[The client] was incarcerated at the Kentucky State Penitentiary in Eddyville, a maximum-security prison that visitors describe as dark and foreboding.
"It was probably the most nerve-racking occasion in my fledgeling legal career," said Turner, now a 27-year-old attorney in Lexington.
The guards were not exactly welcoming, he said, and performed a pat down, which involved removing his shoes and socks and an inspection of his mouth.
"I almost felt like I was being interned in prison," said Turner, a suburban Cincinnati native.
. . .
There were times, [another student] said, when she would have "felt safer with a gun."
One of those times was when the former teacher walked through a yard filled with hundreds of unrestrained prisoners with only a single guard to protect her. Another was when she went to Eddyville and found herself ushered into a room filled with death row inmates visiting with their families. Aside from their shackles and handcuffs, the inmates were free to move around the room, a scene that scared Albright Louis.
I usually find that the first visit to a prison or jail is a little touch and go but after they get to know you things get better. Still, I understand the feelings.
One of the first things you realize (and have to get over) while visiting your clients at large jails or prisons is that the prisoners can almost certainly take over any area of the prison they want to, including the one you are in. It doesn't happen because they understand that if they do they can't get out of the area, they cannot win the confrontation to follow, and they will be punished (and, I'm convinced, a lot of them like the structured existence of prison and don't want to rebel). Still, last Saturday morning as I stood in a hallway in Richmond jail and 30 prisoners walked down the hall passing within a foot or two of me - with no guard - I remembered the feelings I had when I first began to visit jails. Of course, hearing a couple of them say something to the effect of "that's what I need - a paid attorney" kinda took the edge off the situation.
Another weird thing about visiting prisons occurs when you go to the female section. First, let me premise this by saying that I am short and round; I've never been skinny and over the years I've not made any progress in that direction. But every time I walk into the the female section in my lawyer suit eyes swivel and suddenly I feel as though I have metamorphosed into Tom Cruise. It's like being dumped into a pool with a group of hungry female sharks. And you have to be very, very careful during the meetings with your client in the private rooms. I had one client start trying to tell me stories about her and another girl in the shower (In response to: And what were you doing when the police raided the place?). She got about ten seconds into it - all the while watching me very closely - before I realized it had absolutely nothing to do with the case and stopped her. Another time a woman leaned forward to thank me for helping her and put her hand upon my knee. As I start to say "no problem," I suddenly realize the hand is migrating up my leg. I popped out of my seat over to the call box for the deputy in about .0000097 seconds. "Gotta go, got clients over on the mens' side to see." One other thing happens on the womens' side which is really kind of annoying is the crying. I've asked female colleagues if this happens to them and they tell me it is rare. But I'd estimate at least 50% of my female clients cry during the initial interview. And they watch me to see how I react to the crying. And they stop when they realize I am just sitting there waiting for them to quit. And then they just go on with the interview as though nothing happened.
I will say one thing, women prisoners show a scary ability to size you up better than men do1. I've had women tell me that I'm single, that I came from another State, that I'm Catholic, etc. The one who told me I was Catholic really threw me. I could see she was sizing me up but then she just said "You're Catholic aren't you?" To this day I do not know what gave it away. I know there had to be some sort of tell but I never could figure it out. Of course, then she tried to manipulate me with the information and all the wonderment just drained away.
1 I think this is because men do not try to size you up in the initial interview for who you are but for your willingness and ability to fight.
The feds went to great pains and played a number of games in order to put the two sniper defendants where they would be most likely to be killed. But they might have screwed up putting them in different jurisdictions. The two prosecutors have different theories and the two defense teams seem to be taking advantage of the confusion to adopt the other county's prosecutor's argument.
And in the continuing reporting on Horan (the prosecutor in Fairfax):
But Horan said he didn't see any common ground between his prosecution and either defense team. "For me to team up with any of that crowd," Horan said, "I'd have to be under a spell."
Not quite as bad as before but still smacks of bravado rather than legal acumen.
Even some of the public defenders eagerly making use of the Atkins decision sometimes wonder about the logic of it. ''Looking over some of the people on the row, there are people who, O.K., are probably not mentally retarded -- maybe they have I.Q.'s of 80,'' David Bodiker, the Ohio public defender, says. ''They have had horrible lives, they flunked out of school, but they don't quite make the grade, so to speak. And you wonder why should there be that distinction? I'm looking down my list of guys on the row, and I see, for instance, David Allen: I.Q. 82. Poor grades. Born premature. Psychiatric problems dating back to age 8. Reginald Brooks. He had an I.Q. of 77 at one time, then 89. Now he's probably got about 91. His problem is more in mental health -- schizophrenia.''
Bodiker finds it troubling that some inmates perform better on I.Q. tests the longer they've been in prison, which means that while they still suffer from cognitive deficits, they may no longer technically qualify as mentally retarded. Partly they do better because they may be taking an I.Q. test for the fourth or fifth time, reaping the benefits of a practice effect. But more likely, their improved scores reflect the fact that, as Caroline Everington, a forensic mental retardation expert, puts it, ''in prison, many of them are living in a stable environment for the first time in their lives.'' In the strictest sense, these prison-improved scores are unimportant: the focus of the Atkins decision is on a person's mental status at the time of the crime, not the time of execution. And I.Q. scores must be backed up with tests of a person's ''adaptive functioning.'' But in a broader way they do matter: they remind you that the elements that make up a diagnosis of mental retardation are fungible. The reasons for that are perfectly legitimate, but when the diagnosis matters in the way it does here, it becomes a little scary.
Personally, I think the decision was just bad. Even putting aside the fact that the federal supreme court imposed an evolving standards of decency decision upon us when there was no strong showing of evolution, this is going to end up with battle after battle between experts and jurors/judges guessing who's right. Instead of clarifying the law the decision muddled it.
Connecticut is closing alternative programs for drug addicts in order to save money in the short run. It is sacrificing long term budgetary concerns by virtually guaranteeing that the convicts will be back time and again. Of course, it does guarantee that there will be steady employment in those communities which host jails and/or prisons.
They should at least try to get their drug courts back online. Drug courts are about the only program everyone thinks effective and it is a shame to lose them.
01 July means new laws in Virgnia. Of course, the politically correct path was taken and the DUI laws got tougher (as they will every year until prohibition is reimposed). It will be interesting to see if the antipartial birth abortion bill will survive constitutional review this time.
Postscript: Matt, over at Stop the Bleating!, pointed me to the decision. I think that - assuming the facts are exactly as the 9th says - they were probably right in reducing the robbery thru use of a firearm to just robbery (not that the guy's gonna get out anytime soon). As Matt points out, the decision probably would be different here in the good old 4th.
In Canada they are charging people with crimes of speech. Not action, not incitement - SPEECH.
We haven't even gone that far in Virginia. We tried pretty hard with the cross-burning statute but the federal supreme court told us we couldn't do that. We have to prove that the burning is meant to intimidate (which really shouldn't be all that hard in most cases). Still, we've never made pure speech illegal.
Apparently the attornies in California called the State Legislature's abrogation of its statute of limitations the "Early Inheritance Act."
One of his clients, a multimillionaire, was a target. There is no evidence, Clancy said, that the man ever abused his daughter when she was a little girl. But now that she's grown, the daughter wants to be kept in style and is not above a little blackmail, he said. She would make regular calls to her father demanding money or she would turn him in for child molestation, Clancy said.
Of course there were also issues of "repressed memory" silliness and, of course, the actual reason for statutes of limitations:
Most problems relate to kids being left unattended in the mall and other retail stores while parents go do something else, said Ekis and mall officials. Oftentimes, parents will drop off kids to spend the afternoon at the mall and watch a movie in the theater, said Janice Olsen, the mall's general manager.
"Parents should not just drop off kids," Olsen said. "An unattended child anywhere is a recipe for trouble."
At the mall, kids get bored, congregate near the mall's theater entrance and food court areas, and prevent shoppers from moving freely through the mall, said Ekis.
"We don't permit kids to just hang around," Olsen said. "We are a shopping mall."
Don't permit? No, I'm sure it's more like they encourage kids to hang around.
Kids spend money. They buy tons of food, spend money at the movie theater, buy overpriced clothes because they want to look cool (or whatever the current term is), and they purchase all that silly-useless garbage on the carts as you walk thru the mall. I'm sure the mall makes a lot more money than it loses do to the increase in petty crimes (which I'm sure occur).
Last Friday I was in a rural court when Mr. "J" appeared for at least the 8th time (that I've seen him) on the same charge. That morning one of the more prominent local attorneys has sent a letter and called the court stating that he has been hired and asking the court to continue the trial until a date when he can be present. This isn't an unusual request from the lawyer; people often hire lawyers at the last second (because they are scrambling to get the money) and the courts usually accommodate them.
However, on this date the judge looks down from her bench with a look that approaches pure scorn. She reads off each and every time Mr. J has been ordered to be in court for this case and the excuses he has given each time. The time prior to this Mr. J had appeared with a letter from "Liberty Law Offices" and saying he had hired an attorney no one had ever heard of. At this point the prosecutor chips in and tells the judge that he has checked with the Bar and there is not a lawyer by that name in Virginia. The judge starts to grill Mr. J about that and Mr. J swears that the guy exists and actually produces another letter he has from the attorney. This one says that the attorney is no longer representing Mr. J because Mr. J has hired another attorney. Prosecutor: "Well then judge, I'd ask you to issue a show cause on this attorney because he cannot just fail to appear when no order has been signed releasing him from the case." The judge issues the show cause.
Then the judge starts to tell Mr. J that by all the games he's been playing he has waived his right to counsel and has the deputy present him with a waiver form to sign. Mr. J starts to have a fit and the judge turns to the prosecutor and asks him what he thinks. At that point the prosecutor does something which is pretty slick: "Your honor, we all know the counsel he's hired this time, I say we let him be represented by the counsel of his choice and that we give his attorney time to prepare his case. In the meantime I ask that you revoke his bond." The judge looks at him quizzically for a second and agrees. The man is led away fussing about how he wants to appeal.
After the court has adjourned a number of us are in the Clerk's office telling war stories when the Clerk tells us that Mr. J's daughter had come to the office and asked why her father had been taken to jail. The clerk tells her its because the lawyer from the letter is not in court. Daughter: "I typed that letter last night myself."
A collection agency sent a letter to McHugh stating that it was considering criminal prosecution if she did not pay off a check. She called and was bullied by someone claiming to be an attorney who threatened her often and at great length with the "fact" that the police were going to come get her if she did not pay the check off. Panicked, McHugh pays off the check that day. Checking later she discovers that the check had already been paid. Not surprisingly, she sues. And she wins (including attorney fees). Chief Judge Wilson makes it very clear that he is not happy with this company:
"In this case, Check Investors intentionally panicked McHugh causing her to pay a debt she did not owe. Check investors, through its overzealous, deceitful collection agent, clearly intended to cause McHugh severe emotional distress, and she in fact experienced severe emotional distress."
McHugh v. Check Investors Inc., No. Civ.A. 5:02CV00106 (W.D.Va. May 21, 2003).
Her lawyer is quoted in the Virginia Lawyers Weekly as saying:
"They basically told [McHugh] if she didn't pay the debt within an hour, they would come and arrest her. . . People who don't know much about the law - a tactic like that can work."
Well, I do know the law (at least in Virginia) and this sort of thing would scare the living daylights out of me as well.
In Virginia, if your check bounces and the entity in receipt of the check sends you notice you have five days to pay (even if you don't get the letter). If you do not, this is one of the statutes wherein the Legislature has abolished the presumption of innocence. You are guilty unless you can prove you are innocent. Every time I read that statute - and many others like it in Virginia - the words "impermissible burden shifting" come to mind. But the Virginia Courts Appellate do not agree with me.
A lot of retailers use that statute to turn the local prosecutor into their bill collection agency. People who have never even been near a court before are dragged in so that the convenience store down the road can get its $28 (plus $25 return fee). In some jurisdictions the prosecutors drop the case if the check is paid off in others they do not - the retailer could care less as long as he gets his money. You see the same retailers in week after week after week doing this - they don't even try civil remedies.
So, yes, I would be afraid if a letter arrived at my home two days after it was mailed and I couldn't get ahold of the Agent for the company for another couple of days. Because I know that no matter how convinced I am of my innocence when that fifth day passes they can file criminal charges against me. And what if I did make some sort of error? After all, the collector in this case was talking about a check from four years earlier. I'd have to contact my bank about something that far back and they would probably have to mail the information to me (they seem to have to mail everything after three months have passed). I'd pay too in order to avoid the possibility of getting a criminal conviction. Hopefully I'd follow thru like this lady did afterward.
Top ten sites which referred others to my blawg this week (most cited on the right side):
(1) The Volohk Conspiracy (2) Ernie the Attorney (3) SW Virginia Law Blog (4) Screaming Bean (5) bLAWg SEARCH (6) Blawg (7) How Appealing (8) Freespace (9) Stop the Bleating! (10) Legal Ramblings
And, amazingly, there are still occasions wherein the law acts as a shield rather than a sword:
The federal supreme court says that before you can kill a defendant you must tell the jury the factors which led to him being this way. Mitigation evidence is required.
An internet scam brings a man who is trying to pick up little girls to Chesterfield where he is arrested for attempting to take indecent liberties with a minor. He's convicted and gets one year in jail.
I'm conflicted by this. On the one hand, I'm happy to see these guys caught before they actually do harm but, on the other hand, I really don't want them lured to my home county in order to do so. Of course, the nightmare is that some sicko comes to the county, misses his "appointment," and then just starts cruising around looking for an alternative way to entertain himself. Not a happy thought.
I suspect that this will be an interesting case on appeal as the court grapples with whether the legislature can protect the unborn from others when it cannot protect a fetus from its own parent. Bascially, I think it can because there is no right to privacy attached to the third party killer.
On a side note - the prosecutor in Fairfax is either badly overplaying his hand or he is being made out to look the fool by the media. He is constantly being protrayed as answering everything with scorn and bravado rather than facts and law. This case is so strong that he should win walking away but if he's not careful he's going to show his rear just enough to build the countercurrent which keeps the kid from being killed in his case.1
1 Let's not delude ourselves; other jurisdictions are just waiting to step in and prosecute if this prosecutor steps on it. Eventually, the kid will be found guilty and 10-15 years from now - after all the appeals and habei are exhausted - killed.
Two Deans from Virginia's law schools are asking the Governor to stop the execution of a man because there were technical flaws in his jury instructions. This is bad for the Governor whichever choice he makes. He can either let a man have another sentencing hearing because of the technical error - thus setting a precedent for a number of other capital defendants - or he can allow a man to be killed despite that the jury might have sentenced him to life imprisonment if the instruction had been proper. If he chooses the less of the two political evils he'll let the man be killed. Morally wrong - politically right.
The main defense was that "murder has to be an act not an omission." Therefore, since she did not intend to hit and kill him she was not responsible for murder. Intellectually that argument has some merit but there is no way a jury buys it. Of course, it's not like the defense attorney had much else to work with and it will provide him with a valid appealable issue.
You know the if the RegisterBee is calling for a change in the rules of procedure which is pro-defendant that something is really wrong with the system. Of course, it is pretty much universally acknowledged that the 21 day rule is unsupportable. The reasoning is interesting: The 21 day rule needs to go away because it is casting doubt on the guilt of capital defendants which is making people wonder whether innocent people might be getting convicted of lesser crimes as well - and we can't have people realizing - oops, I meant thinking - that innocent people get convicted.
In my experience, this drug has not reached the level of cocaine, heroin, or methadone. However, it has passed things such as ketamine and psilocybins. I understand that in more rural areas - with less attachment to the drug trade from up North - it is more of a problem.
The main effect I've seen is that the local street drug unit has started taking pills off people and sending them to the lab for analysis. Most of the time they just come back as anything from aspirin to prescription drugs which I've never heard of before. This causes trouble for your basic woman who works at the Waffle House who complained that she had a back pain, was given some pills by another worker (medical self-help happens a lot among those with only so much money to spread around), and without thinking about it lets the officer search her purse. She knows she hasn't got any illegal drugs in there because she's never done anything other than a little weed when she was in high school. The next thing she knows there is a felony warrant for her arrest for being in possession of a schedule II drug and the prosecutor, the officer and I are all huddled in the corner of a courtroom reading the chemical analysis and trying to figure out exactly what the heck that six-syllable latin/greek word means. In busier jurisdictions the prosecutor usually drops the charge - in less busy, more conservative jurisdictions the client usually gets a misdemeanor with no time and a minor fine.
I can say. I've not read the case yet but it appears that Scalia is on the mark. Stare decisis, the bedrock upon which Casey was decided seems to have turned into sand at the behest of an ever left-leaning court.
It really does feel as though the Court has slipped back into the mode of legislating mores. It's fun to read Scalia's dissents in these matters as he rips into the false reasoning and hypocrisy behind result oriented decisions. However, it feels as though he has entirely lost the ability to persuade. They certainly aren't changing any minds on the court.
Personally, I am very disturbed by the weakening of stare decisis. It opens a whole new world of argument wherein the parties pay far less attention to the law as it has been and lends itself to arguments based upon what the parties believe the current members of the court, with their current dispositions, will render constitutional.
Quoted from Harvard Journal of Law and Public Policy, Lawyers and Truth-Telling, Albert W. Alshuler (Volume 26, Number 1, Winter 2003)**:
"Some lawyers say they never know what the truth is - not even when a client has confessed his guilt. Even more reject the conventional wisdom that a lawyer should describe the attorney-client privilege to the client and press the client hard for the truth to avoid being surprised at trial.8 These lawyers don't want their clients to level with them. Not knowing the truth makes it easier to avoid the ethical issue.
8: Standard 4-3.2 of the ABA Standards of Criminal Justice:
(a) As soon as is practicable, defense counsel should seek to determine all relevant facts known to the accused. In so doing, defense counsel should probe for all legally relevant information without seeking to influence the direction of the client's responses. (b) Defense counsel should not instruct the client or intimate to the client inn any way that the client should not be candid in revealing facts so as to afford defense counsel free rein to take action which would be precluded by counsel's knowing of such facts.
First, let me disclose that I am not a member of the ABA (for various reasons which need not be discussed here).
Second, the part about never knowing what the truth is - not even when a client has confessed his guilt is bogus. (A) Anyone who has done this sort of work for any period of time knows that a number of confessions are garbage (although it is near impossible to know exactly how many). We've all had cases where the client wrote "what the officer told me;" my worst case along these lines was when a client of mine with serious mental issues wrote and rewrote the confession several times at the Detective's prompting until he wrote exactly what the Detective wanted in it. Strangely enough - at least in the communities I practice in - these sessions are never videotaped so my client's claim that he wrote what the officer told him to cannot be verified (and the judge always sides with the officer).
(B) Multiple stories: here's a conundrum I've run into several times: as your representation progresses the client tells you 3 different stories. Each is prefaced by "O.K., this is what really happened" and the third meshes pretty much with the prosecutor's theory of the case. When you get to trial it becomes obvious that story number 2 will work better in his defense. Client, not being a total idiot, decides that he wants to tell story number 2 and now swears that he just made up story 3. You don't believe him but you don't know because you weren't there and you know your client has told multiple tales. Do you do a noisy withdrawal or allow him to testify? My answer is that I am not the trier of the facts; I am this man's advocate and he has a constitutional right to testify. Therefore, he testifies.
(C) I've only had one client admit to a crime in my presence and then expect me to defend her on a theory contrary to that confession. Of course, the thing I ran into was that I figured out that at least part of her "confession" was a lie and she told me and anybody who would listen so many different stories that I did not feel that I knew what the truth was. I had a belief based upon my judgment of which parts of which stories were true but I couldn't stop her from testifying based upon my belief. The prosecutor got so upset that - after having impeached her stringently on cross - he went and got a copy of the Virginia ethics rules and tried to get me to do a noisy withdrawal - I declined.
Third, it is not "conventional wisdom" that a defense attorney should "press the client hard for the truth to avoid being surprised at trial." At least it's not in any of the jurisdictions where I practice. Let's deconstruct that. To begin with, it is disingenuous to state that the reason for this rule is to avoid surprise at trial. Clients are, in the majority of cases, bright enough to tell you when they have confessed, who else is involved, and what evidence the officer took from their person, car, or home. That eliminates 95% of the chance that surprise involving major evidence will occur. The standard we all claim to believe in is beyond a reasonable doubt and the burden of proof lies with the prosecution. Why then must I know the "truth" from my client? The only reason I can think of is to limit my options while defending him. It keeps me from raising that reasonable explanation which the prosecutor has not excluded but which I know is not true. In other words assume there is an equal chance that my client has committed the robbery or that the kid across the street did. I have interrogated my client until he tells me that he did it. The prosecutor, grudgingly, gives me the information that the other kid was the person first suspected but he was dropped for some reason I consider (and think a jury will consider) non-dispositive. Of course, the prosecutor does not call the other suspect to the stand because the other suspect proves no element of his case and I cannot call the other suspect to the stand. Although there is a reasonable explanation which has not been excluded by the prosecution the jury will never hear of it.
My opinion? This is the point where ethics and malpractice part ways. It may or may not be "ethical" to act in this manner but it damn sure is malpractice. Thru my actions I have lessened the prosecutions burden of proof considerably and quite possibly condemned my client to imprisonment which he should not have suffered.
** Yes, although I have not checked it, I am quite sure this is not the proper blue-book format. One of the joys of being a trial lawyer rather than a professor or student is that I only have to worry about whether the information is conveyed not whether commas are in the right place or the right section of the citation is italicized.
The highpoint of the day was when I drive off to a rural county where the prosecutor and lead Detective - all too happily - show me tape after tape after tape of my hapless client dealing drugs to an undercover informant. This is followed by a hour long trip out to an even more rural regional jail in a city a third of the way across the Commonwealth, [ . . . privileged conversation with client . . . ], and a looooong trip back.
Tuesday:
My client had been accepted into three drug treatment programs; two were lock-in and one was an intensive on-the-street program. The recommended sentence range was 9 months to 2 years for felony petit larceny (actual max sentence was 5 years) Today was sentencing. I go up and am pointing out that a large portion of my client's record consists of only minor traffic violations.
Judge: "He has 5 theft type violations Mr. Lammers." (this is a very bad sign)
"Yes sir, and we all know that this is a fairly typical record for someone with a drug problem and he is currently serving 10 months for a previous felony conviction which is why we are asking you order him to be placed in a treatment program in lieu of a prison. He wants to clean himself up and return to live a life in which he can contribute to society. I know there's nothing spectacularly good in this report (pre-sentence report) but there is also nothing which is all that bad; this is a man who would be a perfect candidate for the Day Reporting Center which would allow him to return to his responsibilities, his job and contribute to society."
As I make the last statement the Judge looks up from his bench and shoots me a sly grin. He knows I'm playing to what I think are his leanings; I'm not hitting him with the terrible breaks etc. in my client's life which I don't think will have any impact on him or having the common-law wife up on the stand crying for him; I'm trying to sell the cost benefit analysis of paying to keep him in jail as opposed to curing him so he can go forth and sin no more (sinning being anything which costs the taxpayers money thru the judicial system).
When I finish, Client gets to make a statement before sentencing. Being fairly bright he makes a good short, heart-felt statement which meshes with what I have said in my argument.
Then the judge sentences him to 5 years with 4 years suspended to be followed by one six month lock in drug treatment program to be followed by another six month lock in drug program. I walk back into lockup with my client to talk to him. [ . . . . section deleted because of privilege . . . . ] Then I go out into the hall to talk with his girlfriend/fiance/common-law wife. She had not heard the entire sentence and goes into shock when she realizes he got two years.
Then I go back into court and ask to have the case called again. I point out to the Judge that he did not say whether the time was to run concurrent or consecutive and ask him to run the sentence concurrent with the one he is already serving since they are similar in nature and derived from the same root cause which will be better served thru the programs rather than the prison.
Judge (showing me his yellow pad): "Mr. Lammers, last night when I was looking at the report I noted that I thought a proper disposition was 2 years and then a six month drug treatment program. I changed it to the current sentence after your argument. I am not inclined to lessen the sentence any further. Sentence to run consecutive."
[ . . . short privileged conversation with client . . . ]
Back out in the hall fiance confronts me and is not happy. The gist of the conversation can be summed up in the sentences she starts the conversation with: "I told him he should have hired someone else. That sentence is worse than any sentence any of his other lawyers got him. Why did he get that sentence and the white guy (apparently someone sentenced when I was not in the courtroom) got probation? After a little give and take (dealing with irate family members is a survival skill one must develop as a defense lawyer) she walks away. I go into a conference room to fill out some paperwork for the court and she reappears. Now she has transferred her unhappiness from me to the judge and spends 15 minutes talking to me about how she can register her displeasure without being held in contempt.
Late today she calls me and leaves a voicemail asking if she can retain me. Not sure what that's about yet - I'll have to return her call wednesday.
That took a lot of time and effort. Question #1: Why was it never found in his cell? Question #2: Do they not search prisoners? After all that is a pretty bulky item; even a pat down before transporting to the courthouse should have found it.
She hit a homeless man, carried him home on her car, parked in the garage and left him there to die on top of the car. Then she and some friends hid the body.
"[F]our months later, when a tipster said Mallard talked about the incident at a party.
The woman said they were discussing who would be the designated driver, because some in the group had been drinking, and that Mallard said she couldn't use her car, police said. The woman recalled that Mallard giggled when she said "I hit this white man," according to the police report.
The woman said Mallard told her she "was messed up" on ecstasy pills and drunk. Mallard and her boyfriend later went into the garage to see if the man was dead, but he was alive and even asked for help, the woman told police. "
Some people don't believe that they have to pay taxes:
In interviews with the news media, Mr. Simkanin and other business owners bragged about not paying taxes for as long as 22 years. They cited the lack of action against them as proof that the tax laws are a hoax.
However, Mr. Simkanin wasn't satisfied with that alone; he made sure the tax officials knew what would happen to them if they enforced the tax code:
At one of Mr. Simkanin's Web sites, www.arrowplastics.net, he has posted a warning that "public officials can and often do make the fatal mistake of attempting to harm the servants of God (Exodus 14:9) and inasmuch as the servants of God are required by Ezekiel 3:18-19 to warn the wicked, I, a Christian, do hereby issue this proclamation." He has warned that any government officials who move against him will be consumed by fire.
Reworked my blog list yesterday. I ranked certain blawgs/blogs. There was no method to the madness. I just shot from the hip based on my longer term impression. If I'd done it next Tuesday the rankings would likely have been entirely different As a matter of fact they will probably change as the Summer progresses because I doubt the law school blawgs will have many posts and I'm sure I'll find new blogs. Within the "Top #" sections I did not try to figure out exactly who's first and who's eighth - I just filled in the number of blogs.
I've also added several new sites so take a glance and see if there's anything new you might be interested in.
Monday 4 clients in General District Court. Two go as they typically would. One client has been in jail waiting for another State to extradite her for 30 days. Per normal experience, I tell her that it is 90% likely that she will be released (she asked). Of course, this is the one case wherein the judge actually grants the prosecution 2 more weeks (their excuse is that they had not moved to nolle prosequi a traffic ticket and maybe that's the reason the other State hasn't come). The client is very unhappy and will not talk to me after the hearing.
Later that day a client with two felonies and a misdemeanor has not been shipped to the courthouse by the jail. When I check, he has bonded out and never bothered to contact me. He never came to court so the judge issued a capias and set another date a month out (assuming he's picked up).
Tuesday 2 clients in General District Court in a smaller county. One case is dropped due to some technical difficulties in the prosecution's case. The other case is a DUI with an 80+ year old lady with a DUI charge and a civil charge of refusing to take the breath test. The Trooper tells me that she ran two cars off the road before she came to a stop and that she told him the reason she was driving was to go buy more beer. I work it out so that her DUI is dropped but she has to give up her license for a year. The most interesting part of the day was watching the prosecutor running between Circuit Court and General District Court (most of the time you only see defense attornies doing this). He's the single part-time prosecutor in the county and somehow the Judges scheduled both courts to be open at exactly the same time. While waiting for him to come to General District Court, I went over to the Circuit Court where they were holding pre-trials for what seemed like half the county (they had just busted a large, family drug ring). While sitting there I am assigned a client who is charged with 4 counts of distribution of cocaine. The judge made it very clear that if the charges were not handled thru guilty pleas there will be jury trials for the defendants.
Wednesday A client who had been released after I got his felonies reduced to misdemeanors and the prosecutor to agree to time served (he had been off for several months being restored at the State mental institution) was required by the judge to get a HIV test and come back to court. On this date he failed to return for the second time and the judge issued a capias.
I go to the Richmond jail to visit a client and while I'm waiting prisoner after prisoner walks by asking if I'm a "paid lawyer" (not a Richmond Public Defender). I hand out about eight cards.
Thursday A client who had robbed the fast food resteraunt he worked at with a shotgun was sentenced to 22 years. This means the 18 year old kid will get out of jail when he is 40. The appeal will start shortly.
Friday A client is in front of the General District Court on a capias for not coming to court on a prior date. When the client says he couldn't get a ride to the court on that day the judge asks why he didn't walk to court. After the judge is finished (but before sentencing), I point out that I live 5 minutes from where he lived and it takes me half a hour to drive to court on a highway that has a 65mph speed limit. The judge lectured me for pointing that out but he only sentenced the client to 5 days so it seemed to do some good.
Then I jump in my car and drive to another county's courthouse just in time for a client not to show up for his court date and get a capias. Then I have to handle a case wherein a merchant is using a criminal charge in order to get the prosecutor to be his bill collector. My client pays off the bounced check and the charge goes away.
Note: Every single one of the clients who did not show for court was a court appointed client; I find that about 10% of court appointed clients who are on the street do not show for court.
This has got to be a joke. RICO against the Church? Thankfully, I doubt any political appointee is suicidal enough to follow this course.
At first, I started to write a massive rant about the entire situation but since I am trying to keep this blawg about criminal law as much as possible I have chosen to pass except for this:
Faced with a choice between the Church, including the many failures of its human members, and those who have been attacking the Church just a little too gleefully and greedily, I choose the Church.
Some courts have granted changes of venue. In Timothy McVeigh's case, for example, the trial was moved from Oklahoma City, where many prospective jurors knew victims of the 1995 bombing of a federal office building, to Denver. A change of venue can avoid the worst excesses of mob mentality in a community victimized by the perpetrator of a crime, but in today's information age it does not come close to guaranteeing an "untainted" jury pool.
And at the end he offers his "solution:"
How then should the courts ensure fairness in the sniper cases and other high-profile criminal trials? In selecting a jury, the judge should ask each prospective juror, "Have you heard or seen something about this case?" If the prospective juror answers yes, the judge should then ask, "Given what you have heard and seen, can you give the defendant(s) a fair trial?" If the prospective juror answers yes, the judge should trust the truthfulness of the response and seat the juror.
Has this man ever tried a jury trial? Jurors who want to convict your client will lie; others will not even realize their bias. Anyone who works in the courts hears the stories about the guy who went home and bragged to his friends that he got on the jury so now he can make sure that bastard fries or the lady who did not disclose she is the Aunt of one of the victims (and these are cases where it was caught before the trial proper started).
Change of venue is the best way to guard against these events. He's right; there is absolutely no way that you can guarantee there will be no bias (the test is jury bias - not taint). Nonetheless, if you moved this case to Roanoke (randomly chosen example) you are far less likely to run into someone who felt directly threatened and you don't run into relatives, friends or friends of friends (at least not many). People would still know but they will not feel directly involved and a fair trial is much more likely. The best solution for this case is to move it to a jurisdiction which was not in proximity too the threat and allow an indepth voir dire unlike Virginia's usual truncated mass voir dire. It will at least guarantee a fair trial. The result will probably be the same but at least we will be certain it was reached fairly.
Beasley said Powhatan and Hanover Counties are known for tougher sentences in jury trials than Chesterfield County. For example, Beasley said some defendants blame their attorneys for their harsher sentence for a crime in Powhatan than they received for the same crime in Chesterfield. "It’s not their attorney’s fault," he said.
Gotta keep ahold of that quote just in case one of my clients ever gets nuked out there.
Recall that on 27 March 2003 - 8:43 - I expressed my shock that prosecutorial misconduct in a case out of Powhatan was so bad that the 4th Circuit had upheld a federal habeus.
Bob Beasley, who was not the Commonwealth Attorney when this case was tried, got this whole thing dumped in his lap. He has decided not to retry the case.
I can't blame him; I know I wouldn't want to have to put a case that big back together 7 years later. Especially when the 4th Circuit has already said nice things such as:
I don't know all the rules in capital cases (they are definitely different than regular felonies) but I think the 21 day rule may render this a moot point. No jurisdiction exists in any court because 21 days has passed. Of course, there is always the habeus option or the Governor could commit political suicide and commute all these setences to life without parole.
I spent 6 years in the Army as an Interrogator. While we were being trained one of us asked the obvious question: "Why don't we use polygraph machines?" The instructor's answer was short and to the point: "Because they don't work."
As I've gone along, I've come to the conclusion that they are great tools in an interrogation but that they don't actually tell you anything useful. And I'm not alone in this opinion:
Jeffrey Nance, a former undercover cop and author of "Conquering Deception," which examines different ways of detecting lies in everyday life, prefers to bypass the question of scientific accuracy and just think of lie detectors as interrogation tools.
"I don't think there's a foolproof way to tell if a person is lying or not," Nance told Courttv.com. "There may be people who don't like me saying that but it's the truth."
"It's the fear of the machine that gives it its greatest power," he said. "Even before they get on the machine they may give up information just because [they are afraid] the machine will show that they've lied. And nobody wants to be a liar."
This comes from an article about the latest and greatest bit of quackery which has been foisted upon law enforcement - the computer voice stress analyzer.
Approximately 1,200 law enforcement agencies use the CVSA, and supporters say that its convenience and accuracy will lead more departments to let their polygraphs, the more well-known truth verifier, start collecting dust.
But not everyone is enthusiastic about it. In at least a few high-profile cases, the device has appeared to be wrong. And a number of lawyers, civilians and scientists say the CVSA has no scientific validity.
"It's basically a Ouija board," said Nevada lawyer Ian Christopherson, who successfully defended a juvenile probation officer against a rape charge prosecuted largely on the basis of a voice stress test.
The problem isn't that police use this thing (although I would be irked if my tax dollars were spent equipping the local police with them); the problem is when local police believe in them and make decisions which are based on the machine stating that someone is lying.
I am waiting for the first time when one of these pre-conviction tests leads to an officer using the DNA to get a cold hit and then the Defendant being found not guilty so that the DNA should be destroyed. But, of course, by that time the djin is out of the bottle and the Defendant is charged with that B&E from 4 years ago where he cut himself breaking the window. Not being precognitive I don't know exactly how the Appellate Courts will handle that but I would hazard a guess that the opinion will include words like "good faith," inevitable discovery," and "harmless error."
If the Legislature wants to punish further or even to protect the citizenry by keeping a particular class off the streets it should do it honestly by increasing the punishment attached to the crime. It shouldn't be allowed to pass ex post facto laws which will keep someone imprisoned longer than his sentence.
Be advised - In Virginia if you use a "Smart Tag" rather than paying cash at toll booths VDOT and the police will violate your right to privacy. They won't even warn you about this as you apply for and get the tag. VDOT will tell the police where you have been at their discretion.
I wish I could say that I am shocked by this but I cannot. I long ago gave up on any belief that there is anything but a tattered remnant left of the federal constitutional right against search and seizure. And the Courts Appellate of Virginia refuse to enforce any constitutional rights not forced upon them by the federal courts thru the federal constitution. If they would enforce the Virginia Constitution this sort of activity would probably be banned by Art. 1 sec. 1, under which "[a]rbitrary and capricious powers are contrary to the genius of our government, are never favored, and seldom granted." Taylor v. Smith, 140 Va. 217, 124 S.E. 259 (1924).
This editorial misses the point. While I agree that the gun seller should probably be brought to task for this weapon (remember this is the store that "lost" 100 weapons a year) the manufacturer should be immune. What the article fails to realize (I hope not purposefully overlook) is that the point of all these cases is to hit as often and as hard as possible on as many fronts as possible with the eventual intent of badly harming the manufacturers who do not control the actions of others after the product is shipped and cannot possibly monitor the actions of every single retailer.
Even those who don't have an agenda are drawn to the manufacturer every single time because it has deeper pockets. The manufacturer is forced to defend nationwide and even if 99% of the cases are dismissed that's going to cost the innocent manufacturer a lot of money and could drive many out of business.
West Virginia is setting up a Mental Health Court. I assume this is going to run something like Drug Court and I think it is a good idea. I hope it is set up so it can handle dual track individuals. I get a lot of people with mild mental problems and drug problems. Trying to deal with one and not the other usually leads to failure. One of my clients was diagnosed with manic-depressant disorder and addiction to cocaine. He was taken into Drug Court but as soon as they got him off the crack he had what was described to me as "a full blown psychotic episode." They kicked him out of Drug Court (without sanctions) and the last time I saw him he was being held at a ward for seven days to ascertain his condition. As far as I know - and I strongly suspect this - he is back out on the street self medicating.
You'll recall that I was skeptical about the Capitol Police chief's attempt to extend the jurisdiction of his force into the entirety of D.C. and the surrounding Virginia and Maryland counties. But wait, there was more he also wanted 500 new officer and 300 new civilian employees. Congress asked the same question I did - what the heck for? They denied him the across the board.
One hopes that CPS has more evidence than just the kid's story. I've seen CPS taken in by a kid's story before and know that some of the more cunning know that they can call Protective Services if they are mad at their parents.
One of my professors in law school asserted that some officers did this sort of thing on purpose. They would not tell the prosecutor about evidence which they judged false and which might be used by the defense attorney. Thus the prosecutor would not disclose it to the defense attorney as required. After the trial - if the evidence ever saw the light of day - it would be dismissed because it wasn't developed enough to have have shifted the balance of the evidence. Of course, the damage is in the fact that the defense attornies did not have enough time to investigate and develop the evidence so that it could be introduced and make a difference.
Former judge Askew was thrown out by the Legislature, cited in a bar complaint, ran for office, the Bar agreed to continue her case until after she completed her run, and now is arguing her case. Personally, I think the Bar complaint really doesn't have merit but I'm not too happy that the Bar accomodated her either. Still, in the end I think she hurt herself. If she had had the hearing before the election date maybe she would have generated a lot of positive press when she cleared her name.
This is the second time I've posted on this sort of trend but I have seen a number of articles and they all follow the same pattern: the article notes that crime statistics are down and then a law enforcement official gives a reason why it isn't actually true.
The sentencing of a man who claims he raped young women as part of satanic rituals is being put off while he is evaluated for mental problems.
Well, there are obviously some problems here but it sounds mostly like severe depression and that isn't going to stop a severe sentence from being handed down.
Sorry the comment option went away. When it worked it worked well but when it didn't the site failed in its entirety. Happened three times = goes away.
You'll remember my prior concerns, in this post, that Senator Leahy was trying mightily to keep the fact that those beliefs which the Democrats are proscribing are core Catholic beliefs out of the committee. It wouldn't be good PR if the fact that active members of the largest denomination in the U.S. are going to be filibustered by Democrats because of their religious beliefs saw the light of day. This recieved further dicussion in Lex Communis on 12 June 2003 and 15 June 2003. There was also some discussion of this on Southern Appeal (do a page search for "Feingold").
Then I ran across this a couple days ago while reading about Judge Kuhl's hearing:
Judge Kuhl is well respected and comes well reccomended. There is nothing which shows she will not follow constitutional interpretation handed down by the federal supreme court. Still, she's going to be filibustered.
Senator Hatch wants to destroy your computer. For downloading mp3's. It's like trying to kill a gnat with a nuke; actually, it's more like trying to nuke thousands of gnats. It would probably work. Senator Hatch would probably never get re-elected after he destroyed one of the most expensive items that tens of thousands of his constituents own but it would probably work.
President Bush isuued what amounts to a federal ban on federal agents admitting that they used racial profiling (except with Arabs). Will they actually stop using race as a proxy? Unlikely. The problem, of course, is that because certain groups compromise a significant portion of the urban poor they have a significant portion of criminals.** So in times past the Irish were targeted (where do you think the term "paddy wagon" came from?). Currently, when law enforcement is focused on who it thinks is likely to be breaking the law it looks to those who occupy the social positions that Irish and Italians occupied in the past.
**Crime tends to rise out of impoverished neighborhoods - I know - you're shocked by the revelation.
I tire of pro and anti-death penalty arguments rather quickly. While some are more clever than this, arguments for and against the death penalty will almost always boil down to a purely philosophical or theological point of view.
This is a poor argument in favor of capital punishment. Yes there is a social cost in terms of deaths from all activities but the failure of his argument is that other activities do not actively seek to kill someone and it is unlikely that the per capita death toll in other socially acceptable activities rises to the level that even a few innocent deaths on old sparky. The second argument - that innocents may die if we don't kill him before he kills again - is actually pretty funny. How often is it that someone from townhall.com argues that we should be concerned about those poor souls who are imprisoned (we can't possibly let other vicious criminal elements prey on them while they are in prison)? And the argument that we should kill him because if he escapes he might kill someone applies equally to anyone who gets a life sentence or a lot of time in prison whether it be from murder or rape or multiple bank robberies or . . . Almost all of these people have shown the ability to use violence and quite often it is just by the grace of God that their victim survived at least a year and a day.
An article urging the federal supreme court to take up and overturn the decision in which the D.C. Federal Appellate Court said the government can secretly arrest foreigners.
Sadly, I find myself agreeing with this. I voted for Bush (and will again) but a number of Justice's policies under Ashcroft are just beyond the pale. We're supposed to be the folks who support liberty dammit; disappearing people just does not mesh with that. I might even buy an argument that non-citizens do not require the same level of evidentiary proof before they can be held (they are, after all, in our country at our discretion) but there's no way anyone should be held without some sort of showing that there is cause.
Both sides agree that the children are in no way abused mentally, physically, sexually or emotionally, but legal custody of the children was taken from Kim and George Bryant in December 2001. The children will remain under the legal custody of DSS until their 16th birthdays.
"We have legal custody of the children and we will do with them as we see fit," DSS worker Susan Etscovitz told the Bryants in their Gale Street home. "They are minors and they do what we tell them to do."
The Gestapo couldn't have put it any better.
DSS even tried what basically amounted to a raid to try and force the test upon the family.
Do they not have children who actually need help? They should be ashamed.
The task force studying Virginia's 21 day rule is considering dropping the 21 days in favor of a convoluted process which goes to the Court of Appeals, then back to the Circuit Court, then back to the Court of Appeals. Interesting but it doesn't sound too practicable. I'll be interested to see what they finally come up with.
That's pretty desperate. But I guess this may be one of those rare occasions when a judge might be less likely to convict than a jury. Still, since the prosecutor in Virginia has the right to a jury trial I think it's a moot point. Maybe they did it to strengthen the attempt to change venue.
Thank you for your support. These are the blogs/blawgs, so far this month, whence came the most forwards to my site (if it ain't linked it's because it's on my page):
Anyone who drives I-95 realizes that everyone speeds on that highway and that the road is clearly safe at a rate of speed far above that which is posted. Still that doesn't spoil these officers' fun as they take to the sky to enforce arbitrary malum prohibitum laws. "'It's like shooting fish in a barrel,' says Stiles, a smile creasing his face."
This officer has the most DUI arrests for the last year and has been caught lying about the number of DUI arrests he has made in the past. But we should believe him when he claims "he doesn't hang out near bars, as some have alleged." Note how later in the article it talks about how he started an organization which put up signs in areas wherein DUI's are prone to occur and how during the stop several of those signs were passed. Hmmm . . . Must have just been a coincidence that night.
Apparently, federal juries are refusing to kill defendants. Never fear, Virginia is still out there churning out death sentences. The article on the federal system reports that most of the death trials are in States where it is a favored punishment (and the State prosecutors are more successful) so the question becomes: why don't they hand the cases over to the locals? I've seen them do it in bank robbery cases and we've all seen it in Malvo.
If you break into a major news organization's website just make sure it is one which is uniformly unpopular. Your pefect target is probably Al-Jazeera; a fairly major hack into their site will only get you "three years probation, community service and a fine of $1,500." Now, imagine if that had been the NYTimes.
A seventh grade student, described as "a `good and intelligent' student", broke into his school's computer and deleted 8 teacher's grade files. Thank goodness that computers weren't as advanced when I was a tyke and schools still kept paper records. 'Cause me and my buddies would have been right there next to this kid if our C-64's and 1541's had been capable of it.
O.K., arguably there is a cause of action here against the gun dealer - losing over 100 guns a year seems a little fishy. However, it is ridiculous to expect the manufacturer of a product to know what is going on in each and every merchant's shop.
(1) As I check the traffic flow to my site often I see someone has hit the site twice in a minute's time. Is anyone out there having trouble loading my site and does it appear to be because of the graffics? Please drop me a line (and let me know which browser you use).
(2) I tried to add a favicon to the site yesterday but it doesn't seem to be working. Anybody out there got any ideas?
As I stood in line at the grocery the woman behind the counter says: "Hi there, Mr. Lawyer-Man." Instantly alarm bells start going off in my head and I look at her. She isn't a client or witness (at least not in something recent) so I just say "Hi" back and go to pay and leave. "Don't you want to know how I know you're a lawyer?" Nope; time to try and be evasive: "Well, I assume you've seen me in court." The reply: "You don't wanna know how I know you're a lawyer." At which point I took my proffered bag and left.
This event led to me thinking about how being a criminal defense lawyer has affected me in my life outside the courts.
Perhaps the greatest effect is that I moved because of it. When I first moved into the Richmond area I lived in a nasty apartment in a less than opulent part of the city. But it was extremely cheap and that's what I needed as I studied for the bar and tried to get my own practice off the ground. I started getting appointed clients who lived a block to the north of me or a couple blocks east &cetera and it was always in the back of my mind that I should move but the price kept me there because money was always needed elsewhere. Then one night at around 1 a.m. someone was beating on my front door. I did perhaps the stupidest thing I have done in a long time and actually opened it. I stood there - face to face - with one of my clients. We stared at each other for a couple seconds and he finally asked me if "Joe" was there; I pointed out that Joe lived upstairs and he went over to the door leading upstairs; I closed the door as he yelled for Joe and they left together. Neither of us acknowledged that we recognized each other but it was pretty damn obvious he realized who I was. I moved as quickly as I could after that; this was a client who had committed his act in front of a video camera, demanded a jury trial (over my advice), gotten 3 times what he would have from a judge, and blamed me. The only reason he was on the street was because he had posted an appeal bond and, I learned a couple days later, had ducked his bondsman when the bondsman decided he was too much of a risk and bailpieced him. I don't really regret the move (to a much nicer apartment in Chesterfield County) but I did have to give up my ferrets because my new apartment would let me have a combination of cats and dogs up to 100lbs. but not a single 3-5lb. ferret.
My point of view has also changed. Three examples: {1} As I walked into a store a couple days ago and a kid is on the sidewalk trying to sell T-shirts to "help the homeless." Is my first thought "gee, isn't that swell?" No, my first thought is to wonder whether the kid is a Traveler. {2} I also find myself looking for a store's electronic security. I notice all the black bubbles and two way mirrors which cameras are hidden behind and what they cover because I've gone to so many stores looking to see if store security could really see what they claim to have watched my client doing ("I was taping suspect 1 and 2 while I watched suspect 3 . . ."). {3} I'm gun-shy of being recognized in public. Mind you, I don't hide from people but I am very wary of those who recognize me at the Taco Bell or the local 7-11. I find that 1 in 3 is a happy former client or family member. The other 2 are prosecution witnesses I tore into or angry former clients or (much, much worse) the female relatives of a convicted former client. What can you say to a client's mother as she is yelling at you at McDonalds that you are the reason her son is spending the next 15 years in jail and that if you'd been a paid lawyer he wouldn't have been found guilty. Just once I want to turn around and yell back: "Well the next time the idiot wants to rob a bank tell him to wear a mask, not to turn and stare at the camera, not to rob it while 3 nuns are there to deposit the convent's funds, and not to try and spend the money after the dye pack exploded and stained it all." I've not done it and I pray I never will but the temptation is strong.
At least I haven't gotten to the point that I'm as paranoid as some of the Officers I know. A good number of them won't eat anywhere they can't see the food being prepared.
Decnavda's Dialectic tells me I am a racist (although it might not be on a conscious level). I disagree but s/he might be correct (who can judge their own actions without some bias?). I just think I embody everything the Democratic Party's powerbase labels as evil. Does anyone out there think that, as a white, Southern, Catholic, business owning male the Democratic party offers anything for me?
EthicalEsq? points to Common Good's suggestions offered to "fix" the tort system. This is an extremely good site which I reccomend. I want to reply to just about everything he writes (usually mixed concurrence/dissent) but there are just so many hours in a day. Just as a quick reply - I think Common Good is offering a pro-defense rule under the charade of neutrality with the purpose of preventing smaller cases from being economically feasible. (entry originally said Common Cause but EthicalEsq? points out that it is "Common Good" - oops)
Legal ramblings is wondering about the exclusionary rule. I reccomend reading the Harvard Journal of Law and Public Policy article in the latest edition which explains why the Court felt cornered into taking this step and the beneficial effects it has had for our constitutional rights. I cannot find this online (sorry).
Lex Communis was kind enough to mention my site. This is always a good site to read. Just don't ask him if he knows anything about Amber Fry.
Southern Appeal: O.K. so I go over to Southern Appeal eager to get his perspective on the hearing and he has not posted it.
I realize I come late to this but I watched a good portion of the Pryor hearing on C-Span2 and one thing caught my attention:
I really got interested when Pryor started standing up for the Catholic position on abortion. I was pretty amazed when, instead of dodging, he began to give the Church's position back to the Senators entirely undiluted (gotta admire that). When Hatch actually asked Pryor's religion it felt as though a curtain was raised revealing the elephant in the room. And Leahy was trying as hard as he could to get that curtain back down: "Elephant? What elephant? We've never asked about that elephant before and we shouldn't ask about it this time. We can ask all the questions we want to about his affiliation with the elephant (and besmirch his name for that affiliation) but we cannot - and should not - acknowledge the elephant's name or presence."
I don't have have empirical evidence, but I'd bet good money that groups such as NARAL are horrified by the prospect of staunch Catholics getting onto the bench; if the bench must have Catholics, it would prefer nice, flaccid "Catholics" who don't follow the Church's moral teachings (Gray Davis / Tom Daschle). And I doubt the Democratic Party will deny NARAL its will in this case.
Bill Pryor has forever earned my respect for his straightforward statement of his beliefs based upon the moral teachings of the Church. Unfortunately, I don't have a vote on the Senate floor. His honesty and morality makes him a better man than those who will most assuredly filibuster his nomination on the floor of the Senate at NARAL's behest. Of course, if you are Catholic you deal with this sort of prejudice throughout your life.
So, I was reading the Washington Times at lunch today (yes, I actually bought a dead-tree paper) and I ran across the most amazing statement. The article is about a doctor who was convicted of rape and faced decades of incarceration. The Defendant remained on bond until his sentencing hearing. He was supposed to wear an electronic anklet but his attorneys were to arrange it to be put on later. In a shocking development, the doctor fled rather than face a possible 55 years in jail.
As I see it there are three people who have differing duties in that courtroom. The defense attorney has a responsibility to represent the citizenry's liberty rights, rights as enumerated under the constitutions, rights as reserved to the citizenry under the 9th Amendment and rights bestowed upon the citizenry under the 5th and 14th Amendments. He is constrained in this endeavor by his duties as an officer of the court to not lie to the court, not participate in a fraud upon the court, and not stand by while he has knowledge that his client intends in the future to break the law (the latter two requiring actual knowledge - not just a strong suspicion or even a belief that something is probable).
The prosecutor has a duty to represent the citizenry's interest in upholding the laws of the government (generally those outside the rights guaranteed but theoretically those as well), safeguarding the citizenry from those dangerous to it, and seek vengeance for the wrongs done to citizens. He is constrained in this endeavor by his duties as an officer of the court to seek justice (which I admit is a higher and more difficult standard than that to which defense attorneys are held).
The judge represents the citizenry's interest in balancing the positions of the two advocates and ensuring the laws and rules are followed in a manner which is fair to both the defendant and the government.
All that said - THE DEFENSE ATTORNEY DID ABSOLUTELY NOTHING WRONG IN THIS CASE. The prosecutor screwed up his case by not getting his evidence to the lab and back within a six month wndow with which he is provided. Still, even the prosecutor is not the person who should take the lion's share of the blame. The Judge always has to approve any deal. In fairness, the judge may have felt - after he got the prosecution's explanation for the deal - that the only way justice could be served would be to accept the deal. But I suspect that if the defense was willing to plead guilty there probably remained evidence which would likely convict. And even if there wasn't, there was nothing keeping the judge from holding the defendant at least until the anklet was placed on him.
In theory I agree with this in its entirety. But I've only had one experience where a juror tried to ask a question and I was scared to death. The case was breaking my client's way and it was looking like he was going to walk away a free man. Then a juror came back from a lunch break and handed the deputy a slip of paper which he took to the judge. Before the jury came back into the courtroom proper, the judge read the question to the Commonwealth and me. It was based on testimony my primary witness had given and was devastatingly insightful. With a simple yes or no answer it would probably have determined guilt or innocence. The question was based on some testimony which my witness came up with for the first time while on the stand** so I did not know the answer to the question. Since I was feeling pretty good about the case I did not want that question asked. As I was standing there with my brain scrambling for a reason to exclude the question I looked up and realized that the Commonwealth didn't want that question asked either. Anyway, after letting us stew for a few seconds the judge sua sponte announced that he wasn't going to let the question be asked because he thought that it was procedurally barred. With no objections he called the jury in told them to just listen to our questions and we went forward.
** It is amazing how, no matter how often you prep the witness, witnesses come up with new facts almost every time they are on the stand. Usually it is useless surplusage. But every so often . . .
You know something is wrong when conservatives are complaining that the feds are wasting time and resources in law enforcement. CATO is not happy with the misuse of federal law enforcement to catch small time criminals:
And over at TownHall.com they are upset that federal prosecutors are getting around prosecuting citizens for real crimes by charging people with misleading public statements related to the acts of which they're not charged: "So much for the First Amendment."
California v. Scott Peterson: the defense had subpoenaed the judge who issued the warrant to tap Peterson's phone because the prosecution didn't transcribe the hearing (as it is required to do in capital cases).
"Paula Mays, 45, claims she was falsely accused of shoplifting, slammed into a wall and pushed to the floor after she exchanged a belt at a J.C. Penney store in Jacksonville, Florida. Mays sued the company in April in federal court, claiming her civil rights were violated. . . . "It had to be because I was black. There was no other reason. I did no more than women do all the time. We look, we look, we look," said [Jannie] Lewis, recounting how she was searching for the right shade of orange lipstick to match a dress when a security officer allegedly took her purse and searched it."
Of course, stores have their own version:
"If the consumers knew the extent of fraud and theft, and the extent to which retailers are trying to fight that, I think they'd understand."
Well, I know the extent and I don't understand. Store security cowboys a lot. I've had a number of cases where security escalated out of hand over $20 or less (lowest I've seen was a $.50 candy bar). Rather than calling police or taking license plate numbers, store security will just man-handle women and provoke men. Although security will often back down because a guy is more likely and capable of defending himself, I have had more than one case in which store security tackled a guy and then got the police to charge the guy with assault.
Of course, I mostly see people who store security had reason to stop. I can't imagine how many people are followed by cameras (which we cannot see), followed by security (which we often don't recognize because they are in regular clothes), and otherwise harassed or jumped on by store security because they fit the profile.
The British Home Secretary is trying to Americanize the British criminal justice system. He wants to put community policing in place and maybe even to have local prosecutors elected. And he still wants to hire people who aren't British to work in law enforcement.
I am curious as to why anyone would emulate our system. Considering the number of people we have in jails and prisons and the amount of crime I see every day, empirical evidence would seem to show that our system doesn't seem to work very well.
Is he - dare I say it - an Ameriphile? Probably not. A guess: the British New-Left is probably taking a page from Clinton's old playbook and doing things which the Right would clamor for in order to shut it out of power. The question is whether there will eventually be a backlash which will leave the Left there in the shambles it is in here as Old-Left tries to reassert itself. I don't know enough about British politics to feel assured in my guess much less to answer whether there might be a backlash. Anyone got a better fell for this than me?
Declaring War. Martha's fired the first couple of salvos in what I think will be a very nasty trial. You don't set up your own web page with a complete denial of guilt and a vow to fight as well as a statement from your lawyers "correct[ing] some frequent errors" if there's a snowball's chance in Hell that you are going to settle.
The Martha PR machine has just started. Pity the poor prosecutor which has to face it and her very well funded attorneys for an entire trial.
Even though the county's 22 criminal district court judges have asked him to recuse himself and the foreman of a grand jury has asked him to recuse himself, the Houston prosecutor refuses to let a neutral party step in to conduct the investigation of the misconduct at the DNA lab and its possible implications as to his own office.
A bill in Britain will allow a judge to assess cost against a third party for "serious misconduct short of contempt" if it causes a trial not to be able to go forward. It's aimed at the tabloid press which apparently is causing a significant problem by buying the stories of witness and even making some payments contingent on how trials turn out.
"Restoration services" is a euphemism for sending the kid to a counselor who will have her memorize a definition for each person in the courtroom. I've only had to deal with this a couple of times and each time I was not convinced that the kid understood the process or was able to participate in a meaningful way in his defense after "restoration." But the judge was. Luckily, the cases turned out well despite this but it disturbed me (as do many things which take place in juvenile & domestic relations courts).
Sorry for the lack of posting yesterday. I added a comment ability to my blawg (thru SquawkBox.tv), messed around alittle (figured out how to mirror my site thanks to Nina), and went thru the web cherry-picking the stories I thought might be of interest. Then fd&h I went to start posting and Blogger was down for repairs (on a Monday evening).
So far the main topic seems to be the evils of contingency rates of trial lawyers (to be fair there has been one note concerning insured rights; I look forward to other defense issues). Not practicing in that area I have opinions but the only thing I have to add to that conversation is anecdotal evidence from some of my buddies griping because they have to lower their contingency rates in order to keep clients from leaving them for the big firms which advertise on T.V.
I think this is skewed by the fact that I am a Catholic and thus follow the Church's teachings in regards to the death penalty. I would think that following the tennets of my faith would make me a social conservative but for some reason it always gets me lumped in with tree-huggers.
"Peterson's lead attorney, Mark Geragos, has also asked that the prosecutors handling the case be removed because of what he termed "grave prosecutorial misconduct," relating to the interception of 69 phone calls Peterson made prior to his arrest. He also asked that all information from the wiretaps be suppressed." . . . "[Stanislaus County Assistant District Attorney Rick Distaso] said only two of the phone calls were privileged communication between Peterson and his previous attorney, and both were only monitored for a short time to determine who was on the line. Distaso also said prosecutors had not listened to the calls in question and did not plan to use either the phone calls to Peterson's lawyer, or a third call to a private investigator he hired, in the trial."
In other words: "Yes, agents of the State, for whom we are responsible, did listen to privileged conversations between the Defendant and his lawyers but we won't use anything they heard. Honest! No, really . . ."
Well, that should keep the case interesting. Later in the same article it points out that 75% of the community already thinks Peterson is guilty. Of course, 25% not guilty still leads to a hung jury.
The federal supreme court found that retarded Defendants cannot be killed by the government. But that doesn't mean that the Defendant in the case involved won't be killed:
The justices returned the case to the Virginia Supreme Court, which found Friday that ``Atkins claim of mental retardation is not frivolous.''
Why practicing criminal defense is so frustrating.
While speaking out of one side of its mouth the Virginia Court of Appeals states:
"[W]e hold appellant's admissions (1) that he "[had] dealt" unnamed drugs "to support [his] habit" and (2) "that he had 20 hits of heroin . . . he [had] sold" that day prior to the search were both irrelevant and highly prejudicial. The testimony that appellant admitted possessing and selling unspecified drugs and heroin from the residence was extremely prejudicial and was not "'so intimately connected and blended with the main facts [regarding appellant's possession and use of cocaine] . . . that they [could not] be departed from with propriety.'" Kirkpatrick v. Commonwealth, 211 Va. 269, 273, 176 S.E.2d 802, 806 (1970) (quoting Walker v. Commonwealth, 28 Va. (1 Leigh) 574, 576 (1829)). For these reasons, we hold the trial court erred in admitting Detective Key's testimony that appellant admitted possessing and selling unspecified "drugs" and "heroin."" (emphasis added)
Then out of the other side it states:
"[T]he Commonwealth's evidence of guilt was strong, and the admission of appellant's statement to Detective Key that he sold heroin and other drugs was harmless."
The entire purpose of keeping "prior bad acts" (usually convictions) from being put before the jury is to keep the jury from convicting based on the fact that the Defendant is a bad person who needs to be put away whether he did what he was accused of or not. If this rule is violated in a manner which is "highly prejudicial / extremely prejudicial" there is absolutely no way that it is "harmless." When something is that prejudicial there is no way to tell if the conviction is actually based upon the evidence. If an appellate court asserts that the verdict is based upon one part of the evidence rather than the other or that the non-prejudicial evidence would have convinced the jury by itself the appellate court has replaced the constitutionally guaranteed judgment of the group of citizens in a jury with its own. This decision is not defendable. Which - I suspect - is the reason that it is an unpublished opinion.
UPDATE: Let me be clear here. I think that a jury would almost certainly find the Defendant guilty in a retrial; I just don't believe that the court appellate should decide that it would.
The judge is upset because the defendant is not showing remorse. This happens in more than a few cases. The problem is that several months have usually passed before trial and several more before the sentencing hearing; a client who might have been filled with remorse has long since run thru the emotional gambit and is drained. Seldom can he summon it back up just to satisfy the judge.
The ones most able to summon these emotions are the scammers so if a judge subscribes to the way someone acts at his sentencing hearing he is most likely being fooled.
When did a coach hitting a kid in a way which embarrasses but doe not cause harm become a crime? Especially in the hard contact sports. A kid who's getting his head smacked and his body pummeled every practice and every game probably isn't going to respond to "please," "may I," and "thank you." If we enforce the law in this silly a manner we'll be firing 90% of the football coaches in the country.
I don't think I was at the party featured in the picture. But maybe I'm wrong and it's a Where's Waldo type of situation; still I think I'd be too easy to spot. Being of German heritage I think my beer stein would probably give me away. Of course, they all appear to be of approximately college age so some of the non-germanic people in the picture might be drinking a little beer too. In that case I might actually be in the blog's main picture since I really can't think of another way to differentiate. ; )
First, federal lawyers had to react to and live with the disturbing conclusions reached by the Department's own inspector general's office. This internal watchdog concluded that the federal law enforcement community overreacted after the terror attacks on America by making "little attempt to distinguish" between genuine terror suspects and simple immigration law violators. The later of these detainees, hardly in a position to exert much legal or political force on their own behalf, were kept in jail too long, often in harsh conditions, the report found. And when some Justice Department lawyers raised question about the treatment of these people, The New York Times reported Tuesday that those lawyers either were ignored or countermanded by their superiors.
And then the day got a little worse for Justice. In Detroit, federal prosecutors didn't get the shutout victory they have come to expect in the legal war on terror. A jury refused to convict all four men accused of providing material support to terrorists as part of a "sleeper cell' captured after Sept. 11, 2001. Two men were so convicted but one man was acquitted outright and another was convicted only of a lesser fraud charge. So the first terror case to actually go trial since the terror attacks — John Walker Lindh, Richard Reid, and others all pleaded guilty before trial — ended with a decidedly mixed result
Finally, there was the Moussaoui hearing before the 4th U.S. Circuit Court of Appeals in Richmond. If there is a more conservative appellate court in America — a court more in tune with the current Administration's legal and political views — I am not aware of it. Yet the panel that heard argument Tuesday didn't exactly phone in their approval of the government's extraordinary position that a capital defendant (Moussaoui) cannot have access in some material form to the testimony of witnesses (in this case two Al Qaeda chieftains) who could either exonerate him or generate mitigating factors during the sentencing phase of a trial.
And then, of course, they filed charges against Martha Stewart, which has the potential to be a massive public relations disaster. Her lawyers and PR people should have a field day talking asking why they are pursuing her instead of Eron or Global Crossing.
I think the reason is that these people see the fegov and big media as untrustable and probably in cahoots. Rudolph, on the other hand, is seen as one of them. It's the same choice that's been made over and over agian: choosing between your own or a theoretical "greater good." We all know how those of us in the South have traditionally answered that question.
The FBI detained "almost 800 immigrants after the terrorist attacks. Under the veil of court-approved secrecy, detainees were held for long periods without charges even when they clearly had nothing to do with terrorism, were denied access to lawyers and were blocked from immigration courts."
El-Amin wants to be tried in Norfolk. And he wants his wife's lawyer disqualified. And he wants his wife's guilty plea suspended. And he wants his wife not to be able to testify against him. And . . . And . . .
I think he might be right on the motion to change jurisdiction; I'm not sure he can get a fair trial where people know him.
This is hilarious for everyone but the Victim and the AUSA who had to argue this with a straight face (from How Appealing):
At a United States Marshals Service ("USMS") auction held in San Diego, California on July 15, 1999, Cervantes, a 67-year-old Mexican national and resident, purchased the vehicle that would lead to his first and, according to the record before us, only experience with criminal law enforcement. Some four months earlier, the vehicle had been seized by the Immigration and Naturalization Service ("INS") in connection with its use in transporting undocumented aliens. Cervantes alleges that neither the INS nor the USMS properly searched the vehicle prior to its sale at auction and that, if they had, they would have discovered 119 pounds of marijuana secreted in its bumpers. Cervantes remained similarly unaware of the contraband until its discovery by United States Customs agents as he attempted to cross the United States border on October 22, 1999. Although Cervantes denied knowledge of the marijuana and informed the agents that he had purchased the vehicle at a USMS auction, he was arrested and incarcerated for importing illegal drugs into the United States. The United States moved to dismiss all charges, according to Cervantes, after it realized that it had failed to remove the marijuana after the vehicle's initial seizure. He was released on February 9, 2000, having spent three and onehalf months in prison.
And here's the paragraph with which the opinion began:
Although rare, on occasion, we see arguments that simply fail the straight-face test. The United States' assertion that the "detention of goods" exception to the sovereign immunity waiver under the Federal Tort Claims Act applies to its negligent failure to remove 119 pounds of marijuana hidden in a car it sold to Jose Aguado Cervantes, whom it later incarcerated for "transporting" those very drugs, is one. Although we agree with the district court that Cervantes cannot recover damages for false imprisonment or false arrest because the customs agents had reasonable cause to believe his arrest was lawful, the United States' defense to his negligence claim is patently without merit. We therefore affirm the district court's order dismissing Cervantes's false imprisonment and false arrest claims, and reinstate Cervantes's negligence claim.
CERVANTES v. UNITED STATES OF AMERICA, No. 01-56929 (9th Cir., 02 June 2003).
I can't believe that the government didn't pay to make this one go away.
Been there, done that. My case concerned Halcion (triazolam). Doctors keep prescribing all these meds and half the time I don't think they know about the hazardous effects. In fact, I'm not sure how they could keep up with the number of drugs out there and the work done by medical companies' PR and Legal departments.
Shoot a minister - lose your right to hunt. Gotta feel sorry for the guy though. The minister was walking thru the woods, during hunting season, without any orange or red on a rainy day. He didn't deserve to be shot but he sure as heck wasn't being all that smart. Still, the hunter never saw a deer, he just shot at what he assumed was a tail flash. He deserved to lose his license; he's lucky that he's not going to jail.
Based on one event judges and legislators are trying to abrogate the right to bond. Before they do so, I want to see statistics - I suspect that the vast majority of people bonded on this sort of offense don't harm anyone. But you don't make zealots like MADD happy by using the facts; they would abrogate the rights of all in order to stop the one.
I don't know Florida's constitution but I do know that since Employment Div., Dept. of Human Resources of Oregon v. Smith,494 U.S. 872, 110 S.Ct. 1595 (1990), her case does not have legs under the federal constitution:
"[D]ecisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." United States v. Lee, 455 U.S. 252, 263, n. 3, 102 S.Ct. 1051, 1058, n. 3, 71 L.Ed.2d 127 (1982) (STEVENS, J., concurring in judgment); see Minersville School Dist. Bd. of Ed. v. Gobitis, supra, 310 U.S., at 595, 60 S.Ct., at 1013 (collecting cases). In Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), we held that a mother could be prosecuted under the child labor laws for using her children to dispense literature in the streets, her religious motivation notwithstanding. We found no constitutional infirmity in "excluding [these children] from doing there what no other children may do." Id., at 171, 64 S.Ct., at 444. In Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961) (plurality opinion), we upheld Sunday-closing laws against the claim that they burdened the religious practices of persons whose religions compelled them to refrain from work on other days. In Gillette v. United States, 401 U.S. 437, 461, 91 S.Ct. 828, 842, 28 L.Ed.2d 168 (1971), we sustained the military Selective Service System against the claim that it violated free exercise by conscripting persons who opposed a particular war on religious grounds.
Our most recent decision involving a neutral, generally applicable regulatory law that compelled activity forbidden by an individual's religion was United States v. Lee, 455 U.S., at 258-261, 102 S.Ct., at 1055-1057. There, an Amish employer, on behalf of himself and his employees, sought exemption from collection and payment of Social Security taxes on the ground that the Amish faith prohibited participation in governmental support programs. We rejected the claim that an exemption was constitutionally required. There would be no way, we observed, to distinguish the Amish believer's objection to Social Security taxes from the religious objections that others might have to the collection or use of other taxes. "If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax. The tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief." Id., at 260, 102 S.Ct., at 1056-57. Cf. Hernandez v. Commissioner, 490 U.S. 680, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) (rejecting free exercise challenge to payment of income taxes alleged to make religious activities more difficult)."
If you don't believe me then go look up City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157 (1997), wherein the federal supreme court struck down an attempt by the Congress to change this standard to one which would be more favorable to allowing a picture with the veil.
Look, the State of Florida has a valid nuetral reason for this law. Police need a way to make initial identification on the road. Is it perfect? No. But it is the least intrusive most practicable method available. The other options might include a nationwide database with everybody's fingerprint or retinal scan available to each and every officer on the street. However, on top of the frightening civil liberty aspects, this would require each State and the fedgov to do a massive (impracticable) investment in technology in each patrol vehicle. Of course, assuming the database, there is always the option of having everyone whom the officers pull over taken into custody and delivered down to the station to have him/her checked. Of course, then each and every 15 minute stop the officer makes on his shift turns into a hour long debacle and would probably turn street enforcement into a myth.
If anyone has a less intrusive, nuetral-purpose option I am open to hearing it.
The message here? If you boast that you "confronted the criminal justice system and won" you probably shouldn't give the feds anything else they can charge you with. And, jeepers, did this guy give them something to work with.
"Wayne Pacelle, senior vice president with the Humane Society of the United States, a staunch opponent of cockfighting, said Congress has the authority to regulate interstate commerce, and that he is confident the suit will fail."
Interstate commerce? What interstate commerce? Is there a booming trade between the two States where this is not outlawed? On a purely constitutional level the plaintiff's attorney starts out making a better case:
"'The suit contends that the federal government should not be imposing its judgment on Louisiana -- that's not federalism, that's moral imperialism,' Kramer said."
Of course, then he goes on to make this impressive legal argument:
"They're dissing them, and dissing is not American."
I wonder if I can use that line the next time I write a brief to the Court of Appeals?
A rant against "the war on drugs." It makes some good points as to the rights which have been whittled away because of this but then it devolves into some of the silly arguments which are always used to try and legalize marijuana: "we have lost an excellent source of paper pulp, omega-3 fatty acids and a renewable alternative to oil."
This always strikes me as silly since I see no shortage of paper, omega-3 can be found in fish and vegetable oils, and if we really were interested in alternatives to oil we've already got "corn-squeezin's."
Sorry it's been a light couple of days. I've actually been doing legal stuff and haven't been able to spend all that much time in front of a computer without Versuslaw or Westlaw on it.
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.
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