Reasonable Articulable Suspicion to Pull Over Batman

Maryland police are brave enough to pull over Batman.

Police Dogs

In honor of the U.S. Supreme Court's acceptance of two dog sniff cases (Jardines and Harris), I thought I'd publish some pictures of our brave four legged friends with a badge.

Yes, You DO Have to Tell Your Client About the Plea Offer

Last week there were a couple of interesting cases about plea agreements fro the U.S. Supreme Court. In

Missouri v. Frye, MAR12, USSC No. 10-444, the prosecutor sent an offer to the defense attorney to reduce Frye's charge from a felony driving offense to a misdemeanor if Frye agreed to spend more time in jail. The attorney never took the offer to his client and subsequently Frye got convicted of the felony.  In Laflerv. Cooper, Mar12, USSC No.10-209, Cooper shot at a woman's head and missed and then, while she was running away, shot at her several times hitting her below the waist. He was offered a sentence of 51 - 85 months by the prosecutor, but his attorney told him he could not be convicted of attempted murder because the victim was not shot above the waist.  Consequently, Cooper was convicted and was mandated a sentence between 185 - 360 months.  It's not terribly surprising that both Frye and Cooper claimed that their attorneys were ineffective.

In Frye the government held firm and claimed, all the way to the Supreme Court, that because there is no constitutional guarantee of a plea offer there was no constitutional infirmity when the attorney did not tell his client about the plea offer.  The Supreme Court wasn't having any of that. Justice Kennedy wrote an opinion stating that an attorney not telling his client about a plea offer is ineffective assistance of counsel and therefore violate the right to counsel under the 6th Amendment. He set forth an exact test to be used.  If defense counsel does not inform his client of a plea offer (unreasonable behavior), in order to show prejudice the defendant must show (a) a reasonable probability they would have accepted the earlier plea offer and (b) a reasonable probability neither (i) the prosecution nor (ii) the trial court would have prevented the offer from being accepted or implemented. The Court remanded to the trial court expressing reservation as to whether Frye would pass part (b) of the test because, before coming to trial, Frye got arrested for the same felony driving offense a second time.

In Lafler the government seems to have conceded that telling someone that he couldn't get convicted of attempted murder because none of the bullet wounds were above the waist is ineffective assistance of counsel.  Therefore, the Court used this case to explain what the remedies are for ineffective assistance of counsel when it pertains to plea agreements.  If the plea offer was to keep the same charge, but to agree upon a lesser sentence, then

the remedy is for the trial court to have an evidentiary hearing and (a) determine if there is a reasonable probability that but for counsel’s errors the defendant would have accepted the plea and (b) then determine whether the defendant should (i) receive the term of imprisonment the government offered in the plea, (ii) the sentence he received at trial, or (iii) something in between.  If the plea offer was to change the change the charge, such as reducing it from a felony to a misdemeanor, or there was a mandatory sentence the judge had to impose after a trial, the prosecutor must re-offer the plea agreement and the judge will hold an evidentiary hearing to decided whether to impose the plea agreement or leave the conviction undisturbed.  Ine either evidentiary hearing, the trial court may consider (a) the defendant's previous willingness or unwillingness to accept responsibility for his actions and (b) any facts of the case which came to light after the plea offer had been made.

Of course, both of these remedies break Virginian laws and Rules of the Virginia Supreme Court, but I expect that constitutional rulings coming down from D.C. trump those. It will be interesting to see the changes to these laws and Rules adjusting to these cases.

Illegal to Marry After a Divorce in Virginia?

Sometimes while you are wandering around the statutes you find some interesting things.  I was looking at the bigamy laws when I tripped over Virginia Code §§ 20-38.1 and 20-39.

§ 20-38.1. Certain marriages prohibited.
 (a) The following marriages are prohibited:
 (1) A marriage entered into prior to the dissolution of an earlier marriage of one of the parties;
 (2) A marriage between an ancestor and descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption;
 (3) A marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood.

----------

§ 20-39. Prohibition continues notwithstanding dissolution of previous marriage.
 In the cases mentioned in § 20-38.1, in which the relationship is founded on a marriage, the prohibition shall continue in force, notwithstanding the dissolution of such marriage by death or by divorce, unless the divorce be for a cause which made the marriage originally unlawful or void.

Now § 20-39 is obviously aimed at § 20-38.1(2) & (3), but it does not limit itself to those sub-sections.   The plain language of § 20-39 does require it to be applied to § 20-38.1(1). So, how does § 20-39 apply to § 20-38.1(1)?

First you must look at the language in § 20-39 "in which the relationship is founded on a marriage" and ask what relationship there is in § 20-38.1(1). There are only two possible relationships and a marriage before a divorce of a prior marriage is void ab initio so the only actual legal relationship is the "earlier marriage."

Now that we know the "relationship . . . founded on marriage" is the "earlier marriage" we must look to what restrictions are placed upon individuals in the earlier marriage by § 20-39.  This is very clear.  "[T]he prohibition shall continue in force, notwithstanding the dissolution of such marriage by death or by divorce."  What prohibition?  The one in § 20-38.1: "The following marriages are prohibited."

As a consequence of all this, is it plain to see that the "earlier marriage" which is "founded on marriage" prohibits marriage "prior to the dissolution of an earlier marriage" and "the prohibition shall continue in force, notwithstanding the dissolution of such marriage by death or by divorce." Under § 20-39, the effect of the earlier marriage never ends, thus prohibiting a second marriage forever.

So, if someone gets divorced under Virginia law he or she is forbidden by law from marrying again.  The punishment?  Under § 20-40, "[i]f any person marry in violation of § 20-38.1 he shall be confined in jail not exceeding six months, or fined not exceeding $500, in the discretion of the jury."

Isn't statutory interpretation fun?

Community Mediated Sentencing

Over at Sentencing Law and Policy, Professor Berman has pointed to a practice in a few Alaska courts of "Circle Sentencing." It's an unfortunate name, but there's not much new to the concept. It's being sold as something that is somehow uniquely applicable to Native Alaskans. Nevertheless, anyone who has been going to CLE's or reading academic tracts over the last few years will recognize the concept. For identification purposes, I'm going to call it "community mediated sentencing."

Community mediated sentencing calls for the defendant to be put in a community group consisting of family, victims, community leaders, &cetera which explain to him the problems he has caused in the community.  The idea is to make the offender recognize his place in the community and the harm he has caused that community in order to cause him to alter his behavior.  It's a wonderful idea, but it has at least three serious flaws.

First, it assumes the willing and helpful participation of the community.  Second, it assumes that the offender will respond. Third, it is short term.

The willing and helpful participation of the community is difficult to obtain.  The local merchant who has been stolen from wants his strip of flesh; he has no interest in mollycoddling the thief.  The merchant from the national chain doesn't care about anything but getting restitution; he has more important things to do than spend the day talking to a shoplifter.  Community leaders can be anyone from the local preacher who means well, but has been ignored by the thief for the last 10 years as he preaches against the evils of drugs from the pulpit, to a local politician or activist.  The offender has not been paying attention to these people for the last ten years of his life; it's unlikely that's going to change now.  Then there's the offender's family.  If the offender comes from a hard working straight laced family they will most likely have told him the same things they are going to say in the mediation.  If he comes from a family wherein drugs and theft are just something everybody in the family does, and jail time is a part of life, then the family's participation is not likely to accomplish much.

Offenders seek programs like this because they perceive that the program will lessen their punishments.  Most offenders aren't particularly stupid; they will show a surface veneer of redemption. They will sit there and say the right things when expected to.  They will hang their heads and agree that they did wrong and swear that they understand the damage they have done to the community. At a superficial level they may actually believe what they are saying.  Nevertheless, once their community mediated sentencing is over, they will go back to the same places, hang out with the same people, and engage in the same behavior.

Finally, community mediated sentencing is a very short duration intervention. A few hours at most. Short term interventions do not work because they do not exert the necessary influence to change well rooted long term behaviors.  This is why we see all sorts of people who have been through shoplifting classes or two weeks of drug rehab right back in court. On the other hand, well run drug courts which require a year or more counseling and behavior modification (in my experience) do not have many of their graduates reappearing in court.  It's the continual behavioral retraining which actually does good; I've seen nothing effective short of a 6 month intensive program and even then doubt it is long enough.

These are the flaws in community mediated sentencing. To be honest, there will always be success stories in short term interventions such as these. There are always some people who are ready and just need that little shove to get them on the right track. However, when 5-10% of those participating are actually made better people that program is at least a 90% failure. Personally, I think the first two flaws can be worked around. It's the third which is extremely problematic. The funds aren't there to be able to put every low end offender into a program that lasts at least a year and strictly monitors the behavior of the offender.  As well, there is a very real concern that if there was a long term program and masses of low end offenders were funneled into it that it could not be as adapted to an individual as needed and would become just a way to spot check individuals and keep them from costing the taxpayer money by incarcerating them (you know, probation).

This is a wonderful idea that makes for great academic discussions and papers. It may also be something which can work in a very small community where shame can have a rectifying effect.  Nevertheless, in most situations it's not a viable solution.

We're 24! We're 24!

Yep, W&L Law is number 24 on the new US News ranking. That keeps W&L the highest ranked private law school in Virginia although there is a *sniff* public university somewhere in the Commonwealth which is ranked a little higher.

Oh No a Logo!

So, Scott's off haring after stupid marketing tricks again. This time it is about a kid barely out of the gates spending time worrying about and creating a logo for his two man firm. It's a never ending quest he has embarked upon to shepherd young lawyers away from the idea that glitz can make you successful rather than that boring actually practicing law stuff.

Most of the time I agree with Scott about these things (ie: you won't get clients by publishing a blog), but this time I have to disagree. I'm not disagreeing so much because he's wrong, but because I think I have to or I'd be hypocrite.

Hi. I'm Ken and I used to have a logo.

Actually, if I ever go back out into private practice I'll have one again. Let me explain.

I didn't create this logo for my law practice. It was a personal "coat of arms" I created way back when and have added to over the years. I think it may have started as a high school project. In the end it looked like this:

Don't ask me what all of it means. At least half of it is stuff that I thought looked cool when I was 16.

Anyway, one of the things I realized fairly early into my practice is that clients would go into court and tell the judge "Mr. Lammers said . . ." and sometimes they would go in with letters which backed up their claims, but which I did not ever remember typing. I talked to some of the senior defense attorneys about this and they told me "Sure, that sort of thing happens all the time. That's why we have pre-printed multi-color stationary. They can't fake that."

So, I went to the printer and walked right back out when the price he quoted me was about half the gross national product of Brazil. Faced with this, I went out and bought a cheap color printer. Then I figured out how to set up Word Perfect so that the logo would be on top and since nobody else had that pic and nobody would put that on their letters (as opposed to the ubiquitous scales) it made whether the letter actually came from me easy to discern.

So, you see, it was a security measure, NOT a sign of self importance or a marketing tool.

That's my story and I'm sticking to it.

Rape: Why it's not about control in the law

Over at The Volokh Conspiracy, Eugene Volokh has raised the almost heretical idea that rape is about sex instead of control.  As often occurs with posts over at the Conspiracy, the discussion in the comments is probably better than the post itself.  I always thought this argument was silly myself as rape, by definition, is gaining control of another in order to have sex with that person.  If one merely gains control it's abduction, not rape. If one adult merely has sex with another it may be hedonism, but we haven't outlawed that entirely yet.

And yet, as a lawyer, I don't care if rape is about sex or control. I care whether it fits under the statute. In Virginia Va. Code § 18.2-61 requires:

If any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or she shall be guilty of rape.

The difficulty in proving rape is that most of the time there are only two witnesses. This isn't much of a problem when the victim is badly beaten and at the hospital getting the rape kit done. In lots of other cases it is a terrible problem.

The inferred element above (except in the rape of a minor) is the lack of consent.  It is specifically the lack of consent, NOT whether the accused party reasonably believed that consent was given.  Intent is given extremely short shrift under Virginia's case law. In Commonwealth v. Minor, JAN04, VaSC No. 030401, the standard was set as:

Although proof of rape requires proof of intent, the required intent is established upon proof that the accused knowingly and intentionally committed the acts constituting the elements of rape.

In other words, if you did it you meant to do it. That's not terribly helpful in the close calls. In the end, it almost always comes down whether consent was given.

The reason that courts and legislatures have shied away from allowing the accused's perception of consent as evidence is rooted in the desire to avoid the "she asked for it" argument. The basic principle that no one asks to be raped is axiomatic.  The mere fact that a woman dresses a certain way or is at a certain location does not mean she is asking to be raped. This seems to have taken a while to beat into the norms of society, but it has taken purchase. In fact, it can be argued that in some cases it has gone too far (Antioch Policy).

On the other side of this is the fact that consent does not need to be verbal. This causes a rather nasty dance in the courtroom where the prosecution tries to keep things out on the grounds that it is being introduced to show the accused perceived her consent (she asked for it) and the defense is trying to get things in on the grounds that they actually tend to demonstrate consent. What does it mean when the young lady shows up at the door wearing high heels, a leather micro-mini, and a skin tight tube top? Does your answer change if she shows up dressed like that in mid January and the weather outside is 15 degrees fahrenheit?  Thankfully, I'm not the judge who has to make those calls.

The consent issue can be particularly problematic in intimidation and incapacitation by alcohol cases. Consider a 300 pound offensive lineman and a 106 pound girl in his room. He makes a move on her, she says nothing to dissuade him, and they have sex. Was she intimidated by this guy without him even realizing it?  Or, did she think about how big a mistake it was the next morning and convince herself that she would have never had sex with him if he were not so intimidating? Or did he purposefully use his size as a way to scare her into being unable to refuse him?

Consider two college kids drinking at a Halloween party and both are drunk. They go off together and have sex. He says she helped him get her out of that skin tight catsuit and they had sex. She says she was so drunk she doesn't remember anything but coming to consciousness with him on top of her.

The problem with the first scenario is that even if you were there you might not be able to discern the reality of consent. In the second scenario you end up in a swearing contest between two individuals who both may believe their version is the truth.

Imagine overlaying an "intent to control" element on top of all this. The jury instruction might go something like this:

In order to find the defendant guilty of rape you must find that his primary goal was to demonstrate control of the victim through sexual behavior.

That is a nightmare. It would stop all sorts of rape charges dead in their tracks. It would make the date rape cases like those above - already the hardest to prosecute - almost impossible. "Sure, she was drunk and Bob took advantage of the situation, but he wasn't trying to demonstrate control; he was just trying to have opportune sex." It would even make the stranger sex cases difficult. "He had sex with her on the 15th, but it wasn't to demonstrate control; if it had been to demonstrate control it would have had to be part of some continuing pattern of behavior in which he asserted control prior to this event and the sex was just a demonstration of that control."

In fact if rape were a demonstration of control the only people who would consistently qualify would pimps and the abuser in an abusive relationship. Mind you, I think that this could be incorporated into the law for just those situations as an aggravating factor.

If you find that the defendant raped the victim and that this rape had the primary goal of demonstrating control over the victim through sexual behavior, you shall find the defendant guilty of aggravated rape.

However, I don't think that rape as a demonstration of control can, or should, be written into the general law of rape.

Dicta v. Dicta: The Meaningless Decision in Howes

I was just putting together my summaries of last month's cases and read Howes in depth for the first time. It's a Habeas case rising from State courts. Therefore, all that a federal court need do to reject it is to find some scrap of law that supports the assertion that there is enough flux in federal precedents that there is no extremely clear  constitutional rule the State court has violated.

In Howes, Alito does this by characterizing a clearly set out rule as dicta and then pointing to other dicta which uses to counter the rule. Having done this, his opinion ends. Right? No, of course it doesn't. He then goes on to bloviate on the rule as he wishes it to be (can't have short concise opinions). And here's my summary of his dicta:

Howes v. Fields, FEB12, USSC No. 10-680: 

(1) The fact that (a) no charges have been filed on the subject the officer is questioning the prisoner about and (b) the prisoner is not being held on a charge related to the subject of the questioning do not mean the prisoner is not entitled to Miranda warnings. (2) The fact that a prisoner is (a) imprisoned, (b) questioned in private, and (c) questioned about events in the outside world does not mean that he is in custody for Miranda purposes. (3) Detention alone is not enough to establish custody for Miranda. (4) The fact that a prisoner is imprisoned is not enough to require Miranda because (a) a prisoner will not be suffering from the shock of recent arrest, (b) a prisoner is not likely to be lured into speaking in hopes of prompt release, and (c) a prisoner knows the officers questioning him lack the power to reduce the duration of his incarceration. (5) Questioning a prisoner in private does not require Miranda warnings because he is merely being separated from prisoners, not friends and family. (6) Questioning a prisoner about something that happened outside the walls of the prison does not require Miranda warnings because it has just as much potential for criminal liability as questioning about events inside the walls. (7) When a prisoner is unrestrained and told he can leave and go back to his cell when he wishes there is no custody for Miranda purposes.

Kingdom: A Small Town Solicitor's Life

Netflix has decided that I love British television programs and keeps recommending them to me. Most of them I ignore, some of them I watch with bemusement, and some strike a chord.  Kingdom turned out to be a real gem. I rate it a 4 out of 5.

Kingdom is the story of Peter Kingdom, a solicitor in Norfolk. He is surrounded by a number of characters who are slightly offbeat. There's his protege, Lyle, who apparently didn't go to the best of law schools or spend his time worrying terribly about grades while there (it is implied that he would have never come out to Norfolk if he could have gotten a job in London), but who tries hard and has all the foibles, desires, and prejudices of youth. There's Gloria, the secretary who is the one who keeps everything running however chaotic things get. There's also the chronically depressed sister, Beatrice, who moves in and acts irresponsibly.

There's also a string of slightly goofy clients who come in and want Peter to handle all sorts of situations for them.  The most prominent of these is Sidney, the town eccentric who wants to fight the council on everything it wants to build in the town. My favorite episode is probably the one when the powers that be in the town get fed up with Sidney and start doing things to mess with him, such as putting a "No Parking" sign in the middle of his porch, 4" from the only doorway so that Sidney has to climb in and out his window.

There's also a slightly darker back story, which explores the death of Peter's brother and the debts he had accumulated with criminals prior to his dissappearance. I can't say this drew me to the show, but I think it serves as an anchor, keeping the show from spinning into a goofy comedy.

The great thing about this show is that it is just enjoyable. You are not being shoved along at breakneck speed. There's not a lot of people yelling at each other and threatening law suits. The tone can be serious, but it is not overly brooding. Best of all, the characters are not so eccentric and goofy as to be ridiculous. It's filled with understated humor and interesting situations, but no flash. Of course, this means it would never be made in the U.S.

Sadly, only three seasons with 6 episodes apiece were made in the U.K.  I recommend each and every one of them.

Can an Officer Enter a Residence to Arrest a Suspect?

I am constantly getting asked what the parameters are when a defendant is in a house and officers are seeking to arrest him. Then I always get dubious looks when I say, "Officers can do X, Y but not Z." So, I thought I'd look at it one more time and write it down here so I can tell people where to go to find information on entering a house.

The foundation of any discussion on entering a home is Payton v. New York, OCT79, USSC No. 78-5420.  In Payton the Federal Supreme Court struck down a New York statute that allowed officers to enter a residence without a warrant to make a felony arrest.

In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Payton made it clear that officers couldn't enter a residence to seek a suspect, absent the usual exigent circumstances (defendant will escape, defendant will harm self or others, defendant will destroy evidence), unless they had a warrant in hand.  This case probably more sited for its converse aspect: if an officer has a warrant he may go into the residence to get the suspect.

As with any foundational case, this case led to a series of subsequent cases answering cases which refined the holding. These are the major questions that I know have been answered so far.

Can an officer with an arrest warrant enter a third party's house in order to arrest a suspect?

No. An arrest warrant does not allow an officer to enter the house of a 3d party in order to get the suspect..  Steagald v. U.S., APR81, USSC No. 79-6777.  Of course, there are exceptions to this if there are exigent circumstances or consent.  In all other circumstances the officers must get a search warrant to search a third party's residence.  However, while this definitely protects the resident, the entry into the 3d party's residence is not a violation of the suspect's rights and he probably wouldn't be able to use this as a defense.  See e.g. U.S. v. Willis, SEP10, USDC EDVa No. 3:10CR186-HEH.

What if an officer is trying to arrest a suspect and she runs back into her house? 

If a person is in public, including the open doorway of her house, and the officers engage in an attempt to arrest her, the officers are not required to stop at the door when the suspect retreats into the house.  U.S. v. Santana, JUN76, USSC No. 75-19.  It is considered a "hot pursuit."  Thus, during the Saturday night fun and games, when officers respond to a call about Bob being drunk again and Bob opens the door and spits at them, it's constitutional when they break the door down to get him.

Can officer just enter the suspect's residence as long as they have an arrest warrant?

No.  There is a test as to (a) whether this is the suspect's residence, and (b) whether the suspect is in the residence. However, there is a difference of opinion as to what level of proof the officers must have of these two factors.  The older standard is the one first laid out in U.S. v. Magluta, FEB95, 11Cir No. 93-5069.

We think it sufficient to hold that in order for law enforcement officials to enter a residence to execute an arrest warrant for a resident of the premises, the facts and circumstances within the knowledge of the law enforcement agents, when viewed in the totality, must warrant a reasonable belief that the location to be searched is the suspect's dwelling, and that the suspect is within the residence at the time of entry.

The reasonable belief standard seems to be the one that is adhered to in most jurisdictions, but in a minority of jurisdictions the standard is probable cause. The case which begins this line is U.S. v. Gorman, DEC02, 9Cir No. 02-50053.

We now conclude that the "reason to believe" standard of Payton and Underwood embodies the same standard of reasonableness inherent in probable cause.

 I cannot find any Virginia cases which decide this question. However, it seems to me that the Courts Appellate Virginian would almost certainly follow the majority and adopt the lesser reasonable belief standard.

Can an officer enter a suspect's residence if he has a misdemeanor arrest warrant for the suspect?

Yes. People just don't want to believe an officer can enter a residence to arrest someone on a misdemeanor warrant and often law enforcement agencies have policies against doing so. Additionally, there is an argument that since Payton struck down a statute allowing entry without a warrant to make a felony arrest that the converse aspect of that decision is that officers can enter with a felony arrest warrant - not a misdemeanor arrest warrant. However, this interpretation of Payton has been roundly rejected.

The case which sets forth the interpretation of Payton allowing entry with a misdemeanor warrant is U.S. v. Spencer, JUL82, 2Cir No. 81-1493.  The decision points out that no matter the language of the rejected statute, the court in Payton speaks of arrest warrants generally, not distinguishing felony warrants and misdemeanor warrants. It concludes that the general language includes all arrest warrants (felony, misdemeanor, and bench) and therefore an officer with any arrest warrant can enter a residence. Every opinion I have found addressing this issue adopts the Spencer reasoning and allows officers to enter residences when they have a misdemeanor warrant in hand. In fact, Virginia takes it a step further. In Archer v. Commonwealth, NOV97, VaApp No. 1726-96-1, the Virginia Court of Appeals approves entry when the officer knows of the existence of an arrest warrant, even if he does not personally have it.