31 May 2003           
Ken Lammers





Scott Peterson Case. This is just plain dumb. Breaking the law and contaminating evidence in a case that already looks like it might be pretty weak.

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30 May 2003           
Ken Lammers







A tribute to Chesterfield Police Officer Officer Ryan Cappelletty who gave his life protecting the citizens of Chesterfield and the Commonwealth.



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Ken Lammers





Different treatments of Kilgore's announcement of his campaign against gangs:

Washington Post: A general overview.

Roanoke Times: Discusses the denial of gang presence in Roanoke by city officials and what the exact definition of a gang is.

Washington Times: Puts forth anecdotal stories about what gangs have done.

Roanoke Times (part duex): It's all about Kilgore's run for the governor's office.

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Ken Lammers





A British argument for a lesser included offense contained in rape which could be used to gain more convictions.

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Ken Lammers





How can you mess up Miranda? They did and the defendant cannot be convicted. Thank goodness that the defendant is already in jail for the long term for another murder.

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Ken Lammers





Giving radar-guns to citizens:
"If the policy is instituted, volunteers using county-distributed equipment would clock cars and send the vehicle identification of alleged speeders to the police department."
Gimme Gimme - The first thing I do is start hanging out beside the Interstate and/or the local highway and start painting the police as they went by ignoring the silly speeding laws just like the rest of us (they are after all people too).

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Ken Lammers





West Virginia outlaws dog fights.

In the Year of our Lord 2003**, West Virginia, as a forward thinking, cutting edge State outlaws dog fighting. May some of the remaining Several States follow Her progressive lead.


**2756 A.U.C. - 1424 A.H.

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Ken Lammers





The cases awaiting decision by the federal supreme court. The exact same report from The Guardian and the Dayton Daily News.

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Ken Lammers





The Roanoke Times opposes the killing of Percy Lavar Walton by the Commonwealth. Unusual for a Virginia paper.

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Ken Lammers





Local deputy sells drugs to local prisoners - gets federal conviction.

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Ken Lammers





Local Politics at its best.

08 May 2003: Citizen of Colonial Heights rights letter to editor urging city officials to speak out on issues to inform local citizens.

18 May 2003 (4th letter down): Citizen rights letter to editor stating that he received - in reply to 08 letter - an anonymous mailing which outlines flaws in the Colonial Heights Circuit Court Clerk's office. Citizen infers that this came from the challenger in the race for that office and states that it will not change his vote.

23 May 2003: Challenger writes editor stating she has no reason to anonymously write letters - she has all of this up on her public website. States this is not to embarrass current office holder but inform the citizenry.

29 May 2003: Current Clerk replies. Talks about how courteous and efficient her staff is and how she has lived in Colonial Heights her whole life while Challenger has just moved into town and doesn't understand the people or the office.

29 May 2003 (2d letter down): Citizen replies, gives ringing endorsement of Current Clerk, and uneeded besmirchment of Challenger.


Very interesting. I am not in a position to judge whether the office could be run more efficiently (not my bailiwick) but I can say that it is an extremely friendly office and helpful when I need it.

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Ken Lammers





Commonwealth Attorney races:

Prince George

Spotsylvania

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Ken Lammers





A puff piece on the Fourth Circuit. Nothing here which we didn't already know.

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Ken Lammers





Hanover County marijuana ring busted.

A huge marijuana distribution bust. I'll make my regular comments. (1) Good work by the officers & (2) my clients still won't have any problem getting whatever they need on the street.

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Ken Lammers





Proof positive that no matter what happens someone will run a scam based on it.

First, there was 9-11, then there was an anti-Islamic backlash, then there was an anti-anti-Islamic backlash. And these guys ran scams based on the third wave. Kind of an innovative and cutting edge cover; unfortunately - for them at least - the scams really weren't anything that hadn't been seen a hundred times over and they were caught.

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Ken Lammers





Woman gets protective order against ex-husband. Woman invites ex over for child's birthday party. Woman and ex get drunk and she "kick[ed] his butt." Both he and she are convicted of violating the protection order.

The Ohio Supreme Court is now considering whether her conviction is valid.

The article contains a lot of whining, by various groups, about how this conviction could be a terrible blow to protective orders and women in general. Buried deep in the article is the one quote I want to focus on:

"Mr. Fallon added that making women immune from such prosecutions could allow them to entrap their former partners by inviting them over and then calling the police.

"I've seen it abused," he said."
This has got to be the understatement of the century. Let me say from the beginning that I know that a good number of protective orders serve a valid purpose. I'm just not sure that the majority of them do; this has got to be one of the most scam ridden parts of the law. In nasty divorces/custody fights they are taken out as bargaining chips either to be negotiated away or used as proof to the judge that the husband is truly dangerous. In a lot of other cases they are taken out by women who have no intention of living separate from the man. In these cases there is usually a valid reason for the order (although often it's a mutually combative relationship - like the one in the article - where the woman has just come out on the losing end the day she filed the order). Still, what's going on is that the woman is manipulating the system to her advantage. She just wants to make sure she's got THE BOMB hanging over his head so that she can make him behave in the manner she wants him to or that the next time they both get drunk and she hits him in the head with a full can of beer he can't hit her back.

I think the lower Ohio courts have gotten it right - the ex should have been found guilty - he is just as responsible for this as she is - but she should not be let off the hook. Hold both sides responsible and this type of order will be subject to much less abuse.

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Ken Lammers





Having the FBI watch itself just isn't viable. You'll recall my previous posting wherein I stated that the FBI investigating itself will not work. Comes now the proof: the FBI was alerted in 1989 that one of its techs was testifying falsely but it continued to allow him to do so. In 1992 the tech provided THE proof that a man committed a rape. In 1997 the FBI finally owned up to the falsities (allowing the tech to retire). The FBI doesn't inform the lawyers of the 1992 defendant that the evidence was false until FOUR YEARS after they know it to be so.

Inspires confidence, doesn't it?

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Ken Lammers





Virginia's Revenge

A large proportion of drugs coming into Virginia seem to come from NY. And what gets smuggled to them in return? Cheap cigarettes.

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28 May 2003           
Ken Lammers





Blawgs I have recently started reading:

Niqabi Paralegal: Discusses U.S. and Muslim law.

FourthAmendment.com: Day by day layout of current 4th Amendment cases.

U.K. Criminal Justice Weblog: Discusses criminal justice on the other side of the pond.

Blog:

Detache.org: This is the one site I read daily which is not political or legal. It's a guilty pleasure ranking somewhere above chocolate but below the space-opera books I've been hooked on ever since I read Have Spacesuit Will Travel as a kid. And even after that statement I still can't say I scored as high on the geek test as Nina did (only 16.96252%).

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Ken Lammers





Richmond is going to charge you to go to jail:
"The city has also made it more expensive for people who can't keep their noses clean.

Get convicted of a crime in the city, and you'll have to pay a new $5 fee. It now costs $25 in fees to go to City Jail."

It almost goes without saying that this will rarely be enforceable; I hope Richmond isn't counting on too much money from this source.

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Ken Lammers





Reckless Driving (Speed) > 2years + $20K. After fighting for quite a while the N.C. lawyer who was fighting the speeding charge has finally entered an Alford plea because of his poor health and (I'm certain) a realization of how dumb it is to spend $20K fighting a charge like this. My question is how much taxpayer money was wasted making sure this guy was convicted and if it was worth it. They must not have real criminals in Botetourt County if they can put as much effort as it would take to counter that kind of effort in order to convict somebody of something this trivial.

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27 May 2003           
Ken Lammers





Further commentary on the Malvo catch-22:
"Malvo's prosecutors are wrong to take the argument as lightly as they have."

"In this sense, the defense is correct when it says that there is an enormous class of "victims" of the sniper spree, even if those victims weren't actually shot. But prosecutors are correct when they say that this designation "raises the notion of 'victimhood' to a totally new dimension, a dimension where one is a victim whether he or she knows it or not. It is a proposed dimension that is insulting to those who are actual victims." So if we recognize that there is a unique class of people out there, but if we cannot fairly call them "victims," what do we call them and how should we treat them? How about if we call them too personally involved in the sniper shootings to fairly judge Malvo? And how about if we preclude them from entering the jury box in his case?"


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Ken Lammers





An argument for not disclosing the name of a defendant in a rape case until the trial is over. Unfortunately, I don't think this can be done in the States due to that pesky 1st Amendment.

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Ken Lammers





The Brits, by adopting Euro-law, have shifted final power in civil rights from the parliment to the courts:
"[I]t is the government itself which has done most to encourage the growth of judicial review. The incorporation of the European Convention of Human Rights (ECHR), a sort of Bill of Rights, into British law in 1998 allowed judges to declare any law incompatible with the ECHR a ruling that in practice requires the government to amend the law."

And the cries of "judicial activism" have already started.

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Ken Lammers





An article addressing indigent representation. If Virginia wants better indigent representation I have a solution: remove caps on fees or at least double the cap for felonies and triple it for criminal misdemeanors and DUI's. Capping misdemeanors at $112 means that if you do mostly criminal law and you want to keep your office doors open you cannot put too much effort into too many misdemeanors. A $395 cap on most felonies means you can put more effort: call the officer, call a witness or two, meet with the prosecutor to negotiate, and do all the paper work involved in the motions and discovery. At $90 per hour you might even be able to do your pretrial work completely (while still being paid) before you go to court. Of course, if any of your clients decide they want a jury you will put much, much more time in than that for which you are paid. Can't afford too many jury trials if you want to keep your office viable.

I make most of my money from indigent representation. I would love to have enough money coming in my front door to be able to employ a secretary and a paralegal. It would defintely raise the level of my representation - which I (in an obvious lack of humility) like to think isn't too shabby as it currently stands - to a new level of competency.

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Ken Lammers





An article expressing concern at the illicit behavior the government has been allowed to get away with in the Malvo case because the judge has found it is technically legal (just barely).

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Ken Lammers





The law as a shield. WOW! Didn't think that was allowed in Virginia. Only swords in this Commonwealth.

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Ken Lammers





Off with their wigs! An anti-wig opinion from Britain.

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Ken Lammers





The D.C. capital police want to extend their jurisdiction to Maryland and Virginia. Why? Let's be clear here - this isn't even the metro police; it's the folks who protect the capital. They should concentrate on their jobs rather than trying to become auxiliries to those running around chasing burglars and petty thieves.

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Ken Lammers





Felons face poor job prospects and thus often become recidivists. Of course, I'm sure the pesky drug habit that a lot of them have contributes.

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Ken Lammers





Gotta love Brit papers. They're about the only place you can read about how wonderful it is that the U.S. locks so many people up:
"If the jail population rises from 73,000 to 100,000, thatís fine by me.

If the scumbags are off the streets, theyíre not climbing through my back window, stealing my car, vandalising and terrorising our families and our communities.

If drugs are the root cause of most crime, then itís easier to get them clean and sober in a secure unit than at a self-help group run by a bearded Guardian reader called Ros."

And then if you get tired of the intellectual stuff there's always the page 3 girl.

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26 May 2003           
Ken Lammers





Punishing juries for getting it wrong. Here's a man with a lack of understanding of how things operate in the real world. At first I thought that this was some sort of "Modest Proposal" but after a little consideration I must - sadly - conclude that he is serious.
"Of course, the goal is not to get jurors to convict everyone they think is probably guilty; itís to get them to convict everyone they think has been proved guilty beyond a reasonable doubt. But itís easy to adjust incentives to get whatever results you want. If thereís a general sense that juries are too quick to convict, we can either raise the penalty for a false conviction or lower the penalty for a false acquittal. If theyíre too quick to acquit, do the opposite. In fact, thatís one of the hallmarks of a good incentive system ó itís easily tweaked when you want it to work a little differently."

Anyone who's tried a criminal case (at least in Virginia) will quickly realize how bad an idea this is. By and large, judges do not come with a great deal of experience from the criminal defense bar. They seem to come from three backgrounds. A significant minority come from the the prosecutor's office with the natural tendencies that accrue to someone from that background. Another group comes from the Attorney General's office where they have spent their career defending the government. A majority seem to come from civil lawyers with some fairly significant political pull. The last two are often scary in court as they lean heavily on the prosecutors to provide them with knowledge and understanding of criminal law. Even those vanishing few with a background defending people's rights tend to change once they have been on the bench for a while. Seeing hundreds, or thousands, of obviously guilty defendants year after year, all offering variants on the same defense, would cause skepticism in the hardiest of souls.

Anyone who's done this kind of work has watched a judge look bewildered or shake his head at a jury verdict for a defendant. In some rare occaisions overt hostility, which had been focused solely on the defense team, manifests itself in the treatment of the errant jury.
"In the end, the jury returned a verdict of not guilty for everyone. [Judge] Hoffman was furious and when one of the marshals reported that after the jury had been discharged he had found a newspaper in the jury room containing an article favorable to [the Defendant], he ordered the U.S. attorney to investigate how it got there. When one of the jurors admitted he had brought in the papaer, Hoffman held him in contempt of court. Thereafter, when he sentenced the juror to a substantial term of imprisonment and the juror's wife cried out in protest, he sent her to prison as well." Trial and Error, John Tucker p. 42.

Now, picture a system wherein that judge doesn't even have to manufacture an excuse, he has the inherent power to punish a jury which "gets it wrong." Does anyone seriously believe that the punishment would be visited upon juries which find for the prosecution in any way near the number of times it would be upon those juries who set a disfavored defendant free? Keep in mind that all defendants are disfavored (I long ago gave up my delusions that "innocent until proven guilty" is believed by anyone in the court but the defendant and jury).

Would I like to see more attentive juries? Sure. But the proffered solution is not the path. Possible solutions: make professionals serve, remove peremptory strikes, give jurors a tablet and pens and tell them to take notes, have jurors choose a foreman at the beginning of the trial and let them adjourn after direct and cross of each witness to determine if they have any questions.

25 May 2003           
Ken Lammers





Discussing Campus Police. You have to feel sorry for these guys. They are police officers but they are usually treated as a lesser class. And they constantly deal with a bunch of kids who are at the age where rebellion against authority is the norm. It's a thankless job.

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Ken Lammers





Why even consider the death penalty for a 72 year old man? By the time you have finished the trial, appeals, habei, etc. the man will almost assuredly not be with us. It seems like a giant waste of money.

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Ken Lammers





Isn't silliness like this usually limited to California?

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24 May 2003           
Ken Lammers





Lammers Lawyers.

I've never met someone with the same surname as my family. So it's always a little strange when I do a Google search and see hundreds of "Lammers" mentioned. So, I decided to take a hour or so and see how many Lammers lawyers I could come up with:

Actual Websites~

Jerome B. Lammers (Lammers, Lammers & Kleibacker, LLP) Madison, South Dakota - Martindale
Kimberly A. Lammers (Kutack Rock LLP) Omaha, Nebraska - Martindale
Mark Lammers (Anson Lammers) Tucson, Arizona - Martindale
Eric S. Lammers (Hale and Dorr LLP) District of Columbia
Heather Lammers (Costello Porter Hill Heisterkamp Bushnell & Carpenter LLP) Rapid City, South Dakota - Martindale
James Lammers (Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P.) Stillwater, Minnesota - Martindale
Lawrence J. Lammers (McCarthy, Lammers & Hines) Davenport, Iowa - Martindale

Mentioned in something published on the Web~

Charles Lammers - Tallahassee, Florida
Jack Lammers - (Prosecution Office) Waterloo, Iowa
Jim Lammers (City Attorney) Woodbury, Minnesota
John Herman Lammers (U.S. Attorney) Sioux City, Iowa
John Lammers (Assistant County Attorney) Black Hawk County, Iowa
Tom Lammers (Purdy, Lammers & Schiavone) Celina, Ohio - Martindale
Rockne Lammers - Jerome, Idaho - Matindale

martindale.com only~

Terrence L. Lammers - Santa Barbara, California
Elizabeth Whitesell Lammers - Dunwoody, Georgia
Gail Christy Lammers - (Staff Atty., SAFECO Prop. & Cas. Ins. Co.) Overland Park, Kansas
Jon D. Lammers - Wichita, Kansas
John J. Lammers (V.P., Risk Arbitrage Dept.) New York, New York
Edward Gerard Lammers (Murphy Stecich & Powell, L.L.P.) Tarrytown, New York
Gary L. Lammers - Ottawa, Ohio
H. Jolyon Lammers - Media, Pennsylvania
Ryker Lammers - Madison, South Dakota
M. Paul Lammers, Jr. - Park City, Utah

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Ken Lammers





Prohibition fails / Prescription Works.

Of course, this could never be implemented in the States but in Switzerland they have been prescribing hard drugs to those who are addicted and it has had amazing results in its impact on crime. (article found via UK Criminal Justice Weblog)

Of course, it's the Guardian so take it with a grain of salt.

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Ken Lammers





FBI trying to fix itself.

Because the FBI has been losing people's trust due to things like lab misconduct and punishing whistleblowers it is trying to revamp its internal investigative office. Unsat. For the immediate future, the only way that lab is trustworthy is with external overview including a body made up of at least 50% unfriendlies (like NACDL members). You have to understand exactly how devastating it is to have an FBI "expert" testify that there is a 1 in 6 billion chance that the DNA might point to someone other than your client. And if he's lying (as has happened) then it is not in the FBI's interest to turn on their own in the middle of a trial wherein they are convinced they have found the guilty party.

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Ken Lammers





An Interesting Catch-22
The Continuing Adventures in the Malvo Case


Pertinent code sections:

18.2-31(13) Capital Offense-Terrorism
18.2-46.4 Definition of "Act of Terrorism"

The Defense Team in Malvo has caught the prosecution in an interesting conundrum. To charge terrorism the prosecution has to show simple intimidation of citizens or intimidation with intent to coerce the government. Naturally, intimidation - as a matter of course - requires people. You can't intimidate laws, or constitutions, or political philosophies; you can only intimidate the people following them. In order to prove the case the prosecution must prove that people felt they might become victims directly or indirectly (or that they were). This includes every single member of the jury pool which should exclude them from the jury. Therefore, the trial should be moved to a different jurisdiction.

It's a brilliant argument and you can tell by the prosecutor's use of hyperbole that it is a far better legal argument than the prosecution has available:
"In response, Horan said the claim that all county residents are potential victims is 'factually preposterous.'

'It raises the notion of 'victimhood' to a totally new dimension, a dimension where one is a victim whether he knows it or not,' Horan wrote. 'It is a proposed dimension that is insulting to those who are actual victims.'"


The prosecution should lose the argument. He won't, but he should.

This is beginning to feel more and more like a show trial. I'll be interested to see what excuse the judge uses to get past this issue.

UPDATE: I may be wrong in my belief that the case will not be transferred to another jurisdiction. SW Virginia Law Blog points out an article discussing the judge's inquiries as to possible other locales. This is what I get when I don't check the other Virginia blawg before I post.
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Ken Lammers





Carpetbaggers. What can you do?

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23 May 2003           
Ken Lammers





Hampton's Commonwealth Attorney is holding classes to show citizens how courts actually work.

I suspect that citizens who don't have contact with the system still won't understand it. Heck, a lot of lawyers I know don't have any idea how the courts work.

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Ken Lammers





Prosecutor Overreach v. Jury Sense


A mentally limited man takes part in a beating wherein his comrades beat a man's head in. The man only kicked the victim in the shoulder once (not causing any major damage).

The prosecutor asked for first-degree murder - the jury returns second-degree murder.

The prosecutor asked for 40 years - the jury returned 10 years.

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Ken Lammers





SHOCK! GASP! Students at Randolph-Macon are smoking marijuana and using uppers to keep themselves sharp when studying. Cause, you know, there's no other school out there with kids who use uppers to keep going (at least the really fanatical or desperate ones). And marijuana? Can you believe that a large number of kids might have some who smoke? I know I'm shocked.

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Ken Lammers




OFF POINT




Gleefully plagiarized from detache.org, the "blog of your average complex introverted sarcastic twenty-something ex-violinist asian conservative sorority girl with a southern accent."

FOBMAN.

You know, I just can't picture a bunch of German-Americans ( those of my ilk) getting together to put together something this humorous. Well, maybe if there was beer, lots and lots of beer . . .

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22 May 2003           
Ken Lammers





Naw, no one will abuse their powers under Homeland Security. It'll never happen. Never.

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21 May 2003           
Ken Lammers





The problem with making it unconstitutional to kill those who are mentally retarded: suddenly everyone's mentally retarded.

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Ken Lammers





20 years later and all the way across the country Seattle police set a trap to catch a murderer.

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Ken Lammers





The Guardian has gone to court to try to invalidate the Treason Felony Act 1848 which "made it a serious offence, punishable by transportation, to call for the establishment of a republic in print or writing, even by peaceful means. It remains in force, though last used in 1883, with life imprisonment as the maximum penalty."

If it hasn't be enenforced for 120 years why are they trying to get rid of it?

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20 May 2003           
Ken Lammers





Scary Statistics

"The Justice Department had detained fewer than 50 people as material witnesses without charging them in the war in terror as of January and had gained 47 court-ordered delays in notifying people of search warrants, according to documents released Tuesday. "

Libraries have also been contacted about 50 times about what the patrons have been doing.

The government's characterization of 50 people being arrested without charges as "fewer than" does not take the sting out of it happening.

Update: The NYTimes reports

"[A]ccording to the report, the Justice Department sought 248 times to delay having to notify the target of an investigation that a warrant had been executed. The department said it was never turned down by a court in its requests to delay the notification, and the delays sometimes amounted to 90 days or more."


This bothers me:

"In the case of the anthrax attacks in the fall of 2001, for instance, the department said a provision of the law allowing a court to issue a search warrant in another jurisdiction allowed a Washington judge to issue a warrant for Florida."


For those of you who need a translation, this means that the government can find that one judge who will sign any warrant put in front of him and use him to sidestep that pesky judge in Iowa or Texas or . . . who just won't sign people's rights away. And then under Leon the search will, of course, be valid even if that judge would not have issued it.

.

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Ken Lammers





In North Carolina it's O.K. to shoot loose dogs. The officers shot and killed five dogs. "In two cases, the dogs were shot as they ran or walked away from the officers."

Hmmmm... If you can hit the dog with a bullet couldn't you hit it with a tranquilizer dart?

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Ken Lammers





The Missouri Supreme Court ruled that a fairly typical police technique is unconstitutional.

Police around the nation know that if they get a flawed confession (without telling the suspect his Miranda rights) they can read the Miranda rights to the the suspect and ask the same questions and the statements after are admissible. The courts usually rely on the specious argument that once the rights have been told to the suspect he understands that nothing he said previously is allowed in court (although that is never explained to the defendant). Back in the real world, the suspect thinks he has already confessed so saying it again will not change anything; of course, police do not disabuse him of this quite rational conclusion.

I think the requestioning can be constitutional if the suspect is specifically informed that nothing he has said prior to the Miranda warnings is admissable in court.

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Ken Lammers





Inmates have a constitutional right to be on the internet.

I want to disagree with this but I can't. I think that the ACLU's argument about the sites being out of the State and.or the country is a red herring meant to distract attention from the one person clearly within the State's jurisdiction (the prisoner). Still, I think the judge is absolutely correct when he states that "the law has no legitimate prison management function." That is, as long as the prisoner doesn't advertise for someone to break him out.

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Ken Lammers





Thank God for the Constitution


Our rights were at least somewhat frozen when the Amendments were added to our federal constitution. The British, whence came our "reverence for the characteristic rights of freemen," are not blessed with such guarantees.

As best as I can make out, the British are just about to have a disastrous curtailment of their rights. First, and most important, the proscription against double jeopardy is about to be nullified (or as the article proclaims "reformed"). They are going to abrogate it and replace it with a tripartite test:

"First, the police will not be allowed to reinvestigate the offence without the consent of the Director of Public Prosecutions, who must be satisfied that there is, or is likely to be, sufficient new evidence to warrant investigation. Secondly, no application may be made for a retrial without the consent of the DPP, who must be satisfied that there appears to be new and compelling evidence of guilt and that it is in the public interest for the application to proceed. Thirdly, the Court of Appeal must be satisfied that there is new and compelling evidence of guilt and that it is in the interests of justice to order a retrial."

Let's put this in a perspective that we Americans can understand. Think of the Ashcroft Justice Department and the Fourth Circuit operating under these rules. Trial, retrial, and trial again until the government got the "correct" result.

Second, they are trying to change their rules of evidence to allow the prosecution to prejudice the jury by introducing the Defendant's prior convictions as part of the reason for conviction. The author engages in a disingenuous argument that because positive character evidence can be used as evidence of innocence the record of conviction must be admitted as evidence and the record will not be used to overwhelm the jury's judgment of the evidence when the actual evidence is weak. Yeah, right. If the problem is that the Defendant enjoys such an unfair advantage why not try to change the rules so that positive character evidence cannot be used as evidence of innocence? Gotta be some reason that prosecutors salivate at the opportunity to introduce a Defendant's record - could it be because they think they can convict on character rather than evidence?

It's scary what's going on over there. Isn't their liberal party supposed to be in charge?

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19 May 2003           
Ken Lammers





Remember the idiotic Japanese newsman who took a grenade from Iraq as a souvenir and then was charged with murder when it exploded in a Jordanian airport? "[P]rosecutor Col. Mohannad Hijazi replaced the charge against Hiroki Gomi with "unintentional harm," bringing down the sentence, if convicted, from the death penalty to a maximum of 15 years in prison."


Pop quiz:

Which would you prefer 15 years in Red Onion or 15 years in a Jordanian prison?

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Ken Lammers





Prosecution Overreach v. Jury Common Sense



Two cars were dragging and hit a third car, killing its occupants. The prosecutor really stretched and tried to convict of "second-degree murder under the legal theory of implied malice." On a theory, I guess, that every time you speed you have a malicious intent.

The jury thought about it, applied common sense, and rejected the theory. They did not let the drivers go; they convicted the drivers of the appropriate offense: manslaughter.

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Ken Lammers





Choose Your Death


If it isn't cruel and unusual to force a man to choose his method of execution I don't know what is.

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Ken Lammers





From TalkLeft (an excellent blawg which I frequent far less than I should because it is the only website I have found which just won't work with my preferred browser, Opera):

Alabama is now committing to a policy of not stopping people because of racial profiling. You know, this is garbage. We put officers in a position wherein we tell them when their suspicions are not constitutionally valid they can use bad-faith pretense stops in order to effect an investigative stop: e.g. "Ma'am, I pulled you over for a cracked windshield. Before I let you go, you don't have any drugs in your car? [no] Then you won't mind if I have a quick look inside?" We train them to do this and wink at them in court when they come in and testify that the only reason for the stop was the cracked windshield (for which they don't even write a ticket).

Basically, I'm saying that we need to let the officers off the hook by leaving them alone to continue the bad-faith pretense stops which we have told them they should be doing over and over again or by limiting them solely to the scope of the matter for which they stopped the car (with necessary plain view exceptions): e.g. no asking if drugs are in the car, if the officer can search it, or having a drug dog just appear out of thin air a minute after the stop. Personally, I favor the second option but we need to be clear for the officer on the road whichever route we choose.

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18 May 2003           
Ken Lammers





Prosecutor Update


The races are on. The Republican Party has chosen a candidate for Loudon and two Republicans are competing for the Prince George nomination.

Who needs a website? In Westmoreland County the Journal Press publishes a page for the Commonwealth Attorney. I've seen Court pages and Arrest pages but this is the first time I've seen a paper give a prosecutor his own page.

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Ken Lammers





The prosecutor is not happy with the bond so he's appealing it. I had a prosecutor move for a revocation of bond hearing once but the judge shut it down failry quickly. Of course, then my client went out and shoplifted again so it was a moot point; for some reason the judge wasn't too keen on granting bond after that.

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Ken Lammers





Hampton has had problems in its Circuit Court Clerk's Office. Therefore, it now has one of the few real elections for Clerk and is drawing some news coverage.

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Ken Lammers





Post conviction regret: as happens every so often the client regrets his decision and blames the attorney.

"Pfohl, after firing his pro-bono attorneys Joseph R. Conte and Jensen E. Barber, said that he lied to the court on Dec. 20, 2002, when he said he was satisfied with his attorneys services, that he understood the consequences of his plea and that he was guilty of second-degree murder."

"In an April 4 written letter to Barber, Pfohl stated that because of developments in his case he believes Barber intimidated him and represented your own opinion and wishes, not mine. "

"For whatever reasons, you have not acted in my best interests and have encouraged me to forfeit all of my rights and any defense I might have had by pleading guilty to a charge I am not guilty of and which the commonwealth cannot prove every element of! Pfohl wrote. "

Before you can plead guilty a judge asks you about your understanding of your charges, your satisfaction with your attorney, and whether you are pleading of your own free will. It all gets put on the record and means your client cannot deny his understanding and exercise of free will. A good number of these folks are just saying what they think they are supposed to say. Still, when you see a letter like this you have to suspect that this is someone who trying to manipulate the system.

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Ken Lammers





Can't allow open discovery - it would make it harder for the prosecutor to engage in trial by ambush.

As a matter of law I think that the judge was right on some of this but the law is clear that district court judges can order a Bill of Particulars and that would definitely include some of the information requested. Not that they ever do.

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Ken Lammers





The Daily Progress weighs in on the case which Steve Benjamin argued recently in the federal supreme court. The city of Richmond basically declared its public housing, and the streets surrounding it, private property and started issuing trespass violations. Even the Virginia courts couldn't find that constitutional.

"[T]he method for dealing with such problems on other public streets and sidewalks is to provide law enforcement not to simply ban the public from those public areas."

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Ken Lammers





The Bee's a'Buzzin'


North Carolina is considering a moratorium on the death penalty and the Bee is having none of it.

To paraphrase its "logic": there may be problems with the system but that shouldn't stop us from killing people who were convicted under the flawed system while we figure out the flaws.

Yeah, so what if we find out someone shouldn't have been killed; accidents happen.

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Ken Lammers





Wow! Danville has 13 gangs. How? Why? What makes Danville such a magnet? It cannot be drugs alone. You wouldn't think that drugs would be as major a fact in a city which is not intersected by I-81, 85, or 95.

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Ken Lammers





An article discussing how South Carolina's "anti-lynching" statutes are being used primarily against balck men.

"The only other states with lynching statutes still on the books are California, Virginia and West Virginia, though the laws are rarely used."

These laws (at least in Virginia) would be more accurately described as mob-violence laws. I've seen them used a few times and they usually seem to be applied to kids in gangs who go as a group to beat up someone who has raised their ire. They probably need to be on the books but if they cause mental anguish perhaps they could be retitled.

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Ken Lammers





10 years for molesting four boys. Not adequate.

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Ken Lammers





An article describing the police use of aircraft to measure the speed of your car as it goes down the road.

Big Brother is watching.

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Ken Lammers





Who Needs a Perp Walk?







These pictures are in the Hopewell News and it looks like they're in jail garb. If this ain't a no - no it oughta be.

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Ken Lammers





From How Appealing


A jury in New York "found Mr. Nelson guilty on Wednesday of violating Mr. Rosenbaum's civil rights by stabbing him during the 1991 racial disturbance in Brooklyn, but not guilty of causing the death itself."

This is one of those very few times that publicity hurt the prosecutor rather than the defendant. And it actually worked a good. The publicity counteracted an incredibly bad decision by the judge that despite the fact that it appears as though the victim would not have died if the hospital did its job correctly ("Mr. Rosenbaum was alert for some time after the stabbing, but at Kings County Hospital Center, the State Health Department determined, doctors failed to notice a four-inch-deep stab wound for nearly an hour, and he bled to death internally") no mention of the malpractice could come in "because Mr. Rosenbaum would not have died had he not been stabbed in the first place, the hospital's conduct was beside the point."

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17 May 2003           
Ken Lammers





Things to look for in the future:

Rumint at the CLE had it that 18.2 and 19.2 are being revamped and will probably morph into 18.3 and 19.3.

Of course, I'll believe it when I see it.

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Ken Lammers





Jokes at yesterdays criminal defense bar CLE:

(1) Marriage Sentence

Sue wakes up to find that her husband is not in bed with her. She goes down to the kitchen and finds him sitting there with tears flowing down his face. "What's the matter?"

"Well," he says, "You remember when I was 16 and you were 14 and we had just gotten finished steaming up the windows in my car when your daddy opened the door with a shotgun and said I had a choice of marrying you or going away for 20 years?"

"Yes."

"My sentence would have been up today.''

(2) Difference in Judges

The legislature makes it illegal for ducks with white tailfeathers to be shot. Hunting season rolls around and a supreme court justice, a court of appeals judge, a circuit court judge, and a district court judge all go hunting.

The Justice has a duck pop up in front of him and tells his clerk to examine the duck to see if the feathers are the right color. By the time the clerk gets his binoculars the duck is gone.

The court of appeals judge has four ducks pop up in front of him. He and his clerk have their binoculars up and are peering but by the time they figure out which duck doesn't have white feathers it is too late to shoot.

The circuit court judge has twenty ducks pop up in front of him. He looks up and is pretty sure that the 3 on the left hand side don't have white feathers and shoots them hoping they don't have white feathers.

The district court judge stumbles into a pond and at least 200 ducks spring into the air around him. He grabs his pump action shotgun and brings down scores of ducks reasoning that white feathers are an issue for the Circuit Court.

(3) Ashcroft

John Ashcroft visits an elementary school and after giving a speech tells the kids he will answer some questions. Bobby raises his hand and says, "I've got two questions. Why does the librarian have to tell you what books I check out? And, why have you locked up our school's maintenance man, Muhammed, as a material witness for the last six months without letting him see a lawyer or charging him with a crime?"

Just then the bell rings and everyone goes outside for recess. When they come back Ashcroft is still there and asks again if anyone has a question. Joan raises her hand, "I've got four questions. Why does the librarian have to tell you what books I check out? Why have you locked up our school's maintenance man, Muhammed, as a material witness for the last six months without letting him see a lawyer or charging him with a crime? Why did the bell for recess ring 20 minutes early? And, where's Bobby?"



I said they were jokes; I didn't say they were good.

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Ken Lammers





Bar Name Change


Sorry about not posting yesterday. I was at a criminal defense bar CLE.

During the meeting the Virginia College of Criminal Defense Attorneys changed its name to the Virginia Association of Criminal Defense Lawyers. The previous name had more class but some people in the organization were obsessed with changing the name so that it became an exact mirror of the National Association of Criminal Defense Lawyers. The rest of us really didn't care enough to oppose their zealous advocacy.

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Ken Lammers






17 face trial in Prince William for distribution and Roanoke is wrapping up the trial of 1 of 15 defendants for distribution (the others pled and snitched).

And the thing is - my clients don't seem to be having any harder time getting drugs.

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Ken Lammers





Why must the Roanoke schools report alleged, unproven and/or unserious infractions rather than "only those incidents resulting in expulsion, long-term suspension or criminal charges?" The only reason I can think of is that somebody needs it for a line on the budget request:

School security (128 incidents) James Madison Middle School.................................$10,000.

looks a lot better than

School security (3 incidents)......................................................................................$10,000.

Still, even considering possible political motivations for elevating them - the numbers seem like they were purposely skewed downward. Of course, anyone cynical enough to cook up the above explanation for the need to raise the numbers might think that the number were purposefully reported low so that school officialdom would look more competent in their jobs than they actually are.

This reminds me of when my on-campus apartment was broken into while I was in law school and a roomate's wallet stolen. We reported it to campus security - who did nothing - and a few days later had to go down to the police station to report it to Lexington police because the school had not.

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Ken Lammers





7 years is not enough. Unless serious mental defect was proven there is no excuse for what this man did to his 2 year old stepson.


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Ken Lammers





An article from the Times reporting (as much as it can) on concerns that the Brit legal system is slowly being shut off from media coverage. As a person inf favor of media coverage of the courts, I agree. I think all courts should be covered like Wise County.

Another thing that caught my eye is the section talking about how "[t]he Criminal Justice Bill allows the Court of Appeal to consider ordering a retrial in criminal cases where the prosecution claims there is new and compelling evidence." I guess they do not have to worry about double jeopardy. The ability of the government to try and retry until they get it right is just scary.

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Ken Lammers





As I have said before, Egypt is the one ray of hope in the Middle East. Now there is a movement toward repealing the emergency laws.


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Ken Lammers





Life as a federal snitch.

Have your life directly threatened and the fedgov could care less; publish a book without giving the proesecutors a heads up - go to jail. But they are only doing it because they are worried for your safety.

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Ken Lammers





Are you dubious about all those wonderful ads which arrive daily in your e-mail? Does anyone actually believe those offers? Apparently enough people bite that the fedgov had to step in.

The feds have crashed down on a number of internet scammers including:

(1) An online pyramid investment scheme netted $60 million and resulted in the extradition of two people from Costa Rica.

(2) A prolific spammer based in Buffalo was arrested on Tuesday and accused of sending 825 million e-mail messages over Earthlink's Internet services by setting up 343 accounts with fraudulent credit card numbers.

(3) A couple was indicted in California on charges of operating a fraudulent Russian dating scheme that stole $600,000 from 400 victims over three years. The two had contacted male victims through personal advertisements posing as Russian or Ukrainian women.

This if from the NYTimes but if you don't believe it anymore the article is mirrored at CNN (or was it mirrored by NYTimes?).

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Ken Lammers







This signal means that the infield fly rule has been invoked. However, the Expos don't seem to understand this rule.

O.K., it's not a crime but it oughta be. I think I learned this rule about the same time in my childhood that I learned taking things that don't belong to you is bad.

Maybe the Expos should go to this school for a refresher course:



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Ken Lammers





Feeding your neighbor's cat to an alligator is a felony in Florida.

As a cat owner, I can't say I have a problem with this.

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15 May 2003           
Ken Lammers





Nobody wants to be tried where they are charged.

Malvo's lawyers are trying to move his trial because it will be impossible to get an impartial jury in Fairfax. They are claiming that the jury pool has been poisoned by media coverage. Of course, they are correct. Of course, the case won't be transferred. As a matter of pragmatism, where could you find a place in the United States (much less the Commonwealth) that hasn't been tainted by the news coverage? Maybe they could try Lee County; you can't get much more remote from any other place in Virginia. Can you imagine a prosecutor from Fairfax trying a case out in the middle of the mountains?

Sa'ad El-Amin wants to move his fedgov charges out of Richmond. SW Virginia Law Blog wonders why he would want to do this as he must have some friends in town in order to get elected to the city council. The problem is that none of the people who vote him into office are going to make it onto a fedgov jury. And the rest of us have heard about the disbarment and the lawsuits. Still, once they get rid of him it will make Richmond politics much more boring.

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Ken Lammers





Must have been a slow news cycle. This reporter really stretched to make this into an article.

There's absolutely no wrongdoing going on here. Judge Hauler is not behaving any differently in his court. I don't know how the reporter got started on this article but it feels like part of the political gamesmanship which has been going on in that courthouse for the last couple years. Ms. Fischer should be more careful - doesn't she read the articles which have been published in her own paper?

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Ken Lammers





Whatd'yaknow? The feds have actually taken a break from convicting kids for having a pistol or selling a rock to take on someone who the feds should be investigating and/or prosecuting. More power to them.

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Ken Lammers





Think the fedgov had tamed Microsft's predatory tendencies? Think again.

"Under NO circumstances lose against Linux."

The article describes selling at a loss or even giving away software to cut out Linux. Well, why not? The same tactics worked against WordPerfect, Netscape, etc.

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Ken Lammers





SW Virginia Law points out the new laws as laid out in a brief for the Circuit Courts.

Must admit that I am pleased to see the resisting arrest charge. Now my clients will not so often be faced with the choice of pleading to an obstruction they didn't commit or a felony eluding which they don't deserve. Ruckman and Jones are still out there (although generally ignored by judges I practice in front of) so the obstruction arguments won't go away otherwise. Good gracious, I wish the Legislature would fix that gawd-awful law. Every client I get who stiffened his arm while the officer was handcuffing him gets charged with it even though the two cases supra seem to make it clear that the act required must be one which would stop the arrest not impede an intermediate act. Judges convict. Every time.

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Ken Lammers





In criminal investigations, detectives could look at global email traffic to see if known criminals are part of a wider community. The technique would also work for phone calls.

Interesting but scary. Just imagine the fishing expeditions: Law Enforcement could wade thru tons of e-mail connections just looking for a pattern which establishes a central actor and then try to get a subpoena for that actor's specific e-mails (or his entire computer) without really establishing anything other than the fact that someone receives a lot of e-mail from a group of people.

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Ken Lammers





Juries in Chesterfield County


There have been three recent murder jury trials in Chesterfield County (that I know of). I saw part of each:

Commonwealth v. Javon Singleton:

Tyrone Singleton's testimony, under direct examination by Assistant Commonwealth Attorney David Rigler, was devastating. About half way thru the direct Mr. Rigler started asking questions which would implicate Javon and Tyrone just shut down. You could have cut the silence in the courtroom with a knife. The kid wasn't refusing to testify because he was being a jerk - he was just so emotional that he could not answer. After attempts both with and without the jury present Dave took a smart tack and starting asking questions which were away from the sensitive questions and once the kid started talking led him back to the tough questions. The kid paused and then, with a lot of emotion, told how his brother admitted guilt. It was the gold standard as far as testimony goes.

Unfortunately, for the prosecution at least, the prosecution team followed that with an absolutely ridiculous professional snitch. He came out with his hair spiked up and testified in a manner which I would describe as slick, casual, humorous, loud, and DUMB. On a gold standard this guy was tin. Every bit of ground the prosecution had gained disappeared. Then it got even worse when the defense attorney stood up and basically got the guy to admit that he was a professional snitch and had gotten benefits time and time again from testifying. But the snitch swore up and down that he didn't have any expectation of getting anything this time: he was just testifying from the goodness of his heart. He testified on about 4 facts which might have been helpful but he was so bizarre that his evidence and the kid's were overwhelmed.

Javon Singleton was convicted of a class 1 misdemeanor.

Commonwealth v. Justin P. Dejarnett:

In this trial the government tried to convict a Dejarnett for giving a methadone pill to another kid. The other kid then went and drank to excess, took Xanax, and took the one methadone pill. After he fell asleep the kid's system became so depressed that he stopped breathing and died. Chesterfield then charged the last three people who were involved in the chain of trade/sale with killing the kid. The two furthest removed cooperated and took deals. Mr. Dejarnett, who actually gave the pill to the kid, fought it in a jury trial.

The prosecutor's case was in trouble from the beginning. The prosecution's own expert witnesses could not testify that the one methadone pill was the cause of death. The best they could say was that the the combination of all the junk the kid had in his system caused the death. I was surprised that it even survived the motion to strike. It survived on a felony murder theory with Judge Gill stating that it should go to the jury in order to decide "foreseeability."

I wasn't able to see the end of the trial but I'm told that the jury took less than 20 minutes to return a not guilty plea.

Commonwealth v. Shirtorya Christian:

This courtroom was full when I tried to go in and watch part of this. The prosecution was after first degree murder and David Whaley got them down to second degree. The jury still recommended 38 years.

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14 May 2003           
Ken Lammers





Warner has signed into law stiffer penalties for driving like a madman on I-81. Anyone who has driven that highway knows they're badly needed.

This article urges higher penalties everywhere.

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Ken Lammers





The NAACP sued gun manufacturers and lost.

Common sense exists - even in New York.
Ken Lammers





Apology


Over the last week or so I have been using some more advanced html features as I attempt to teach my self html. I use w.bloggar to post and Opera as my primary browser. Those few times that I use a secondary browser it is Netscape or Mozilla. In all of these browsers my site performed perfectly and (I thought) started to look pretty sharp. Unfortunately, I was notified a couple days ago that the site was messed up when viewed in Explorer. I checked; it was.

The attempts to fix whatever was making Explorer screw up failed. I think this happened because there was actually nothing wrong with the language and the problem was with Explorer.

Eventually, messing around with the language actually damaged the site so that it would not work properly with any browser and I had to load another template and fix it up.

I apologize if you came to check my blawg during that time and it was screwed up.

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Ken Lammers





Malvo's lawyers are trying to get his trial in Virginia precluded because he was charged in federal court and Virginia law prohibits prosecution after federal charges are filed on the same crime.

This is interesting and innovative. It won't work but it is a fresh angle. The judge will rule that the charges are different and therefore the law does not apply.

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13 May 2003           
Ken Lammers







The Virginia State Police have more armored cars than any other State? Why? Are we going to get invaded soon?

By the way, why wouldn't somebody just shoot the tires out?

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Ken Lammers





Need to lose weight? You could always go on the government's diet program.

"Minnesota is considering following Virginia's lead in serving only two meals per day on weekends and calling one of them 'brunch.'"

And then there was the client I had who worked as a trustee in the kitchen and told me that the "meat pellets" which are put into all the meals come in a bag marked "Not for Human Consumption."

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Ken Lammers





The Wisconsin Supreme Court overturned a sexual assault conviction because one of the jurors didn't understand English. The truly scary thing is that the Court of Appeals had previously left the conviction undisturbed.

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Ken Lammers





The RIAA sent threatening letters to Penn State because the University has a professor emeritus named "Usher" and his name was reachable by web crawlers.

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Ken Lammers


A man who trains British legal professionals explains why he thinks they are idiots


"Take the would-be barrister who questioned me, a burglary victim, in court to identify the burglar whom I had seen.

'It was dark, wasn't it?' 'No, it was light.'

She took a moment to consider. 'But apart from the light. It was dark?'

. . .

One was questioning me about why I hadn't parked outside my house.

'There were no spaces,' I explained reasonably.

'I put it to you that you are lying,' asserted my tormentor, producing a photograph. 'Look at this picture. It clearly shows your house with spaces outside.'

'But that was taken on another day,' I replied. The performance came to an abrupt end.

. . .

There was sometimes a scary lack of awareness of the basic facts of life. I was the husband in a domestic dispute and my barrister was investigating my case.

'You say you haven't had sexual relations with your wife for a year and yet you have a ten-month-old child?'

I admitted this was true.

'Well, I fail to see how that's possible.'
12 May 2003           
Ken Lammers


When a lawyer has spent too much time at the bar


A British barrister showing for court drunk lends itself to this discussion of the treatment of this sort of occurence throughout the English speaking world from Ohio to New Zealand.

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Ken Lammers


Skirmishes on the

9th Circuit

and

4th Circuit


As noted in How Appealing, the NY Times has an op-ed piece about Judge Kuhl's appointment to fill a position on the 9th Circuit:

"President Bush does not appear to be troubled by Carolyn Kuhl's way-out-of-the-mainstream judgment in . . . a number of [cases]. He's nominated her to a seat on the Ninth Circuit Court of Appeals, which is one step down from the Supreme Court."

Personally, I have problems with the idea that the NYTimes has any clue as to what the "mainstream" is. And the Ninth Circuit could probably use someone who can write an opinion that the federal supreme court might uphold.

"Democrats are fighting the nomination as part of their thankless task of trying to block at least the worst of Mr. Bush's judicial appointments."

As I've said before, I entirely support the Democrats' right to do this but if the Republicans play hardball too the Democrats have nothing to whine about (they will, but they have no grounds).

The Times-Dispatch provides more balanced observations about the appointment of Claude A. Allen:

Critics may be challenged to neatly classify Allen, whose political history and personality sometimes seem contradictory.

He is a Republican and an African-American who publicly espouses the "compassionate conservatism" of the Bush political platform. Yet he worked early in his career as a campaign aide for then-U.S. Sen. Jesse Helms in North Carolina, whose brand of conservatism carried brass knuckles and some of the South's segregationist past.

In an interview with The Times-Dispatch in January 1998, Allen said of Helms: "I looked at the issues I was told I shouldn't agree with him about, such as abortion and issues related to being black, the Voting Rights Act and women. They were not things I would agree with, [but] in many cases, he had a very logical position."

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Ken Lammers


Discussing the silliness of the Assault Weapons Ban

"In 1996, Washington Post columnist Charles Krauthammer, who favors banning gun possession by civilians, conceded that the arguments advanced by supporters of the "assault weapon" ban were "laughable." The "only real justification" for the law, he said, "is not to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate confiscation."
11 May 2003           
Ken Lammers


Debating Judicial Nominations:


NY Times


v.


Washington Times


How Appealing points out a NY Times op-ed which approves the judicial filibuster:

"The reason his nominees have met with resistance is not Democratic intransigence or a flawed rule. It is that many are far-right ideologues whose views offend most Americans. There is only one way to end the deadlock: compromise.
. . .
The only "crisis" at hand is that the White House is having trouble getting its most politically extreme nominees confirmed.
. . .
Senate Democrats have asked to work with the White House to identify qualified candidates who are acceptable to all sides. But so far, the White House has insisted on its right to name judges who are far outside the mainstream. If President Bush wants to end the impasse, he should take the Democrats up on their offer."

Of course the Washington Times has its own solution:

"Judicial appointments are increasingly in thrall to the very powerful interests that care the most about judges: those contributing disproportionate money and grass-roots effort to individual senators and political parties because they seek certain governmental support for their favorite issues. This is the special-interest model for judicial appointments today.
. . .
Mr. Estrada and Judge Owen graduated from elite law schools, demonstrated rigorous scholarship in their legal writing, and consequently received the American Bar Association's "well-qualified" designation, its highest judicial rating.
. . .
††††To solve a national problem that White House Counsel Alberto Gonzalez now refers to as a judicial "vacancy crisis," the president should invoke a constitutional power that Senate minorities cannot dominate: his power under Article II, Section 2 to fill as necessary all judicial vacancies during a Senate recess. President Bush must use this power decisively to appoint Miguel Estrada, Judge Priscilla Owen, and all other nominees blocked by the Senate minority merely because it disagrees with the president's political philosophy.
. . .
[After that] President Bush would agree to not use this power again if Mr. Daschle and his brethren agree likewise to not obstruct the entire Senate from voting on all judicial nominees within three months of their approval by the Judiciary Committee.

I come down on the side of the Washington Times in this matter. Still, the Democrats are acting in a way that is distasteful but completely legitimate. While I do not believe that they are representing the will of the majority of the people they are representing their core constituency. However, if they are going to play political hardball they have to expect that others will play as well.

I would even one-up what the Washington Times offers. Make a recess appointment of Bork in the position which is marked for Estrada, require the vote on Owen before the vote on Estrada, then leave the Democrats with the choice of whether to leave Bork in place or vote. Bork is extremely qualified so there really can be no complaint that he can't do the job and, boy, wouldn't this be fun to watch.

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Ken Lammers


Cheating at the Derby?

I grew up in Kentucky. There is almost no greater sin than to mess around with the Derby. Of course, cheating would explain a win by a NY horse. Gonna keep an eye on this

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Ken Lammers


A comment which points out that both Liberals and Conservatives are opposing the federal sentencing guidelines.

Only two groups think sentencing guidelines are good: prosecutors and people who have never had anything to do with the courts

Personally, I think that the feds should look into something like the Virginia guidelines. Make the guidelines non-mandatory but when the judge departs make him write an opinion.

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Ken Lammers


Attempted Murder by Scent

"The fragrant incident occurred on April 4 during a conversation the couple were [having] about separating after three years of marriage. Taylor told investigators that his wife became enraged when he refused to give her half of his settlement.

"Lynda came in the kitchen wearing perfume and applied some to (her daughter). Then went around the house spraying Lysol and even sprayed some in my face," David Taylor wrote in his complaint."

The question whether this is for real or just part of the typical divorce wars.

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Ken Lammers


The right to liberty is different from that against torture - an absolute right. But every country develops its own regime on deprivation of liberty . . . its own punitive measures. All human rights law can do is guarantee that the deprivation of liberty is carried out lawfully.

While the Brits are fussing over the possible loss of their wigs, the Chinese have taken their judges out of military uniform. Their schools are starting to teach about rights and their professors are starting to write textbooks about them. Still, there is a long way to go.

"Professor Yue, an associate law professor at China University who helped to draft China’s criminal code, is open about the problems. A big challenge for the Chinese justice system is how to get human rights into it. This idea that pre-trial detention should be controlled by the judge is very challenging. We discuss it, me and my colleagues. We think it will be very difficult to take away this power from the prosecution. But the reform is very important for the criminal justice system. Other crucial changes are needed. I think we should also introduce the system you have of habeas corpus. This is also part of judicial control over deprivation of liberty.

The way forward is to keep pressing the case, she believes. Recent history shows what can be done: the Chinese legal system and profession is only 20 years old. The new criminal procedure law was passed in 1998 and now the focus is on the justice system and procedures. The big thing we reformed was the criminal procedure law and we introduced the presumption of innocence this was very important. Before, if there was a doubt, the defendant would be given life imprisonment rather than the death penalty. But now, we have the principle. If we have doubt, then they are ‘not guilty’ and we have the Scottish verdict of ‘not proven’.

The right to a fair trial is next. We have introduced compulsory defence they are appointed by the court. But it is only in the important cases, such as where the person vulnerable or faces the death penalty. This is an area, she admits, where human rights could be improved."

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Ken Lammers


First it was the elite award of Queen’s Counsel. This week it will be wigs and robes. The Lord Chancellor is taking an axe to the legal profession’s most famous hallmarks and is threatening to consign them to history.


There is some sort of fuss going on across the pond. Don't understand it all. Anybody out there in an explaining mood? I'd be happy to post any responses.

Drop an e-mail.

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Ken Lammers


Freedom to Read Protection Act

"[S]weeping [PATRIOT] legislation gives the FBI the power to seize all of the circulation, purchasing and other records of library users and bookstore customers on no stronger a claim than an FBI official’s statement that they are part of a terrorism investigation. Surely the powers the government needs to fight terrorism can be subject to more meaningful checks and balances than that, especially when the right to read without government intrusion is at stake.

Must note my approval of this. I, like most serious readers, have bought books I would rather the government not be able to use against me. Not going to list them here either.

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10 May 2003           
Ken Lammers





Catch Me if You Can





Closing Argument




In America's Court


I've finished reading three books over the last three weeks. The first was Catch Me if You Can which is a description of how Frank W. Abagnale traveled back and forth across the United States and Europe as a kid cashing an amazing number of checks (about $2.5 million) which he faked, hopping rides as a fake airline pilot, posing as a lawyer (a prosecutor no less) and posing as a doctor. I don't usually read "true crime" types of books and I must admit that the main reason I picked this up was because of the movie. It turned out to be an amazingly good book. Abagnale is not a humble sort and he tells the story with some pride showing thru. On the other hand, he is not so full of himself that the book goes on for ever. It is an interesting read as he goes from point to point, a step or two ahead of everyone until it gets to the point that there are just too many eyes looking for him. Then it gets even more interesting as he describes the Hell of a French prison, the country-club "prison" in Switzerland and the last second switch which returned him the U.S. rather than going to another European hellhole. A short, good book which I highly recommend.

The second was Closing Argument: Defending (And Befriending) John Gotti and Other Legal Battles I Have Waged by Bruce Cutler. This story follows Cutler thru his life and legal career. A LARGE part of this book is about his representation of Gotti (which is what made his career). The book is handicapped by restrictions imposed on Cutler by attorney client privilege and the fact that he has to be careful what he says so that the federal prosecutors can't use his words to try (again) to indict him. It's not a spectacular book but it has enough substance to make it interesting for fellow travelers.

Of course, it also feeds into the paranoia that defense attorneys tend to develop. There isn't a defense attorney out there who hasn't been a courtroom with the feeling that there are two prosecutors in the courtroom: one at the Commonwealth's table and one behind the bench. And sometimes a defense attorney might even wonder if the prosecutor might be willing to sacrifice the integrity of the system in order to secure a conviction by resorting to dirty tricks such as trying to get a good defense attorney removed for spurious reasons (such as the prosecution might be stupid enough to call him as a witness). And that same defense attorney might suspect that there is an unspoken collusion between the judge and prosecutor which allows such a sham because everything possible has to be done to assure that the guilty defendant is convicted. The government went after Gotti's first lawyer and sent him to jail for 15 years. Then Cutler won two cases defending Gotti. In the third trial Cutler was removed from representing Gotti at the government's insistence. Then Cutler was tried for contempt and they tried to get a grand jury to indict him. He got six months house arrest for the contempt and must have been harder to indict than a ham sandwich because the government gave up after three years of trying.

The third was In America's Court: How a civil Lawyer Who Likes to Settle Stumbled into a Criminal Trial by Thomas Geoghegan. It's about how a civil lawyer is affected when he sits thru a jury trial and is exposed to the way a courtroom really works. He flails about and doesn't do or say anything useful. Then, at the end of the book, he just goes off into his own personal fantasyland where the U.S.'s laws are abrogated by useless international treaties which nobody follows. He just ends up on a leftist rant and even gets weirder at parts talking about "Kimberlys" and I've already quoted part of it here.
Ken Lammers


Slavery Reparations?


Jury of their Peers?


As I have said before, you have to respect their audacity. However, when that jury drawn from all over the Eastern District of Virginia walks into the court room I think they are going to be in for a shock. All those rural people are not going to be sympathetic a couple city types who tried to do something fancy. They are not going to engage in jury nullification and the judge is not likely to allow much wandering into things which don't prove the inclusion or non-inclusion (and knowledge thereof) of a slave reparation law in the tax code or regulations.
Ken Lammers




Sound too good to be true? It is. If there were only 3 robberies a year around here I'd be out of work. Good gracious, what a wonderful job; I have to count on the fact that people will break the law in order to pay my bills.

.
Ken Lammers


Mother holds son at gunpoint in police standoff



This woman deserves every last minute the judge gives her for Abduction, Escape, Grand Larceny Auto, Felony Vandalism, and Attempted Capital Murder. Anyone who puts a kid thru this pretty much qualifies for the death penalty in my book (and I don't believe in the death penalty so it takes a lot to get me there).

.
Ken Lammers


Fixing the 21 Day Rule:


"I don't care what other states have. Time limits are not as important as standards of evidence."


By Jove, I think he's got it!! The fix which would make the most sense would be to entirely do away with the time restriction and impose a "clear and convincing" standard instead.

Yes, it would cause more cases to be put in front of the courts but not overly many for "normal" felonies. Most of the men doing long stretches in prison don't have the money. The one place it could cause trouble is with death penalty cases wherein it could cause case after case to be filed in Circuit Court as "new" evidence, no matter how minor. Maybe this could short-circuited by not allowing the Circuit Court to issue stays of executions (at least not unless a prima facie case has been made). I'm shooting from the hip here so I probably haven't seen all the potential problems and pitfalls but it's got to be better than what we have now.

.
Ken Lammers


Oh Canada!

A pretty scathing indictment from someone even further North than the New York Times. It follows the breakdown of prohibitions in the U.S. of ex post facto laws, the loss of mens rea as something which must be proven in court, and the growth of overabundant plea bargaining.

About the only thing missing is an analysis of how the double jeopardy prohibition doesn't really mean you can't be tried for the same thing again.

.
Ken Lammers


Sentenced to Death in Yemen

"Kamel condemned the verdict, saying he should have been tried by an Islamic court and not a civil court.

His lawyer said he would appeal against the sentence, which is usually enforced by firing squad.

"The ruling is a political one and violates Islamic Sharia law," Kamel told the court in Ebb province, 170 kilometres (105 miles) south of the capital Sanaa."

I've got a little bit of experience in Islamic countries so I know "eye for an eye" is still thought well of there. He must mean that a Muslim can't be killed just because he went into a hospital and killed a bunch of Christian doctors.

Not much needed in the way of commentary. Yemen seems to be taking care of the problem.
09 May 2003           
Ken Lammers


OFF POINT


From In America's Court by Thomas Geoghegan


"But what of the young women who . . . go to work in the big firms? Some never get out. They get addicted. But others do. I somehow believe that a young woman like this has to check into a hotel, shut the door . . . and for a month or so go into withdrawal. That's how she gets off the $165,000 a year.

I saw one back out on the street the other day. Once, she was in a big firm that let her go. But I knew this even before she told me. She had a washed-out-but-I'm-better sort of look. How to put this? Maybe . . . she had lost her "powers." She can't levitate anymore. She's fallen back to earth. Now she's one of us.

You even think, you could marry her now. But after the Ecstacy, the levitating . . . well, you have to wonder what the baby would look like."

Hmmm . . . more on this book later.

.
Ken Lammers


Gideon's Promise points out a case where a Judge has actually stopped the government from manipulating the process so that a defendant does not have the money to defend himself.


"While the government denies it, the likelihood is that in Scrushy's case as in many others, the use of parallel proceedings has been designed to cripple any possible defense in the criminal case but undercutting Scrushy's ability to fund his defense.† This problem though all too common is not often resolved with a judge calling one against the government, but when it occurs it is worthy of mention and praise."

This is a dead on analysis. The government doesn't like it when a defendant has the ability to match it blow for blow. Too much chance of turning out like O.J. or the first couple Gotti cases.

.
Ken Lammers





"I think there's some symbolism in me coming to a conservative college in the South where Robert E. Lee is buried. I did the best I could to give his memory a different flavor by visiting him. Imagine how it's going to play in Harlem."

AL Sharpton visited the General's school. Gotta give him credit. If Lee's Chapel looks like it did when I went to law school there (it does) there are Confederate flags everywhere and Lee's statue lying in repose in the center. I can't think of any other minority leader who would take pictures right smack-dab in the middle of it all.

.
Ken Lammers





A defendant's sentence is suspended. Then the Judge makes a stupid comment. The Judge is moved to civil court. The defendant then gets the sentence re-imposed as active time.

Huh? Don't they have double jeopardy in New Jersey?

.
Ken Lammers





Good Gracious. The British might do away with wigs in the courtroom just because they don't serve any purpose. What's next? No more tea and biscuits? Will they learn to spell "theater" and "jail" correctly? Will they learn that a boot is a type of footgear, flat is is an adjective instead of a noun, and "Q" is just a letter?

.
Ken Lammers





A scam based upon the the new no-call list has been called out by the FTC. Scamming out of laws meant to stop scams. Impressive.

.
Ken Lammers


Transcripts v. Reality


Over at The Buck Stops Here, Matt Evans comments that upon reading a federal supreme court transcript he "was struck by how very few instances there are where anyone utters more than two sentences in a row that are structurally and grammatically flawless."I see a similar thing each and every time I get a trial transcript. I flip to that number one, primo, most excellente, amazingly wonderful closing argument that I remember making and suddenly I am reading the rantings of a drooling idiot who has problems completing a sentence or even a thought.

The reality, of course, is that there is an interaction occurring which the transcript cannot portray. There is a shared thought process in the courtroom during an argument. You know Judge Smith and can see he's just about to shred you for the argument you're making or that he's already convinced. You don't know the jurors personally but you've started to make a particular argument and juror number 7 (who you think is sympathetic to your client) rolls her eyes. If you are any good at all you react to these things as quickly as possible. As well, when most people argue something with passion there are incomplete sentences and thoughts but you score points because the jury feels with you.
08 May 2003           
Ken Lammers


Prison Health Care


"In spite of the high price, there is evidence that the medical care delivered in Virginia's prisons is inadequate and substandard."I'm not a health expert but I can say that I have a lot of clients who complain about their mental health medicine being taken away when they get in jail because "they don't need it." I don't give much credence to my clients who talk about addictive pain killers being replaced with Tylenol but when expensive, nonaddictive, mental health medicine is denied I have to admit I get suspicious.
Ken Lammers





Anti-death penalty activists are still fighting to get DNA tested in order to prove someone was killed who was not guilty.

.
Ken Lammers






Can't really defend the spammers although they seem to have some pity for them in Roanoke. I don't like the criminalization of things which I think are a better fit under civil penalties especially when even the providers aren't sure it will accomplish anything. I suspect that spam will start coming from outside the borders much like the gambling does.

.
Ken Lammers





The Ashland police force, already strectched, is going to get hit HARD when the new Wal Mart opens.

.
Ken Lammers





El-Amin has 19 more charges filed against him. They are going to make sure he's buried before trial.

.
Ken Lammers





Another Judge for the Democrats to filibuster. How many before they crack?

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Ken Lammers


_________________________________________


+++++++++++++++++++++++
OFF POINT
+++++++++++++++++++++++


I have been looking thru the list of websites whence come the most forwards to CrimLaw. The top ten are:

(1) The Jurist
               Somebody over there just loves my blawg. This is by far the largest number of forwards.
{2} Blogger
               I'm guessing these are random hits from the front page when I post new messages.
-3- Legal Ramblings
               I highly reccomend this page.
[4] Palmetto Journal
               This page found me before I found it. Worthwhile read of various topics.
(5) Ernie the Attorney
               Ernie has the best laid out outline of blawg pages I've seen.
{6} Sua Sponte
               One of the first pages I started reading.
-7- Blawg
               I'm number 14!! I'm number 14!! Heck, I'm even ahead of Volohk (which shows how valid these rankings are).
[8] How Appealing
               This is one I look at every day.
(9) Lex Communis
                The most respected blog in all of north-central Fresno County. Very good.
{10} Legalguy
               Not sure how people got sent to me from there. I'm not on the guy's blog list.
-11- khuffash
               Why are people linking to me from a farsi blog?

My top ten list goes to 11 because that means my music is louder than everybody elses . . . er, I mean my list is better than all the others. After all, does InstaPundit have 11 in its top ten lists?

As an aside, I'm not sure how accurate bSTATS actually is. It tells me that several people have been forwarded to CrimLaw from this Washington Post article about personal injury "runners" in D.C. but I cannot see how. As well, it doesn't tell me who has bookmarked the page and is just accessing it that way; those show up on the daily list as just empty slots.
07 May 2003           
Ken Lammers


_________________________________________


Beating your wife's cat to death gets you a felony conviction, 6 months in jail, and a $2,500 fine. Couldn't have happened to a nicer guy.

.
Ken Lammers


_________________________________________


"[T]he highest judicial commission in Egypt approved a suggestion proposed by the ruling party aiming at canceling the state security courts law."

Not sure what this means exactly but it sounds like a good thing.

.
Ken Lammers


_________________________________________


Attacking a Defendant by requiring the defense attorney to turn over his billing records even though they have nothing to do with the charges.


This may be legal but it's shameful. It is an obvious ploy meant to deny the Defendant his choice of counsel or at least drive a wedge between him and his attorney. And possibly a way to attack disfavored attorneys (or ones who are just too succesful).

I'm curious as to whether any prosecutor has an ethics complaint filed against him for this sort of thing.

.



Ken Lammers


_________________________________________


Been wondering what the next Ninth Circuit decision to be overturned will be?

Well, this decision stating that individuals do not have a right to bear arms is a good candidate.

.
Ken Lammers


_________________________________________


"Be warned: Law, once a shield of the innocent, is now a weapon in the hands of government."

Good to know I'm not the only person whom labels himself a "conservative" and is concerned about the dissappearing rights of citizens.

.
06 May 2003           
Ken Lammers


_________________________________________


Judge Allows Government to Get Away With It


As you will recall, I predicted that the Malvo confession would make it into court. Guess what? It did. The judge disallowed a minor section (before they reread him his rights) but allowed everything after that.

The crux of the decision is that the the government can play all sorts of procedural games in order to deny you access to the attorneys you currently have and remove them. Isn't it amazing how technicalities always save the government but never work that way for Defendants?

It is becoming embarrassing how the Virginia courts are starting to require that poor, uneducated clients who are legally inexperienced use exactly the correct arcane formulation of phrases in order to obtain an attorney during questioning. Does anyone actually believe that "Do I get to talk to my attorneys? . . . Because the lawyers told me don't talk until they get here." is not a statement which a reasonable police officer would recognize as an attempt to invoke his right to counsel? If they didn't then why not read him the Miranda rights at that moment instead of talking to him for a hour and giving him some sandwiches so they could soften him up.

Of course, the Court's assertion that officers can approach you as often as they want to after you have invoked your right to remain silent (as long as they tell you your Miranda rights) is just amazing. It may be true legally but expecting someone (much less a minor) to understand that he has to keep invoking the same right over and over again every week, day, hour, or quarter-hour is anchored firmly in fantasyland.

"There is no evidence that Fairfax police or prosecutors colluded with federal authorities to spirit Malvo away to Virginia without the knowledge of his Maryland attorneys with the hopes or intention of interrogating him when he was without counsel or the right to counsel."

YOU HAVE GOT TO BE KIDDING ME!
CAN THE JUDGE ACTUALLY THINK THAT WE BELIEVE THIS?


I am almost speechless; I want to rant so bad. Instead, I'll just refer you to my previous posting.

How Appealing has access to the decision here.

You know, if I thought they were going to have a really hard time convicting for murder I would probably be more sympathetic. But they're going to get their conviction with or without the confession. It seems like they are bending and breaking the constitution just because they can.

.
Ken Lammers


_________________________________________

Police officers BEWARE. Those bachelorettes just might think you're part of the fun.

.
Ken Lammers


_________________________________________

Now here's a judicial decision I can live with. I wonder if I can get a Virginia judge to rule I can have a beer during breaks between court cases.

.
Ken Lammers


_________________________________________

It looks like Texas is starting to fulfill the Ninth Circuit's role but from the right. You know, if your courts are so ultra-right that the Rhenquist Court is issuing per curiam decisions against them you need to take a serious look at yourself. I didn't think this Court could agree on anything enough to issue a per curiam.

As an extra point, the third portion of the article points out that in the Illinois case just accepted by the federal supreme court the checkpoint actually took place three weeks after the crime. Again, I say this is a loser for the State of Illinois.

.

05 May 2003           
Ken Lammers


_________________________________________

I think it is well-settled precedent that police cannot set up checkpoints to randomly check for criminal activity. But now the State of Illinois wants to be allowed to set up checkpoints to randomly investigate and/or announce a single criminal activity.

This doesn't appear to be police shutting down roads immediately after a bank robbery or such so that the criminals cannot escape the area: "officers were passing out leaflets seeking information about a fatal hit-and-run."

I predict that a checkpoint to randomly hand out leaflets probably won't stand up to constitutional analysis; as the Illinois Supreme Court said "police [can]not stop drivers at random every time they need[] tips about a crime."

.
Ken Lammers


_________________________________________

"Kelley Ferguson, vacationing with her family aboard the Legend of the Seas, was accused of planting the threatening notes so the trip would be cut short and she could get home to her boyfriend."

When she was caught and bail was being discussed her mother said she wouldn't post bond because:

"She's going to run . . . and we're going to be left with a $25,000 debt. She promises not to do it again - but yeah, right."

.
Ken Lammers


_________________________________________

Ah, no matter how much I despair of the criminal system here there are always worse places.

In Belgrade "the police arrested 10,111 people and jailed more than 4,500" in order to stop organized crime. It also went after the lawyers; of course, we do that too (at least in Florida and NY).

.
Ken Lammers


_________________________________________

Parents refused to allow treatment of their child. I've dealt with the heavy-handedness of DSS before; if "even with surgery, Noshin stands only a 20- to 30-percent chance of reaching full life expectancy" is true I think DSS is overstepping itself.

.
Ken Lammers


_________________________________________

A member of the Japanese media found an explosive device in Iraq and kept it as a souvenier. It exploded in Jordan killing and injuring people. Now he's going in front of a military tribunal.

.
Ken Lammers


_________________________________________

Hide the jurors names, hide whence the jurors came, let the prosecution exclude those who are Hispanic and don't let the attorneys have any input in the voir dire. There are definitely problems in the fedgov system. I suspect that all of these were granted at the prosecution's request. Remember when the system was supposed to be biased against the prosecutors?

.
Ken Lammers


_________________________________________

A judge changed a death penalty into life in prison. The local paper's reaction?

"We don’t understand Alexander’s decision to sentence Inge to life in prison ? and we don’t agree with it."

Vengeance is ours sayeth the Danville Bee.

.
Ken Lammers


_________________________________________

A very well written analysis by Ernie the Attorney of the effect of the internet on the admonishment to jurors not to look into or investigate anything on their own.

Maybe I should try to stretch my exile trials out over a couple days. Then the jurors could go home and find out that the defendant is facing 5 years for having their dad's non-working shotgun in the attic. The shock on jurors' faces when they are told of these mandatories is palpable. Of course, that would be trying for jury nullification and that would just be so wrong.

Not that Virginia felony trials ever last longer than a day.

.
Ken Lammers


_________________________________________

The Ninth Circuit is the last holdout. Apparently everyone else has ignored the basic rule against adhesion contracts and let employers impose arbitration in employment disputes.

Of course it's the Ninth so we know what will happen if there is an appeal. The Supreme Court will affirm our right to contract under due process. Oh wait, they already did that . . .

.
Ken Lammers


_________________________________________

A quick review of The Majesty of the Law, written by Justice Scalia's favortie pincushion.

.
Ken Lammers


_________________________________________

We all complain about judges - except for those of us blessed to practice in front of the judges I practice in front of: they are all wonderful, intelligent, compassionate and judicious*.

Well, at least we don't have to practice in front of these judges.



* Sorry about that but anyone who goes thru my archives can figure out who I am and where I practice. The judges and their friends cannot all be Luddites.

.
Ken Lammers


_________________________________________

What happens when an FBI lab-tech concludes that there are problems in the FBI lab? He changes his mind. Couldn't have been pressured to change his story - could he?

"Burmeister had complained in the months before he retracted his testimony that he was being pressured by prosecutors and lab employees to change his testimony or scientific conclusions."

.
03 May 2003           
Ken Lammers


_________________________________________

The ongoing saga of the judge who was.

Judge on bench-Judge sued for sexual harrassment-Legislature does not renew Judge's appointment-State Senator reports ex-Judge for lying to Senate-ex-Judge runs for State office-Bar puts off review until after the election

Who needs soap operas?

.
Ken Lammers


_________________________________________

TalkLeft pointing out one of the errors in the machines which convict people of DUI's.

Let's be honest here - a regular citizen accused of a DUI is going to be convicted. He will have been "asked" to complete several tests which are very hard to pass sober. He will have things such as comprehending and starting to perform the test before the officer tells him to start the test counted as indicating drunkeness. He will then be "asked" to take the preliminary breath test which is so innacurate that it is not allowed in court. The way these happenings are presented in court is always sanitized; the officer's version never tracks with the what your client tells you occurred.

Then there is the test at the police station. On top of the problems mentioned at TalkLeft the machine is so screwed up that if an officer uses a radio near the machine it screws it up. Then the result from this machine is used as irrefutable evidence that your client was drunk. The blood-alchohol level where the assumption of guilt attaches is now so low that anyone who drinks has driven with that amount in their system; its just a lottery to see who the police will encounter on a given night.

I've seen a couple cases where rich defendants have dug in and started getting ready to go to the wall. If you have the money you can get experts to show how ridiculous the roadside tests are and how flawed the machine is. The cases tend to go away.
Ken Lammers


_________________________________________

Ouch. If this is even partially true the Danville police department is in a lot of trouble.

A contingent threat; an unwarranted warrant; a flash-bang; 24 rounds fired; the victim lies dying on the floor while police summoned someone to take pictures of the scene; and the victim dies.

.
Ken Lammers


_________________________________________

"Inmates Dwayne White and Hakim Wilburn told the story of a jail-house game where inmates ``jump on'' a high profile case, read everything they can find about it and contact prosecutors' offices offering to testify.

`Jail hype was going around' about Kearney's case, White said.

Ronald Brookins, an inmate who testified against Kearney, bragged he would be home by the summer and have his Cadillac back as a result of his testimony, according to White.

Brookins said that he never talked to White."

And yet no new trial.

Every criminal lawyer worth his salt knows that this sort of scam goes on all the time. The convict tries to sell false info fora lessening of his sentence It is encouraged by police and prosecutors. Supposedly, the convicts are screened to exclude those who are lying but these guys are professional scam artists and the prosecution is predisposed to want to believe them. I've seen some of the ones who get thru; I'd hate to see the ones who don't make the grade.

.

Ken Lammers


_________________________________________

Actions being taken in Lynchburg to try and deal with street violence by keeping kids from joining gangs.

.
Ken Lammers


_________________________________________

The Judge gave the cow-starver his cattle back but is making him sell them.

.
Ken Lammers


_________________________________________

Seems like Allen is a pick who would be left of most of the Fourth Circuit. Still, the Left is looking to see if they can Bork him.

.
02 May 2003           
Ken Lammers


_________________________________________

Abuse a child under your care as a teacher and you will be reccomended for probation. However, common sense might prevail and the judge give you 10 months in jail.

10 months? 10 months?!? Sometimes I am so glad I don't have kids to worry about.

.
Ken Lammers


_________________________________________

RIAA engaging in its typical jack-boot tactics. It went after students who couldn't possibly defend themselves.

.
Ken Lammers


_________________________________________

An attorney broke client confidence to have a judge removed from the bench. He only got a six month suspension.

.

Ken Lammers


_________________________________________

Inmates with websites? Seeking penpals?

.
Ken Lammers


_________________________________________

A U.S. District Court judge declared part of the Code of Judicial Conduct of New York unconstitutional. The New York Court of Appeals is going to ignore that ruling.

As an aside, there seem to be a lot of judges getting thrown off the bench in New York.

.
Ken Lammers


_________________________________________

"[C]lear and convincing evidence of actual innocence . . . undermines confidence in [Amrine's] conviction."

The Missouri Supreme Court has freed someone who spent 17 years in jail because he is actually innocent. Must be nice to live in a State which is civilized enough to actually let people out of jail because they are innocent.

.
Ken Lammers


_________________________________________

Some in Congress are attempting to add gays to the protected classes.

.
Ken Lammers


_________________________________________

California has an interesting system for paying lawyers on death penalty cases. Apparently, you can hire someone to represent you and when you run out of money (which will happen pretty quick if you are not O.J.) the government starts picking up the tab.

Not a bad idea.

.
01 May 2003           
Ken Lammers


_________________________________________

They're going to keep this guy in prison one way or another.

.
Ken Lammers


_________________________________________

10 days before McVeigh was killed Ashcroft received a message telling him:

"Material evidence presented by the government in the OKBOMB prosecution through the testimony of Mr. Burmeister appears to be false, misleading and potentially fabricated."

McVeigh was killed anyway.

.
Ken Lammers


_________________________________________

A more indepth review of the Richmond trespassing case.

I predict that the Va. Supremes will be upheld. After all, imagine what it takes for a Virginian appellate court to overturn a criminal conviction.

.
Ken Lammers


_________________________________________

A long time ago I read Dershowitz's letters to a young lawyer. I remember thinking that it was a good guide for the thinking of dabblers (professor and the like who occasionally practice criminal law but are able to walk away and therefore can engage in, and urge, practices a normal practitioner would have difficulties with). Still, this section always struck me as directly on point:

Some of the key rules of the justice game:

I - Most criminal defendants are, in fact, guilty.

II - All criminal defense lawyers, prosecutors and judges understand and believe Rule I.

III - It is easier to convict guilty defendants by violating the Constitution than by complying with it, and in some cases it is impossible to convict guilty defendants without violating the Constitution.

IV - Many police lie about whether they violated the Constitution in order to convict guilty defendants.

V- All prosecutors, judges and defense attorneys are aware of Rule IV.

VI. Many prosecutors implicitly encourage police to lie about whether they violated the Constitution in order to convict guilty defendants.

VII - All judges are aware of Rule VI.

VIII - Most trial judges pretend to believe police officers who they know are lying.

IX - All appellate judges are aware of Rule VIII, yet many pretend to believe the trial judges who pretend to believe the lying police officers.

X - Most judges disbelieve defendants about whether their constitutional rights have been violated, even if they are telling the truth.

XI - Most judges and prosecutors would not knowingly convict a defendant who they believe to be innocent of the crime charged (or a closely related crime).

XII - Rule XI does not apply to members of organized crime, drug dealers, career criminals or potential informers.

XIII - Nobody really wants justice.

p. 81-82

This pretty much sums up criminal law and is one of the reasons that practicing criminal defense can be most frustrating (and why victories provide such a good feeling).

.


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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.

THIS
AIN'T
LEGAL
ADVICE.






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