CrimLaw

Blogging Criminally For Over Ten Years

11/28/2011

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.

----------

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.

Labels: A Catholic Moment

Ken Lammers . . . Permalink . . . 0 comments

11/21/2011

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).

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.

Ken Lammers . . . Permalink . . . 4 comments

11/20/2011

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.

Ken Lammers . . . Permalink . . . 1 comments

11/18/2011

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?).

Ken Lammers . . . Permalink . . . 2 comments

11/13/2011

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.

Ken Lammers . . . Permalink . . . 0 comments

11/10/2011

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.

Ken Lammers . . . Permalink . . . 2 comments

11/09/2011

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. ;-)

Ken Lammers . . . Permalink . . . 1 comments

11/07/2011

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 . . .

-------------------
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.

Labels: Virginia

Ken Lammers . . . Permalink . . . 0 comments

11/04/2011

Rock the Mo

In honor of Movember, I offer this tribute:

The Greatest Moustaches In History

Labels: Fun

Ken Lammers . . . Permalink . . . 0 comments

11/02/2011

Indonesian Police Part 2

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

Sometimes I wish I had a universal translator.

Labels: Fun

Ken Lammers . . . Permalink . . . 0 comments

11/02/2011

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.

Labels: Fun

Ken Lammers . . . Permalink . . . 0 comments

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Ambush in Bartlette
Chapters 1 - 13

Law & Theory

LAWS
Va.'s Versions of Mayhem (malicious wounding et al): 4 In One Statute ~ Graphic
Aggravated Malicious Wounding
The Moped Exception
Rape by Lie: 1 ~ 2 ~ 3
No Intent Needed
Arresting in a House
Common Law Trespass
Certificate of Analysis Introduction
Probable Cause: Car Passengers
Obstruction of Justice Limited
Stealing Electronic Items
Stolen Value: Price Tags
Stolen Value: No Price Tags
Stolen Value: Electronic Items
No Weekend Jail on Felonies
Obstruction of Justice Limited
No Trifurcation
No More Beer at the Barbeque
Respondeat Superior
DUI & Reckless Driving
Can You Steal From the Dead?
Outlawry Outlawed
Felony 2d Degree Murder
Banishment
Computer Fraud
Insta-Deputy
PROCEDURE
Using Statements Made During Plea Negotiations: 1 ~ 2a ~ 2b ~ 2c
Invoking Right to Attorney in Virginia
Who Prosecutes Misdemeanors?
Expungement
Surrebuttal
Virginia's Reasonable Doubt
Reasonable Doubt II
Instruction: Right to Arm
Virginia Castle Doctrine1 ~ 2 ~ 3 ~
Dismissed with Prejudice
SENTENCING
I. Limitations on Right of Judge to Alter a Sentence
II. Limitations on Right of Judge to Alter a Sentence
III. Limitations on Right of Judge to Alter a Sentence
Probation & Suspended Time
Advisement in Virginia
Jury v. Judge (sentencing roles)
Limits on Evidence Presentable to a Jury
Jury Sentencing Possibilities
&CETERA
Witnesses & Writ of Actual Innocence
Domestic Battery & Firearm Possession
Domestic Battery & Testimony I
Domestic Battery & Testimony II
Domestic Battery & Testimony III
Domestic Battery & Testimony IV
Shall Doesn't Mean Shall
Just Following Orders
Lycurgus Not Welcome in Virginia

Practice Tips

Opening Statements
Advice for New Prosecutor1 ~ 2a ~ 2b ~ 2c ~ 2d

Specific Cases

Legal Theory

Back When I was a Defense Attorney

Client Communication
~~~~~~~~~~~~~~~

CYA Letter: Felony Client
CYA Letter: Appeal

-----

Dear Mr. Jailhouse Lawyer
Conversation between Inmates about Lawyers
Innocent Client Pleads Guilty
Client Parents

Time as a Prosecutor

JAN07
The New Office
FEB07
Different Court Diferent Behavior
Competency
MAR07
Cats
Ma'am I'm the Prosecutor
JUN07
I know nothing
23 Felonies
JUL07
Cross
Cross II
2d Simplest Explanation
OCT07
Jury
FEB08
CrimLaw Prosecutorial Corollary #1
MAY08
Paranoia
JUN08
Why Not Drop?
JUL09
Buy Me Dinner First
AUG09
Jury Sentencing Argument
SEP09
Is Litter Patrol Jail?
OCT09
Paperwork Closing Argument
APR10
Bubonic Bob & the Creative Judge
JUL10
Finding the Perfect Witness
APR12
Small Town Cop : Big City Lawyer
JUN12
Maturity Ain't Orange

Criminal Law

Sentencing Law and Policy
FourthAmendment
Law of Criminal Defense
CrimProf
White Collar Crime Prof
4th Circuit
...
Simple Justice
Defending People
a public defender
Underdog
Indefensible
DUIblog
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Criminal Defense
Harris Co. Crim Justice
...
Seeking Justice
Crime and Consequences
The Chicago Syndicate
Patterico's Pontifications
The Magistrate's Blog
Trials & Tribulations
Charon QC
Changing the Court

Virginia Blogs

SW Virginia Law
Va Poli Blogs
Vivian Page
Bearing Drift
Not Larry Sabato

Worthwhile

Bloggingheads.tv
Gruntled Center
WindyPundit
day by day
The Faculty Lounge
Legal Scholarship Blog
PrawfsBlog
Justice & Drugs
Ernie the Attorney
Bag & Baggage

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.

Tech &
Vlogs

This Week in Tech
TWIT Live
Spill.com
Tekzilla

Copyright

Everything herein is copyrighted by Kenneth Frank Patrick Lammers Junior. License for use of particular posts is granted so long as this site is linked to and credited. Serial republishing of all or the majority of posts on a separate website from CrimLaw is forbidden.

11/28/2011

A Catholic Moment: Changes to the Mass

11/21/2011

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

11/20/2011

Lying to a Bad Judge?

11/18/2011

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

11/13/2011

Discussing the GPS on a Car Without a Warrant Case

11/10/2011

This We'll Defend

11/09/2011

New Blog Layout

11/07/2011

Why I Hate Practice Books (And Mopeds)

11/04/2011

Rock the Mo

11/02/2011

Indonesian Police Part 2

11/02/2011

Sometimes it Gets Boring When You are an Officer in Indonesia

Archive

Copyright

A Catholic Moment:
Changes to the Mass

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