhaps. However, I think that this would probably be an affirmative defense after the prosecution has shown the usual cost of the piece of data on the fair market. As well, it usually wouldn't be worth the effort on the part of the defense. Unless the prosecution could prove that a large number of songs were downloaded as part of a single file (zip, torrent, etc) almost all data downloaded (songs, movies, ebooks) will not individually rise to felony level. Unless there is a statute allowing the aggregation of separate thefts each of the data items converted will be a separate misdemeanor whether the value is .79$ or .40$. Now, 432 misdemeanor electronic fraud cases (one for each song or video) would be nothing to sneeze at, but it would probably end up with less of a punishment than 10 felony frauds and be more painful for the prosecution to try.

Kentucky Pride & a Superbowl Ad

Dig deep in your pockets and give 'til it hurts.

Valuation of a Stolen Item. What if There is No Price Tag?

While sale price is the usual value placed on items, things which are stolen aren't always for sale. So, how do you determine the value to be placed on such items when determining whether a theft should be a misdemeanor (less than $200) or a felony ($200 or more)?

The answer which most courts would reach for would be fair market value. The question then becomes: How do you determine fair market value?

One manner which the courts use a lot is to allow the owner to testify as to value. Generally, the court will presume this is correct. However, this presumption is less sturdy than that of a price tag. The reason for this is obvious. That old, barely running car the victim couldn't sell can suddenly become a classic Chevy worth $20,000. This is a place where a defense attorney can really earn his pay.

Another way to establish market value is to show the price that its equivalent sells for on a resale market. There are a couple ways this can be done. The first is to use some sort of authoritative publication to establish value. The most commonly used of these is the Blue Book, which is used to establish the value of cars. However, there are a number of publications which can be used similarly for comic books, coins, stamps, etc. The second is to bring someone to court who can testify as to resale value. Thus, if someone stole a china set from 1893 a local antique dealer could come to court to testify as to its resale value. The only real difficulty with either method is establishing the condition of the item being evaluated. Here, again, the testimony of the victim is going to be key (assuming the stolen item wasn't recovered).

Sometimes, fair market value is not available. An example of this in Virginia is the case in which the appellate court basically stated that there is no fair market value for a catalytic converter because there is no resale market for catalytic converters in Virginia. In this sort of case, the way that value would most likely be established would be to take the value at time of purchase and subtract wastage from it for each year it has been possessed to determine value. You could probably use the same sort of devaluation found in tax codes for property value over a period of years. I've never had to prove property value in this manner and hopefully never will.

Tomorrow: Valuing Stolen Computer Data

Valuing a Stolen Item: The Price Tag

About a week ago, WindyPundit asked how value is proven in theft cases. It's an important question because the value of an item taken is usually determinative as to whether the accused faces a misdemeanor or felony charge.¹ For instance, in Virginia if an item stolen is worth $200 or more the accused faces grand larceny charges and up to 20 years in prison. If the stolen item was worth $199.99, or less, the accused will be charged with a misdemeanor carrying a maximum penalty of 12 months in jail.

When dealing with something stolen that a business sells, the price the business sells the item for is the value assigned to the item. This has the virtue of being simple to ascertain. On occasion, defendants will argue that the value should be that of the costs the business has in the item and nothing more. However, this founders on the shoals of a couple difficulties.

To begin with, actual costs of acquisition or production are hard to determine. If someone steals a shirt from a store at the mall, it's easy to determine the shirt is priced at $40 and that it was bought from the wholesaler for $20. Then start the more difficult questions. How long did the shirt sit on the shelf before it was stolen? In that time, how much money was expended on employees, utilities, rent, security, etc. How much money was spent on even more external things such as regional managers, the national headquarters, the warehouse which stored the shirt before it went to the store, the truck which delivered the shirt to the store, etc. How much of each of these expenses should be assigned to this particular shirt?

Of course, all of that would be difficult – or more likely impossible – to determine. At best the prosecution would have to bring an accountant to court every single time there was a felony charge to determine actual value. The proof of valuation part of a trial would take hours upon hours as the accountant went thru and described how a particular value is assigned to each and every particular item.

Then there are the costs of lost opportunity. The most obvious of this is the lost profit from the sale. However, this might not be the only opportunity loss. What if the shirt is part of a $300 ensemble? How much in sales does the company lose in addition to the specific items taken? I'm not sure an accountant would be enough to figure all that out. The prosecution might have to bring in an economist.

In most cases, Expenses + Opportunity Costs = Price Tag. As well, the courts aren't going to waste all that time on valuation in larceny cases because there are so many of these cases that if it did the entire system would bog down.

Tomorrow: What if there is no price tag?

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¹ Usually, but not always. Sometimes just stealing a specific item is a felony. Examples of this would be a credit card, firearm or dog.