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The dog whose owner accidently killed himself while beating the dog with a rifle was put to sleep. A shame.
You know, some of the most heated things I see in court are cases involving dogs. Half the neighborhood will show up against the dog and the owner will get the other half to show up on his side; the case then lasts 45-60 minutes. And usually this all about nothing more than a citation.
Today I saw an interesting case (not mine). Two neighbors were arguing over a couple of dogs. Their owner got mad, went over to the other's house and told him he was going to shoot him dead. Then, about thirty seconds after the front door closed, the dogs' owner opened up on the house with a WWII rifle that was powerful enough that the bullet went into the house and disintegrated the toilet in a single shot. Luckily, no one was hurt. Those dogs must be something else. When the defense attorney asked if the deputy had searched the defendant's house the deputy said they couldn't search because they couldn't get past the dogs.
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Sitting here watching Cops! Some guy is being an absolute jerk to a group of 5-6 officers. He is drunk, running away, fights back when the police finally catch up to him, keeps telling the officers that he wants their badge numbers (so he can report their misbehavior), and he tells an officer who tries to read him his rights to get out of his face 'cuz he's sick of his voice. And the officers don't even capstun him; in fact, they go out of their way to stay calm and polite. Gotta love those "reality" shows.
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Sorry I've been down for a while. On Sunday my dogs were running around my living room when one or both of them got feet tangled in my computer's power cord. Undeterred they just kept running and my computer flew off the counter and about three feet thru the air landing upside down. Sparks flew and I ran across the room to unplug it. Naturally, it is now just a piece of junk. A shame because I had just about gotten Opera's bookmarks perfect and now I've lost all my website and blog addresses. Work taking priority I could not get out to buy a new computer until tonight. And I've spent most of the night setting up the computer, downloading Opera (my preferred browser), and configuring it. So far I think I've found perhaps 90% of my old websites and bookmarked them.
Hopefully, I will start full-force blawging again tomorrow. However, don't expect too much this weekend; I have a jury trial on Monday to prep for. The kid is actually innocent of what he is charged with (don't get that often) so there's a lot of pressure. There's always more pressure when you believe the client is actually innocent (not just not guilty beyond a reasonable doubt).
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Someone asked me what the most interesting appellate decision of the year was and I thought back instantly to this (click on Smoke & Mirrors). But I could not find it anywhere until I looked at good-old, trusty Versus Law. Everyone else had deleted it because it was withdrawn on 29 October 2002 (3 weeks after having been ordered published).
You can feel the frustration on the lawyer's part and the appellate court's anger practically leaps off the page. I gotta wonder what kind of penance that attorney did to keep the opinion from being published.
"Sure, I'll take your money but it's really just a loan, isn't it? I can shirk my obligation and pay you off in installements for the next 20 years or so, can't I?"
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In Virginia you defend yourself with your firearm and they drop the minor charges (there's always something which can be charged if the officer wants to seperate you from your gun).
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A defense attorney's nightmare. Defendant commits an inexcuseable act and videotapes it. And then there's a jury trial.
I've never had a client so stupid as to videotape a rape. I did represent one of three white kids who videotaped themselves getting drunk, calling each other "n*gg*r alot, then talking about how they were going to mess up this other "n*gg*r (another white kid), then taping themselves chasing this kid (the kid gets away when they chase him thru the diamond of an ongoing police softball league game and the police stop the chasers and send them on their way). Later that same night, on the same video they taped themselves breaking into a house in the middle of the night and beating the living tar out of some guy because they are trying to find out where their intended victim was located (they never did catch him). Of course, the police got ahold of the tape. And even more perfectly, the case gets assigned to the one black lady who sits as a judge in the jurisdiction. She's a fair judge but conservative and not likely to put with this kind of silliness. The question was whether she would look down from the bench and find this group of idjut wannabes funny or . . .
Thank God for plea agreements.
Some of the best parts of this story cannot be told because of attorney-client privilege. However, let me say in general that there are a fair number of white kids running around out there now using this word to refer to one another (and their black friends as well). When I try to explain to them why an older black judge might not appreciate the word** they just look at me like I am the most out of touch old guy they've ever met.
** As an aside, I have not seen disproportionate treatment of these young, white, male idjuts by black judges. White judges, on the other hand - "We don't put up with this kind of asinine behavior in ###### county anymore. You see that officer, that deputy, and that lawyer? You've insulted them all and they all are men of respect. [insert heavy penalty here]." This is not a direct quote but it's representative of several lectures I've heard defendants receive.
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The Legislature refused to pass a law subjecting the driver to arrest if he is clearly sober and a passenger has an open container of alcohol. Delegate Purkey asks, "What is wrong with telling someone, `You can get in my car and I'll take you home, but you can't bring your beer?" You have to wonder if the Delegate has ever had to talk a drunk guy into going home before. Your first task is to get him in the car and giving him an ultimatum is not helpful in doing that.
This gentleman must have a pretty powerful prohibition movement in his district (usually MADD). Can't blame him for representing their interests; I would too if they were my constituents. I just don't see anything good coming out of this legislation. If I ask the question: "will arresting a sober driver because a passenger in his car has an open container significantly improve traffic safety?" I have to answer "No."
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Kids selling LSD at a Virginia middle school. My question is whether they got some from Mom and Dad's stash or whether their is actually someone out there running them?
The article is small; I'll keep an eye out for follow ups.
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I know that this is totally off point but Bill Maudlin has died. A collection of the better tributes here and here too (culled from here). As a vet, Mauldin's work always struck home with me. It wasn't about Rangers, Marines, Special Forces, Airborne, &cetera. He didn't draw Rambo's; he drew regular the everyday, citizen soldier and the doldrums and sarcasm of his everyday life. It's a shame that no one's out there to express the soldier's view anymore.
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The city of Richmond declares part of the city private property because of its high crime rate (streets, sidewalks et al.) Then it starts convicting people of trespass who are walking thru that area without commiting any crime except traveling thru the area (trespassing). The city bans people first but has no criteria set for this. In something akin to a miracle the Virginia Supreme Court struck the statute down as overly broad.
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Gee, it must be great to work for BigLaw. You tell the SEC that if it passes legislation requiring you to report plainly illegal, ongoing activities it will violate lawyer-client privilege . . . And the SEC buys it.
Put in perspective, this is the equivilent of one of my clients informing me of an ongoing scam ("I've programmed the bank's computer to transfer $500 a day to my account from inactive accounts, randomly at $5 amounts throughout each day"), me advising him to stop immediately, client refusing, and me asserting that I don't have to inform authorities of the violation because of attorney-client privilege. Later, I stand before the judge, as an accessory after the fact (for taking fees which proceed in part from this money), and even later I stand at the Bar trying to retain my license. Who out there thinks that attorney-client privilege will save me?
I have called the Bar's ethics hotline on a similar issue (but less serious). An attorney whom I am not sure has ever practiced criminal law advised me that I was obligated to turn on my client. Luckily, confrontation with the client went well and I was able to halt the action and withdraw from the case in a manner which did not bias his trial. However, I suspect some other fishy stuff went on because by the time his sentence was final he was on his 4th lawyer (I was the first).
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I think this qualifies as a violation of the honor code. A shame. I was really impressed by most of the VMI cadets I met while I was at W&L law (Washington and Lee and VMI have adjoining campuses).
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The change of the seatbelt law from a secondary offense to a primary offense died. Thank goodness. Not that I'm against seat belt usage (see the post on 20 Jan 03 post at 1:02 a.m.).
As an aside note the rampant electronic paranoia halfway down where they ban all sorts of stuff from the court. I understand banning phones but blackberrys? PDA's? I asked a deputy at one court that does this why it was done and his answer was that "if it broadcasts it might be able to affect the computers."
If the pictures put out recently by the government are to be believed, I could probably blow up an entire courtroom with a low-tech, non-metallic shoe bomb but they are worried about me being able to hack their computers with my trusty old Palm-100. You can just about hear the Mission Impossible theme if you listen very closely.
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I am curious as to what kind of case this was and if there actually was some kind of argument available.
As a criminal lawyer I do a number of court appointed cases and quite often have a client order me to have a trial despite the fact that the evidence is overwhelming and then require me to appeal despite the lack of any real issue. Anders briefs are disfavored by judges; during a CLE last year one of our appellate judges stood in front of the assembled criminal lawyers, held up a three page Anders brief and informed us that he gets far too many of these (which is pretty amazing because I don't know any criminal lawyer who actually writes them). They are also one of the surest paths to get a Bar complaint.
Of course, after a while you learn to find something legal pertaining to the facts - no matter how small - which allows you to make motions to strike. Of course in some cases that isn't even available and then (if you know it's coming) you try to raise a procedural/constitutional issue which may not pertain to the facts of this particular case but pertains to all criminal trials of your type; void for vagueness, under Morales, works well for this because legislators are always writing statutes improperly. If all else fails you can argue plain error/ends of justice.
I will admit that I have submitted briefs in the past (none current) where I put everything I had into it and still knew I was going to be in serious trouble if the appellate judges were looney enough to hear it (appellate review in Virginia is discretionary). After I spent the first five minutes talking about that one California case I found to support my position (and got absolutely blasted for citing a CALIFORNIA case) I would have been in deep trouble.
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The message here? Fight for your reputation; do not allow others to decide their money is worth more than your reputation. Hampton settled the case and it cost the judge her job.
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What you do at a library is not private anymore. I worry about this sort of thing. PATRIOT could be used for good but it has such a huge potential for abuse.
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Balkin comparing apples to oranges (presidential political appointments vetted by the Senate compared to students denied access to educational opportuinities they qualify for because they are the wrong race).
I will believe the argument that "diversity" is the true reason for set asides when I see schools defining it by economic class. Do you see set asides (added points) for dirt poor kids from the Appalachians? It seems we are quite happy with homogeneity among the white students (who are almost invariably middle class or above). How many white students did you go to law school with whose fathers were farmers or coal miners or mechanics?
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The federal supreme court has agreed to hear a Batson argument. I thought Batson was dead and buried. Yes, technically it's the law but try a Batson challenge and see how far you get. The prosecutor can get real creative although the favored excuses I've seen have been pretty rote: "I excuse all teachers and government workers" and "I don't like the fact that juror number 6 doesn't own property."
Of course, one often finds one's self in a position of a Batson truce: A pool of 20 jurors arrives (the typical felony number in Virginia). 15 are white (3 of whom are obvious bubbas), 1 is oriental, and 4 are black.
Your client is a black, 19 year old male whose first statement to you is "I'd never have stolen the car if I'd realized I'd gone over the line from Richmond to Arrestafield (Chesterfield county's well known nickname)." His second statement is that it is all because of his heron problem (not hair - o - in, hair - on; street pronunciation). Later, the jail-house lawyers get ahold of him and convince him he should take a jury trial because "I know they found me with the car but nobody saw me take it and I have 20 years over my head (prior conviction of grand larceny: 20 years suspended for ten years)."
In Virginia 20 people sit and are questioned as a group. Failing a strike for reason, the twenty are struck alternating prosecutor, defense, prosecutor, defense until there are only 12. After the sides strike (in private) the clerk then dismisses the struck without letting anyone know who struck them. You get thru the questions and, as usual the judge and prosecutor rehabilitate every person you wish to strike for reason by asking the magical question: "Mrs. Smith, I know that you told the defense attorney that you are married to the police chief and your two sons are in the police academy, and that one of your cousins was assaulted by someone who look just like the defendant and that you think the defendant has beady eyes, but do you think you can set all that aside and follow the law as I explain it to you?" Juror: "Why, yes sir, I can do that." Judge: "No reason to strike this lady, defense counsel."
Then come the preemptory strikes. You've already decided that the first strike is going to be the black, muslim professor on the front row who has been staring with barely concealed contempt at your client and is not going to cut him one milimeter of slack. Then a small miracle occurs: the prosecutor's first strike is the professor. Three of his four strikes are blacks (he leaves the black bank VP in order to cut the white girl with the dead-head t-shirt). Of course all of your strikes are white (the three bubbas and Mrs. Smith).
You obviously have a situation where race has played a part in the prosecutor's strikes. But if you raise a Batson objection you face two problems (If you succeed). (1) The professor is back. (2) The prosecutor can make the same claim as to your strikes and he has 4 out of 4 to work with. Of course, both sides realize that Batson claims never go anywhere because the other side will always come up with some other reason to explain the strike (he was wearing a bow-tie your honor). Therefore, the claim is seldom raised (usually done by young lawyers or dabblers who spend most of their legal lives elsewhere).
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Maryland has much more draconian gun control laws than Virginia. They don't work, but I guess just passing them made some legislator feel better about himself.
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Looking for something, anything which can help an obviously guilty client in any way. Been there. I feel empathy for the attorneys. These are the cases which drive you nuts.
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Stringent questioning of judges up for re-appointment in Virginia.** I find the Democratic placing of questions asked about a judicial record on par with the crucifixion of Jesus to be just a wee bit over the top.
**Virginia missed the whole Jacksonian democracy movement. Judges are elected by the Legislature not the people.
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PETA doesn't like me because I am a white male. Which is OK as I don't like them because they are vegan fanatics. Disrupting a Victoria's Secret show is unforgiveable (especially one with faux fur).
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A new usage for the Digital Millennium Copyright Act. The RIAA would be proud. It usually just resorts to threatening letters. When will this silliness end?
Perhaps the Eldred decision will lead the downfall of the DMCA. With thanks to Balkinization (read the indepth discussion under 17 January 2003).
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This is bad. Police stops in Virginia are already a joke. Virginia courts refuse to protect citizens from shakedown stops as long as the officer proclaims a "reasonable articulable suspicion" of illegal activity.** This usually translates as police with suspicion of a crime but absolutely no probable cause pulling over a car because of a very minor traffic infraction. The citizen finds himself stopped by a uniformed officer, a street drugs unit, and a K-9 unit just because he didn't signal his turn properly. Most of the time the officers don't even write a citation. If they find something serious the citizen goes to jail; if they don't, the citizen is allowed to leave with a warning.
Don't think the officers will use seatbelts as a reason? I'm sure of it. A judge in Chesterfield County recently ruled that having an air freshener hanging from your rear view mirror is "reasonable articulable suspicion" for a stop despite the fact that the Commonwealth itself hands out things to hang from rearview mirrors (handicap tags).
** Although many States provide a great deal of protection to their citizens thru the States' constitutions, Virginia courts refuse to accord any power to the rights enumerated in the Virginia constitution. They will enforce only the bare minimum standards imposed upon them by the federal constitution thru the federal supreme court.
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Further info on the bill requiring clergy to report suspected child abuse as it came out of the Virginia Senate.
It does exempt the confessional. Which is a good thing since I no longer think that it is protected by the federal constitution. I thank Peter Sean Bradley of Lex Communis for reminding me of the actual standard. So I went back and waded thru City of Boerne v. Flores. The standard - at least as it applies to States - is that as long as the wording is nuetral a law is constitutional. Theoretically, it means that nuetral application of a law is required to make it constitutional but c'mon. How many legislators have not learned the lesson that you write your bill so that it is generic in terminology even if you intend to impact whatever "them" is out of favor at the moment? And of course, the federal supreme court has said that statistics are not dispositive in proving purposeful disproportional effect.
Having grown up in an area where my faith was by far the minority this standard worries me. What happens if my State passed a law making it "illegal for any person to possess on his person alcohol for any purpose prior to 1 p.m. on Sundays?"
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Did the Virginia Beach actually stop prosecuting domestic violence? If anyone has seen any followup on this please go to my site and e-mail me.
As to the comment that the Commonwealth gives more money to defend the accused than it does the prosecutors, I don't see my office having dozens of uniformed police doing investigations for my clients, I don't have the Commonwealth paying for my office and my legal library, the Commonwealth doesn't pay for me to have secretaries or paralegals, and payment of court appointed attorneys in Virginia has long been recognized as among the worst in the United States (48th or 50th).** The Court of Appeals did a heck of a two step in order to find this system constitutional.
**Note that this is from the NACDL which is hostile to both prosecutors (obviously) and court appointed attorneys. We all must be good socialist members of the public defenders offices in order to defend our clients properly. While I think that the numbers are correct I also think that this article is in essence propoganda (obvious explanations are not offered). If anyone is interested in my response drop a line and I will rant further in this blawg.
Are there gangs in Danville? Probably just wannabes. Hard to picture Crips or Bloods being all that interested in Danville and I think bike gangs and skinheads are more into tattoos than tagging. I just cannot picture the Hammerskins or the Renegades doing this.
Still wannabes can be dangerous because they will want to prove they really are what they claim to be.
Questions, I have questions. I know I'm going to betray some ignorance here but don't waters become international at 2 miles and thus not subject to laws of the U.S.A.or any of its constituent States? And why is it illegal to possess striped bass further than 3 miles from the coast? Are they a danger to the ecology within the 3 mile limit but a necessary element outside of it? If I catch my striped bass at 2.8 miles and my boat wanders over the line have I committed a crime or is it only a crime if they are denizens of the murky depths outside 3 miles which I have purloined? If a tree falls in the woods and nobody hears it does it have anything to do with the price of tea in China?
The Richmond police chief is making an effort. I think it is an effort doomed to failure but at least he's trying. If you set up a camera in one area the activites you are looking for won't stop it will just move elsewhere and I suspect that a number of cameras will end up broken fairly quickly. While it might work as an area denial strategy (if the cameras are repaired every time they are broken) I don't think it will reduce the amount of crime.
Having railed against the DUI laws in Virginia, I must now go the other way and commend Linda Kay Walsh. Despite the fact that the legal system missed entirely the fact that the man convicted of vehicular manslaughter of her daughter (with a .16 BAC) had been convicted of a DUI she caught it and made sure he received the remainder of his punishment.
The legislature has passed civil commitment laws for pedophiles but it has not been used because the legislature declined to fund it. Now, at least in the House, there is an effort to provide funding.
Generally, I think that Virginia's DUI laws are out of control. The BAC level is too low and you see too many people getting felony convictions for having a .10 in 1992, a .09 in 1995, and a .08 in 2002 (3d strike is a felony)(pulled over for broken tail-light while driving home from watching a football game at a buddy's house). Honestly, most people at .08 are probably in control of their faculties even though the law, urged on by the prohibition crowd, presumes they are drunk. People who are just plain tired are probably as much or more of a danger at 2 or 3 a.m. The officer does a series of tests but they are usually hard to pass dead sober and any sane officer, or at least one that cares about his job and family, will not let anyone by who is above the presumption - no matter how well he does on the tests. The officer's heard too many horror stories of officers being sued for that one accident (out of thousands of people allowed to finish their drive home).
Yes, horror stories abound (and are powerful ammunition for prohibitionists) but they almost always involve someone with a BAC at least at .15. One never hears of the hundreds of citizens convicted each week for DUI's not because they were driving dangerously but because they drove up to a checkpoint, or were stopped for speeding 5 miles over the limit, or had something wrong with their car, &cetera. The most egregious cases are those when somebody realizes he is drunk to drive gets in the car, turns it on so he can use the heater, and goes to sleep. When the officer finds him he is convicted of a DUI because he is "operating" a motor vehicle. Don't think it happens? Read this (click on the sentence).
If we must remove the necessity of proof beyond a reasonable doubt and assume guilt I think the presumption should be at .10. I also think the felony should be 3 convictions in 5 years or 4 convictions in 10 years. Of course, I am not a legislator and never will be as long as I keep posting things like this.
More nastiness in re-appointment hearings for judges. Here's an opinion which claims it's about her sexual orientation rather than the harassment claim.
Imagine this: You own a newspaper; your newspaper has an ongoing fued with the local sheriff and county attorney. On the morning of the election you publish your paper with an article that accuses the county attorney of rape (the headline) and the sheriff of poor handling of harassment charges. Off duty deputies go and BUY every single copy of the paper (they are not ordered to do this). The entire run sells out so you probably make your largest profit of the entire year. And then you sue the sheriff for more money and the 4th Circuit says you can do it.
Sadly, our legislature is trying to find ways to void privilige between clergy and lay person. I am particularly disturbed by the attempt to pass a law requiring a clergyman to break privilige if what he learned under privilige is confirmed outside of privilige. As a Catholic I have the highest confidence that a priest will not break the seal of the confessional and I am sure the confessional, as a religious requirement, is protected by the 1st Amendment. However, I am not sure that a court somewhere will not say this type of statute is constitutional as long as the trappings of a confession are not present (no little closets, no kneeling, no formalistic prayers). One would think that this kind of law should bother Protestants a lot more than Catholics. At least I know I can go and (if I follow the rules) guarantee my talk with the priest is private; if a Protestant is troubled and goes to talk with his preacher he is in a situation where the discussion is not required by his faith and has no formalities to distinguish it from a regular, everyday conversation.
It's shameful that prosecutors make charges AND set penalties in federal courts. One wonders why there are still judges. At least this gentleman tried.
Police in my neck of the woods may be aggressive but at least they're not out there harassing people just because they get a little tipsy in a bar; they at least wait until some idiot gets behind the wheel. Technically, the Fairfax police are correct - the only place one can legally be drunk is inside a house where no one can see you. Still, going into a bar and rousting customers is a far cry from what one usually encounters when someone is charged with this. Usually it's some drunk guy arguing and yelling, who just won't go home when the officer tries to move him on his way (sometimes derisively refered to as misdemeanor annoyance of cop).
Whenever I get depressed about practicing criminal defense in a conservative county (Chesterfield), in a conservative State (Virginia) I look around for places where the situation is worse.
Texas is always good for violations of people's liberties. In Houston don't go to your local K-Mart (or at least its parking lot). And don't sit around in your house watching TV in San Antonio.
Here's a nightmare of how police can harass a citizen (from Las Vegas). Particularly egregious is the re-entry of the warrant into the inter-state system after Las Vegas has declined to extradite the guy once. If the victim had not had the resources to travel back to Nevada and take care of this he could have been picked up in his home State over and over, spending a couple of days in jail, having Nevada decline extradition, and having the police re-enter the warrant until the next time.
Of course don't ever let law enforcement near your dog in Tennessee (there is absolutely no excuse). Weird, I deal with bad things which are done to people every day but seeing the video got me more fired up than I've been in a while.
I guess it's a good thing that VSP will be able to repel invaders with their new weapons. I guess if the Troopers dug into fixed positions and the terrorists charged straight into them the M-4's would give the advantage to the Troopers. This assumes, of course, that the terrorists won't have any SAW's, grenades, M-60's, AR-15's, &cetera. And we all know that the terrorists will take on the VSP face to face; they would never sneak around, seek weak spots, and attack in a manner that keep the Troopers from being able to concentrate their numbers and/or use these weapons.
It strikes me that we need to be concentrating on things which make a lone Trooper safer as he walks up to a New York rental car he has pulled over on I-95 at 3 a.m. with only his sidearm (a far, far more probable happening). Not an expert, I do not claim to know exactly what this might entail. However, I do not see how this purchase helps.
Was anybody surprised by this? The reasons the feds left this kid in Virginia was because they knew the system here will almost assuredly lead to a death sentence.
Changing the threshhold for a grand larceny from $200 to $400. H.B. 1607. It's a shame that this has not happened a long time ago. It's just too easy for a kid to do something stupid and on a dare, as a lark, as part of a fraternity prank, &cetera and end up with his/her life being seriously damaged by the felony stigma and the possibility of 20 years in prison.
For some reason the legislature is trying to make it impossible for someone charged with DUI to have a lab not under governmental control analyze his blood for alcohol content. H.B. 1399.
Impersonating a police officer is proposed to change from a one year penalty to a five year penalty. H.B. 1435.
Does anyone really think this bill has a real chance of passing? H.B. 1554. Virginia doing away with the death penalty?!? Representative Hargrove must be from a very unusual (LIBERAL) locality for Virginia.
The Virginia legislature is trying to mess around with the punishment for misdeameanors. HOUSE BILL NO. 2585. SENATE BILL NO. 734. Both have been referred to committee but I suspect that entry in both houses means there is a significant possibility of passage.
They will increase the maximum punishement for a class 1 misdemeanor (the vast majority of misdemeanors not classified as citations) from 12 months to 24 months. In one fell swoop dozens, if not hundreds, of charges will double the severity of their punishment. I will be interested to see if the Legislature will actually go thru with this.
Here's a site I think is just great. It is so far over the top that it is impressive. It almost makes me want to move back to Lexington (where I grew up) and see if they are hiring. Of course, I don't think I have the most important qualification: a University of Kentucky law degree. Check it out, every single person in the office is a UK Law grad. So, as a Washington & Lee grad, I think I am precluded from going back to Kentucky, retaking another bar, and trying to go over to the dark side.
An example of what the Illinois governor might have had to deal with if he had taken action in a manner which allowed debate and review. This is well written although its basic message is somewhat scary: "Vengeance should be taken even if there is a possibility that you get the wrong guy."
Here's a plea for the law to go back to being a shield between citizens and those in power rather than a sword in the hands of prosecutors. Much of what the author says is true (although I prefer the Franklin quote that 100 guilty should go free lest one innocent man be convicted). No matter how often we repeat the words "proof beyond a reasonable doubt" and "innocent until proven guilty" they ring awful hollow when you are standing in front of a court. Each time you have to convince the the trier of fact that these standards actually exist and should be applied to your client. This can be especially difficult because your client is usually a member of the tired, poor, homeless, tempest-tost, wretched refuse (you know the "huddled masses yearning to be free" whom we invite to our land and promise a fair shake) rather than an upstanding member of the community. Try this one day: go to court (this works best in traffic court) and watch the swearing matches between the citizens and officers. If there is a presumption of innocence and the officer and the citizen have differing testimony one would think that the citizen would win if he is protected by our laws. Note how many times that actually occurs. Then compare it to the number of times the judge rules in favor of the officer. If you sit through enough traffic court dockets you will eventually see a citizen who does not get it and argues and fights with the judge until the judge finally says "Mr. Jones, why should I take your word over the officer? He says you are guilty. He would not lie. You are guilty."*
Of course, if we actually applied the standards expressed in our high-idealed constitutions it would make life as a defense attorney far easier. And where would be the fun in that?
* Judges in the general district courts are often amazingly honest. Their words are not committed to a record. Should someone choose to appeal their decisions there is an entirely new trial and the words and actions of the district court judge are not subject to scrutiny. This gives them an amount of freedom not shared by their brethren in circuit courts where every word is recorded and can be reviewed. Pity the poor circuit court judge who is as honest about his reasons rather than reciting the approved reasoning of the appellate courts. He will be appealed time and again and have those words used against his decision.
I was just going thru the potential bills which have been introduced to the Virginia legislature and it is a downright scary proposition for anyone whose job it is to defend the lives and liberties of others.
As an objective fact I understand that it is never in the interest of a legislator to propose a law which lessens punishment or increases the protection of personal liberties so that it becomes more difficult for police and prosecutors to convict people. It is always easier to propose more severe punishments or criminalize acts which were previously considered bad but not illegal; then you have something done something simple which your constituents can understand at a gut level. Still, when you see how many bills are proposed each year to chip away at individual rights and increase punishment for less and less significant acts it is depressing.
California has created a new standard for rape. Anyone who has gone to college in the last 10-15 years has probably been forced to go to sensitivity seminars where rape is defined by the mindset of the woman involved rather than her unambiguous statements and/or actions. The danger, of course, is that without at least an unambiguous statement (and preferably an act) the male is reduced to mind reading. And it leaves the male open to "rape by regret." How is anyone to know whether she was unwilling at the time or became convinced she was unwilling later when he turned out to be an absolute jerk who threw her out of his dorm room five minutes after the act and - after fawning over her for weeks - has not even acknowledged her existence since the event.
Rape is the worst crime imaginable short of murder. It is so vile that it long carried the death penalty (and might still except for its improper use against Black Americans). It is also usually one of the nastiest trials when the defendant pleads not guilty. Usually there are no witnesses outside the accuser and accused. She says she told him no - he says she said nothing or was actively willing. Juries and judges guess at who is telling the truth. I guess the one advantage of the California decision is that it eliminates the guess work. He can have a reasonable belief that she is willing and she can have a reasonable belief that she is not: by default she wins because her mindset carries the day. Never mind that it eliminates the necessity that he intend to overcome her will and take her by force; it makes decisions in the courtroom much simpler.
Gotta say, this makes Virginia's appellate court decision that "Can I talk to a lawyer?" is not a request for a lawyer (previously at the top of my list of hard to defend opinions) sound down right reasonable in comparison.
Caveat: I have not read the California opinion only the op-ed pieces. Hope to read it when I get to the office today.
The big story this weekend is obviously the Illinois governor commuting the sentence of all the deathrow inmates in his State.
Personally, I waiver on the whole death penalty issue. As a Catholic my faith informs me that it is wrong to kill another person no matter how foul. As a lawyer I know that uncorrected errors occur in courts all the time and that people often get convicted because of who they are rather than proof "beyond a reasonable doubt." I think we all know (through years of repetition) that the convicted killer is not going to be killed until 15 to 20 years later, long after the crime has left the public mind (providing little or no impact on the minds of the young men who commit most crimes and thus no prevention).
Nonetheless, my gut tells me that some of these crimes and some of these people are just so bad that there is no other option. Thankfully, I am not a prosecutor and do not have to make the decision whether to charge capital murder because I think I probably would in certain cases.
All that said, I must say that I would have admired the stand on principle made by the governor if it had not been done in such a cowardly way. He obviously believes that the system in his State is fatally flawed and took what action he could to correct that fact. BUT, he waited until he was leaving so that he could short circuit the democratic process by avoiding any consequences which might have been placed upon him by other actors in his State's legislature or judiciary. Shameful.
I am a criminal defense lawyer in Virginia and intend to use this primarily as a place to speak about legal occurences and my opinion. Every so often I might digress and speak of my dogs or my cat or my tiny apartment but I will try to keep it at least somewhat on point.
Note: I spend a lot of my weekday time in Court so checking in here every 15 minutes would be a fruitless and probably very frustrating endeavor. I would reccomend checking once a day.
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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 probably don't even operate as described herein. In fact - just in case someone is stoned enough to start quoting this blawg as authority to a judge - It is hereby stated that everything in this blog is pure fiction.
