30 August 2013

Ambush in Bartlette: Chapter 19

Yusif woke from a nap to the sound of someone knocking on the front door of his apartment. He looked up at his computer and the screen saver told him that it was 3:42. He usually slept at least another hour before he got up, ate, showered, and went out for Saturday night activities.

He walked over to the door, shaking his head and running a hand through his hair. As he did there was another knock and he hollered out “Yeah. Yeah. I'm coming.” Then he opened the door and found Madeline Mullins smiling evilly up at him.

Well, I hope that I'm not supposed to take that statement at face value.”

Yusif froze and started to sputter something as she laughed and walked past him into the apartment. Into his uncleaned, unprepared for company, apartment. Which had not been vacuumed for at least a month. Which had the remnants of last night's Dairy Queen supper and today's Sir Pizza lunch on the coffee table. He walked past her and grabbed them off the table and tossed them in on the counter area in the kitchen part of the room. Because he thought as he looked at the unwashed dishes this drew his attention to that makes things so much better. He turned back around to find Maddy with the same impish smile. And, it was a devastating smile.

Madeline “Maddy” Mullins was about five foot two, with curly black hair that went halfway down her back and a body that tended toward fat. She obviously knew this and worked out for hours every day to keep it under control. Whenever Yusif went to the local hole-in-the-wall gym he saw Maddy there riding the stationary bike or jogging on the treadmill. All that working out didn't make her skinny – nothing would ever make her skinny - but it kept her right in that hourglass zone which drove men nuts. At least it drove the guys at the gym nuts. As the truck driver whom Yusif usually worked out with put it. “Once she settles down with a guy and pumps out a couple youngins, she's gonna swell up like a tick on a hound. But up to that point, that boy's gonna have himself one Hell of a good time.”

Today she was dressed in a sky blue dress that fit just tight enough, and had just enough decolletage, to accentuate everything she had without quite crossing the line into sluttiness. The girl definitely knew how to maximize her assets. And she was standing in the middle of his apartment. And Yusif had probably never been quite as intimidated by a woman as he was at that moment. And she knew it.

Um, Yusif, aren't you going to offer a girl a drink? Or at least a seat?” She looked around the living room and realized that the only place to sit was the beat up old futon with his blanket strewn across it. “Although, I doubt that thing has enough space for the two of us to sit on it. I may have to sit on your lap instead.”

Yusif could actually feel himself blushing. Then he could feel himself starting to get angry. And that finally made him able to speak.

Why are you here? What are you doing here?”

She gave him a stern look that was colored with a bit of humor. “It's called flirting, Yusif. You should try it some time. It's fun.”

When he didn't react she continued. “Anyway, I'm here for two reasons. First, we're going out next Friday night. I'm tired of all this dancing around at the gym. You look at me; I look at you; you look at me; nobody does anything. That's just plain stupid. Next Friday. Dinner. Someplace decent. And I mean a place that serves wine, not a kicker bar with only Bud and Jack behind the counter.”

Yusif started to snap something, but his brain engaged just in time. A date with Maddy Mullins was not a bad thing. He started to regroup and think it over in his head. When he was quiet too long she gave him a look, nodded her head, and went on.

Okay, that's settled. Don't you want to know what the second reason is?”

He nodded slowly, a cautious look in his eyes, and she went on.

We're going to run you for commonwealth attorney this year.”

Wait! What?!? We?” The fog in Yusif's brain burnt away as his super ego and survival instinct combined to stomp his libido. “What are you talking about Maddy?”

We, the Democratic Party of Bartlette, are going to run you for commonwealth attorney.” 

27 August 2013

Introducing The Virginia Theft Project

The Virginia Theft Project

Virginia has never created a “theft” statute. Instead, it has a hodge-podge of common law offenses and statutory creations under larceny, fraud, embezzlement, et cetera. I thought I’d start trying to lay out as much of Virginia’s theft related crimes as I could in a series of posts which I am going to label the Virginia Theft Project.

I hope to make one entry a week until I run out of things to write about. I’ll start with the more obvious common law crime of larceny and move from there.

VTP: Defining Larceny

Larceny is the most basic of theft crimes. Of course, a crime this important can’t possibly be statutorily defined. Instead, in Virginia we rely on definitions which have been developed by the courts over the centuries. At its core larceny is criminal trespass upon the chattels of another with the intent not to restore those property rights trod upon. See Vaughan v. Lytton, 126 Va. 671 (1920)(a discussion of the definitions offered by various legal treatises for larceny and specifically 2 Bishop on Criminal Law describing theft as trespass). In Virginia cases you will sometimes see this described as “trespassory taking.” This is instructive in that points to larceny as the original “theft” crime whence all the larcenies, frauds, embezzlements, and statutory theft crime sprang (probably so far back in history that we would have to examine British common law to find its roots).

In more modern times the definition of larceny has been somewhat more locked down. It is defined as “the wrongful or fraudulent taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently.” Carter v. Commonwealth, 280 Va. 100, 104-105 (2010).

Most of that is pretty simple to understand, but “intrinsic value” does need some clarification. Under long-standing Virginia case law there is no requirement that the prosecution actually prove a value to prove larceny occurred. The value can be less than that of the smallest coin and no distinct proof of a specific value is necessary. 
Wolverton v. Commonwealth, 75 Va. 909, 913 (Va. 1882).

With this, we have the basic framework of larceny. I’ll build from here in the next couple posts wherein I discuss felony larcenies, misdemeanor larcenies, exceptions to larceny, presumptions of larceny, continuing larceny, attempts, conspiracies, and deemed versus punished as.

26 August 2013

Ambush in Bartlette: Chapter 18

Bo woke up to the sound of the alarm on his phone. It was playing some random song from Pandora that sounded like it belonged in a Eighties era disco. As he walked across the room to turn off the screaming techno-beat, he wondered yet again why his wife refused to use her own account and kept polluting his Pandora selections with this garbage.

Once the phone was quieted, he looked at the time. It was four o’clock in the afternoon, the time he usually woke up since the Sheriff banished him to the mid-night to eight in the morning shift. He could smell something cooking in the kitchen. Mary always tried to cook an especially good meal for him on Saturday afternoon. He was trying to sort out the odors when the house phone rang. He left it for Mary and started picking out clothes to change into after he showered.

After six rings, Mary’s voice echoed through the house. “Pick up the phone, lazybones. I hear you back there and my hands are covered with grease and flour from whatever this Southern-fried whatsimicallit is that I’m making because you like your arteries clogged.”

Bo smiled. Most of the week she made him eat healthy food (at least at home). But once a week he got real food and he would go to some lengths to preserve his Saturday feast - even answer the phone. He grabbed the handset next to the bed.

It was Clyde Mullins. The Mullins were a significant family in Bartlette because they owned the two Hardees in the county and seven banks there and elsewhere. However, Clyde was best known for being the head of the local Democrats and after exchanging a few pleasantries, he got directly to the reason for his call.

“Bo, I heard about what happened yesterday. You got royally screwed.”

“The Sheriff has every right to run for office again.” Bo replied in a neutral tone.

“No. No, he really doesn’t.” Clyde said. “We all know about his health problems. He’s not fit to hold the office anymore. And everyone knew you were the next in line. Now, because you had the gall to survive an attack by his deputies, he’s pissed at you. He’s not only stuck you with the worst duty he could find, he’s also messing with your future.”

“Clyde, what do . . .”

“I want?” Clyde continued, rolling right over Bo. “I want you to announce that you are running for sheriff on Wednesday just like you planned. Only, I want you to announce as a Democratic candidate.”

Bo sat down on the bed. He’d never even thought about running for office as a Democrat. He’d grown up in Bartlette and could not remember the last time a Democrat held a significant elected position. He must have remained silent for a while because Clyde started asking if he was still there. After he grunted something, Clyde went on.

“Look, I know I’ve kind of sprung this on you, but I’m going to need an answer. You’re the best choice, but at least one of the Mahans is a Democrat and I’ve got to call him if you won’t step up. And, I think you should know that we’ve already got a really good candidate for Commonwealth Attorney. Yusif has agreed to run.”

19 August 2013

Ambush in Bartlette: Chapter 17

Yusif looked at the files and disks sitting on his desk and the two chairs in his office. After Brad indicted Brownie, Dave, and Jeff on capital murder charges, the feds finally agreed to allow him to discuss the evidence with others. The first thing Brad did was dump all the documents and recordings on Yusif with orders to organize them and put the evidence in order for trial. The stuff Yusif had around his desk was a tithe of the reams of paper which the feds and state police wheeled into his office two weeks back. The rest were in boxes which were stacked two deep up the wall to Yusif's right.

Yusif had read through everything and pulled out the stuff around his desk. He sat looking down at the most important reports and tapes from the boxes and wondered what he was going to tell Brad. Brad had asked for a summary today and Yusif knew what his boss wanted to hear. Brad wanted to hear that the cases were all in good order and would be easily proven in court. Yusif could not tell him that. Sure, a prosecutor would have to stumble in blind drunk to lose the cases against Brownie and Dave. However, the case against Jeff was worse than thin. It did not exist. Everything was supposition and statements by people who had a lot of incentive to put the blame on someone else. The recordings which were supposed to back the statements were useless.

The all important recordings were supposed to be the linchpin of any prosecution against Jeff. Only, they weren't. They were all snippets cut out of larger conversations and they were all ambiguous. Sure, Jeff complained about Bo being in the way of his aspiration to become Sheriff, but he never told anyone to do anything about it. Likewise, there were snippets of conversation about drug trade in Yared, but none of them showed more than the knowledge that Yared was the center of corruption and illegal activity in Bartlette County. Without more of the conversations to give context, these scraps of dialogue lent themselves to whatever meaning the listener cared to give them. There was no way they proved murder beyond a reasonable doubt.

Yusif looked at the clock. It was half past two and Brad should be back in his office by now. He sighed and got up to walk down stairs. Putting this off would not make it any more pleasant. Brad was going to be in a foul mood this afternoon. The third Friday of the month was the Republican luncheon and those meetings were getting more and more acrimonious as Sheriff Minton and Brad faced off over the pending trial. It was becoming more and more obvious that the Sheriff's supporters were trying to push another attorney to challenge Brad for the Republican candidacy for commonwealth attorney.

Yusif found himself standing in the door of Brad's office. He had to wait for a couple minutes because Brad was on the phone griping to someone about the luncheon. Apparently, the Sheriff had announced that he would be running for Sheriff again "because there is no other suitable candidate." This kneecapped Bo Ross, who everyone knew planned to announce his candidacy next week. Brad saw Yusif and waved him to a chair in front of his desk. Then, he used Yusif as an excuse to end the conversation.

As he hung up the phone he glared across the table at Yusif. "Can you believe that shit? That old bastard screwed Bo over. He's already banished Bo to the midnight shift 'cuz he can't stand to look at him. And now Minton's screwing him out of the Sheriff's job."

"Can you do anything about it?" Yusif asked.

"Not a damn thing." Brad replied. "Everyone I can influence would already vote against Minton. If I openly endorse Bo all it will do is drive more people away from him.”

Brad waved his hand. “Enough of the political crap. How are things with the ton of papers the FBI dumped on us?”

Yusif rubbed his hands together, pausing for a beat. “It's not good boss.”

“What do you mean, 'It's not good?' The case the FBI put together is pretty much bulletproof. They walked me through the evidence and I didn't see anything wrong. What is it?”

“Well, it's solid for Dave and Brownie, but there's no case at all for Jeff.”

“Look, Yusif, I know you like Jeff. Hell, I like Jeff. But he killed six people in that alley. He may have sent other people to do it, but he killed just as sure as if he pulled the trigger himself.”

Brad was leaning forward in his chair pointing his finger at Yusif. A big man, Brad was used to being able to pressure other men with his size and he subconsciously reached for that advantage whenever he was in an argument. However, Yusif was offensive lineman large – a full two inches taller and sixty pounds heavier than his boss. He had also seen Brad in action for years and realized when Brad was trying to intimidate someone into agreeing with him. And Yusif did not intimidate easy. He did not lean into his boss, but he did not retreat an inch either.

“No, you look, Brad. There's. No. Case. Against. Jeff. All there is are the statements by three crooked-to-the-gills ex-police who are trying to get out of things by blaming other people. Absolutely nothing supports their story. I've gone over all the FBI stuff. There's nothing there. Nothing.”

“Bullshit. I've heard those tapes. Jeff knew what was going on. He pushed it. He's the God-damned ring leader and it's obvious. You just don't want to believe because Jeff fooled us all. Hell, he still has you fooled! Do your fucking job. We are going to convict Sanger and he is going to get the fucking needle. No discussion. No debate. He killed them. He dies.”

“But the people who actually shot everybody get a pass? Because the only way you can possibly make that case is to put them on the stand and they won't testify unless you take the death penalty away. They killed without remorse, Brad. And now they are lying without remorse. And you're falling for it. You are going to kill an innocent man based on their lies. You can't do that!”

“I can. I will. He is guilty as fucking sin and you and the Sheriff are the only assholes who think any of those assholes are innocent. Do your job and get the damn case ready.”

Yusif looked Brad in the eyes and steadied himself. “I will not. You knew from the day you hired me that I go to a Church that doesn't believe in the death penalty Still, you assigned me work on the cases in which you are trying to get it. Okay. I can hold my nose and do the work - as long as it's just. This isn't just. It's stupid. You're planning on letting two killers get away with it so they can help you try to kill the guy who you've got absolutely no evidence did anything. There's no evidence that Jeff did anything and I won't do it.”

“Get out of my office.” Brad's voice was flat, but his face was bright red and his eyes boiled with anger. “In fact, get out of the building. I don't want to see you at all until Monday. Now get out!”

01 August 2013

Ambush in Bartlette: Chapter 16

Brad walked right past Paula and Jeanna and slammed the door to his office behind him. For most of the day he had been in general district court arguing against bail for Jordan, Minor, and Sanger.  Judge Fleming would have shut down that stupidity in minutes and probably lectured the defense attorneys about filing frivolous motions. However, Judge Fleming was a potential witness and therefore he had refused to have anything to do with the case. Instead, Judge Heaberlin, a retired judge out of Abingdon, came over to hear the motion and it was a disaster.

Heaberlin let the three defendants call twenty-three family members and friends each swearing that the killers were angels who would never hurt a fly and valued members of the community with deep ties that guaranteed they would never flee to avoid trial.

When the defendants called Sheriff Riker, Brad was caught off guard. He knew the Sheriff was in the courthouse. In fact, eight members of the Sheriff's Department were in the courtroom, in uniform, sitting on the row directly behind the defendant's table. Still, it had been a shock when the Sheriff was called to testify for the killers. And once he started to testify things got nasty.

The Sheriff testified that the men were still valued members of his department with jobs waiting for them. Also, he had evidence that family members of the victims in the Pahl case were the ones who ambushed his deputies. He had warrants for Howard Mullins and Kyle Young with him, issued by the magistrate that very morning.

The first time Brad heard any of this was while the Sheriff testified. His cross examination was exploratory and brutal.  By the time it was over, the entirety of the Sheriff's evidence was exposed as being that each person he had just charged was related to one of the raped girls, each had a conviction for a violent crime in his past, and neither could account for his whereabouts at the time of the ambush. It was clear that the only reason the Sheriff had gotten his warrants was because the magistrate who issued them was one of the Sheriff's poker buddies and a fellow member of the local Elks lodge. It was also clear that the Sheriff was going to do everything in his power to disrupt the prosecution of his deputies.

Judge Heaberlin sat behind the bench soaking it all in. Once all the evidence had been presented he sat writing something on the pad in front of him for over five minutes, leaving everyone else in the courtroom sitting in silence. Then he issued his ruling.

“In the matter of Commonwealth versus Sanger: no bond or bail. In the matter of Commonwealth versus Jordan: no bond or bail. In the matter of Commonwealth versus Minor: five million dollars, bond to be secured by property or cash. Court is adjourned.”

With that, the district court judge stood and walked out of the courtroom without any explanation of his decisions.

The frustrating thing about all of it was that Brad knew the defense attorneys would appeal the lower court's opinion to the circuit court and he would have to do the same hearing all over again in a few days. In the meantime, he would have to get the district court judge to rescind those warrants before two men who didn't do this crime got arrested for it. Neither Howard Mullins nor Kyle Young was a stranger to the local jail or the courthouse. In fact, the reason they could not account for their whereabouts at the time of the ambush probably had something to do with stealing or dealing. Brad wouldn't lose any sleep if they were hassled a little, but he didn't need this complication of his case.

After thinking about it a couple minutes, he decided to call Darla Begley, the attorney who usually represented Kyle Young. After a couple rings, a chipper female voice answered the phone. 

"Law office."

“Hey, Darla, it's Brad. You representing Kyle Young on anything right now?”

“Hey Brad. I'm sure I am. He's got to have a driving while suspended or drunk in public going. Why? You looking to hook him up with something else or need him to talk with you about what some of his buddies are doing?”

“He's got a warrant outstanding right now.”

Darla's voice became a mix of wariness and resignation. “What's he done now? Supposedly, that is.”

“The Sheriff took out a warrant for murder this morning, but pocketed it until today's bond hearing. Tomorrow, I am going to go into court and get those warrants rescinded or dismissed or whatever I have to do to get rid of the damn things. Until that time the warrants will be out there. Deputies will probably try to arrest your client tonight. You might want to tell Young that he should spend the night somewhere else than his trailer.”

“What? You want me to call my client and tell him to avoid arrest?” Darla's voice rose with anger. “I am not going to get an obstruction of justice charge. I won't do it for my clients and I am not doing it for you. You leave me out of this private little war you and the Sheriff are ginning up.”

“Darla you have a duty under the Bar's ethics rules to . . .”

“Don't you tell me what my ethical duties are, mister high and mighty Commonwealth Attorney. I was doing this ten years before you even passed the Bar. Don't you ever call me and try to push me around like a pawn in your political games. Ever!”

With that, the line went dead. Well, crap. Brad thought. That could have gone better. Then, after a couple of seconds looking at the phone he picked it up and called out to Paula.

“Paula, is anybody representing Howard Mullins right now?”