Lex Communis has put the ball into my court. As part of a more indepth discussion on the anti-Catholic standard being applied to Pryor he states:
On the other hand, if a juror expresses a willingness to follow the law and consider all options that the law permits, then bouncing the juror would be impermissible. For example, if a prosecutor made it his practice to use his peremptories on Catholic (or Quaker) jurors who had stated their willingness to follow the law, that practice could and would be challenged as a basis for obtaining a new trial. [I'll defer to CrimLaw on this point, though.]
Hmmm . . . The first thing which comes to mind is this quote from Darrow on whom to choose during voir dire:
An Irishman is called into the box for examination. There is no reason for asking about his religion; he is Irish; that is enough. We may not agree with his religion, but it matters not; his feelings go deeper than any religion. You should be aware that he is emotional, kindly and sympathetic. If he is chosen as a juror, his imagination will place him in the dock; really, he is trying himself. You would be guilty of malpractice if you got rid of him, except for the strongest reasons.’
‘An Englishman is not so good as an Irishman, but still, he has come through a long tradition of individual rights, and is not afraid to stand alone; in fact, be is never sure that he is right unless the great majority is against him.
‘The German is not so keen about individual rights except where they concern his own way of life. Liberty is not a theory. It is a way of living. He has not been among us long, his ways are fixed by his race, and his habits are still in the making. We need inquire no further. If he is a Catholic, then be loves music and art; he must be emotional, and will want to help you; give him a chance.
‘If a Presbyterian enters the jury box and carefully rolls up his umbrella, and calmly and critically sits down, let him go. He believes in John Calvin and eternal punishment. Get rid of him with the fewest possible words before he contaminates the others. Unless you and your clients are Presbyterians you probably are a bad lot, and even though you may be a Presbyterian, your client most likely is guilty.
‘If possible, the Baptists are more hopeless than the Presbyterians. They, too, are apt to think that the real home of all outsiders is Sheol and you do not want them on the jury, and the sooner they leave the better.
‘The Methodists are worth considering; they are nearer the soil. Their religious emotions can be transmuted into love and charity. They are not half bad, even though they will not take a drink, they really do not need it so much as some of their competitors for the seat next to the throne. If chance sets you down between a Methodist and a Baptist, you will move toward the Methodist to keep warm.
‘Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both—in—one, plead your client guilty and go down the docket. He learns about sinning and punishing from the preacher, and dares not doubt.
‘As to Unitarians, Universalists, Congregationalists, Jews and other agnostics, don’t ask them too many questions; keep them anyhow; especially Jews and agnostics. It is best to inspect a Unitarian, or a Universalist, or a Congregationalist, with some care, for they may be prohibitionists; but never the Jews and the real agnostics! And, do not, please, accept a prohibitionist: he is too solemn and holy and dyspeptic.
‘I have never experimented much with Christian Scientists; they are too serious for me.
“You may defy all the rest of the rules if you can get a man who laughs. Few things in this world are of enough importance to warrant considering them seriously. So, by all means, choose a man who laughs. A juror who laughs hates to find anyone guilty.
So, yes, religion has a long and venerable tradition of being called into question during jury selection.
Nowadays we don't question religion blatantly (at least not in the courts I practice in). We don't ask, "Are you a member of the Society of Friends or a Catholic?" Instead, in capital cases witherspooning is done to eliminate those who do not possess the "proper" belief in the death penalty which includes members of a number of different faiths. Like many have pointed out in the discussions concerning Pryor, it's not elimination just because you are a member of a certain religion - it's elimination because you dare to hold the beliefs of a certain religion. Depending on the makeup of a community a large percentage might be excluded by this method based upon religious beliefs and a result may be reached which is entirely out of sync with what an untainted jury of the vicinage might have done. An example might be Puerto Rico. Capital punishment is unconstitutional and the population - largely Catholic - vehemently stands in opposition to the death penalty. If the federal government decided to have a death penalty case there witherspooning would result in an entirely non-representative jury.
In non-capital cases prosecutors during voir dire will ask questions such as, "Does anyone have a religious or philosophical belief which requires them not to pass judgement on or punish others?"1 I pop up, object about the unconstitutionality of the question, the judge overrules me, and the prosecutor continues his questioning. Only once have I seen a juror actually answer yes to that question. The judge asked the normal rehabilitation questions and the juror swore he could fulfill his duties. The prosecution moved to strike for reason and, over my objection, the judge granted the strike2. However, I never got a chance to raise the issue on appeal because the case turned out favorably for my client.
So, yes, unfortunately, it is my experience that - even in the modern era - a religious person can be removed from a jury despite swearing that he can follow the court's instructions and the law.
1 In Virginia voir dire is done en masse. General questions are asked to the group with follow up for those who indicate that the question applies to them.
2 It's funny how rehab for the prosecutor is believable while rehab favoring the Defendant just never seems to work out.
(1) You just aren't supposed to have sex with your client. And you especially aren't supposed to have sex with your client while he's in jail.
(2) A prosecutor caused a mistrial "by asking a Polk County sheriff's detective to testify about Carr's unwillingness to discuss the death of Robin Ridgeway." Anyone who's done even a little criminal work would realize that this is over the line so the public defender has asked for the judge to find that a new trial would be double jeopardy. From what little is in the article it sounds like he may be right. A prosecutorial mis-step, whether reckless or calculated, should probably lead to double jeopardy in just about any case unless it can somehow be tied to something the Defense has done.
(1) An article decrying the tendency of the media to report things about police negatively and denouncing the methods used to reach those criticisms. I agree that it is darn near impossible to find positive stories about the police (other than the occasional puff piece about someone retiring). I know; when I started noting stories here about the things going wrong in various police agencies I tried to look for positive stories to balance them out and found almost nothing. Not that I think it means that the majority of police are acting improperly - quite the contrary, I think most officers are out there busting their bums trying to do the right thing. On the other hand, I don't think it is necessarily indicative of Leftish bias either - I think it just makes a sensational story when a policeman does something wrong and it sells papers or keeps people tuned to their televisions.
And along that line -
(2) Something interesting must be going on at Harvard. The campus police have refused to give the campus newspaper their records for the last several years. The newspaper, with funding/help from the ACLU, is suing.
(3) If a female decides at any moment to withdraw her consent and you don't stop on a dime - it's rape. I would be curious to know if this actually causes any change.
Last night Officer Douglas E. Wendel was killed in the line of duty in the city of Richmond. The cowards shot him from behind without even giving him a chance to defend himself.
The City has offered a $10,000 reward for the capture of the murderer.
I have to wonder if anyone has made an attempt to track this guy's address to see who he actually is. For all we know he's a sheriff's deputy somewhere in Wyoming.
(1) A jail prisoner attacks a guard and tries to escape. This is just dumb. I have yet to go to a jail where there isn't at least one door which has to be opened by someone locked in a room the inmates can't get into. The deputies probably could have just let him run until he got to that door and realized the keys he had stolen weren't going to open it.
(2) Well, at least it's better than Michigan where prisoners are allowed their freedom and then told "oops, we made a mistake" and put back behind bars.
(1) Remember all those cases where you were defending an indigent and couldn't get an independent expert because the government expert was supposedly neutral? Yes, she was paid by the same government who pays the prosecutor and you've never seen her testify - not one single time - to anything that wasn't damaging to the Defense but she'll proclaim her neutrality loudly from the witness stand and the judge will back her. Well here's what happens if an expert finds something pro-Defendant. However, there is evidence that in States other than Virginia this might not be the way things are handled (at least if the expert's screw up leads to a police officer being falsely accused of murder).
(2) Just for a bit of perspective. If you beat an elderly couple to death Oklahoma will kill you. If you arrange for your buddy's ex to come over so he can kill her and then himself Iowa will send you to prison for life. If you pour scalding water on your maid for not understanding your language and she dies from the burns, Saudi Arabia will send you to prison for four years. Of course, I might be willing to spend a life in prison in the US rather than 4 years in a Saudi prison - my life expectancy might be longer.
(8) In the NC Peterson case another State forensic witness has been made to look bad. It appears as though someone used luminol around the blood splatters but either didn't tell the expert or he won't admit it. Not sure if that will really score any points with the jury but, once again, it makes the prosecution look bad.
Before I get the numerous, though always polite, e-mails about how wrong I am about marijuana let me say this: I think the marijuana laws are stupid. It's like prohibition was for alcohol or making alcohol illegal is currently for college students; it romanticizes a relatively harmless drug in which people do not see the harm and leads to a willingness to ignore the law.
On the other hand, for years I've heard arguments for legalization because of all the wonderful uses of hemp which used to be summarized pretty well by the good ol' hemp shirt (thanks, but I'll stick to cotton). Now I hear all the time that marijuana is the new wonder cure - it is the new laudanum. Does marijuana have valid medical uses? Almost undoubtedly. Can it do everything claimed? Maybe. Are there better suited drugs out there? Not sure.
There's the rub. I don't know. And I don't trust the people who keep telling me how wonderful it is1. It's not that they are evil or stupid; it's that I very, very, very strongly suspect that they have an ulterior motive (or at the very least they strongly desire to justify). I see healthy, pro-marijuana adults arguing this point behind a screen of very desperate, very ill people who are willing to grasp at any straw. If you were to actually begin manufacturing laudanum again you could probably get these people to use it (and, who knows, it might help with the pain).
Since I know I'll get several e-mails from this, can some of you who are pro-use tell me why it has not been developed into pill form2? For instance, my understanding is that aspirin was originally tree bark but I no longer have to chew on bark or eat willow leaves to get curative effects. Have there been attempts to develop the same thing for the useful ingredients in marijuana so that dosage, contaminants, etc can be controlled? And the argument for legal use would ring much truer if it was about prescribed pills rather than smoking.
1 No matter how many studies and statistics are cited in pages like this what keeps popping into my mind is the old Twain quote that "there are three kinds of lies: lies, damned lies and statistics."
2 Yes, thanks for the info, but I do already know about brownies.
Actually, after having read the article, I come to the conclusion that not much is going on here. Apparently the Defense tried to use a peremptory strike to remove a black lady from the jury who " had had substantial exposure to the police as the daughter of a police officer and former trainee at the police academy." The prosecution raised a Batson objection and the court disallowed the strike.
The trial court's decision is hard to defend. That much exposure to police is adequate to make a motion for a strike for cause. And surely it is reason enough that a peremptory strike must be allowed. Heck, I would love to be able to justify my peremptory strikes that well.
(2) "The death penalty shall not exist." That's in Puerto Rico's constitution. Not that the federal government cares as it tramples all over the territory.
(5) In order to be killed by the government it has to prove you are competent. Because, goodness knows, we all want to spend thousands of dollars bringing someone back to mental health just so we can terrorize him with the prospect of his impending death and then kill him.
In England they can force you to cooperate in investigations against you. However, "the European Court of Human Rights [has] ruled that any answers given under compulsory questioning cannot normally be used at the defendant’s trial." It looks as though this might cause a bit of a problem for prosecutors.
(1) The number of people in prison keeps increasing. Virginia's already come up with its own solution to this problem. It built so many prisons that the Commonwealth had to change one of its supermaxes into an ordinary prison and has been importing prisoners from other States to fill the empty bunks. There'll always be space for more prisoners here.
(1) In California jury instructions are being changed from "Failure of recollection is common. Innocent misrecollection is not uncommon" to "People often forget things or make mistakes in what they remember." All together, jury instructions which a layman are a good thing. However, the article notes that in serious cases the old instructions will be used because they have been tested in the appellate courts. In other words, understandable instructions will be given in a shoplifting trial while a 75 page morass of legal babble which the lawyers barely understand will be given to juries in a death penalty case.
In England the government is looking to seize regulation of lawyers from lawyers and put it under a government official - because, as we all know, government bodies and regulations are always the most efficient way to go.
Considering the general inequities of jury sentencing in Virginia, I think that would be interesting. In general, Defendants in Virginia are severely punished when they take a jury trial (unless of course they are found not guilty). Once the sentencing phase has begun, jurors are not provided with the sentencing recommendations or background investigation that judges receive. They cannot suspend time1, or send a Defendant to a rehab program or take a case under advisement. As well, jurors are neither versed in the law nor exposed often to its enforcement, thus when the Defendant's record is read - in high dudgeon, by a prosecutor who sees far worse every day - they are shocked2. Consequently, juries strongly tend toward higher sentences.
How, you ask, does this not run afoul of the right of a jury trial as guaranteed in both the federal and Virginia constitutions? Well, the jury doesn't get the last word. The judge actually has the ability to suspend all or part of the jury's sentence. As I remember it - and it has been some time since I researched the matter - the Virginia Courts Appellate have actually interpreted this as making the judge the sentencer. And of course, the judge has all the resources available at the sentencing hearing which he would have at any sentencing hearing.
Despite all of this a judge (at least where I practice) will almost never choose the sentencing guidelines over the sentence which has been handed down by the jury. The attitude seems to be that you took your chances now you're stuck with the outcome, even if it is substantially harsher; some of the less circumspect judges will even say as much during the sentencing. Despite the fact that jury trials are supposed to be the default, there is a strong incentive on the part of Circuit Court judges to discourage them. If 20-30 people a term were to decide to invoke their right to a jury it would quickly grind many courthouses to a halt3.
How, you ask, does this not run afoul of the right of a jury trial as guaranteed in both the federal and Virginia constitutions? Prove it. All I have is anecdotal evidence and that's just not going to cut it in either the trial court or the courts appellate. Of course, if anyone out there has a couple hundred thousand and wants to survey the courts across Virginia providing a comprehensive study of comparative sentencing and provide me with an expert for trial, I'll be happy to raise the issue in the next appropriate case.
What - no takers?
Basically, the decision to take a jury is often almost suicidally stupid, even if you are innocent and standing in front of Judge Smith who hasn't found anyone not guilty in five years.
What would solve all this? (1) Remove sentencing from the realm of the jury or (2) at least give the jury the ability to suspend time and a copy of the sentence recommendation before they go back to deliberate. Personally, as a great fan of the common sense found in jurors, I favor the second solution. However, I doubt either will solution will be adopted anytime soon.
1 This is particularly nasty. Starting at Class 4 felonies there are mandatory sentences a great number of which are recommended (in whole or part) for suspension under the guidelines.
2 I've seen a prosecutor stand before jurors, voice aquiver with rage, speaking of this evil man with three prior felony "habitual offender" convictions while the jurors sat in horror. Of course when I stood up and explained that that meant being convicted three times of "felony driving when Virginia told you not to" it took the edge off and I think made the jury mistrust the prosecutor some (at least my client got one of the rare sentences less than a judge would have handed down).
3 Not that I've had any judge say this to me. I just note it in passing.
The woman had no prior record but was convicted under the three time violent felon law becaue her crimes were spread over two months, enough to count each as a seperate occurence.
Albemarle county has filed false report charges against citizens but not against a former deputy whose claim to have been shot by a mysterious black male was withdrawn. The difference? Apparently the deputy knew enough to keep his mouth shut.
The big question is whether gang activity is down in Lynchburg because of what's been done by the police and community or just because of all the rain Virginia's had this year.
Unable to fill both of its supermax prisons, Virginia has converted Wallens Ridge into a regular prison. I particularly like the barbed wire in the classrooms - sort of reinforces the prison milieu in case the prisoners forget where they are.
(1) Yes, thank ya'll for your interest, I have not been posting on Kobe much. I look forward to it going to trial to actually sort out all the garbage and give us some substantive information.
(2) I think I've posted about as much as I should on the Pryor nomination. It's not really criminal so it doesn't fit well here. I just got swept up when the observations I was making to the committee hearing were also noticed by others.
If you want everything on the Pryor nomination, I suggest Southern Appeal who's following it indepth.
(3) Just in time for the Bar exam, Matt over at Stop the Bleating! found God.
(4) Donald, at All Deliberate Speed, professes his unrequited crush on Ann Coulter just in time before he leaves the blawgosphere.
We'll miss the well thought out blawg and I wish him well. All I ask is that he do me the same favor I asked of Orin Kerr when he left Volokh.
Let's be clear here - Pryor is not being opposed because he has acted on his beliefs. Pryor has not followed Church doctrine to the exclusion of constitutional mandate. In fact, had he done so he would have given a much more expansive interpretation of the Alabama anti partial-birth abortion law. He did not. He tried to bring the statute within the mandates of the constitution not the mandates of the Church.
This is a case of the pain being so great because the arrow has struck too close to home. Nominal Catholics, as demonstrated by Senator Richard J. Durbin, distance themselves as far as they can from Church positions which are unpopular to the Left2. The question which hangs in the air is what is the difference in particular between Durbin and Pryor? Both claim to believe in doctrine but neither has followed it to the exclusion of other obligations. The difference? Pryor doesn't make the law and is honest about his belief that abortions have killed unborn babies. And because of that he will not become a federal judge.
1 Although the ads have actually been run in Republican areas, they clearly target the Democratic obstructionism.
2 This is a bunch of garbage: "Mr. Durbin [is] an Illinois Democrat who personally opposes abortion but backs abortion rights." As a political expediency, I can see remaining neutral - abstaining from votes on abortion matters. But to vote in favor of abortion is to act in direct in contradiction of what you profess, as a Catholic, to believe are Church Laws which reflect the Will of God.
Does Roanoke have gangs or not? It probably depends on how you define a gang. If it's a group who hang around in a particular neighborhood and has members who regularly break the law - Yes. If are looking for an organization "which has as one of its primary objectives or activities the commission of one or more predicate criminal acts" and/or a heirarchy wherein there is a boss controlling the acts of others - probably not.
Some places will call any group of kids that hang around in a neighborhood a gang. Others are very proud of the fact that there aren't any gangs in their city. I was in a city last week talking to an officer who took the Roanoke position; he told me that the city didn't have any gangs, all it had were groups of neighborhood kids who hang around and caused trouble.
I think Kilgore's program will be badly needed in some areas but I also think it will probably cause places that are looking for funds to classify a lot of kids who are hanging around as gangsters.
(1) The computer science professor who is charged with supporting terrorism has gotten the judge to fire his court-appointed attorneys. He is living on the prayer that many a Defendant has, that someone will get him "a paid attorney." It hasn't happened yet and the judge tried hard to dissuade him; the judge pointed out that if the money doesn't come thru the professor will have to defend himself. The professor "admitted he is not versed in racketeering and conspiracy laws, federal sentencing guidelines or court rules" but said he was a quick study and he was confident he could learn (from jail, with limited access to a law library).
I feel sorry for the judge - that case is now a disaster in progress. Short of other attorneys stepping forward all he can really do is watch the train wreck as experienced prosecutors run right over a pro se Defendant.
(2) The House has voted to stop "sneak-and-peek" warrants and Justice is not happy.
That's because the truth hurts. Do I think Justice currently intends to seriously abuse this law? No. Do I think that if this becomes settled law it will fall into the "give an inch take a mile" syndrome which is so common in law enforcement? Yes. They'll stretch it just a little bit to get that member of Ga'amiat Islamia, then just a little further to get that 3d generation Irish-American mob boss who's supporting the IRA, then just a little further to get that pharmacist who hasn't been reporting income from selling drugs to the mob boss' underling which ended up in a deal for guns that went to the IRA, then just a little further . . .
The police are trying something pretty innovative in Lowell, Mass. Unfortunately, it seems to violate the Establishment Clause: police are sending gang-members/runaways to "yellow-robed monk[s] tr[ying] to teach them how to be good students and exemplary Buddhists."
It looks like they worked pretty dawgone hard to get her too. If they keep arresting all the interesting people on the Council it won't be any fun to watch the Council meetings on public TV anymore.
You know your case is in trouble when, even in the current atmosphere, you cannot convince a judge that the "terrorists" you are charging are so dangerous or likely to flee that they should not be given bond.
(1) A police officer has had his rape conviction overturned because the judge excluded evidence that the prosecutor he is accused of raping had been making advances toward him which he had been rebuffing because of his marriage.
[The prosecutor] said the DNA test results do not exonerate McKinley because of two factors explained to him by the 11-year-old girl. She said she had engaged in consensual sex the night before and that McKinley did not ejaculate when he raped her. Thus, the semen was from someone other than her attacker, Kastrenakes said.
But Scheck, known for helping to successfully defend O.J. Simpson against murder charges, challenged Kastrenakes' argument. "He took the position at trial that the semen came from McKinley and was the result of recent intercourse," Scheck said. "He can't turn around now and say otherwise."
Scheck said that if the girl had consensual sex the day before the rape, the state needs to get a DNA sample from him to see whether his DNA matches the semen recovered by investigators. He said there was no testimony at trial about whether the girl had sex the day before the alleged rape.
(3) Satan worshipper rapes a 12 year old girl at least 4 times, gets 48 years in prison. Can't think of a more worthy individual.
(3) Swisher, the man whom governor Warner tortured by extending his life and then setting as a requirement an appeal which the governor knew had already rejected, was killed Tuesday. Swisher's not one who elicits any sympathy but what the governor did was just wrong.
While, to date, I think the prosecution has been somewhat lacking, at this point it seems to be building momentum.
(5) How can you starve your child to death and not be convicted of murder? These peoples' attorneys must have worked some sort of miracle to hang that jury.
Sadly, I think this is true. If you are more than nominally Catholic you cannot be confirmed because you follow Church doctrine. And, more's the sorrow, those who claim your same Church (but not its core beliefs) will be well represented among those who prevent your confirmation1.
What's Pryor's record as it pertains to the death penalty? The Church abhors the death penalty as well (pro-life = moment of conception until death at a time chosen by God, not man). Has Pryor done anything which indicates that he follows doctrine rather than death?
1 And let's be absolutely clear here, an anti-abortion stance is clearly the unarguable doctrine of the Church. I've seen more argument over whether women should be priests, whether priests should be allowed to marry and even if the Church's doctrine on homosexuals is correct. I've heard unabashed abortion opposition from the pulpit for years (even when the Army had me stationed out in California south of San Fran).
If you throw a dog into traffic you are responsible if it is "hit three or four times and then run over by a white minivan" even if the dog made it to the other side of the street and then wandered back into traffic.
Amen. I understand not letting felons have a firearm (or at least violent felons) but not allowing them to vote? We have the same system set up in Virginia and it disturbs me; it doesn't bother many of my clients1 but it disturbs me.
1 It has been my experience that when I tell my clients that if they plead guilty to the felony they will lose their right to vote, hold office and ever even hold a firearm they are most concerned about how much time they have to serve. When your client asks you "will I get out today if I plead guilty?" and the answer is yes, quite often that is all he wants to hear. I've even had guys whom I've told that we will almost certainly win their cases order me to take a deal if I can guarantee that they will get out of jail that day (frustrating).
(2) The officers who got in a fight after they tried to take a bag of fajitas from some men (while off duty) have had their case dropped. But it's only been done so that the prosecutor can go back and get clean indictments.
(3) A confrontation between judges and police over whether the police should be allowed to bring firearms into county courthouses. There really is no reason for an officer to have his pistol with him in the courtroom. The (Virginia) county court wherein I do most of my work has this rule and all it means is that the police lock their weapons in the trunk of their cars before they come into court (you know, the same place they already store their shotguns / rifles). On the other hand, I'm not sure what the big problem is with officers having their pistols with them either.
Yesterday I got a few mysterious hits from Lexis. For a moment there I thought I must have written something profound and legally innovative. Of course, I couldn't think what the heck it might have been but I was starting to get a big head for a moment.
Then I checked my e-mail and it turns out that the authors of blueblanketblog and Statutory Construction Zone (people who actually have important thoughts) had been kind enough to cite my blawg in an actual article in the Journal of Appellate Practice & Process (which I cannot seem to link to).
Thanks for the free publicity and I hope those who find their way here from it find something worthy hereinafter.
(1) The judge didn't like a verdict against an ex-trooper and his former employer so he just threw it out.
(2) In San Fran a police captain transferred while there is an investigation as to whether she ordered a police officer not to be investigated as a suspect.
(4) In Roanoke a tiff over the stationing of police officers in schools - which appears to have been set off by an officer whistle-blowing - has been reported on here and also here.
1 Yep, for those of ya'll who are Yankees, we do have a major highway named after the President of the Confederacy. We also have big monuments to all the Generals and the fallen soldiers. This is, after all, the city that was burnt to the ground at the end of The War of Northern Aggression.
(1) An article which is upset because a man has the right not to participate in gathering DUI evidence against himself without having criminal sanctions.
(1) A district court judge has dismissed two counts because an anti-terrorist statute is unconstitutionally vague. You cannot tell a judge that something isn't vague because "you know it when you see it." AT least you can't if it's not an obscenity case.
The European Court of Human Rights Slaps at the British Ex Parte System:
The European Court ruled that the British courts have inadequate protections in allowing ex parte proceedings to determine if the prosecution can deny evidence from the Defense. It seems correct considering that in at least one of the cases mentioned the police informed the judge ex parte that the Defendant had a history of drug dealing despite the fact he had no convictions and the Defendant never knew about the claim and therefore could not counter it during the proceedings (ain't it a great system when you can poison the well without your opponent even knowing that anything's wrong?).
"Restorative justice" is a new program across the pond. Under it the whole "conviction" thing can be avoided if you just apologize and pay restitution. Both Defendant and "victim" have to agree to it but I know this would have stopped a fair number of my cases in their tracks. I wonder if this will ever be exported to the States.
(2) The County Commissioner of Revenue of Craig County, Virginia gave up her job in order to keep from being convicted of felony forgery and check charges.
(1) The San Fransisco cat-lady has made bond and failed to show up on her court date yet again (3d time). The judge has again ordered her arrested. I wonder if he'll set a bond this time.
The writer seems to have no real world knowledge about how the system actually works. He equates DNA gathered for cold-hits with fingerprinting. However, the reason for fingerprinting is to identify the person who has come in who might be giving a false name. It doesn't always work but it is a useful tool for officers dealing with frequent flyers who can lie convincingly about who they are. DNA isn't being used in that manner. The reason it is being taken is to find out if maybe, by chance the person arrested might be connected with some crime that was committed in the past (of which the police lack knowledge or sufficient current evidence).
These are very different reasons for undertaking these two activities. The first has a valid administrative purpose. The second serves no purpose other than to try to manufacture evidence where it does not exist. DNA testing may be valid after conviction (something which still bothers me) but prior to conviction it serves no purpose (unless involved in the actual case at hand). At least it serves no purpose if its only going to be held in stasis and destroyed if the defendant is not convicted. I suspect that this is not the way it will work in real life. The words "officer's good faith reliance on the administrator's error in processing early" just keep flashing thru my head.
And the author just blows off the possibility that law enforcement might manipulate the system in order to get DNA. Anyone who has dealt with the numerous pretext stops which occur daily and are ignored by our courts knows that law enforcement will use any tools given to them by the courts and legislatures to stretch the law to its limits to get the bad guy1.
1 As always I add the caveat that I do not blame the officers for this; I blame the courts which encourage this kind of activity by refusing to restrain it.
Gotta admit I've never had someone do this. I've had clients refuse to come to court or dissapear before their case was called. I've even had clients fuss at the judge after getting their sentence. But nobody who went the extra mile like this. I foresee a much longer stay in jail for this gentleman after the contempt charge and the escape charge are tacked on.
(1) Imprisoned for life, paroled, became a solicitor, committed arson and attempted murder, went back to prison for life and thus we see the cycle completed.
(2) Three men break into your farmhouse, police response is hours away and your family is home. The American response? Shoot 'em dead. The British response? Go back to sleep, because if you do anything to harm these poor fellows we shall send youto prison. And, of course, when you get out the burglars' friends will threaten you so that you will have to go into hiding (because you wouldn't want go back to jail for shooting some thug who showed up with a knife or gun).
(3) Congress is trying to pass a "fetal homicide" bill. Many States already have this sort of statute. Is this the sort of evolution in the nation that justifies changes in the constitution (such as mentally retarded people not being eligible for the death penalty)? It would seem pro-abortion advocates are worried it is:
"The real purpose of the law is to define a fetus at any stage of development as a person," said Rep. Jerrold Nadler, D-N.Y. "That undermines Roe v. Wade."
(4) In the NC Peterson case the prosecution has gone to the tried and true tactic of showing the jury a disgusting crime scene video (twice). Score on for the prosecution. However, the prosecutor's crime scene technician's testimony seemed to be a draw. He minimized the actions of Peterson when he ran over to his wife on the floor but then testified about how Peterson's son had to pull him over to a couch. He also apparently contradicted other police officers who testified that the reason they were suspicious was that the blood on Peterson's clothes was dry (he said they were moist). It feels like this day probably came out slightly in the prosecution's favor (because you cannot underestimate the emotional impact of seeing that video twice).
(5) Malvo's attorneys are arguing that the prosecution should have to account for every penny it spends, just like the Defense does. They are stating that the fact that federal money is coming in skewing the system and that they should be entitled to equal funding (or at least more than they are getting).
Very interesting. If they win it holds all sorts of implications for indigent Defendants because of all those law enforcement and prosecution programs which are backed by federal funds. Of course, being of necessity a realist and of the opinion that judges can foresee implications as well as I can, I very much doubt the motion will be granted.
I have readed many an article which runned under the headline "Defendant Pleaded Guilty." My junior high English teacher is somewhere out there pitching a hissy-fit. She teached us about these things called irregular verbs. And plead - pled is definitely one of the verbs she teached us. In fact I never see-ed "pleaded" until I go-ed to law school.
Of course I was also teached judgement and impracticle rather than judgment and impracticable, so I may have fighted a losing battle here.
The next time you walk into a courtroom and think how you could never get into the drunken brawls etc. that "those people" do remember this: our congressional representatives, who are (at least putatively) persons of high moral character, were engaging in the same sort of childish behavior which one sees tried daily in general district court - and they weren't even drinking.
Roanoke's trying to get officers to live in bad neighborhoods.
I think these programs are well meaning but unrealistic.
I've heard officers talk about how their neighbors will wake them up at 1:30 in the morning because the Smiths are having a domestic dispute or "Bobby Jones hit my little boy", etc. Why in the world would they want to move into a neighborhood where people might be waking them up for real reasons (gunshots, knife fights, drug deals)?
I lived in a less than opulent neighborhood when I first moved to Richmond and I heard gunfire fairly often. These represent real world threats which an officer might be held accountable for even if he was off duty. And, as the article states, there is always the danger of reprisal against a young officer's wife and/or child.
Bassem Youssef, who was born in Egypt and is now a naturalized citizen, has filed a racial discrimination lawsuit against the FBI. He claims that he has been frozen out of the 9/11 investigations despite his superior qualifications.
The article doesn't give us much to go on. I'd like to know how long Bassem has been a citizen, if his family is Egyptian (or Palestinian or . . .), if he's Coptic, how much of his life he spent in the Middle East, etc. Without these factors, I cannot make a judgement as to whether some sort of careful treatment might have been justified.
Sorry no postings yesterday. I got stuck at the office doing work. Yes, I know it was a Sunday but when you spend your weekdays in a courtroom you have to do your paperwork sometime.
(3) He is a threat but he isn't: A man butchered a girl 17 years ago. He was declared insane and held in the State mental institution. He's now been declared merely mentally ill and not a threat. But he's still not being released because he is a threat as a sexual predator. Sounds contradictory to me.
1 Would a prosecutor even try this argument if guards had separated a fight and then taken the two men off to interrogate them? Or if the guards were questioning everyone on the cell block as to how drugs got into the block?
An article basically stating that even though marijuana is illegal that it should be O.K. for doctors to reccomend it (at at least speak so glowingly of it that no one could fail to get the idea) just as long as they don't actually write out a prescription or participate in the street purchase.
Let's put this in perspective: Client comes to my office and tells me his Booky has told him that he will be dead in 6 months if he does not pay off the $50,000 he owes. I check it out and believe it to be true. I then begin extolling the virtues of burglary. "If someone goes into unoccupied houses while people are on vacation they can find electronic equipment to pawn, jewelry too, and in some houses people just leave money lying around in easy to open drawers or lockboxes. I bet people who do that kind of work make $50,000 easily within 3 to 4 months." Does anyone out there think I avoid prosecution after my client is caught and offers me up to the police in order to get a deal for himself?
These types of programs are needed in some cases such as those H/O offender who get a mandatory year for driving to work or to the store to pick up some food. Of course, for others it renders jail meaningless. A number of guys work for their brother-in laws' construction company, get picked up and dropped off by their wives every day, and always seems to be calling my office from a place that just doesn't sound like it's outdoors (much less like there is any work going on). The problem is that it is pretty much imposible to know who's in which group and the program is just too important for some clients and their families to do away with.
In Charlottesville they are building apartments for students without providing adequate parking. They are only requiring 1 space for every 2 apartments despite the fact that the apartments are primarily for students who will probably each have a car. It's a vast improvement over the 1 space for 8 bedroom requirement origonally envisioned. Still, it comes across as a scam. We all know that students provide particulalry wonderful sources of income for local governments thru tickets, tickets, towing, and more tickets. What better way to guarantee the continuation - nay, the growth - of such an income stream than to make sure there aren't enough legal spaces?1
1 Yeah, yeah, I saw the part in the article about using mass transit. I just don't believe that anyone is stupid enough to believe that a UVA student is going to go to the mall or movie theater by bus. They know full well that these students will almost all have cars and they are taking advantage.
In Montville, Connecticut it is apparently against the law to "evade responsibility." Which should mean that every single one of us who was a 12 year old boy tasked with taking out the trash or mowing the lawn should probably avoid Connecticut.
(2) Illinois is going to require the taping of all homicide interrogations when the suspect is in custody. That makes three States who have adopted this rule and it's shameful that more have not. You hear all sorts of excuses as to why they do not but in the end it boils down to one thing: it will make the police officers' job more difficult. And the people who are making these arguments should really think about what they are saying. Basically, they are saying that if you film interrogations police will have to obey the law and constitution and this will make their job more difficult. It's a hard position to justify.1
Three other students, including one from Roanoke, were wounded before Odighizuwa ran out of ammunition and was tackled by students.
I've seen this called a fallacy more than once and been told that students went to their cars got their firearms and backed him down. Can anyone point me to an actual article clarifying this?
(4) Death for political expediency. Governor Warner's political maneuvering in order to avoid giving Swisher (and others like him) a new trial has worked. When he granted a three week stay of execution to let the lawyers try one more time to convince the Virginia Supreme Court to hear the case (wherein there is clear error but no objection) after the Court had already ruled against Swisher on the same matter previously, it was political gamesmanship/blame shifting of the worst sort. And he played with a man's life no less. I could have respected a decision not to intervene (dissaprove, but respect) and I could have respected an attempt to fix it but there's nothing here to laud.
(6) SW Virginia Law Blog points out a case wherein a man tried to have 3 people maimed while he is still in jail. His just dues? 10 years in federal prison and a lifetime in the care of the Commonwealth. How can you be in prison that long and not know (a) your mail is read and/or (b) other prisoners will rat you out the second they can get something for it?
1 I know some will say money is the issue but that is hard to believe if you go to any Sears and see the high-quality video cameras for sale, many for less than $500. Add a $50 tripod and tapes and you are good to go.
Hard Cases Make Bad Law - More Fallout from the California Ex Post Facto Debacle:
(1) Prosecutors are still trying to get ahold of the Los Angeles Archdioceses' files even though they cannot be used in criminal proceedings under the claim that they might be usable in civil suits (which would seem to be none of the prosecutors' business). Gotta love how one attorney who represents 112 claimants is giving the Church advice on openess. There couldn't be any self interest involved in that advice, could there?
(2) A case made for eliminating statutes of limitations. I think that the California Legislature has basically done this already in abuse cases. The ex post facto came from the fact that certain alleged violations occurred when the SOL was shorter and prosecution began after the old SOL had run. Still, it's a bad idea. Try defending yourself 5 years after a claimed violation of a law much less 30+. It is very, very difficult. Where were you the second Tuesday of last month 20 years ago? Now, find witnesses and documents to prove it. Can't do it? No problem; after all the burden of proof is on the prosecutor isn't it? The jury never comes into court with a belief that if someone's charged they are likely guilty. And you'll have no problem countering the tearful testimony of that grief stricken complaining witness (Mr. Smith) who has just recovered his memories or the authoritative sounding testimony of the quack - oops I meant "expert" - who testifies as to the validity of repressed memories. And the fact that you may not even remember Mr. Smith is going to be oh so helpful as well. Just tell that to the jury - they'll understand.
(2) Governmental agencies are trying to break attorney-client privilige. In at least one case the IRS obtained an order, in an ex parte proceeding no less, to try and force a law firm to break the privilige and betray its clients. The firm has declined and the IRS is mulling over the possibility of further actions.
I must admit to ignorance as to what the exact dynamic is between the House of Commons and The House Lords. It appears as though there may be some way for Blair's government to get around this. But the article also seems to indicate that if it goes that way the Lords could scuttle the entire crime bill.
A lawyer had a bad conflict in scheduling court dates. We all have them, but this fellow was having a particularly bad day. He got stuck in one court and didn't call to tell the other court what was going on until two hours after his trial was to start. The second court held a hearing and found him guilty giving him a $1,000 fine, 30 days suspendened jail time, and forbade him practicing in the jurisdiction for one year.
The problem is that Virginia's Legislature has limited the ability of courts to punish contempt to 10 days and $250 unless a jury has been impaneled. See 18.2-457. A pesky limitation which the judge tries to get around by holding a "plenary" hearing on "indirect" contempt. In order to do this the judge finds that the summary contempt statute does not apply because this situation doesn't fall under 18.2-456(1). He's right it would fall under either 18.2-456(5) or 18.2-456(6) and still be constrained under 18.2-457.
Of course, the attorney appealed (we are by nature litigious). The Virginia Court of Appeals upheld the decision. It waxes on quoting Michie's Jurisprudence, Barton's Law Practice, AmJur, etc. to show that the attorney is in contempt and that the court has an inherent power to find contempt. Which may be correct as far as it goes.
The Appellate Court then goes on to quote a 1904 case for the proposition that there are summary/direct and constructive/indirect contempt. Yes, I know it's a stretch but, if you ignore the fact that the primary purpose of "indirect" contempt is to punish citizens for exercising their right to free speech, it could actually work as an excuse for the judge's actions except for one thing; the case it cites - indeed the very quote it uses - states that "the power of the court to punish is the same in both cases." Burdett v. Commonwealth, 103 Va. 838, 843, 48 S.E. 878, 880 (1904). So, if the court has limited power in punishing summary contempt it only has limited power in punishing indirect contempt (10 days = 10days; $250 = $250). But the court just passes by this without even so much as an attempt to explain it away.
So now we have new law in the Commonwealth. If your client commits an act which is contempt while directly in front of the judge during a proceeding in his case the judge can only give him 10 days but if he does something before or after the hearing he can be punished in whatever manner the judge deems appropriate (although I think there is still a six month limit out there without a jury).
Hopefully this will go to the Virginia Supreme Court for "clarification."
(1) There's a new sher'ff in town. Does that dream job a a tropical island seem too good to be true? There might be a reason for that.
(2) The California Supreme Court has thrown out a confession in a murder case because "[the detective's] message to the defendant could not have been clearer. [The detective] would not honor the defendant's right to remain silent or his right to counsel until the defendant gave him a confession." The detective further admitted "that he was taught on the job to disregard a suspect's Miranda rights."
Here in the Commonwealth, I've seen prosecution offices with the same policy. In Richmond Domestic court I once watched as four straight domestic abuse cases came before the bench and the wife refused to testify against her husband. The prosecutor's solution? She had talked to the officers ahead of time and each time, as soon as the judge dismissed the charge against the husband, the officer turned around and arrested the wife for filing a false report. OUCH.
Jason, from Sixth Circuit Law, passed on some comments about the genetic predisposition defense which I mentioned here. I quote, in toto, because I think he is pretty much dead on:
If Landon May prevails in his attempt to get the court to recognize that he was predisposed to engage in violent activity, shouldn't the court keep him locked up because, if released, he cannot help but to engage in violent activity in the future? Also, isn't it in the best interest of the state to incarcerate every relative of his that is sufficiently close to his father's bloodline? Now I understand that a crime is made up of both mens rea and actus reus, but the state has an overriding interest in protecting its citizens against violent activity.
Take, for example, the hypothetical of an innocent little girl. This little girl has never done anything even remotely criminal in her entire life. However, she was born with a unique "gift." When this innocent little girl comes within 100 yards of a person, that person dies in 1 week. When she comes within 10 yards of a person, that person dies within 1 day. When she touches a person, that person dies immediately. Now, this little girl has done nothing criminal. She hasn't the intent necessary to be locked up for the commission of a crime. However, would any sane person argue that this girl has to be removed from society for the protection of the community? Would anyone argue that if taking the life of the girl were the only way to protect the people that the state would not have an obligation to do so?
If one subscribes to the genetic predisposition to commit violent crime, then the same could be said about Mr. May's family as was said about the innocent little girl.
Orin Kerr, the gentleman kind enough to mention this site on the Volokh Conspiracy has left the blogging world to work at the Federal Supreme Court. Good Luck.
BTW, Orin, if you are still reading the blawg please do those of us who practice criminal law the great favor of convincing as many people up there as possible that short, simple, non-multi-part decisions are what those of us in the trenches need. A 40 page plurality, two 20 page concurrences, two 20 page dissents, and one 40 page destruction of the plurality may be very scholarly, fun for lawyers to read, and try to cover every possible angle (of course never succeeding). However, one simply cannot stand in a General District Court - where the judge has maybe 10 minutes allotted for your case -, plunk down a 100+ page decision in front of the judge, and argue how section I.A(3) of the plurality combined with section II.D(1) of the first concurrence and IV.B(6) of the second concurrence means that this pretext stop violates the rights of the Defendant.
Well, I guess you could try (if you were never, ever going to appear in that courthouse again in your lifetime).
(1) In the NC Michael Peterson case the prosecutor is having further problems. He played the 911 tape and the Defendant actually cried. It was pointed out that the dispatcher wrote "hysterical" on her notation of the call. Then the prosecutor asked the dispatcher if she could tell if the Defendant was feigning. "Feigning"? Who the heck uses a word like feigning in a jury trial? It just drips of the type of elitism that screams at the jury "I'm above you." the word is faking - FAKING! Other evidence came in showing that the scene wasn't treated initially as a crime scene and that the investigation began the month after they had locked up the Defendant.
(2) Trying to get the court of appeals to recognize a genetic predisposition defense. Personally, I believe in free will but when you're desperate you make whatever argument is at hand.
(4) In Detroit they used to jail you if you refused to cooperate in a murder investigation. Under the theory that "[y]ou can't hold girlfriends or cousins just to get other people to turn themselves in, or you're going to pay. We're not set up for KGB justice," Detroit is now being made to pay - dearly.
A doctor in Oakland has written over 7,500 prescriptions for medical marijuana. A medical panel is trying to suspend his license because he is "writing those recommendations without conducting sufficient medical exams and [] improperly maintaining medical records. . . The standard requires physical exam, medical history, mental status exam, follow-ups to ensure that medication or treatment is working."
Hmmm . . . one might suspect that this doctor's propensity for handing out marijuana for everything from the common cold to full blown AIDs probably got around and that a number of those 15 minute exams were pretty much shams. Just a thought.
Personally, I think that a lot of attorneys could live with the restrictions but here's the problem: In order to defend someone you have to pay to get a security clearance, pay to travel back and forth to Guantánamo, and receive no compensation for the case. Some may have the money to waste doing this but I sure don't.
At the end he asks two questions. (1) Why choose to draw a line in the sand at this point if the court thinks the suspect being interrogated may not be in the best position to make the decision whether to waive counsel or not? Personally, I am as ignorant of NY law as Donald is but I would hazard that it is something along the line of what I offered at the end of my last post: As an adult you are presumed competent. Another adult has no legal authority to act on your behalf (even if he is a well informed family member). However, a retained attorney - by definition - is someone who has been hired to act on your behalf in a legal matter and thus can intercede.
(2) Wouldn't this rule invite police abuse? He mentions arresting clients at a time when lawyers would be as hard to reach as a possible. I'll go him even one further. There's at least a 50-50 chance that the timeline in the Grice case could be supplemented with additions something like this:
12:30: Father arrives at station asks to see his son. He is told to sit down and they will see what they can do. 12:45: Father asks again and is told that Detective Smith is talking to his son and will be out to talk with him directly. Father says he has hired a lawyer who is coming and that the Detective needs to stop talking to his son. Duty officer writes the information down and promises to give it to the Detective. 1:00: Father demands that any questioning end and that he see his son. Duty officer tells him to sit down, leave, or get arrested for disturbing the peace. Father leaves and goes to get an attorney.
Heck, if they are good, they may have even been able to delay the father from leaving to hire an attorney even longer than that.
Unfortunately, wherever the line is drawn police are encouraged to play these games. It's considered dolus bonus1, encouraged by superiors and prosecutors, and quite often winked at by the courts.
Even were the "family intervention" standard adopted police could play these games. Included in my "parade of terribles" under a that standard would be that it would encourage police to arrest entire families so that no one can intervene in the questioning of the target. We know, from the pretext stop cases that, under the federal standard, the courts refuse to consider the actual reason for an arrest as long as the reason given is valid.
Consider: Police want drug dealer Bobby (18 years and 2 days old) who lives with his mother, father, and 13 year old sister. At 4:30 a.m. they raid the house and lock everybody down. At 4:45 they have found 2 lbs. of marijuana, 12 rocks, and smoking devices in Bobby's room. Since they want to short circuit the "family intervention" standard they arrest both parents for contributing to the delinquency of a minor. Their probable cause is that it is obvious that he was at least smoking in the house and by tolerating such activity the parents have harmed the little sister. Will it stand up in court? Maybe not, especially if it turns out that Bobby is a Mad-Dog Crip of whom his own parents were terrified. But it does keep the parents out of the way until bond is set (after a magistrate is rousted out of bed or they are presented before a judge). In the meantime Bobby is interrogated without interruption. Unless, of course, someone hires a lawyer who intervenes.
I'm not sure I want to set a standard which encourages law enforcement to act in such a manner even if it is dolus bonus.
1:By the way, yes dolus bonus drives me nuts. I cannot recount the times I've stood in court while prosecutors and police were all pleased with themselves because they have found some way to violate the spirit of the constitution or the law by adhering to its letter. Of course, they would claim that they are seeking justice by avoiding the traps in the law. Sometimes they may be right but on the other hand . . .
Monday: In the morning I go to the prosecutor's office to try (yet again) to get the prosecutor to agree to a deal we have been bantering back and forth about which will keep us from having a jury trial. In the afternoon I go to Circuit Court and try to convince a judge to just sentence my client to a year for his habitual offender offense (that is, for those not from the Commonwealth, felony driving after we told you not to and it carries a year mandatory). The judge decides that we should have a sentencing hearing and requires us to all come back in a few weeks when - if he acts like most judges do with this obnoxious law - he'll sentence my client to a year. After this finishes, I visit some of my clients at the county jail and then its the hour long trip to the regional jail where I spend a glorious evening visiting 8 clients. I have to wait 45 minutes before they can get a male guard to come and frisk me so I can go down to see my clients (you know, they never show that part on The Practice or Law and Order). While I'm waiting they are supposedly calling my clients so that they will be down in the meeting area when I get there (all except the one client they can't find). I get downstairs and, by a miracle, they're all there (the regional jail used to be really bad about this but lately they've been on the ball). For the next couple hours I talk with my clients on matters ranging from the vitally important to the totally inane. Then I go out to get the final client and he's not there. They still don't know where he is. Instead of wandering off, I stand there in front of the guard while she calls around and finally locates him. When she find him, he's in protective custody which means I have to wait around for another 30 minutes while they clear all the inmates from the area so they can bring him in. When that conversation ends I finally get to make that wonderful hour+ trip back (gotta love the whole regional jail concept).
Tuesday: In the morning, I'm running late as I try to get to a rural court. I think I'm going to be 5 minutes late which is usually no big deal. But there's no way my luck would run that good. I pull off of a major state highway onto a two-lane country road which covers about 2/3 of the distance to the courthouse and very shortly find myself behind a farm truck traveling 35 mph the entire length of the road until it dead ends at the next major state highway. I zoom over to the courthouse and I'm still only about 20 minutes late. As I walk into the courthouse I see my client standing in front of the judge and the entire courtroom empty of anyone else except the prosecutor and deputies. I'm greeted by: "Hello, Mr. Lammers. I was just about to assign another lawyer to take your place." OUCH. However, the case went pretty normally from there. A 15 minute docket? Who knew? This is the same courthouse where I've seen a single Trooper with over 200 tickets by himself (not counting the rest of the docket). In the afternoon I drive back to my local Circuit Court where the prosecutor is going to finally offer up the deal on the jury we have scheduled for Thursday or I am going to ask for a continuance (my client has just gotten me the addresses of key witnesses I need to subpoena). I go to the prosecutor's office and he gives me an offer which is not what we've discussed and (after the client refuses) the case is continued until October.
Wednesday: I go to the federal court building in Richmond to observe because I am thinking of getting on the federal court appointed list. The day is pretty much a bust. I get to watch a parole violation hearing and then the District Court shuts down for the morning. I go back for the afternoon and the trial set has been moved to the Magistrate Judge because the Defendant has decided to plead guilty. So I traipse down to the Magistrate's courtroom and watch the plea; I come back a hour later to watch another plea but the lawyer doesn't show. And thus ends my wonderful day at the federal court.
Observation ~ The federal courthouse has a wonderful library which is entirely useless because you cannot bring in anything electronic so you cannot sit there knee deep in books while you use them type up a brief or a motion.
Thursday: A PFC who I represent flew in from Ft. Riley (in Kansas) in order to take care of a petit larceny charge. It got worked out so he has a year to do 50 hours of community service and after that the charge will go away.
Friday: Had a client fail out of a drug program so he came to court to face the music. The only problem was that the witness had left the Commonwealth so the prosecution had to drop the charge. (I'm not complaining, I'll take a client favorable result any way I can get one).
Links have been reworked again. Those sites which have added a permanent link to CrimLaw were put in in the order that Technorati has them "Ranked by Blog Authority." Technorati missed several sites which link to this one so I tried to go back and find the remaining sites. If you have linked to me and are not there drop me a line and the next time I fool around with my site I'll fix it.
Views of the blawg have increased even after the kind cites on Volokh have gone into archive. With well over a thousand hits last week the number of hits for the month doubled. Most people seem to have the site bookmarked so there has been a drop in the number of forwards from other sites. Traffic on weekdays is much heavier than weekends which leads me to the conclusion that many of you are reading this blawg rather than churning billable hours - shame on you ;-)
Sites which forwarded the most people to me (as always if they are on the right look there for the link):
1 - The Volokh Conspiracy 2 - Screaming Bean 2 - Sixth Circuit Law 4 - Legalguy 4 - Stop the Bleating! 6 - Freespace ~ who has recently gone thru a series of notes on silly, frivilous cases including his favorite (mine as well) 6 - How Appealing 8 - SW Virginia Law Blog 8 - The Southern California Law Blog 10- Jurist 10- actualmalice
Very strange how so many had the same number of hits.
I took an e-mail from Jason over at Sixth Circuit Law and kind of ran with it for my own little rant about how NY Courts set rules which protect the rights of the citizens of that State while the Virginia Courts will not protect any right unless they feel compelled to do so.
I didn't mean to imply that Jason was wrong in his observation that the Court issued an opinion full of all sorts of pro-Defendant language in order to reach an anti-Defendant result. It's just that I've seen this so often that it doesn't really register anymore (it's amazing what a cynical b@stard I've become in just less than 5 years as a criminal lawyer). Grice may be a little more obvious than most but Courts fill decisions with all sorts of language about rights of the citizenry and protections of those rights and end up telling you why they don't apply to the Appellant. I got excited when I realized the bright line drawn to protect the rights of NY citizens was more Defense friendly than the federal standard as applied in Virginia and it sent me off on my last note.
Meanwhile, All Deliberate Speed points out that "the "bright-line" drawn by the court seems arbitrary." Absolutely correct. I'm sure an argument can be made that it developed thru case law and constitutional interpretation. However, the reality is that it is a line which the NY Courts chose to draw in the sand and say "this far and no further." I would point out that all rights - whether they be prophylactic (as in Grice) or an actual inherent/guaranteed right - are basically lines in the sand drawn by the Courts, legislatures or constitutional conventions. Why is it that my client is entitled to a jury trial on his possession of marijuana charge (carrying a maximum of 30 days) but not on his contempt charge (as long as it is less than 6 months)? Because that's where someone drew the line. Why is my client entitled to an attorney on every charge that carries jail time and not just felonies? Same reason. Needless to say, I don't really see arbitrariness as a deal breaker unless you can show a reason why the line has been drawn at the wrong point in the sand.
All Deliberate Speed goes on to point out one reason why the rule set out by the NY Court might be wrong:
Ken argues that family members would falsely tell police officers that counsel is coming just to halt interrogation, but that seems unlikely, especially given that the interrogation must cease if a family member simply calls an attorney and the attorney calls the police. Further, wouldn't a family member who gives false information to the police in order to stop an investigation be subject to prosecution himself (perhaps for obstruction of official business)?
I must respectfully disagree. I've seen it many times. In Virginia a Defendant is brought before a judge within several days of having been arrested for a hearing to determine what he is going to do for an attorney and (if still in jail) bond status. A number of local judges won't set a bond (or a reasonable bond) on serious cases unless an attorney is on board. I have seen - time and again - mothers, brothers, fiances etc., stand up and tell the judge they have hired an attorney in an attempt to get a bond for their family member. They don't have a letter from the lawyer or any other proof and usually after a few sharp questions from the judge admit that they have not hired the lawyer yet. Some, however, stick to their guns. I know that I have been called by clerks more than once because a judge wanted to know whether "Mr. Smith's" family had retained me and I have no clue who Mr. Smith is. Yes, I know it's all anecdotal evidence but I'm not sure where you would actually get data on this sort of thing (especially since the judge's don't do anything to the family members most of the time, not even a warning).
The availability of charges to file against these family members isn't something I think works as a deterrent. Most of the time I don't think it even enters their minds. Even if it does, family will often take the fall for one another. Don't believe it? Go work in Juvenile and Domestic Court for a while and you will see it every single day. A father might very well reason that to lie to the police officers about an attorney being on the way is better than letting them talk to his 18 year old son when he suspects they are talking to him about the four gang-related murders which took place last week. Catching a "little charge" just isn't going to be his top concern.
The Grice case itself seems to provide a case wherein the father wasn't being 100% truthful with the officers. Let's review the timeline:
Unknown time: D arrested / implicated in a shooting. 11:20: D signs waiver form. 12:30: D's father arrives at station and tells them to stop questioning a lawyer is on the way. Father not allowed to speak to his son and leaves. 1:45: D signs a confession 2:00: D signs another confession 2:10: Attorney calls and tells police that D is represented and to stop talking to D. Police stop the interrogation.
There may be a number of explanations for this timeline but I think Ockham's razor leaves us with this one: Son is arrested. Father finds out and goes to the police station but is not allowed to speak to his son. Knowing his son is in trouble he tells the police to stop talking to him because a lawyer is on the way. Unable to get to his son, the father leaves. At this point father finds a lawyer and hires him. The lawyer then calls the police and tells them to leave his client alone.
Why do I think that this is the most likely scenario? For two reasons. (1) For the very reason that if there is an attorney hired the father could have called the attorney (from his cell phone or the pay phones which seem to be at every police station) and had the attorney call the police. He didn't so I doubt there was actually an attorney online. (2) Because if you were a lawyer who operated in such a system it would be malpractice if you did not call the police the moment you had been hired by the relatives of a client in this situation and tell them to leave your client alone.
The standard set by the NY Courts is actually fairly generous. It guarantees that the interrogation stops the moment you invoke your constitutional right to a lawyer or the moment a lawyer takes your case and tells the police to leave you alone. Any competent lawyer should do that immediately. On the other hand, when an adult is being interrogated the fact that another adult (once you're 18 family ties evaporate legally) shows up and claims the police should stop the questioning because a lawyer has been hired there is no invocation involved by either the Defendant or someone legally responsible for the Defendant. This is why the rule laid out makes sense to me.
(E) The man whose family was killed while he was apparently not in California took the prudent step of not talking to detectives without his attorney after he turned himself in in NC. It prompted this remark from Bakersville, Ca. law enforcement:
Personally, I think that Mr. Brothers did the right thing. Remember that Mr. Brothers is the only suspect for the police and never forget what Cardinal Richelieu is reported to have said: "Qu'on me donne sic lignes ecrites de la main du plus honnete homme, j'y trouveral do quoi le faire pendre."1
1 What, you mean you don't speak French? "If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him." I don't read French either, but doesn't it look cool?
Chesapeake, Norfolk, Portsmouth and Virginia Beach now have billboards proclaiming "Isn't she a little young?' I suspect they will have little effect. those sick enough to go after a 12 year old aren't likely to be dissuaded by an ad campaign.
On the other hand, I think that massive punishment for those preying or attempting to prey on our youth is a great way to keep them off the street and away from kids. This is entirely too light a sentence. One hopes that he doesn't actually get parole after 3 years but even if he doesn't only receiving a little more than a year on each of 20 felony convictions of sexually molesting prepubescent boys is not enough. This sentence feels right on the mark. If you want people to stop trying to lure young kids thru the internet start handing out more sentences like that.
The pretty-please-with-a-cherry-on-top method of serving a warrant.
In Lansing, Michigan they are waiving costs and fines on bench warrants if you would just be kind enough to turn yourself in.
After the amnesty period, officers will do a warrant sweep to pick up the rest of the offenders, going to their homes and workplaces to track them down. If arrested, those with warrants could spend time in jail until they can bail themselves out.
The sweep just doesn't strike me as something which will put fear in the heart of the absconders. They already have "7,000 residents with outstanding bench warrants;" if the sheriff or police departments could have found them to begin with do you think they'd have 7,000 outstanding warrants?
Normally, I'd be at least a little upset by this but I just cannot see how drinking alcohol can cause you put needles into food you know other people will buy and eat.
Jason from Sixth Circuit Law pointed out, via e-mail, the NY case People v. Grice. What strikes Jason is how the decision against the Appellant is couched in pro-Defense terms. Having been around the block a few times, I have a little different view. I think the NY Court reached the proper decision. Why? Because we all learn pretty quickly that a Defendant or his family/friends saying that a lawyer has been hired does not mean that a lawyer has even been spoken to yet. I suspect that anyone who has practiced criminal law for a while has seen someone fake the hiring of an attorney.
What struck me is how the NY Courts Appellate actually protect the citizens of that State. This case is an exposition on how the right to be represented is pretty close to a sacred right in NY. Compare that with Commonwealth v. Redmond ("Can I speak to my lawyer? I can't even talk to lawyer before I make any kinds of comments or anything?" is not a clear invocation of the desire to have counsel present during questioning) and the absolutely terrible blows wrought upon the inherent rights of the citizenry in the rush to convict Malvo (see this post and the one it links to).
The difference? NY Courts clearly see their role as enforcing the law as a shield guarding the citizenry against possible abuses by law enforcement. Virginia Courts do not feel any duty to protect the citizenry of the Commonwealth in any way except that which is absolutely mandated by an external force (the federal supreme court) and they will limit that as much as possible. In other words, NY Courts enforce rights under the NY Constitution while Virginia Courts tell us time and time again that the Virginia Constitution is meaningless for criminal Defendants and rights exist only as they are protected by the federal constitution (of course they never put it quite that baldly). e.g:
In Durham the prosecution seems to have a strategy of putting the jurors to sleep at the beginning of the trial with all sorts of boring, incomprehensible financial evidence which is looking pretty contrived. The prosecution's witness selectively entered some income and excluded other income. He even testified that when the man supposedly killed his wife to get money the two of them were worth $1.4 million. Not much there to provide a motive for killing your wife.
The judge in the Scott Peterson case has ruled that the Defense can view the autopsy and some photographs from another case wherein a young, pregnant lady was killed and dumped in the Bay. However, he will not let the Defense see the actual investigative files.
I'm curious as to what would have happened if there had been no video tape. I suspect nothing.
As I've said before, it's the courts and legislatures who bear the responsibility for these stops; the officers/troopers are playing by the rules we lay out for them. These sort of pretext stops happen all the time and the rules which the officers are supposed to play by can get pretty arcane so that I wonder if any officer gets each stop exactly right. Still this was far beyond any mistake. I applaud whoever turned over the tape and the troopers who came forth and testified honestly. I'm not sure the judge did the right thing in encouraging a settlement; I think that a jury observing and hearing about that kind of abuse would probably have come in significantly higher.
This is pretty disturbing: As reported here and also here a woman tried to sell her baby in order to buy OxyContin.
The maximum prison sentence available for this charge is 5 years. While 5 years or less may be appropriate in this particular case (apparently she was trying to sell the child to her grandmother rather than some total stranger) it seems an inadequate maximum sentence.
I can see forgiving a lot because of drug use - theft; uttering; forgery; maybe even B&E's of empty businesses; or low level, support the habit, dealing - but we should never forgive dragging children into the parent's sin or total abandoning the child to that sin.
I want to thank Legal Ramblings for getting me to read the Thomas dissent in Grutter. However, I must respectfully disagree with him as to the point of Thomas' dissent. Steven uses the time honored technique of setting up and knocking down a strawman with the basic idea that, even though facts and general experience may lead you to stereotype a group, you are not justified in treating a group member poorly. I agree with that and will add that one is never justified in treating a member of any group poorly even if s/he does fit perfectly within your stereotypical view. However, I think that it misses the point.
Here is what I think is the pertinent section of that part of Justice Thomas' opinion:
Indeed, the very existence of racial discrimination of the type practiced by the Law School may impede the narrowing of the LSAT testing gap. An applicant's LSAT score can improve dramatically with preparation, but such preparation is a cost, and there must be sufficient benefits attached to an improved score to justify additional study. Whites scoring between 163 and 167 on the LSAT are routinely rejected by the Law School, and thus whites aspiring to admission at the Law School have every incentive to improve their score to levels above that range. See App. 199 (showing that in 2000, 209 out of 422 white applicants were rejected in this scoring range). Blacks, on the other hand, are nearly guaranteed admission if they score above 155. Id., at 198 (showing that 63 out of 77 black applicants are accepted with LSAT scores above 155). As admission prospects approach certainty, there is no incentive for the black applicant to continue to prepare for the LSAT once he is reasonably assured of achieving the requisite score. It is far from certain that the LSAT test-taker's behavior is responsive to the Law School's admissions policies. Nevertheless, the possibility remains that this racial discrimination will help fulfill the bigot's prophecy about black underperformance--just as it confirms the conspiracy theorist's belief that "institutional racism" is at fault for every racial disparity in our society.
As far as it goes, I agree with Justice Thomas as to the fact that setting lower standards leads to a disincentive to achieve; I know if I could have gotten into the schools I wanted with a 155 I wouldn't have spent hours upon hours practicing those thrice-damned word puzzles.
On the other hand, I find myself having to disagree with the Justice as well. While there are very good reasons why the admission policy is clearly contrary to the constitution (I don't say unconstitutional because the rule of 5 has prevailed), causing prejudice is not likely one of them. Rather than argue this out myself I will quote at length an argument made by Waddling Thunder
I think that captures the essence of what really happens and explains why the Justice's fears - while somewhat valid - are probably an over emphasis.
As to other sections of the concurrence-dissent: I was tickled when the Justice "concurred" that after 25 years the policy of using race in admissions would not be constitutional - it ain't now, it won't be then. Who says that a conservative Justice cannot have a sense of humor?
I thought the argument that there is no compelling State interest to even have a State run law school (because several don't) interesting but not necessarily persuasive.
I found the argument that there is no compelling State interest in an "elite" State run law school which only provided 6% of those taking the bar in that State very compelling. There is absolutely no reason (other than pride) that Michigan cannot lower its admission standards for all so that it broadens its admission base and can get equally qualified students from all races, creeds, and locales.
I also found the argument that the unquestioning acceptance of U.Mich.'s stated reason in a case requiring strict scrutiny conflicts with the refusal to accept VMI's reasoning in a case requiring intermediate scrutiny compelling. Gee, have any of those concerns VMI raised about fraternization, pregnancy, lowering physical standards actually come true? Of course they have. Nevertheless, this kind of base, prejudicial sectionalism is something which anyone who has grown up in the South has grown to expect so I never think that an argument for equal application of the law in these matters will ever work.
I don't often delve into these weighty constitutional matters since leaving law school. Thanks again to Legal Ramblings for peaking my interest.
A 68 year old man confesses to a 33 year old murder in order to cleanse his soul before he has to face reckoning. And the prosecutor is going to try him.
Two men are accused of having killed a grocer in Puerto Rico. Puerto Rico made the death penalty illegal in 1929. Now, the feds are intervening on the most tenuous of grounds - the grocer was involved in interstate commerce - and forcing a death penalty case upon them. People are not happy.
In Kentucky the lab has gotten so backed up that private labs have been used, cases have been dismissed without prejudice1, and a judge has issued a show cause.
1 For those of you in Virginia a "dismissal without prejudice" is what much of the rest of the country uses instead of a "nol pros" (nolle prosequi). I don't know why other States use English in their courtrooms but I figure it is the same sort of logic which causes them to do strange things like adopt rules of evidence or actually write down in their statutes the elements of crimes. Why in the world would you do such things when you can keep the law obscure and sprinkled with useless Latin? I just don't understand.
You know, having practiced criminal law for a while, I do not have a really strong belief that the federal or State constitutions really provide protections for any but the most greivous violations of my clients' rights. Day after day I see fantasyland decisions from the courts which clearly are not in line with the real world applications (for example - allowing pretext stops or saying that citizens can just walk away from an officer who stops them on the street). Still there are some rights which are so black and white that they cannot be taken away completely. One of these is the right to a jury. You can set up a system like Virginia which makes the cost of a jury trial prohibitive to the point that if you are charged with a serious crime you are insane if you exercise the option but you cannot take the right completely away.
In Britain the government and police are telling horror stories in order to try and scare people into giving up their right to a jury of their peers. All they have to do is pass a law. The problem, as I see it, is that the issues which they have raised are not jury problems. They are security problems. They don't indicate failures in the jury system - they indicate massive failures on the part of whoever is in charge of court security. The question is whether they can keep people from realizing that long enough to give up this essential liberty in order to gain a little temporary safety.
Matricardi got his sentence today. What this article doesn't report is that the plea agreement preserved his right to appeal the court's ruling that the Democratic meeting he eavesdropped on was a public meeting and therefore he did no wrong. Steve Benjamin is his lawyer and I understand that he has a strong reputation for appellate work so maybe Matricardi will succeed in the appeal.
"Do you have a problem with the property forfeiture laws insofar as they fund the law enforcement offices that are involved in catching the violators?? Do you think there are some ethical issues attendant with the funds captured by police going to the police that capture them?? Would this sort of arrangement (presumably to give an incentive to law enforcement to ferret out certain types of law-breakers) create an overzealous police force?"
I have a problem with these laws period.
That having been said, I must say that I've not seen anything to indicate that any of the local sheriff/police departments have set forth a policy of grabbing everything they can. Do they take the car of every person who they catch dealing from his car? Yes. Do they take the $600 found in the pocket of someone they arrest for dealing? Yes. However, they do not seem to be targeting people specifically because they are trying to get money; they just take what they stumble across.
I see these laws as serving two purposes. At a level far above my head1, these laws serve to deny a Defendant an adequate defense. In example, should the U.S. government decide that you (a multi-millionare) are guilty of a multi-State, multi-nation, RICO violation and/or multiple tax charges it can come in and seize all your assets so that you cannot possibly defend the charge. You will, of course, get a lawyer appointed to defend you who will give you the best defense the federal government will allot him the funds for. Will you get the legions of forensic accountants, private investigators, and lawyers necessary to go thru the tons of paperwork the government will turn over, make sense out of what it is trying to charge and track down leads across the nation/world? Yeah, dream on. Of course, we all think of this as being used against members of those groups stereotypically associated with gangland activity. But google "asset forfeiture" and "M.D." and you'll see that doctors despise this law because it is used against them as well.
The second purpose is punishment. These laws take the rent money the Defendant had on his kitchen table when they raided his house or the week's pay which he has in his pocket when picked up2. They take the truck he was driving when picked up. Of course, since this civil seizure does not involve possible imprisonment, it is one of the matters for which the courts do not provide counsel3. They hand the papers to the guy while he is locked in jail for seven months, waiting for his criminal trial. Most of the time he doesn't even understand what "Commonwealth v. $762.41" means and even if he does he cannot afford to hire an attorney. The assets are forfeited without him even being able to come to court because he is locked in jail. And the government gets its pound of flesh even if it cannot make its criminal case stick.
I dislike these laws specifically because when I see them in action they are usually taking the rent money or that week's pay from some guy who had two rocks or a bag of marijuana. Maybe twenty dollars of that might have come from selling a rock to the CI or officer but that never stops them from taking it all.
1 However, if there is anyone out there who wants to walk into my office and pay me a $250,000 retainer to defend charges of this sort, I'll be happy to hear you out.
2 There is a large portion of society which operates on a cash and carry basis. For example, construction workers often get paid in cash. As well, a number of people do not have access to credit cards or even checking accounts and either pay things in cash or hold their money until they buy the money order to pay a bill. Consequently, "poor" people will often have a few hundred around.
3 Only possible imprisonment gets appointed representation in Virginia not forfeitures, fines (no matter how massive), or loss of license to drive (which is often far more devastating than even a month or so in jail).
On the other hand, this looks like it might actually have been a case of the prosecution hiding the ball. Have they no medical evidence in this case? Trying to make a case by showing that they handled their money poorly would not seem the best way to make a case to me.
A power-play in Washington is keeping the Chief of Police from having a contract with the city. The main problem maker, judiciary committee chair Kathy Patterson, D-Ward 3, is holding the contract hostage in an attempt to things which she wishes done.
Oh, really? Just how many people does she think there are in the world who want a high stress job without any guarantees of employment or benefits because the city council is going to hold their job hostage in a political power struggle?
Let me just say something for the record: I hate jail-house lawyers. They give my clients all sorts of bad advice which the client heeds instead of my counsel.
Someone once asked me how to start a criminal practice and make money. Here's my reply:
I've been trying to figure out a way to make good money doing criminal law myself. Some possible routes you might explore: (1) Go to a public defender's office. The pay is not great but you have the ability to get health coverage, vacations, eventually retirement benefits (if you stick around), and you have lawyers around you who have the experience to help you. (2) Get hired by one of the criminal law firms with the already excellent reputation (yes, I know that's easier said than done). This enables you to move straight to paying customers rather than court-appointed. (3) Go cheap. I started out by having two folding tables, an all in one fax-copier-answering machine-printer, an old computer (all you really need is e-mail, the ability to use VersusLaw, and wordprocessing-download abiword for free), one metal two-drawer filing cabinet, one phone line (the all-in -one could tell faxes from voice), a p.o. box (I don't let clients know my actual address), a cast-off, orange, 1970's era office chair, and a car. I changed my "living room" into an office and got on as many court-appointed lists as would accept me and fit into my schedule. At first you cannot be picky about this - the courts which no one wants to practice in are the ones which have the most availability (There is a certain court I practiced in for the first few years which I will not go back into unless someone pays me an awful lot of money). I met clients at the courthouses for interviews or did phone interviews. In the beginning there isn't a whole lot of money because judges give you the crummy misdemeanors like driving suspended or cross-warrant battery but as judges start to trust you they will give you more serious cases and your income will rise.
I suggest 1 or 2 because three, while satisfying if you scratch your way up, ain't much fun. In the beginning I actually had to work a job at Sears to help pay the bills.
A Request: I am on the lookout for newspapers which have a legal section for their cities or States. An example would be the Des Moines Register's Crime/Courts section. However, I am not looking for the small hometown paper which lists the happenings of the court that week.
The test for bond is usually if the person is likely to flee and if the person is likely to harm herself and others. A person who is a suspected spy with strong ties to China would seem to fall squarely under the first of those conditions. But I guess not in L.A.
With apologies - posting will be light today. My Lab was kind enough this morning to bring me my glasses when it woke me (right off the kitchen counter). You might imagine the kind of damage a Lab crunching down on your glasses can do. I've kind of put them back together by bending the frames and putting the glass back in but the right lens is chipped and everything looks strange. Reading these little letters just ain't working - I'm off to buy a new pair and then to the office where I'll actually do work that someone (hopefully) will pay me for.
Maybe I'll post tonight if I can't find something better to do.
TalkLeft referred to me by an old nickname I haven't heard for years and it led to me messing around with the html hereabouts. Those are war hammers up there. I'm not sure I like it. Michael and the Aquinas statement may return shortly.
A job opportunity for somebody out there (I don't qualify):
Profession: Legal Location: New York City, NY (US) Job Title: CRIMINAL ATTORNEY NEW YORK CITY CHELSEA AREA Date Posted: 2003-07-02 00:27:00 Status: Full-Time Contact: Daniel Furman 45 W 21st Street New York, NY 10010 212-242-8507 (phone) 212-243-2711 (fax)
Description: CRIMINAL ATTORNEY NEW YORK CITY CHELSEA AREA. Law firm seeking criminal attorneys for expanding prison case unit. Must be licensed in New York. Also need Pennsylvania, New Jersey, California, Nevada and Florida. Other states should apply as we are continuing to expand. Beginners will be considered. Must have a civil rights minority assistance mindset. We are bleeding heart liberals who believe the constitution is being destroyed by bad case law and overzealous politicians who campaign for office on the backs of the poor. Get it? If you desire to join the fight to save our civil rights conatct us today. Our web site if www.ffnyc.net The Daniel Furman Law Firm. 212-242-8507.
As long as they can come up with a bogus reason, they can still profile you.
An officer stops a lady because rosary beads were hanging from the rear view mirror. Now - before you start thinking the stop was based upon the fact that all Catholics are nefarious, evil, and must be stopped as they drive down the street because they are obviously up to no good - let me explain. The rosary was blocking her view of the road. I mean, the beads on a rosary are just so huge that they just might keep you from seeing that fly on your windshield or maybe even that kid crossing the street a mile or so down the road. And then there's the Crucifix which at anything from 3/8" to an entire inch keeps you from being able to see that car in front of you every time.
The Defense, for some unfathomable reason, claimed that this was a pretext stop and that profiling was taking place.
Believing a level of decorum is due my fellow practitioners I will describe that with the kindest word I can find: disingenuous. Courts have loudly proclaimed that they don't care what the real reason for the stop is as long as there is some sort of incredibly flimsy legal excuse. "[Case law] foreclose[s] any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved." Whren. "Whether a Fourth Amendment violation has occurred 'turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time' and not on the officer's actual state of mind at the time the challenged action was taken." Maryland v. Macon.
The general excuse given by the courts for this is that they cannot look into the mind of the officer and determine his subjective intent. O.K., if the judges are going to abdicate this responsibility, then they should hand that role to the group of fact finders uniquely qualified to determine who to believe: a jury. Let's see if the prosecutor can sell a group of citizens on the fact that a rosary on your rear view mirror is an actual reason to pull a car over. Or if the prosecution can convince a jury that someone who is in the presence of an officer - in uniform, with a gun, nightstick, and handcuffs - actually has the right (and knowledge of that right) to tell an officer to shove off and leave or drive away. It's an incomplete idea but it strikes me as more protective of our liberties than the system as it stands currently where judges refuse to protect them.
We have this in Chesterfield (at least partially). Each courtroom has a large flat screen plasma T.V. hanging on the wall and a small screen by the judge. General district courts have a small screen in the front of the bench so that the pretrial service guy and the lawyer can see the Defendant. I believe the newest Circuit Court has three or four small screens built into the bar in front of the jury box. All the small screens are set up so that they can slide down out of sight while not in use. Of course, every courtroom has a camera set up to video the bench.
It's pretty cool and utterly useless. The only place that it is used for is the local jail which is about a minute drive from the court. Used only for pre-trial hearings such as notification of charges and bond issues, it saves the deputies some security concerns and time because they do not have to take the prisoners out of the jail and search and shackle them etc. But that it badly outbalanced by the cost which I make easily over $100,000 just for the T.V.'s on the wall (probably much, much more) and I figure cost as much, or more for all the little screens built into the benches. Now, to be honest, it can be done much cheaper. Colonial Heights rolls out a $300 RCA TV and the camera on an A.V. cart when they want to use the system. If the expense were that minimal the security concerns might justify it (especially in Colonial Heights where the jail is in an entirely different city). But even then, Chesterfield never uses it for the jails which are farther away. The deputies are sent to go pick those people up and bring them to the courtroom. And the reason? It's not because the system won't work; it's scheduling difficulties.
Oh well, enough of that rant. Things are the way they are and Chesterfield spent that money before I became a taxpayer here so It didn't come out of my pocket.
A QC argues the necessity of juries if the people are to be protected against the sovran. A Deputy Police Commisioner makes the argument for giving up this protection of liberty in order to gain some security.
O.S. sec 51.1-4.C. Every person who, having been twice convicted of felony offenses, commits a subsequent felony offense within ten (10) years of the date following the completion of the execution of the sentence, and against whom the District Attorney seeks to enhance punishment pursuant to this section of law, is punishable by imprisonment in the State Penitentiary for a term in the range of three times the minimum term for a first time offender to life imprisonment. If the subsequent felony offense does not carry a minimum sentence as a first time offender, the person is punishable by imprisonment in the State Penitentiary for a term in the range of four (4) years to life imprisonment. Felony offenses relied upon shall not have arisen out of the same transaction or occurrence or series of events closely related in time and location. Nothing in this section shall abrogate or affect the punishment by death in all crimes now or hereafter made punishable by death.
I suspect that this guy has a substantial record if the judge brought the wrath of God down on him like that.
Governor Warner's clemency in the case where an improper instruction was given is only three weeks during which time he has told the attorneys for the Defendant to go see if they can get the Virginia Supreme Court to return the case to court for resentencing:
The attorneys asked Warner for more time because the ridiculously short deadline. Warner declined; he's found a way to try and divert responsibility for the decision from himself and he's sticking to it.
In both cases law enforcement said that no terrorism was suspected. I don't know about the first (in fact, I am a little suspicious) but the second one is just Hispanics trying to get licenses while they're up here doing all the crummy work we won't do for ourselves.
At first when I read that I thought that it meant that the prisoners were knee deep in toxic sludge but as I look at it again I think that the complaint is that they're not getting paid enough. If so, this is a case of a group doing more harm than good.
What's the worst complaint about prison? The overwhelming boredom. And boredom leads to trouble. Being able to get out and do something is a privilege which gives inmates an incentive to stay out of trouble. A living wage is a good thing but they already have food and housing and clothing provided. The ability to do something is payment in itself and the little money they actually get gives them some money for the canteen. Of course, they won't have any of this now. Congrats to the Silicon Valley Toxics Coalition.
Paintball? You're a terrorist because you play paintball?
Heck, I do things which are more suspicious than that1. I have Arabic books and music and I even peruse the Arabic online newspapers on occasion. The FBI must be scheduled to come crashing thru my door any moment (all I ask is that you don't shoot my dogs).
1 Never fear - the reason I do these things is that once upon a time the U.S. Army sat me down and told me "YOU WILL LEARN ARABIC, PRIVATE" and then used me for 6 years in various capacities before I left for college and law school. I'm Catholic and you might recall that there have been a few spats between Catholics and Muslims over the years. On the other hand there is the command "in hoc signo vinces;" maybe I could go out and become the world's first German-American, Southern, Catholic terrorist (note: for those of you at an alphabet agency or the DOJ - that is what is known as a joke).
Color me impressed: the Judge in the Malvo case did the right thing and moved the case to another part of the Commonwealth.
"Venue should be transferred to a jurisdiction outside the Washington-Richmond corridor, where many citizens lived in fear during the month of October 2002 as a result of the crimes with which the defendant is charged," Fairfax County Circuit Judge Jane Marum Roush wrote.
It's the right decision and Judge Roush must be commended for reaching it.
And then, of course, there was the reply from learned counsel:
"Nonsense!" responded Fairfax Commonwealth's Attorney Robert F. Horan.
Who can argue with such a well grounded legal argument?
And Governor Warner punts: he delays the killing of the prisoner and points the lawyers over to the Virginia Supreme Court. Only, the issue wasn't preserved during his trial so the prisoner doesn't really have any grounds to go to the Supreme Court. But he got everybody off his back (at least for now).
A judge sentenced the former Mayor of Bridgeport to 9 years in federal prison and told him that his corruption "led to a general cynicism about politics." Because, as we all know, the citizens had such a blind and childlike trust that politicians were honest before this case.
The Defendant gave her attorney a box full of documents shortly before trial. The attorney used the documents in trial without verifying their authenticity. The documents were fraudulent. The Defendant tried to get a new trial because the lawyer didn't check to see if she was lying to him.
The 3d Circuit applied extreme common sense to this situation:
I cannot recall the number of times I've had clients show up on the day of court with a manila envelope stuffed with papers or a witness whom I've never heard of. Sometimes they're even relevant. How in the world am I supposed to know if it's a lie? If it looks or sounds correct and my client vouches for it, I'm stuck with it. Anyway, even if my client gets the information to me a month before the trial, I don't think I'm supposed to presume my client is lying.
If you are a man working in Saudi Arabia remember one thing: Women remain chattels in Saudia and you are responsible for every act she takes. So, if she steals from the hospital she is working at you will serve 16 months in a Saudi jail, sleep on a blanket near a hole in the ground (the hole is the toilet for 20 men), get barely edible food, and get 50 lashes every fortnight.
Virginia's new anti-abortion criminal statute didn't even make it thru an entire day. It looks like an interesting case. There has been what appears to be a manipulation of the system by the plaintiffs (to get the judge they wanted). When that failed a new judge was appointed. Not that it helped Virginia. Without hearing the case, the judge has already indicated he expects to find the law unconstitutional. When the Attorney General's office asked for 120 days to prepare for trial the judge replied "I don't know why you need 120 days for a no-brain case like this."
Rural Judge v. City Kid (Seen in a rural courthouse):
A Richmond kid who managed to wander into a rural county two counties away from Richmond (and get in some minor trouble) is called to the bench. The judge explains to him that he is in court to answer a show cause as to why he shouldn't be imprisoned for not doing the community service she required. He pleads not guilty.
Prosecution: "We transferred him to Richmond Community Services and they assigned him community service 2 and 1/2 miles from where he was living. He didn't do any of it; he said it was too far to get to."
Judge (confused): "2 1/2 miles was too far?"
Defendant: "Your Honor, it was way over by the Diamond and there were no buses I knew of going there."
Judge (incredulous): "So you couldn't walk 2 1/2 miles to keep from going to jail?"
Defendant: "That's a long way from my house. It's not anywhere near."
Judge (not happy): "Well if you can't walk just 2 1/2 miles to avoid going to jail I'm going to impose the 10 day sentence."
The kid is led away and thus is illustrated one of the eternal truths of practicing around here: rural folks will walk, hitch, or drive their tractor across four counties to meet with you, keep their court appointment, and do what the judge tells them. Richmonders can't travel four blocks unless they have a car or there is a bus route. And rural judges just won't buy the "it was too far away argument."
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.
Be advised that all e-mails received are subject to inclusion in the Blawg. If you do not wish your name published with that e-mail make certain that you notify me in it.
