(3) A serial child abuser pleads guilty to yet another charge which was brought many years after the fact. Not that much changes in his life either way. After he finishes his time in prison for the rapes he will be put under civil detention because of his mental illness.
(4) The woman in charge of foster parenting in Alaska faced domestic charges. Not really confidence inspiring.
Can you have a gun on school grounds or not? Dillon's rule forbids localities from creating stiffer laws and punishments than the law which has been passed by the Legislature so this is something of a no-brainer. Gotta wonder why this is being passed on to the Attorney General rather than being hashed out in court.
The Virginia Pilot created this problem by pointing out that only 94% of those for whom the judge has ordered rehab and reduced their sentence have not reoffended.
Now the Pilot has insinuated corruption of the system, pressured a chief judge into taking steps for which it damns him with faint praise, and at the end insinuates that the judge involved is engaging in abuse of discretion. It created a (non)problem and continues to happily report on it.
(5) The guy who the FBI and Justice Department concentrated its effort on in the anthrax investigation - you know, the guy they never found anything on - is sueing because of the havoc wrought on his life.
Governor Warner is pandering to the prohibitionists by suggesting that the already draconian DUI laws be made worse. AND HE WANTS TO BRING BACK THE MOST UNJUST LAW ON THE BOOKS OF VIRGINIA - the habitual offender.
I cannot count how many times I have stood in court and watched clients who have no choice but to drive (mass transit was voted out of existence by the county I'm in and never existed in rural counties) face this unjust charge. I've had people get that mandatory, unsuspendable year for driving to pick up a kid stranded after a party, driving to get groceries, driving to get away from situations which were going to turn violent, and -time after time after time - driving to go to work so that they can support their families. Everyone who spends more than a day in trail courts, and isn't absolutely clueless, realizes how unjust the laws are which take licenses away and/or criminalize driving. We all know these people still have to drive and that eventually they will end up in jail for driving. The habitual offender statute is the king of these unjust statutes. It makes people who have no serious record have a felony - thus abrogating their citizenry rights. It takes the breadwinner out of the household - thus usually causing serious financial harm to those the man was driving to work in order to support. And worst of all, IT DOES NOT STOP THOSE WHO DRIVE DRUNK FROM DRIVING.
All I can hope for is that this is typical prohibitionist blather from the Pilot (which looks for any evil involving the demon drink and driving and magnifies it as much as possible).
As a solo practitioner the prospect of something like this both makes me terribly excited (this is a once in a lifetime battle against overwhelming odds with Amici lined up both to the left and right of you) and terrified (this case would probably put my office out of business in 6 months or less as it consumed all my time and kept me from pursuing other cases).
Both defend the Act on the grounds it is constitutional. Perhaps (I ain't got time to argue it now). But the fact that something is constitutional does not make it correct. Almost any law infringes on some right and the removal of rights not explicitly enumerated (thus reserved to States and citizens) will always be a gray area of constitutional law. However, there must come a time when we heed Mr. Franklin's warning: "They who would give up an essential liberty for temporary security, deserve neither liberty or security." I think that time is now. Whether or not these are technical violations of the constitution they violate the spirit of American liberty and if they are allowed to pass will be followed by worse.
What would make you think you could get away with going to multiple stores and glueing dirty pictures and stories into teen magazines? For that matter, why the heck would you do it?
Riverside Regional Jail has lost my client. She has no bond so we know she's not on the street (at least she's not supposed to be). When I got to court today I was informed that what had probably happened was that they had signed her out to another jurisdiction's jail (she has charges all over the Commonwealth and up and down the East Coast). But they never got her back and have no idea where she is.
Of course, the case was continued for a month so they could find her.
Yup, like I've said a thousand times, that regional jail idea is a real winner.
(3) Murder by Association? The prosecution is trying to prove the NC Peterson murder case by providing evidence from a prior death.
(4) A man who participated in the killing of someone because he was Jewish may be out of jail in less than a year. That's bad. The prosecution is trying to censor his reading list. That's also bad.
(7) Indiana's AG allows expanded DNA testing in order to resolve whether someone sentenced to be killed actually committed the crime.
(8) The Sniper Case: (a) What do conspiracy of passport fraud, mugging, killing a witness in your divorce, and saying "America got what it deserved" have in common? They are all things which have nothing to do with the sniper case which the prosecutor wants to admit in order to convict Muhammad.
O.K. those of you who are 1L's at Harvard should not borrow Jeremy's notes on CrimLaw. No matter what he tells you, the death penalty for burgalry only exists in certain parts of the world like Iran, Saudia, Somolia, North Korea, Texas, and the 4th Circuit.
(1) "The Mississippi Supreme Court . . . held Thursday that a fetus is a "person" under state law and wrongful death claims can be filed on its behalf."
(4) If a teacher in California photographs the testicles of his students he only faces up to a year in jail. There had to be some problems with the prosecutor's case to settle for so little punishment.
If you steal a credit card - and use it at the same store you stole it from - at least check the name on the employee's tag before you hand her the card.
O.K., this is the third time these people have solicited me thru e-mail to become a "male escort." Flattering as that is - and as much as it proves they have not seen a picture of my short, round self - I think that's got to be against some federal law.
If she has already forged a number of documents, what makes you think your secretary won't turn on you if you try to help her create a story to help her from getting convicted?
PLEASE NOTE: This is entirely my opinion and has not been thoroughly researched. I am shooting from the hip here folks. DO NOT MISTAKE THIS FOR LEGAL ADVICE.
ethicalEsq? has noted SW VA Law Blog's post about the Wise county case I previously blogged about here. I've already opined as to the legal charges in my last post so I'll try to limit this one solely to ethics.
I think this article is misleading1. In Virginia, government actors must have a parent present to go forward on a prosecution in court. However, not even a State actor, such as law enforcement, needs permission to question a minor (e.g. Lee Boyd Malvo: 17 years old questioned without any guardian).
There is also what I would characterize as a strong presumption of competency in Virginia for any child 14 years of age; I've represented children with similar intellectual handicaps to the minor in the article and they were found competent under the laws of Virginia.
This is the law as it has evolved in Virginia. I have no delusions that it evolved in this manner in order to be Defense friendly - in fact, in most situations these laws ease the burden on law enforcement and make it almost impossible to keep a minor from facing his day in court.
With all of that said I think that, in Virginia, any minor older than 13 can be talked to by an attorney without the minor's guardian present and there is no legal bar to that interview. This takes a lot of wind out of the sails of any charge of ethical violations. If the Bar really wanted to pursue this I think it would have to shoehorn it in under the catch-all: Rule 8.4 "It is professional misconduct for a lawyer to: (b) Commit a . . . deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer." In my opinion that "reflection" would have to be as seen thru the eyes of the Defendant or the judge - not the prosecutor (or else lots of Defense attorneys are going be out of the Bar in quick order). I don't think the Defendant has anything to complain about here and a neutral judge shouldn't either.
Indeed, I think that it would probably be unethical not to talk to THE witness against your client (who is presumed competent) if she is willing to talk to you. I know that if someone were my attorney and she declined to talk to THE witness who was going to be used to hang me it would reflect badly on my trust of that attorney and I think both the client (me) and the judge would be right in questioning the fitness of that attorney.
Does this feel slimy? YES. But so do many things which a Defense attorney should do2. Most of the time this is because of the presumption that if someone is accused it means that the person must be guilty. It makes most any action taken to put forth a true defense for your client appear unclean to the general public. Take the following as examples: "How can he argue that the cocaine in the Defendant's closet was found thru an unconstitutional search and should be excluded?" "How can he stand in front of the jury and accuse the officer of tampering with the evidence?" "How can he question an underage witness without making sure her mother was there?" I daresay that a quick gut check militates against any of these because at a basic level we all believe that people should be punished for their crimes, police are honest, and children should be protected.
But what if we start from the perspective that the Defendant is entitled to a strong defense, is entitled to the same rights as the rest of us, and is innocent? How dare you not argue that a citizen should be protected from officers who forced their way into a house with a warrant to look for a rifle and searched until they found a rock of crack in the pocket of a coat in the closet? How dare you not sharply question the officer when evidence appeared in the Defendant's lunch bag and his mother will testify that she packed it (without any dope in the bag) and handed it to him as he walked out the door where he was immediately snatched by waiting police officers? How dare you not interview a 16 year old - who is presumed competent and is willing to talk to you - without the coercive influences of a parent, social worker, or police officer (who will influence her to stick to the story they have sold to her and will probably stop the interview if the girl starts telling the truth)?
Well, that's my view from the trenches. Will it be a popular view? No. But I think it is the proper one.
1 The article is also short and missing all sorts of information I would like to have to flesh out this discussion. Things like: How could the girl's mother, knowing what is supposed to have happened to her daughter, let her daughter go without supervision for the length of time all this took? Was the girl lured to the house or did she go over voluntarily? If she was lured, did the attorney have foreknowledge? I doubt she was lured because I think that would have resulted in abduction charges rather than obstruction - but I would still like more facts.
2 I say should because I believe the trend is to lower the ethical requirements by changing zealous representation to things such as "reasonable diligence."
Sorry it's not a better picture but the little squirt wouldn't stop squirming around so all the other pictures are blurry.
Momma and kitten are doing well. However, the dogs are confused. They keep hearing the kitten mewl and they want to investigate but momma has changed from a cat that always runs from them into a raging ball of fur and claws. I watched my 15 lb. cat drive off my 80 lb. lab and my 40 lb. mutt away before I could get across the room to fuss at them. The Lab stopped when the hiss came, stayed out of claw reach, and just looked scared. The smaller dog (not the brightest in the world) came forward and got absolutely swarmed. Momma tagged him at 3 times on the snout with full claw extension in less than 1/2 a second. He wasn't hurt but he backed off with a look of absolute shock. Needless to say, my house is now segregated into zones with closed doors between the cats and dogs.
Now back to your regularly scheduled criminal law . . .
(1) Governor Warner is going to make sure that no racial profiling exists. My experience has been that profiling does exist but it's more complex than being based on just color. You can be white, hispanic, asian, black or martian green and if you look like you are a staid, conservative, rich bank vice-president the officer is going to put a lot more thought into it before he pulls you over. On the other hand, if you are a young male or poor person of any shade . . .
(1) Smuggle your semen out of prison and you may continue your line but you'll spend a little longer in prison. Apparently this has happened FIVE TIMES at the same facility.
The problem with trying to cover up your laziness by stealing pig bacteria is that people probably aren't going to believe someone broke into a lab to steal pig bacteria.
(1) Two Pakistanis sneak into the country and try to buy a one-way ticket with no luggage; when questioned, one of them walks away from the ticket counter leaving $800 behind. The only thing the government can find to charge them with is illegal entry. One suspects these two gentlemen might be "material witnesses."1
In Iowa they are charging someone with a felony for shooting paintballs at people. Thank goodness I didn't grow up out there. While we didn't have paintball guns my brother and I had a grand old time shooting at each other with rubber pellets from our BB guns. We'd have been convicted for sure.
If you shoot somebody's dog the prosecutor should charge you with a felony. Animal cruelty's not the only one - you can also be charged with stealing a dog (a class 6 felony in Virginia).
Another Richmond councilperson in federal court. It will be interesting to see how this one turns out; it doesn't seem to be as easy a slam dunk as Saad was.
Sorry, no posting for today (at least until this evening). I didn't have the time to comb thru the web last night / this morning because I was building shelves at my office until about 10 p.m.1 When I got home my cat was having a kitten and that kept me awake until about 1 a.m. so I didn't rise at my traditional 4 a.m. And I'm about 10 minutes from leaving for court so nothing is going to be posted until at least 5 p.m.
1 One of the fun things about being a true solo practitioner is that I am my own maintenance guy, janitor, secretary, and I get to practice law on the side.
The charge isn't appropriate. To be convicted they would have had to stop the girl from testifying or tried to stop her from testifying thru threats or force. Of course, the reality is that in a number of jurisdictions this is a catch-all charge and some judges will convict people under it for almost anything. The local slang for it is misdemeanor pissing off the officer (felony pissing off the officer is formally known as felony assault on an officer - usually spitting or minor contact after you have spent the last hour making the officer's life a living hell).
I don't know about the rest of you but the lessons I learned from 9-11 go something like this:
(1) More field agents are needed so that reports of young Arab men learning to fly, but not land, planes are investigated rather than being lost in the static.
(2) Well known items, such as airplanes, which have often been used by terrorists in the past should be seriously protected.
(3) That, just maybe, our agents should be allowed to work with less than squeaky-clean individuals in their pursuit of evil men.
(4) That inter-service rivalries hindered the defense of our nation.
O.K. Quick pop quiz: What does any of that have to do with the laws which now allow law enforcement to look at which books I read at the library or sneak-and-peeks at citizens' homes?
(5) Because of the ill-considered statements of the prosecutor in the Malvo case interviews with numerous third parties have already been turned over in that case and most likely will be in the Muhammad case.
Southern Appeal has named me a member of the First Brigade. I'm sure he is refering to the Virginian First Brigade commanded by General Jackson. It is a great honor to be mentioned with such men. Unfortunately, it is an honor I must decline.
I guess he can leave me listed as 1st Brigade, just as long as we all realize which 1st Brigade he's refering to in my case.1
1 For those of you who are Yankees or from territories west of Texas don't even try to figure out why two Southern Gentlemen would quibble over such a point, even in jest. It's a Southern thing - you wouldn't understand (and if you try too hard your head might explode).
I've been watching the tapes the Eastern District of Virginia makes you watch before you can be on the court-appointed lawyers list. Most of it is pretty worthless because it is a tape of a CLE held sometime in the past and they don't give you the CLE's booklet (the most important item for the majority of CLE's). Like most CLE's the majority of speakers are well practiced individuals who say things like: "as we all know from the Grtycinszky case and rule 55b we can't raise certain objections at trial and I've spelled all this out in my outline on page 189." Then there is the full third of the tapes (all 12 hours) which go something like this: "Questions? Yes Mr. Smith?" This is followed by a 5 minute lecture/question which I cannot hear because there is no microphone anywhere but at the dais; it is reminiscent of the old Peanuts cartoons where all you hear from the adults is Waa, waa, wa, waaaaah. Then the lecturer says something to the effect of "Yes, you are absolutely right and if you apply those cases in the manner you suggest you will master the practice of federal law."
I've really only gotten 3 things from the tape:
(A) A judge stood at the dais and told the attorneys how he and the other attorneys who had been tapped to become federal judges were absolutely shocked at the straight-jacket the federal sentencing guidelines put the judges in. He admitted this was because very few of them had ever practiced criminal law - it's such a comforting thought that few federal trial judges have criminal experience (and I'm sure the majority who do have been prosecutors). If so few trial judges have the relevant experience one must wonder about the experiences of those with enough political pull to become appellate judges. Not that the trial judges do a poor job with what little they have left to do.
(B) Another judge stood at the dais and told how he and a large number of judges found the guidelines unconstitutional when they were first imposed and how he still believes they are unconstitutional even though he must follow the contrary ruling from the federal supreme court.
(C) A well respected local trial attorney laid out the rules for playing the "Federal Defense Game" in E.D. Va:
The Federal Defense Game (as played in the Eastern District of Virginia):
Rules:
(1) Prosecutor you can charge whatever you want; Defense, your client must plead to the greatest charge
(2) Prosecutor, you can take as long as you like to prepare your case - you can take as long as 20 years if you like; Defendant, you have between 30-70 days to be ready for trial.
(3) Prosecutor, you can bribe witnesses by giving them their freedom: you can give them a 5k1, you can decide not to prosecute them at all, you can decide what to prosecute them on, and you have all the discretion as to how much time you take off or recommend to the court they take off; Defendant, if you so much as speak kindly to a witness it will be suggested that you have influenced them in some way.
(4) Defendant, if you go to trial you lose "acceptance of responsibility" and if you do not plead guilty 10 days prior the prosecutor will oppose you getting the 1 extra point award-able for "acceptance of responsibility."
(5) Prosecutor, you get to set out plea agreements in which you get all the discretion; Defendant you get no discretion and must cooperate as much as the prosecutor desires. These plea agreements will keep the Defendant from appealing any upward departures but allow the prosecutor to appeal any downward departures.
(6) If you go to trial, Defense, we will never, ever let your client cooperate (thus no lesser sentence) even if he can solve the Kennedy assassination.
(General Overarching Rule, by which all others must be interpreted) Not only shouldn't you play, but if you decide to play you better agree to lose and you better agree to lose early or we take our 5k and go home.
(7) And as a final bonus, if you do go to trial, lose and have a salient and powerful appeal point which should vindicate your client - you get to go to the 4th Circuit.
Lovely. When I first set out to begin practice in the federal courts I was drawn by the higher pay and the prestige associated with such a practice. Now I find myself wondering whether I want to associate with anything which is so obviously unconscionable.
Addendum:
Well, I just reread that last statement this morning and I think I probably need to get over myself. As much as anything, I think my hesitancy to practice in the federal courts is probably based on the fact that I don't want to go back to being a "baby" lawyer again. I've been working in the Virginia system long enough that I know most all the rules and don't make too many stupid mistakes anymore. I really do not look forward to going into court once again as the guy who's going to do something stupid because I don't know the system well enough. However, I cannot justify not entering federal practice because of that so I suspect sometime in the near future you'll all being reading about my adventures in the Richmond division of the Eastern District.
In the 10th Circuit you can tell people you are violating constitutional rights and if they react in a manner which reflects an expectation that they are going to have their rights violated then you can arrest them for their actions.
(3) Puerto Rican prosecutors are considering whether to retry the men found not guilty in the federal death penalty case. The general thought is that one of the reasons - if not THE REASON - for the verdict is that the jury reacted to the Justice Department's treading upon Puerto Rico's sovereignty and it's populace's strongly held anti-death penalty feelings.
(5) If you throw the body of a white woman off a bridge in Korea - in front of the police - you will get caught.
(6) Kaczynski wants his bombs back "for the sake of posterity." And just exactly why do I want my grandkids to have even a shadow of a memory of this man?
(11) We don't have enough money to pay for an adequate Defense - therefore, you are doing a great job representing your client in his multiple murder charges. In other words: you took the case now decide between whether if you are going to do an appropriate job in defending him by paying out of your own pocket and going broke or if you are going to let the trial be a sham so that you can keep paying your employees and your mortgage. No wonder the attorney has already tried to remove this judge.
(2) An article describing the unhappiness (and resignations) of conservative judges over how draconian the guidleines are.
(3) An article describing how prosecutors are attempting to invalidate statutes of limitations by filing "John Doe" indictments without knowing who the suspect even is (they are filing it by using an item of evidence and claiming it for identification: DNA). Just imagine getting a client 20 years later on a cold DNA hit and trying to put together evidence. It's a nightmare. Of course, since we don't have felony statutes of limitations in Virginia it's a nightmare every attorney faces here once in a while (although the furthest back I've had has been 8 years).
Someone please do this and come to me to defend you. You'll go to jail but I'll have a great war story (and I won't even charge a fee for the court appearance).
Woman: Is there a problem, Officer? Officer: Ma'am, you were speeding. Woman: Oh, I see. Officer: Can I see your license please? Woman: I'd give it to you but I don't have one. Officer: Don't have one? Woman: Lost it 4 times for drunk driving. Officer: I see...Can I see your vehicle registration papers please. Woman: I can't do that. Officer: Why not? Woman: I stole this car. Officer: Stole it? Woman: Yes, and I killed and hacked up the owner. Officer: You what? Woman: His body parts are in plastic bags in the trunk if you want to see.
The Officer looks at the woman and slowly backs away to his car and calls for back up. Within minutes 5 police cars circle the car. A senior officer slowly approaches the car, clasping his half drawn gun. Officer2: Ma'am, could you step out of your vehicle please! The woman steps out of her vehicle. Woman: Is there a problem sir? Officer2: One of my officers told me that you have stolen this car and murdered the owner. Woman: Murdered the owner? Officer2: Yes, could you please open the trunk of your car, please. The woman opens the trunk, revealing nothing but an empty trunk. Officer2: Is this your car, ma'am? Woman: Yes, here are the registration papers. The officer is quite stunned. Officer2: One of my officers claims that you do not have a driving license. The woman digs into her handbag and pulls out a clutch purse and hands it to the officer. The officer snaps opens the clutch purse and examines the license. He looks quite puzzled. Officer2: Thank you ma'am, one of my officers told me you didn't have a license, that you stole this car, and that you murdered and hacked up the owner. Woman: Bet you the lying skunk told you I was speeding, too.
(1) In Alexandria a federal prosecutor's office looks to be in trouble - evidence which had been excluded made it into the jury room and was dispositive to the outcome of the case. No one seems to know how. It would be ridiculous to suggest that the Defense somehow planted the evidence which condemned its own client and "accident" just doesn't seem to pass the red-face test. Andthe judge is not happy.
(2) A prosecutor in Iowa has adopted the Allstate method in negotiating pleas. Nothing necessarily illegal or unconstitutional about that although this statement is "disingenuous":
"[The prosecutor] dismissed complaints that the plea policy prohibits defense attorneys from properly investigating cases. Good lawyers can learn what they need to learn by talking to the defendant, he said. It doesn't take months of depositions or courtroom debates.
Yeah, I know what the circumstances are. I know that I'm not going to know what the putative reason for the pretext stop was in a majority of the cases until I have a preliminary hearing and tape it or I get discovery telling me on paper the reason. I know my client isn't going to have a clue as to what's on the affidavit or search warrant or what all was taken out of his house after he had been arrested. I know that I don't know how citizens are going to testify at trial: they may not be able - or willing - to identify my client.
Early deals swing both ways. Unless the prosecutor has been involved in the investigation personally he doesn't know if the evidence will shake out the way it appears in the police report; usually it will but I'm sure that all you prosecutors out there can remember a nasty surprise or two. On the other hand, the Defense attorney often starts out with little more knowledge than the mandatory sentence and how much less time would be served thru the offer. I cannot recount the number of clients who've said something to the effect of: "Man, I was so messed up that night that I don't remember anything but the cop hitting me with his baton on the side of the road. How'd I get in Chesterfield County, anyway?" (like I'd know) So both sides are stumbling around in the dark prior to anything going forward. Deals at this point are mainly guesses.
I find it interesting that the Bar in Iowa refused to consider whether this prosecutor's actions would be unethical. Perhaps someone out there should refer this to ethicalEsq? for further analysis.
In Iowa you can tell the judge that you are going to break the law in exactly the same way you did before, tell him you are willing to go to jail, and still only get a $200 fine.
(1) The officers who taped the anti-war marches in San Fran are going to get a slap on the wrist. Why, exactly, is it wrong to tape people walking down a public street with no expectation of privacy? I understand if it's in a building or maybe even a couple guys huddled in an alley but as people march down the street?
(2) The police in Hooper Bay, Alaska want to carry guns - the town council says NO. As a quick note - the case which is cited as a reason for carrying pistols can just as easily be seen in this light: Officer arrives, citizen attacks and chokes officer to unconciousness, citizen takes gun and becomes 100 times more dangerous. This is not a good case to cite if you are trying to give a good reason for carrying pistols.
Yes, CLE's are pesky and, in general, really don't help your practice as much as actually being in court does. However, if you don't go your license will be taken away - even if you are out there fighting the good fight.
Just out of curiosity, if anyone out there is from L.A., is the courthouse in this article actually in an airport?
An attorney has been turned away from the federal penetentiary numerous times because she wears clothes that are too provocative. The article describes her latest outfit as an almost knee length dress which buttons up the middle. Since that's a little vague and I'm not an expert on women's fashions, I'm not sure how close we are to Ally McBeal here. However, I disagree with the assertion that dress codes, searches, etc. should be different for attorneys than regular visitors1.
From the prison's spokesperson:
"If you came and observed some of the women who come through here ... ," she added, her voice trailing off, "I don't even have to say anything. Sometimes I say to myself, 'Oh, my God, that woman, can she breath?' "
Been there, seen that. Visitation time at a jail is an amazing thing. Women show up dressed in some of the most revealing clothes you've ever seen (outside Victoria's Secret). Most jails seem to deal with this by having a female guard at the front desk sending them away if they don't make the dress code (and it's amazing how many of them actually have a change of clothes out in the car when they are rejected). The smarter visitors show up in clothes which comply with the dress code but are skin tight and they seem to get away with that more often. Being the evil, male chauvinist pig that I am, I haven't noticed if there are similar trends among male visitors.
1 Yes, I know they are all annoying but I'm sure those of us who practice day-in-and -day-out have all heard tales from our clients about how an attorney is breaking the rules for the client's cellmate because they are romantically involved.
Training hair stylists to look for domestic abuse. On one hand I think these people probably do hear more about that kind of stuff than many others; on the other hand, I'm not too thrilled by anyone being trained to be a snitch.
Now that's a burrito: "The recipe included one bottle of red Irish beer, 1 1/2 cups of tequila and three-quarters of a bottle of dark ale." No wonder the guy blew hot on the breath test.
(4) The PATRIOT Act has become so unpopular that Ashcroft is going to go on a tour supporting it. Can't imagine why people would be upset about the government monitoring to make sure they are reading acceptable materials from bookstores or libraries. And why would people become upset about hidden warrants and sneak and peeks? I mean, come on folks, aren't you willing to give up your "essential liberty for temporary security?"
(5) As a Muslim faced with "3,066 counts of accessory to murder and membership in a terrorist organization" what can you do? Hire a female, Jewish attorney. As an interesting note: participating in the murder of over 3,000 people carries a MAXIMUM of 15 years imprisonment in Germany.
(3) The Virginia State Troopers have spiffy Camaros which go from 0 to 100 mph in 13 seconds. Being a consumate professional, I'm sure the trooper figured this out in a training atmosphere and he wasn't in the one that blew past me a couple days ago like I was standing still (with no lights or siren).
(1) I'm SHOCKED!! Shocked, I say! I would have never thought that the homeless guy begging on the corner would eat where free food is handed out and spend the money given him by the saps, er. . . I mean kind people, on drugs. Never in a thousand years.
The ABA has decided that you "may" break attorney-client privilige and report a client to keep them from committing fraud if you believe (not KNOW) the fraud will occur.
In other words, if you work in the corporate sphere you better turn on your client pretty quickly or you can face lawsuits from stockholders because you didn't.
Roused from his sleep by the sound of gunfire about 4:30 a.m. Friday, the 67-year-old Gates took up his 12-gauge Browning automatic shotgun, stepped out onto his front porch and fired three blasts at men he said were drug dealers having a shootout in his front yard.
. . .
Gates said he heard his wife yell and fall to the floor.
Matt's note covered it pretty well. My only comment is that I'm not at all convinced that the man will ever see his guns again. My experience has been that when police take guns from people they are not returned. Even if the charge or potential charge is much weaker than this one, a condition of the charge not going forward is abandonment of the guns by their owner.
However, I suspect that Mr. Gates has probably already bought a new firearm:
[Mr. Gates] vows that he will be ready if friends of the three men try to retaliate, and he smiled as he said he planned to acquire a gun to protect himself.
"They better make sure they get me if they come back, because if they don't get me, I'm going to kill all of them," Gates said. "I'm 67 and don't have that long to live anyway."
Y'know, if we had more of this happening (without prosecution of the citizen) I bet the crime rate would drop dramatically.
1 Sorry I took a while to reply - this week's been a little nuts and work takes priority (no one goes to jail if I don't post or answer e-mail for a couple days).
A very successful lawyer parked his brand new BMW in front of the office, ready to show it off to his colleagues. As he got out, a truck came along, too close to the curb, and completely tore off the driver's door of the BMW.
He immediately grabbed his mobile phone, dialed 911, and it wasn't more than 5 minutes before a policeman pulled up.
Before the cop had a chance to ask any questions, the lawyer started screaming hysterically telling the officer that his BMW, which he had just picked up the day before, was now completely ruined and would never be the same, no matter how the body shop tried to make it new again.
After the lawyer finally wound down from his rant, the cop shook his head in disgust and disbelief. "I can't believe how materialistic you lawyers are,"he said. "You are so focused on your possessions that you neglect the most important things in life."
"How can you say such a thing?" asked the lawyer.
The cop replied, "Good Grief, don't you even realize that your left arm is missing? It got ripped off when the truck hit you!!!"
What, you ask, does that have to do with the accusation of murder? The prosecution is going to try and sell the jury on the idea that the wife found the stuff on the computer and then confronted her husband and then he killed her. The problem is that it appears as though there is absolutely no evidence that the wife ever knew about any of this stuff. Sounds like built in grounds for winning an appeal to me.
(1) The lawyers who will represent the man accused of killing Officer Wendel will be represented by John Boatwright, Thomas L. Johnson Jr., and Matt Geary. Hard to get better representantion than that.
(2) In Norfolk they are charging a 55 year old woman with murder because her 78 year old father (with whom she did not live) died of starvation/dehydration. Basically, from what I can tell from the article the accusation is that she should have been monitoring him despite the fact that they were both adults.
Because, immediately after I declared that one of my two undergraduate majors was Religion the Commonwealth of Kentucky yanked all State funding from my education (yes, Kentucky has a Blaine amendment). So, while I was translating passages from the Quran and the Hebrew Testament and comparing the common basis of Islam and Judaism in Abraham (all the while remaining CATHOLIC) the State refused me any funds because I was being religious. Luckily, my school picked up the slack thru private funds.
These laws can almost all be traced back to the Blaine amendments and are blatantly unconstitutional. Note how, at the end of the article, it points out that the ACLU's local chapter thinks it's just fine to single out religion for non-funding despite that pesky first amendment. How would it react if the State refused to fund anyone announcing a Women's Studies, African-American Studies, or Lesbian, Gay, and Bisexual Studies major? I think we all know the answer to that question.
Lee Pickton, charged with kidnapping, told a jury that if he and his mates had been beating somebody up "they would be dead". He went on to admit he had nine previous convictions for burglary, theft, drink driving, assault and harassment. On each occasion he had pleaded guilty, and he said that therefore he would have "owned up" had he been responsible for the attack on Nicholas Wilsonham.
Every defense lawyer hears the words "I've always admitted to the crimes I did and if I did this one I'd admit to it." Sometimes the client is even speaking the truth. But it's not something that you expect to put in front of a jury. The argument "I was guilty the last eight times but this time I'm innocent just doesn't sit well with your average citizen."
The proposed change to the 21 day rule will allow those who are actually innocent and pled not guilty to submit to the appeals court proof of innocence.
Gotta agree with the editorial that not allowing those who are actually innocentbutwho pled guilty or "nolo contendere" to submit to the court of appeals is a terrible idea.
Your in the United States and you are French. This means your people have a reputation for being rude and haughty. It also means that most Americans are still pissed at your country for the games played before the invasion of Iraq.
(1) I walk into a prosecutor's office yesterday and the first words out of his mouth are "It's Ken 'The Hammer' Lammers!" I've always suspected that prosecutors could read. ; -) Now I've got to go back and delete all the nasty stuff I said about Bob and Dicky.
(2) I've been linked by the Law Society of Fitzwilliam College of the University of Cambridge. All of the sudden I feel all important and full of myself. Cambridge, for those of us on this side of the Atlantic, is one of those very old, very prestigious universities1 (or at least it is going to be when I brag to my buddies).
1 As I remember it, Cambridge is old enough to give Harvard an inferiority complex but not quite as old as Al-Azhar.
(1) The ABA is has already endorsed homosexual adoption. Now, it will vote on adoption by a homosexual couple. Does anyone doubt what the result will be? This, of course, is a precursor to endorsement of homosexual marriage. Hmmm . . . Faced with a choice between the Church and the ABA I suspect my choice would be pretty obvious.
(2) The ABA is seriously contemplating rules to require lawyers to turn on their clients. Ethics, in general, require you to tell authorities if your client is going to break the law in the future. But part of this appears to be set up so that if "trigger" events occur a lawyer is required to report his client. That sounds suspiciously like saying "if you find out your client falsified a report last year you must report it even if nothing illegal is going on now or is contemplated."
For a while I joined the ABA - free membership - and gained absolutely nothing but a monthly magazine. It is notorious for taking moral positions which freeze out anyone who might be remotely conservative1 and, as evidenced by (2), isn't exactly sticking up for us. Both are pretty massive failures for an organization which wants to represent all the U.S. lawyers.
1 Of course, the question you must ask yourself is why an organization which is supposed to represent the interests of all lawyers would enter the realm of pushing any moral position - much less one which is clearly contrary to the beliefs of at least a significant minority of lawyers.
(1) Can there be any doubt that someone who opened fire on a Sheriff's department from the parking lot was committing suicide-by-cop?
(2) Accusations and counter-accusations in the Lentz case. Defense attorneys find out that inadmissible evidence, supposedly only in the custody of the prosecutor, made it into the jury room. Prosecutors, in turn, accuse the Defense attorneys of improper conduct for speaking to jury members after the trial. Not exactly a resounding rejoinder.
(1) Police can flood a courtroom and stand in the hall so that jurors have to walk past them to get into the courtroom. Still, it's not prejudicial because a jury might think that each and every single one of them was going to be called as a witness. And the jury might also think they were mirages or that they were newspaper men who diguised themselves in uniforms so they would have a better chance of getting into court so they could get a story.
This reads an awful lot like an appellate court covering for an obvious mistake on the trial court's part. The shame of it is, the facts of the case almost certainly would have led to the same result if the judge had done the right thing1.
(2) Here's an officer who can't be shut up. And he's gonna keep getting paid if they keep trying.
(3) What happens in England when you are having a watergun fight and you hit a passing police officer thru an open window in his car? You get maced. Ouch! Just imagine what must happen over there if you throw snowballs at school buses.
1 I am not saying that the police should not have been allowed to attend. They are citizens just like everybody else and should be allowed to attend an open trial they are interested in. However, the judge should have disallowed a large uniformed presence during the trial.
(2) A Marine cut the lines on a number of parachutes so that they failed when used because he was angry with his Lt. By the Grace of God nobody died. The truly disturbing part is that after such a betrayal the Marine Corps cut a deal with this guy.
A woman disappears 16 years ago, kidnapping her two daughters. Supposedly, she is living underground with some unnamed group. When finally found during a traffic stop, she is using an alias and has several aliases on her record.
And the judge, in his infinite wisdom, gives her bond. Think she'll show up for her trial?
If your attorney takes $5,000, has a bogus hearing, lies to you about your ability to appeal and generally just scr#ws you over it tolls the statute of limitation for your habeus in the 2d Circuit.
Your locality started using cameras to take pictures of cars running red lights. Your local officials swear that they aren't doing it to raise revenues. It's purely a safety issue. Still, your natural paranoia leaves you with nagging doubts - especially when all the lights change from a 5 second yellow to a 3 second yellow at the same time the cameras are installed.
The good news is that Richmond doesn't have nationally affiliated gangs. The bad news is that the reason there aren't any national gangs is because the local gangs are strong enough to kill them off.
Does anyone alse find this definition a little disturbing? "[P]olice stressed that gangs can be anything from organized criminal enterprises that get rich from running drugs or guns to a tiny group of juveniles who conspire to rob other children of their lunch money."
Somehow, I just never put the crips on the same level as a couple of third grade bullies.
Why am I linking to a story about vultures? Because they remind me of law school. Back at good old W&L every year, just before Fall finals, flocks of vultures would appear and begin circling around the school (I kid you not). I always took that as a bad sign.
Remember all those rumors about the glee in prosecutors' offices about the "anti-terrorism" statutes? Remember the rumors that prosecution conferences were talking about how the new "anti-terrorism" laws were going to fill the gaps in the law which had been keeping those evil criminals from getting the punishment they deserve?
In North Carolina a prosecutor is abusing the law because he doesn't like the punishment which is set for those manufacturing methamphetamines. Instead of charging the appropriate crime, he's charging the Defendants with manufacturing a nuclear or chemical weapon1for the sole purpose of increasing the punishment range.
All we can hope is that he runs into a judge who has the sense to stop this silliness.
1 Because, as we all know, the human body's reaction to meth is just the same as it is to mustard gas, nerve agents, and/or blood agents. Right?
I can see it now; every secretary who's upset with her boss will start calling and telling the FBI that that "business lunch" last Thursday was actually the boss taking his girlfriend to dinner.
Sorry posting is light tonight but it's been a long day, capped off with a wonderful trip 1+ hours to a regional jail, a hour delivering bad news to my client (stiff sentencing reccomendation), and another 1+ hours back. Somebody needs to pass a law requiring counties to keep their prisoners in the county.
Hopefully my creative juices will return tomorrow.
And then when the trial judge looks at you like you're stoned, crazy, or - worst of all - a smart-@ss defense lawyer from the city who doesn't know that we don't put up with that kind of stupidity in this county, do you object to the fact that he hasn't ruled on your objection relating to the objection? And then, as you are being dragged off to jail for contempt, do you object to the fact that he hasn't ruled on the objection relating to the objection relating to the objection?
FYI: If I am not noticing that you have written something about me or my site or that you have blogrolled me I apologize. Technorati seems to have gone haywire so I'm not getting the info I was previously.
(2) Freespace talks about how I'm doing hard and noble work. The work may be noble but I make no claim as to myself.
(3) The Curmudgeonly Clerk comments further on my short statement on the attorney who had "sexual contact" with her client in jail.
I've seen arguments on both sides of whether you can have sex with a client and was pretty sure that the Bar looks askance at it (although I thought there was no specific rule) so I went back thru the VSB online disciplinary records. I found a number of records where sex was a part of the reason for suspension. An example:
February 22, 2000
"LAWYER A"
VSB Docket No. 98-010-1787
The Virginia State Bar Disciplinary Board suspended LAWYER A's license to practice law in the Commonwealth of Virginia for two (2) years effective February 18, 2000. The Disciplinary Board found that beginning in the fall of 1997, "LAWYER A" engaged in a prolonged sexual relationship with a client, whom he also employed in his law office after the establishment of an attorney-client relationship. He also engaged in inappropriate conduct of a sexual nature with another client, and engaged in acts of sexual harassment of a third woman, who was also employed in his law office. Respondent also failed to maintain any trust accounts in accordance with the mandatory record keeping requirements pertaining thereto, albeit without any financial loss to any client.
And I found one where the specific reason for disciplinary action was sex:
November 1, 1999
"LAWYER B"
VSB Docket No. 97-060-1365
On October 27, 1999, the Disciplinary Board imposed a Public Reprimand against the Respondent, LAWYER B, after accepting an Agreed Disposition between LAWYER B and the Bar. During 1996, LAWYER B engaged in a consensual, sexual relationship with a client, whom he was representing at the time in a divorce case. The client's divorce proceedings involved issues of child custody, child support, spousal support and division of marital property. Mitigating factors included the fact that the client was not harmed in her divorce proceedings by her sexual relationship with LAWYER B and he handled her divorce case in an expeditious manner. Moreover, LAWYER B had no prior disciplinary record. The Board found that LAWYER B had violated Disciplinary Rules 1-102(A)(3) and 5-101(A).
I didn't put either lawyer's name as a courtesy; both may be currently practicing. However, if you want to go look these cases up they are at the VSB web site.
Personally, I draw the line at clients. Too many of my clients are manipulative and the ones that aren't are usually in a vulnerable state so that it would be improper to do anything. Either way, wouldn't it be just wonderful if the client called the Bar and told them that you had led her to believe you'd make sure she would win if she had sex with you?
(5) A terrifying standard which we must keep away from the 4th Circuit and the Virginia Courts Appellate at all costs. I can just see it now: "Defendant, by not barricading his door and standing with his shoulder braced into the door to push back when the police broke it in at 4:30 a.m., obviously waived his 4th Amendment rights. Just because he was asleep does not mean that the constitutional standard should be lowered; one cannot sleep on one's rights and only assert them at convenient times."
(6) Lex Communis comments on my post on jury selection and religion. Sounds like he practices in front of some rough judges. "My son is the Defendant's best friend" gets that person off the jury everywhere I practice.
BTW: I think Darrow was deadly serious when he made the jury selection comments.
(3) A juvenile judge is going to take 8 weeks to decided whether a murder case should go to Circuit Court or not. Not sure why he needs that much time.
(1) A judge in NY is trying to take car of a massive backlog of habeus cases. He even volunteered for the job. Must be some sort of masochist. the article cites four cases wherein an attorney wrote the motion but "jailhouse lawyers" sit and manufacture these motions day in and day out (when they're not doing 1983 motions). On some - very rare - occasions these make sense and might actually point toward a valid legal point (Gideon). More often pro se motions are ramblings by a man who has nothing better to do during his years in prison, written in broken English, and consisting of little more than claims that (a) my lawyer is an incompetent boob and (2) the prosecutor and his witnesses lied about me.1
(2) The NYTimes is upset with the fact that more people are going to jail for longer periods of time in a period when crime is on the decline (can you say cause and effect boys and girls? I knew you could). Likewise, the Tennessean tells us that the University of Tennessee is going to see less funding because so many people are going to prison (not dang likely, they'll stop feeding the prisoners before they stop funding UT).
(3) On the other hand, if you really want to save money while you wharehouse your inmates you could send them to Virginia:
New Mexico? Hawaii? It must be as expensive as all get out to store people on that island if they are shipping them this far away.
1 To my knowledge, and by the Grace of God, no one has yet habeused me. However, a number of clients have written pro se motions to the judge or letters which follow this pattern (usually it's the drop dead guilty guy who is upset that I couldn't exclude his pants which are covered in paint from the dye pack or keep the three nuns who saw him run out of the bank from testifying).
(1) Can't get the Defendant to talk to your reporter? Send in the young pretty intern to talk with him. Make sure that the talk is in no way recorded so that you can deny that she lied in order to get the story. Then use what she remembers for some nice, juicy quotes in your paper.
(2) More screwy evidence piled on in the NC Peterson murder trial. It's just not coming together and huge portions of evidence seem to be getting destroyed by the Defense. Unless the prosecutor has an ace which he hasn't played yet all I can see is that he is piling on suspicious items, hoping the jury will think something happened and not be willing to let a possible murderer go free. Will it work? I don't know. At least one prosecutor has sworn to me that it is gospel among those on the other side of the bar that jurors don't like to let people who might have committed murder go free and therefore, the burden of proof dips lower in murder cases. Not sure I believe that (I know I don't want to). I would hope that jurors would hold prosecutors to a higher standard in murder cases than anywhere else.
(4) In the Scott Peterson case the media has filed suit to try and make the court keep the preliminary hearing open to the public and especially the media:
It's touching to see the media so concerned with the rights of Scott Peterson; I'm sure the desire to be in the courtroom couldn't possibly be about anything as crass newspaper sales or ratings.
The only problem? The Defense doesn't want media in the courtroom.
Bet $60,000 which you don't have, while you are working at a legal betting parlor, and you will go to jail when you lose (at least he was bright enough not to bet with some guy named Guido).
In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts probably don't even operate as described herein. In fact - just in case someone is stoned enough to start quoting this blawg as authority to a judge - It is hereby stated that everything in this blog is pure fiction.
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