An Article 4 Free Inhabitant Doesn't Have to Have a License

Cudos to this officer. He remains calm throughout the entire incident in the face of incoherent babbling about **THE ARTICLES OF CONFEDERATION** and even when she starts screaming "rape" when he removes her from the car. [ignore the title of the video; this is not about feminism]

Prosecutorial Primacy: AG or Commonwealth Attorney?

Piedmont asked an interesting question in a comment on the prosecutorial powers of the Attorney General post:

The AG has authority to institute and conduct the enumerated types of prosecutions, but it's certainly not exclusive. What happens if both the CA and the AG want to prosecute? Can the AG step into and take over the CA's case?

The problem here begins in the Virginia constitution. A Commonwealth Attorney is a "constitutional officer" created under the local government portion of the constitution. Art. VII sec. 4. As such, the office does not fall under any branch of the government in Richmond. However, the only constitutional instruction for the office is that

"The duties and compensation of such officers shall be prescribed by general law or special act." Id.

The Attorney General, while an independent elected office, is clearly a part of the executive branch of the Richmond government created in Article V sec. 15. And yet again, the constitutional instruction as to his function is rudimentary:

"He shall perform such duties and receive such compensation as may be prescribed by law."

The language is effectively identical and therefore not very helpful to our analysis. So next we turn to the statutes.

The last post about the Attorney General examined the statute which outlines the statutory powers granted to and limitations within which the Attorney General must operate

The parameters within which the Commonwealth attorney operates are generally laid out in Va. Code Sec. 15.2-1627 - most specifically in subsection (B):

B. The attorney for the Commonwealth and assistant attorney for the Commonwealth shall be a part of the department of law enforcement of the county or city in which he is elected or appointed, and shall have the duties and powers imposed upon him by general law, including the duty of prosecuting all warrants, indictments or informations charging a felony, and he may in his discretion, prosecute Class 1, 2 and 3 misdemeanors, or any other violation, the conviction of which carries a penalty of confinement in jail, or a fine of $500 or more, or both such confinement and fine. He shall enforce all forfeitures, and carry out all duties imposed upon him by § 2.2-3126. He may enforce the provisions of subsection D of § 18.2-268.3.

So, the CWA has power over all charges starting at class 3 misdemeanors (maximum punishment $500). The AG has four basic functions it can do (1) assist the CWA without the CWA's permission [lynching crimes], (2) assist the CWA with permission [ID theft, street gang activity in prison, & cigarette sales laws], (3) prosecute with the CWA's permission, and (4) prosecute without the CWA's permission [see prior post for 3 & 4]. It's this last power which is interesting. There does not appear to be a primary prosecutor in those cases which the AG can pursue without a CWA's approval. Thus, there appears to be concurrent jurisdiction which would mean a race to conviction (assuming the CWA and AG are at odds) with the first to convict having the primacy of place because of double jeopardy protections in both the Virginia and US constitutions.

However, I think that the concurrent jurisdiction problem is solved by who controls the grand jury. While a grand jury is regularly impaneled by the local judge, only the CWA, after receiving information from law enforcement "may in such case issue or cause to be issued a summons for any witnesses he may deem material to give evidence before the court or grand jury." Va Code 19.2-201. As well, the only legal agency which can request a special grand jury is the CWA, Va Code 19.2-206, and the only legal agency granted authority to assist the special grand jury is the CWA. Va Code 19.2- 210. Finally, while the AG must approve applications for multi-jurisdictional grand juries, Va Code 19.2-215.2, two or more CWA's must apply for a multi-jurisdictional grand jury to the Virginia Supreme Court. Va Code 19.2-215.3. In order to participate in the multi-jurisdictional grand jury (and subsequent prosecutions) the AG must be invited in by the applying CWA's. Va Code 19.2-215.10. Since "no person shall be put upon trial for any felony, unless an indictment or presentment shall have first been found or made by a grand jury in a court of competent jurisdiction or unless such person, by writing signed by such person before the court having jurisdiction to try such felony or before the judge of such court shall have waived such indictment or presentment" the grand jury is a choke point which the Attorney General cannot get past without a defendant agreeing to waive it.  Va Code 19.2-217. 

So, the answer is, because of the AG's lack of access to the grand jury, the CWA has primacy in almost all prosecutions. The only time an AG could prosecute something without the CWA approving at some point would be (1) if the AG had the power to prosecute without the CWA's approval, and (2) the AG and the defendant agreed to go forward on an information rather than the defendant standing on his statutory right to a finding by a grand jury. That seems an unlikely scenario, but it is legally possible.

Ambush in Bartlette: Chapter 37

"Ladies and Gentlemen," Gil stood facing the twelve jurors, "the prosecutor has just spent over an hour telling you why he wants you to agree to kill Jeff Sanger. He wants you to vote to kill that man,” Gil pointed at his client, “who was not present during the shooting, for the death of a person he could not possibly have known was there. Even if you accept everything the prosecutor tells you as true, the only deaths Jeff could be responsible for were those of the rapists and the deputies. You’ve already told the prosecutor that you don’t agree with him on those charges.”

“Even if you accept everything the prosecutor tells you as true, neither the attorney nor the priest were people Jeff wanted dead, meant to kill, or even knew would be in that alley. The government tells you that two other people made the decision made the choice to start shooting even though there were people in the alley who were not supposed to be there.”

“Even if you accept everything the prosecution tells you is true, the two men who actually killed everyone could have left. The government’s evidence told you that on a previous occasion, when another person was with Robert Ross, they walked away from an attempt to kill him. Therefore, even were you to believe every bit of evidence which the prosecutor has told you, you know that it was the choice of the two men who actually killed Father Pahl and Keith Tolliver to do so - not the choice of Jeff Sanger.”

“No knowledge of their presence. No intent to kill them. No participation in the shooting. No part of the decision to shoot. You may agree with the prosecutor that Jeff is responsible for these deaths. However, allowing the government to kill him for choices he did not make - choices he could not make - is far beyond holding someone responsible. It moves into the realm of vengeance. It is in the realm of ten drops of their blood for every single drop of ours.”

“Vengeance is God’s role. Justice is what we seek in this venue. In that spirit, we ask that you return a just sentence. A sentence which reflects the facts which the government has shown, not the vengeance the prosecutor is trying to force upon us all.”

-----------

“That man,” Brad pointed at Jeff Sanger, “Arranged for the murder of everyone in that alley. Not only did he set it up, he did it in the most in-your-face way that he could. He had his men ambush them in the alley between the courthouse and the Sheriff’s Department. He had them do it in broad daylight when it would be almost unimaginable that no one else would be in the line of fire. People walked down that alley to the parking lot. People walked on the sidewalk on the other side of the alley. People went into that alley to smoke because it wasn’t allowed in the courthouse or sheriff’s office. He knew an innocent person would probably be in that alley. And he sent his assassins anyway.”

“Why? Because he wanted Bo Ross killed. He wanted Bo out of the way because Bo is honest and competent. He wanted Bo out of the way because Bo was going to be the next sheriff. Jeff Sanger wanted to be the next sheriff and he wanted to protect his criminal activities. He was willing to kill anyone in that alley to get Bo.”

“We all know who died in that alley. On any other day it might have been a clerk from the court taking a smoke break or a 9-1-1 operator walking back to her car or someone passing by the front of the alley on his way to the Food Time on his way to buy groceries. But this time the innocent people in that alley were a lawyer and a man of God.”

“Father Theodore “Ted” Pahl was standing in that alley wearing a black shirt with a white collar tab. There was no way they didn’t realize he was a priest - a man who dedicated his life to God. And yet, they were so dedicated to Sanger - and scared of him - that they opened fire and tried to kill everyone in the alley. They even went so far as to blow up the big propane tank that was in the alley to make sure everyone got killed.”

“Jeff Sanger sent his men to kill everyone they found and they killed a bunch of people - two of whom were entirely innocent: Keith Tolliver and Father Pahl. You don't get to kill everyone who was there and then claim that you shouldn't get the appropriate punishment because you didn't know the exact person who would be there."

“There’s an old legal parable which is repeated a lot because it’s true. In it a man kills his parents. After he is found guilty of killing them his attorney argues that the man should get a lenient sentence because he’s an orphan. Every attorney in the world has heard that story a hundred times, because it shows something we all know to be true. A defendant, through his attorney, will argue anything to avoid the punishment he should get. In this case the argument is ‘I planned to kill a bunch of people in an alleyway, but I shouldn’t be held responsible for killing some good people who were there because I didn’t exactly know which good people might be there.’”

“Well, there were good people there. A gentleman who dedicated his life to the law and his family. A priest who dedicated his life to God and his church. He deserves the maximum punishment you can give him for each murder.”

“Punish him for what he did. Give him the maximum because we cannot do anything more. Life in prison is a pale substitute for the life he has taken from Keith Tolliver, but that is all I can ask you to do to try and balance those particular scales. Holding him responsible for killing a priest, a man of God, a man who did no wrong and spent his life trying to save others and serve others requires a heavier weight to balance the scales. We should never ask for the death penalty lightly, but sometimes even it is not enough to balance the scales. We cannot bring the good of a godly man back all we can do is ask you to hold the man who killed him responsible. The scales will never be brought back to actual balance, but we mortal souls can only do so much. And we ask you do what you can to bring the scales as close to balance as we can. Give him the death penalty he has earned for himself."

Bills Of Particulars In Virginia Criminal Law

A Bill of Particulars are a form of discovery in which a party seeks answers to particular questions. As I understand it, they are a widely used discovery tool in civil practice. However, for those of us who practice criminal law (at least in Virginia) it is a sort of extraordinary discovery tool available only in specific circumstances.

The primary statute which addresses bills of particulars in Virginia is Va. Code § 19.2-230:

A court of record may direct the filing of a bill of particulars at any time before trial. A motion for a bill of particulars shall be made before a plea is entered and at least seven days before the day fixed for trial and the bill of particulars shall be filed within such time as is fixed by the court.

Of course, that doesn't really tell us anything outside of the scheduling of such a motion. T actually find the parameters within which bill can be filed we have to look (1) to case law, and (2) cases involving certain constitutional issues under Va Code § 19.2-266.2.

(1) CASE LAW

The appellate courts in Virginia have not viewed bills of this types favorably and the general rule is that they are only available if the defendant cannot determine what he is charged with under the indictment.

The purpose of a bill of particulars is to state sufficient facts regarding the crime to inform an accused in advance of the offense for which he is to be tried. He is entitled to no more. However, when the statutory language does not in itself fully and clearly set forth all material elements of the offense, a trial court may direct the filing of a bill of particulars. The decisive consideration in each case is whether the matter claimed to be left out of the indictment has resulted in depriving an accused of a substantial right and subjects him to the danger of being tried upon a charge for which he has not been indicted.  Sims v. Commonwealth, 28 Va.App. 611 (1998).

The purpose of a bill of particulars is to state sufficient facts regarding the crime to inform an accused in advance of the offense for which he is to be tried. He is entitled to no more.  Swisher v. Commonwealth, 256 Va. 471 (1998).

Practically, this lays out two circumstances in which a bill of particulars is allowed. (a) First, an indictment could reference a statute which references a common law crime (a regular occurrence in Virginia). (b) Second, the indictment could reference a statute which contains more than one offense.

(a) Referencing Common Law

Reason Needed:  The first situation is commonplace in Virginian law. For instance, there is no statutory definition of larceny. Therefore, an indictment for grand larceny is charged under Va. Code § 18.2-95:

Any person who (i) commits larceny from the person of another of money or other thing of value of $5 or more, (ii) commits simple larceny not from the person of another of goods and chattels of the value of $200 or more, or (iii) commits simple larceny not from the person of another of any firearm, regardless of the firearm's value, shall be guilty of grand larceny, punishable by imprisonment in a state correctional facility for not less than one nor more than twenty years or, in the discretion of the jury or court trying the case without a jury, be confined in jail for a period not exceeding twelve months or fined not more than $2,500, either or both.

There are some elements above which added to the common law elements of larceny make the theft a grand larceny (felony), but nothing actually defines larceny. Therefore, if (1) you can stand in front of a judge with a straight face and say that you need a bill of particulars because you don't know what elements the prosecutor plans to prove in order to establish larceny, and (2) the judge believes you, then (3) you should get a bill of particulars. More realistically, this should probably apply to more obscure common law being indicted under a statute. An example of this might be if the prosecution indicted misprision of a felony under the misdemeanor catch-all statute Va Code
§ 18.2-12 (any misdemeanor without a set punishment is a lass one misdemeanor). A typical defense attorney would probably not know the elements of that offense and therefore a bill of particulars would make sense. 

What Should Be Allowed:  Under this allowance of a bill, a defense attorney should only be entitled to a list of elements which the prosecutor plans to prove in order to prove the offense. There would not be a need for any factual/evidentiary disclosure to tell the defendant the elements of the offense he is accused under.

(b) More Than One Offense Under the Statute

 Reason Needed:  Again, this is a common occurrence under Virginia's statutes (I imagine this happens everywhere and particularly in the federal system where a "short" statute only fills two pages and has 14 sections). Take the above grand larceny statute for example. A person can be convicted of a felony if $5+ is taken from a person, $200+ is stolen generally, or a firearm is taken. Suppose a defendant is charged generally with "grand larceny as per the elements of ancient common law and the requirements of Va Code § 18.2-95." The defense could move the court for a bill of particulars to determine which of the three elements the felony statute the prosecution is going to rely upon and he should be entitled to the bill.

What Should Be Allowed:  In this case, a bill of particulars would more accurately be called a "bill of winnowing." The prosecutor should be required to choose which element she intends to go forward under. Again, there would be no need to have any factual/evidentiary disclosures in order to tell the defendant exactly what he is being charged with.

 

(2)  CONSTITUTIONAL ISSUES

In general, Va Code § 19.2-266.2 is a statute stating that requires written defense motions to be filed 7 days before trial and be argued at least three days before trial. Under subsection A it lays out those areas to which this applies:  (i) suppression of evidence on Fourth, Fifth or Sixth Amendments grounds, (ii) dismissal for violation of speedy trial, (iii) dismissal for double jeopardy, or (iv) dismissal because the statute is unconstitutional.  Then, in subsection C. it throws in bills of particulars:

To assist the defense in filing such motions or objections in a timely manner, the circuit court shall, upon motion of the defendant, direct the Commonwealth to file a bill of particulars pursuant to § 19.2-230. The circuit court shall fix the time within which such bill of particulars is to be filed. Upon further motion of the defendant, the circuit court may, upon a showing of good cause, direct the Commonwealth to supplement its bill of particulars. The attorney for the Commonwealth shall certify that the matters stated in the bill of particulars are true and accurate to the best of his knowledge and belief.

Possible Interpretations: There are two ways to interpret that statute. (i) The one which prosecutors would favor is that this section is merely directing trial courts to do what is normally done under § 19.2-230 which might be required to determine whether double jeopardy applies or whether the charge falls under the part of a statute which might be unconstitutional.  (ii) The one which defense attorneys would favor is a mandated requirement of disclosure pertaining to evidentiary matters which might pertain to the gathering of evidence that might violate the 4th, 5th, or 6th Amendment.  Surprisingly, there seems to be little precedential case law on this; the sole mention seems to be in a throw away footnote in Sims v. Commonwealth, 28 Va.App. 611 (1998)(footnote 3):

Appellant contends that Code sec. 19.2-266.2 required the court to order a bill of particulars. However, that statute operates only where the defendant seeks (1) suppression of evidence as violative of search and seizure or self-incrimination protections or (2) dismissal of an indictment "on the ground that a statute upon which it was based is unconstitutional." Appellant has not alleged any grounds to bring this statute into play. His constitutional claims relate only to the non-specificity of the indictment and do not reach the constitutionality of the underlying statutes he was charged with violating.

 While this is clearly dicta, it is the only direction given us and it limits the requirements of this statute to only three occasions: search/seizure issues, self-incrimination issues, and unconstitutionality of a statute. That doesn't make a whole lot of sense, and a trial court interpreting this statute after Sims recognized this and stretched the interpretation to apply to everything listed in § 19.2-266.2.  See Commonwealth v. Kuhne, 80 Va.Cir. 299 (2010). Technically, the trial judge was wrong when he broadened beyond the scope allowed by the Court of Appeals (never mind that the trial judge's interpretation makes more sense).

What Should Be Allowed: Under the dicta of Sims, the bill of particulars would be limited to evidentiary issues that pertain to search and seizure or self incrimination protections. As applied to a statute it would just require laying out the elements as per a normal § 19.2-230 bill of particulars (recall, § 19.2-266.2 does not apply to "unconstitutional as applied" arguments which therefore can and would be raised at trial after the evidence has been presented). However, keep in mind that there is no strong precedent anywhere for this and either of my two offered interpretations above could prevail in the end as well as the one offered by the Circuit Court judge.

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