Talking to the Represented (Rule 4.2)

I'm sure this happens to other lawyers as well, but I think it's a hazard run across by prosecutors more than most. For some reason, defendants think that if they can just talk to the prosecutor and explain their circumstances they can make the situation better. Most often this occurs as you are walking down the hall and the defendant is waiting in ambush. "Mr. Lammers can I talk to you a minute?" Then come the times that you are out at the store and someone chases you down as you are trying to buy some socks. "Hey, do you work in the prosecutor's office? Let me tell you about my case." Then there's the lady on the phone who somehow talks her way past the receptionist and talks to you about the case for five minutes before you realize she isn't the witness you were expecting a call from - she's the defendant. And these are only the most common ways that defendants have approached me.

Generally, a prosecutor tries to avoid speaking to a represented defendant. Not that this stops the defendants. On more than one occasion I've had to walk away from people insistent on talking with me.  I've also had to hang up on a couple people. Some people just will not accept the fact that a prosecutor cannot talk to them without running it past their attorney first.

Of course, prosecutors also face a unique problem in the courtroom. A high percentage of Pitcairn County's misdemeanor crime originates in Lou's Trailer Park. Today's victim out of Lou's Trailer Park is quite often tomorrow's defendant out of Lou's Trailer Park. She already has an attorney assigned for tomorrow's case. Can the prosecutor talk to her about today's case?

Communications with a represented person is covered both by ABA Model Ethics Rule 4.2 and Virginia Ethics Rule 4.2 (the struck through section is in the ABA's version, but not Virginia's):

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

The key phrase to zero in on in this situation is "in this matter."  This fairly clearly delineates when one can and cannot talk to a person.  However, if it is not clear enough both the ABA Model and Virginia's actual clarify in comment 4 (I provide Virginia's more streamlined version):

[4] This Rule does not prohibit communication with a represented person . . . concerning matters outside the representation. For example, the existence of a controversy between an organization and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Also, parties to a matter may communicate directly with each other and a lawyer having independent justification or legal authorization for communicating with the other party is permitted to do so.

So, as long as the case for the victim today is not entangled with the case in which she is the defendant tomorrow the prosecutor can talk to her, but only about the case in which she is the victim.

An interesting variance between the Virginia rule and the ABA model is the striking of the judicial release valve by Virginia.  Virginia does not allow contact with a represented person solely because a court orders it. It struck the language from the model rule and declined to adopt comment 6:

[NOT ADOPTED BY VIRGINIA]

[6] A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury. 

[NOT ADOPTED BY VIRGINIA]

Sorry about the loud disclaimers, but as certain as the sun will rise tomorrow if I don't do it someone will ding me in the comments: "You're wrong about comment 6. How can you possibly quote it? You need to go back and reread the rule because that's not in it. Geez. More proof that prosecutors are evil and can't read."

The reason this difference is important is another situation often run into in misdemeanor court. Defendant has hired an attorney for a misdemeanor he was never going to get jail time on. The attorney has not appeared in court fourteen times because she's off doing slightly more important things like trying murder trials or arguing an appeal or giving birth to her child or . . . The judge wants to clear this piddly case from his docket.  He turns to you, "Mr. Lammers talk to Mr. Smith and see if we can't settle this today." Under the ABA's version the prosecutor has been ordered to talk to a represented client. Under Virginia's version he is still forbidden ethically from doing so.

SWATting

I'd heard about this a little before, but I really had not paid attention until a buddy pointed me to the full on tactical raid that took place at a business. The business owner is playing a computer game online when fully kitted out SWAT burst in, put him on the ground, and cuff him. Here's the video:

I admit, when I first watched this I was dubious. To begin with, the guy realized he was being SWATted before they got to the room he was in. As well, it takes time for officers to get kitted out like that. I figured that first on the scene units would be officers in regular uniforms doing a preliminary sweep to determine where the threat was and evacuate the building.  However, I was wrong. There are all sorts of news reports online confirming this occurrence. Apparently, someone called and said there was an ongoing attack / hostage situation. I don't know how the SWAT team was first through the door. Maybe they were training that day and just happened to be available.

Anyway, as I looked a little deeper into this, it became obvious that the reason the guy playing the game knew he was being SWATted was that this thing is happening all the time to people who spend a lot of time filming themselves playing video games online. With the rise of "internet celebrities" there has also arisen an internet trolling culture which thinks it is hilarious to call the police and claim that there is a major violent crime going on at house and/or workplace of the person. Then the caller sits back and watches as the internet celebrity (most of whom spend humungous amounts of time filming themselves playing computer games) is rousted by the police on live videocam.

Most of the time it's not quite as drastic as an actual SWAT team coming through the front door.  In fact, most of the time police seem to respond to the scene, investigate, get confused as the guy tells them that he spends all his time online and someone is SWATting him, and leave after they are satisfied that no one is actually in danger. Here are a couple videos of that scenario (cursing):

If you go to Youtube you can find dozens of these videos.

This is very dangerous. Consider that most of these people are playing games which involve violent content. Most of them will also be wearing headphones so that feedback does not come through their microphones. There is significant potential here for an officer to walk up to a room and hear some sort of in game trash talking or just plain old or cooperative in game discussion. "OK, I'm going to shoot these three. You take care of the other two on the left side." The officer enters the room ready for a firefight, the surprised gamer makes a sudden move and there's an injured or dead innocent.

Of course, by the nature of the beast it is often quite difficult to catch and prosecute the person who does this sort of thing. A fifteen year old in Utah using a disposable phone or a number masking site to so this to someone in Maryland could be almost in impossible for a local police department detective to catch. It's really more of a federal issue, but individual cases would probably be too small for federal response.

18.2-99: Stealing Coal or Trees

This is an interesting statute which I have never seen used:

§ 18.2-99: Things which savor of the realty, and are at the time they are taken part of the freehold, whether they be of the substance or produce thereof, or affixed thereto, shall be deemed goods and chattels of which larceny may be committed, although there be no interval between the severing and taking away.

"Savor to the realty" (more often stated as savor of the realty) is a phrase which American jurisprudence carried over from British. Blackstone discusses "incorporeal hereditaments which savour of the realty, that is, which issue out of corporeal ones, or which concern, or are annexed to, or may be exercised within the same ; as, rents, estovers, commons, and the like."  Commentaries, Book II: Freehold Estates of Inheritance.  This is an old usage of "savor" which basically means something which can only be obtained through a particular real property.  Blackstone is talking about the incorporeal things which can be reached through a particular real property; 18.2-99 is addressing the corporeal.

The language "of the substance or produce thereof, or affixed thereto" lays out its parameters. If an item is "of the substance" it would be an unliving resource found within the land. If a plot of land has a unique type of granite and someone comes onto the property and takes the granite that person is in violation of this statute. "Produce thereof" would be things such as trees or crops. In fact, the only case I can find addressing this statute is an unpublished opinion about timber harvested by a tenant who had no right to it. White v. Commonwealth (U), No. 0540-13-4 (2104)(decided on grounds not dealing with this statute). "Affixed thereto" would cover things such as houses, outhouses, tombstones, &cetera which are intended to be permanent when attached to the property. Thus, when a kid comes along and steals a tombstone he has violated this statute. It's harder to steal a permanently attached house although a case could be made that this is the statute which allows the prosecution of people stealing copper wires, pipes, and roofing from a house fixed to realty.

The language "although there be no interval between the severing and taking away" seems to be surplussage. When the item was severed from the property would have no relevance upon its taking. In fact, if the severing and taking happen simultaneously (or nearly so) it makes the case easier as causation and intent become much clearer - the thief cannot argue he took down those trees to improve his view of Witch Mountain and only sold the logs when it became obvious the landowner wasn't going to remove them and they became a hazard sheltering snakes and raccoons.

Disparate Impact, orWho Needs an Officer in Adequate Shape?

The federal government is suing the Pennsylvania State Police because the PSP does not hire enough women.  Period. Not because the PSP is discriminating against women, but because the physical fitness test required to be considered as a possible trooper has more female failures than it does males and therefore should be eliminated because it has a disparate impact.

When I first read that, I pictured the test as being a 5 mile ruck march with 100 pound rucksacks followed by a mandatory 75 pushups followed by a two mile run that had to be done under 14 minutes - you know, the kind of thing you have to be raised in Kansas by Ma and Pa Kent to pass. But no, the test is actually rather easy:

300 meter run in 1 minute and 17 seconds

13 push-ups

14-inch vertical leap

1.5 miles in 17 minutes and 48 seconds

Anyone considering a career in law enforcement anywhere should be able to pass that test.  Male, Female, Gorn, Anyone. In fact, 98% of males do. However, only 72% of female applicants pass the physical fitness test. This is unacceptable to the federal government.

The federal government filed suit in July, claiming the PFT "is not job-related for the entry-level trooper position." You heard it here first folks, a bare minimum of physical capabilities is not needed to go out and face down drunk idiots who want to fight when they are pulled over for DUI. Somebody in a federal office somewhere isn't thinking this through.

As of yet, the PSP isn't backing down.  The head of the PSP stood his ground, pointing out, "This is not an impossible task.  We're not looking for Olympic athletes."  Good for the PSP. I hope it holds its ground and backs the Justice Department down.

Unfortunately, the federal government has infinitely deep pockets.  The Justice Department will probably be able to force its will on the PSP, which I suspect has limited resources (and better uses for them elsewhere). In the end, the most likely result is that the Justice Department will enforce its 80% rule on the PSP. The 80% rule is an arbitrary number chosen by some committee in California in 1971 and it goes something like this: If you hire 100 X's (unprotected class) then you must hire 80 Y's (protected class).  I think this rule may have run into some trouble in the courts and the federal filing also pushes a random selection standard which basically says: If this PFT did not exist and a random 100 people applied there would have been Y more of the protected class hired. Nevertheless, the goal, whether stated or not, will be 80%.

Currently, the number of females hired for every 100 males is about 73. If forced to change the standard the best way to do it would be to maintain the current standard for females and raise the standard for males until the number of males passing dropped and the 80% standard was reached.  There are two problems with this. First, it will emphasize that females accepted into the PSP are inferior. Second, it may open the PSP to reverse discrimination lawsuits because, unlike the current situation, this would be a clear and purposefully chosen discriminatory act.

So, where does that leave the PSP? If the Justice Department gets its way, the PSP will most likely just have to drop the PFT. And then the troopers going into the field - both male and female - will be degraded. Sure, the top troopers will still be superior, but the bottom 10% or so will drop even further in quality and the majority of those troopers will be female - forever.

The Justice Department isn't thinking this through. This isn't a case wherein affirmative action will eventually cause equalization in abilities. If German-American Catholics (GAC) are undereducated and forced to take lower paying jobs, the government forcing the acceptance of GAC's forces lower quality students and workers into positions they are less qualified for, but by the second or third generation GAC's should be satisfactorily improved in their qualifications. However, if GAC's are congenitally born with only one working lung no matter how many generations of GAC's you require the U.S. Olympic sprinting team to take the GAC's will not improve into that role.  The federal government does not seem able to make that distinction.